The DNA Technology Bill – Being ‘finnicky’ about the future

Karan Vijay

45LLB16

Summarising the Bill

The DNA Technology (Use and Application) Regulation Bill, 2018 DNA Technology (Use and
Application) Regulation Bill, 2018 was introduced to create a National Genetic database1 that will
assist the police in apprehending suspects and identify missing persons. 2 While the bill was tabled
3
by the law commission when there was no recognised right to privacy, the bill does carry
safeguards in it, which are extremely necessary when dealing with genetic information of people.

The bill mandates that the DNA shall only be used for facilitating identification of the person and
nothing else,4 and moreover, the identity of a person will not be stored in any other indexes apart
from the suspects and offenders index.5 The same name and profiles of such suspects or under
trial detainees can also be removed from the indices through court orders.6

The bill, while prioritising consent provides that in case a suspect, under trial or even any relative’s
DNA is vital for investigation, the same can be obtained at the approval of a magistrate. Despite
the best efforts of the government to safeguard the interests and presumptive privacy of people,
even imposing a prison sentence on the unauthorised access of the data,7 it creates a super-
structure where the Data Bank housing all the genetic data, grants the power to the centre of
subjecting all the individuals within, to a fear of perpetual exposure – creating a genetic panopticon.

1Section 25, The DNA Technology (Use and Application) Regulation Bill, 2018 (Introduced in Lok Sabha
9/8/2018) <Hereinafter, DNA Bill>.
2 Section 26, DNA Bill.
3271st Law Commission of India Report, Human DNA Profiling – A draft Bill for the Use and Regulation of DNA-
Based Technology, 40 (2017), available at <http://lawcommissionofindia.nic.in/reports/Report271.pdf>
4 Section 33, DNA Bill.
5 Section 26(2)(b), DNA Bill.
6 Section 31(2), DNA Bill.
7 Section 45, DNA Bill.
The Panopticon

The problem is not the panopticon. The problem is not in the concept but in the idea that who all
can be put into these ‘genetic prison holes,’ no matter the duration. It is stated directly in the bill
that DNA of the relatives of the missing persons can be taken,8 even without their consent for the
purposes of the investigation and identification.9 An inference can also be drawn from Section
2(iv)(d) that for the purposes of investigation of a crime scene, a relative(s)’ DNA can be called
upon.10 The power to record such data in itself grants the centre immense power over vulnerable
populations.

Section 29 of the bill provides a safeguard that If a person is not an offender, suspect or under
trial, his/her DNA information cannot be matched with the offenders’ or suspect index, can be
bypassed with relative ease. A genetic gentrification is even more probable when DNA collected
by state funded departments aims to attach caste and places of origin to every sample taken.11

Alternatively, in the near future, when the conceptualised databank flourishes with profiles, such
power can help the authorities to further its institutional and political biases in their investigations
against the most vulnerable communities. In vulnerable communities, where due to a higher crime
rate, people are rampantly booked as suspects and profiled.12 Many of them may not be educated
enough will not even know what the cheek swab entailed, much less write an application to the
National Data Bank Director13 to have their records expunged.

Being in the registry does not strictly put the person in the genetic panopticon envisaged. The
element that is needed is the fear of perpetual exposure and identification. This will happen when
what the Americans term as ‘familial searching’14 is conducted and this is the contentious aspect
of the bill, that can put relatives, nay, entire communities of the interested persons within the
panopticon, who do not fulfil the strictly legal criteria but are genetically linked to it.

8 Section 2(xvi)(c), DNA Bill.

9 Section 23(2)(b) Proviso, DNA Bill.
10 Section 2(iv)(d), DNA Bill.
11Four Reasons Why India’s Controversial DNA Bill Should Be Sent to a Standing Committee, The Wire (25/7/2018),
available at < https://thewire.in/government/dna-profiling-bill-parliament>.
12Henry T. Greely, Family Ties: The Use of DNA Offender Databases to Catch Offenders' Kin, 34 J.L. Med. & Ethics 248,
258.; James Randerson, DNA of 37% of black men held by police, The guardian (5/1/2006), available at
<https://www.theguardian.com/world/2006/jan/05/race.ukcrime>
13 Section 31(3), DNA Bill.
14 Erin Murphy, Relative doubt: familial searches of DNA databases. Michigan Law Review, 291, 297.
How does Familial Searching work?

