The science of Deoxyribonucleic Acid (DNA), in many ways, holds the key to a better future, however, the same key can be used to unlock a Pandora’s box. In September 2012, the Supreme Court of India passed an order in response to a petition filed by the NGO Lokniti raising concerns about over 40,000 unidentified dead bodies in the nation. The order mandated the creation of a Special Committee to look into the creation of a National DNA database. The creation of such a database had been mooted by the Government itself to help find missing children, after the Nithari murders shook the conscience of the nation. India isn’t alone in considering the use of DNA as a tool for identification. Argentina, for instance, recently set up a DNA database to locate child victims of enforced disappearings. Australia, United Kingdom, U.S.A, New Zealand have, amongst others, long relied on DNA profiling to strengthen their criminal justice systems. Its utility has been particularly notable in cases involving rapes and homicides.
However, inherent in the use of DNA information, and often overlooked, is the threat it poses to citizens’ privacy. A DNA sample reveals a lot more than whether a suspect is the culprit; it also reveals genetic predispositions to diseases, behavioural tendencies, race and a plethora of other information about everyone related to the individual. It is thus crucial to ensure that prior to adopting a system for DNA profiling, checks against violations of our privacy are duly incorporated. Absence of these checks may lead to increased surveillance by the government which in turn leads to the creation of a ‘Big Brother’ state. In this essay, the authors attempt to show how the recent attempts of the Government to create a DNA database have fallen woefully short of the requirement to respect the Right to Privacy of the citizens. Part I sheds light on this right as seen in the context of DNA evidence used in criminal trials. Part II critically analyzes the two Draft Bills of 2007 and 2012, in light of the privacy argument. Part III enumerates the international best practices that can be incorporated to suit the Indian context.