In actual investigations, there may be times when the exact match of the DNA obtained at the
crime scene or is believed to belong to an unidentified suspect. The police, then, can reduce the
strictness of their search to ascertain individuals having some but not all those genes, i.e., relatives
of the unidentified suspect. This creates a situation where all the relatives of this unidentified
suspect will themselves become suspects. This term assumes that all these relatives are already on
the databases and will show up again, and thus, borrows from the idea and empirical evidence of
the authorities’ treatment of the vulnerable population and their DNA.15

DNA profiling has long been in use in the United States, and the Supreme Court there too, have
held that the State law prohibited familial searching in Maryland v King, the judgment which upheld
an officer’s power to take the detainee’s DNA, as it is similar to photographing and fingerprinting
them.16 However, Courts and Academics have been unable to express this as a violation of
privacy.17 It is because familial searching involves no actual and physical intrusion of privacy. While
it does reveal private restricted information to the current investigators of the relatives, what it
merely entails are merely using and searching through an existing database, accessing files.

Picking our fights naturally

Now, the background of the contention of familial searching and expanding the panopticon has
been put forward, the paper will now proceed to evaluate that contention from a natural law
perspective of John Finnis. I intend to ask that whether this DNA Technology Bill will still remain
a good law? Finnis states that laws that are not formulated according to the five key features of
law not(i), are not in consonance with his idea of rule of law(ii), and does not meet the requirements
will be a bad or unjust law.18

I shall analyse the bill at the anvil of these two highlighted finnisian elements of a good law. The
analysis shall also be from a future point of view, considering the bill as an already enforced
legislation which has led to the consequences I have outlined above. This will help me to align the
contentions I have raised the bill can contain with the following analysis.

Familial DNA puts elusive killers behind bars. But only 12 states use it, NBC News (28/4/2018) available at,
15

<https://www.nbcnews.com/news/us-news/familial-dna-puts-elusive-killers-behind-bars-only-12-states-n869711>
16 Maryland v. King, 133 S. Ct. 1958.
17 J Skopek, Reasonable expectations of anonymity, Virginia Law Review, 291,732.
18 John Finnis, Natural Law and Natural Rights 125 (1st ed., OUP 1980).
What is Law?

Before I elaborate on the five features, it is essential that we define law how Finnis saw it to be. In
his seminal work Natural Law and Natural Rights, Finnis defined what me meant by the term ‘law’
twice.19 In his first definition, the emphasis was on providing ‘comprehensive and supreme
direction for human behaviour’ and to validate the arrangements people made amongst
themselves.20

It was the second definition which provides more context and specifics as to what Law instantiates.
It basically suggests that laws are rules made for a one whole community with an aim to reasonably
resolve any of the community’s co-ordination problems over the human goods and for the
common good of that community.21 Some other aspects of these rules are that it should be specific,
minimise any form of arbitrariness, and maintains the quality of relationship between the people
themselves and between the people and the Lawmakers.22

With this definition of law, Finnis lays down his five features of a legal System. 23Briefly put, they
state that laws should be predictable and clear, regulate institutions, provides rules for termination
of such institutions, having precedents, and finally, all problems of coordination in the law are
looked after by the above mentioned four features.

Viewing the Bill as an act with all those consequences at an instant disqualifies this act under Finnis’
definition of law. A law exists to solve the coordination problems when a community undertakes
community wide actions for the good of the community. The Act24 was intended to assist the
community wide action of investigation (of both crimes and of missing persons) for the common
good of the community.

The coordination problems are effectively being met by the act but the common good is severely
impacted by the panopticon created over the vulnerable society. An entire sect lives in a horror of
being categorised as suspects and under perpetual fear of exposure. The basic human goods that
apply to all25 such as life, sociability and play26 is being objectively denied to them.

19 Ibid 261,276.
20 Ibid 261.
21 Ibid 276.
22 Ibid 276.
23 Ibid 266.
24 Referring to the DNA Technology Bill from a future perspective.
25 John Finnis, Natural Law and Natural Rights 125 (1st ed., OUP 1980).
26 Ibid 86.
The law should minimise arbitrariness and be predictable and clear. Familial Searching can produce
partial matches to more than 2 dozen people who will be so far removed from the genetic family
tree that they will in all probability will not be related to the actual unidentified suspect. 27 The
number of these partially matched relatives depends on the varying degree of strictness, the police
will use in searching the database.28 The police can use their discretion in sifting through profiles
for there are no practical guidelines available against it. This shows that a person’s propensity to
be called as a suspect is dependent on the Policeman’s breakfast. This cannot be termed as a law
that minimises arbitrariness, is clear or predictable.

It can be said that the consequences I am showing are of how the law is being practised and not
what the law actually is. According to Finnis, the law is not what the legislatures and courts say,
but it is what they do.29 What the government has done is to create a law that is capable of
empowering the authorities to fan their political, social and institutional biases.

It clearly does not show the government participating in the basic goods and the requirements of
the good of practical reasonableness, which it should to promulgate good laws.30 Hence, if we were
to take Finnisian definition of law to shed some light on the impugned act, then the outcome is
extremely dark, for there is no law.

Rule of law – A means to the end

Finnis has defined the rule of law as maintenance of the quality of relationship between the people
themselves and between the people and the Lawmakers.31 Finnis believed that the common good
of the community can be connected to the said five features via the rule of law. 32 He defines rule
of law and its assumed conditional subsequent, common good as “the whole ensemble of
conditions that tend to foster the realization of each individual’s good.”33 Thus, under a Finnisian
construct, a rule of law is a methodology which aims to ensure that all human beings under it
prosper.34

27 Erin Murphy, Relative doubt: familial searches of DNA databases. Michigan Law Review, 291, 297.
28 Ibid
29 Petr Osina, John Finnis on Law and Justice, Studia Juridica (2016) 122, 127.
30 Ibid
31 John Finnis, Natural Law and Natural Rights 270 (1st ed., OUP 1980).
32 Ibid 272.
33 Ibid 47.
34 Ibid 47.
Finnis also states that the rule of law enriches the common good by providing the people with
freedom and dignity and protection from exploitation.35 There are certain norms that if a legal
system adopts in its laws, it will further the rule of law. Finnis outlines them as “(1) prospective,
(2) not impossible to comply with, (3) promulgated, (4) clear, (5) coherent, (6) stable, (7) made for
limited situations, and (8) made by those in authority who make and administer rules properly,”36
which are almost in consonance with Fuller’s eight principles of legality.37 All of these aspects add
to the rule of law which finally unwinds for Finnis creating a stable system of governance and
maintains the quality of relationship between the ruler and the ruled.

Finnisian theories detailing the focal requirements of the rule of law, i.e., a stable system of
governance or enhanced relationship between the subject and the centre is on point. It is evident
that the very lack of these characteristics have refrained the lawmakers from enjoying this rule.
The aim of rule of law is the prosperity of people, and the rule of law itself is a means to improve
communication by building trust between the ruler and ruled.

The entire core of the rule of law is negated when an entire sect is facing a law that is impossible
to comply with. There is no declaration to sign after being profiled to assure that all the genetic
relatives, even those who are not born yet, will never commit profile-able crimes and the person
living in the earmarked area or belonging to that earmarked caste should be granted an exemption
from the daily Genetic Shinaakth (Identifcation Parade). Evidently, the law is not clear or even
coherent for these people. Therefore, there is no enhancement of relationship between the ruled
of this community and the rulers, if any, it has been degraded since the law has been enacted.

Some Afterthoughts

Finnis’ Natural Law background allows him to reach this conclusion that legitimacy of all the laws
are always both a moral and legal question.38 The rule of law can have its limitations, when it is
against the idea of common good. Finnis the boldly states that the good can be secured by departing
from the law.39 Today, when the act is still a bill, there is no evidence (apart from empirical data
from other jurisdictions) to ascertain that at my contentions will be true. However, if they are, then
the vulnerable sects of our society, who don't even the education or voice that the blacks and the
Hispanics have in the United States, can be in a state of complete control and subjugation. The

35 Ibid 273.
36 Ibid 270.
37 LL Fuller, Morality of law (Yale University Press 1969).
38 John Finnis, Natural Law and Natural Rights 275 (1st ed., OUP 1980).
39 Ibid.
might very well be in a situation where none of their basic human goods can be realised in full
measure because of the constant fear of the panopticon.