Image Courtesy:thehindubusinessline.com
A group of concerned citizens, lawyers, activists, human rights workers, researchers and academicians, have demanded that the DNA Technology (Use and Application) Regulation Bill 2019 should not be passed in Parliament. The bill was introduced in Lok Sabha in July 2019 and was referred to a Standing Committee which submitted its report in February 2021.
The bill is being proposed to regulate the use of the DNA (deoxyribonucleic acid) and with a stated purpose of establishing the identity of victims, suspects, undertrials, offenders, missing persons and unknown deceased persons (and their relatives) in criminal and civil cases by permitting the collection and storage of DNA profiles which are specific patterns determined using the DNA.
Such data will be collected, accessed, indexed and recorded in central and local databases. DNA profiles can provide markers specific to each person. Essentially, for allowed cases, bodily substances of persons may be collected by investigation agencies. Such cases include criminal offences, cases of medical termination of pregnancy, immoral trafficking, parental disputes, issues relating to immigration or emigration, establishing the identity of an individual, etc.
Points raised in the statement
The statement asserts that in the light of the Pegasus scandal, the intentions of the government to snoop on its people is evident and this bill will only expand the scope of surveillance and legitimize it. It will put not just a few individuals but all individuals constantly under State surveillance and also violates an individual’s right to privacy.
Here are a few compelling points made against the bill:
- DNA data is not foolproof: Use of DNA data is a developing field and it may not give the correct ‘profile’ of a person. It works more by association than correlation. So if a person was at a given place at a given time and traces of her DNA are found there, she can be wrongly linked to the incidents occurring therein, even if she isn’t connected to it. The Department of Biotechnology was firm in its belief that DNA technology is infallible and hence can be depended upon unquestionably
- Gathering Data for an all-encompassing database: The Bill includes the word “suspect” which is a category of people whose DNA can be collected and since it has not been clearly defined any arbitrary definition can be assumed in the rules or in operation
- Right against Self-incrimination: Article 20(3) of the Constitution states that no person accused of any offence shall be compelled to be a witness against himself. No person can be compelled to give any form of evidence against himself/herself that incriminates them in a crime. There is a clause that states that anyone accused of committing a crime for which the punishment is more than 7 years imprisonment, life imprisonment, or the death sentence, then the Magistrate can waive off the requirement of their consent.
- Different Value of Consent based on offence: Section 21 (1) of the Bill says that consent of the person whose DNA is being collected must be taken in writing, however this is waived off in certain offences. Further, if a person refuses to give consent, the police can go to the Magistrate who will decide whether DNA should be obtained. Thus, clearly the state has an upper hand and in all possibility, the Magistrate is not likely to deny the police such request.
- Attack on persons dignity and bodily autonomy: Investigators have broad and vague powers to collect DNA from sources that can be specified through a regulation, giving the executive the ability to specify any source they want. The police can collect photographs and or video recordings of genitalia of women, which is absurd since DNA cannot be extracted from such a source.
- Retention of Data: In criminal matters, an accused person can approach the court to remove their DNA data from the Data Bank after the trial. And by default unless one moves to court, the DNA data stays not only in the Data bank but also in the DNA Lab.
- Attack on privacy: The fundamental right to privacy covers at least three aspects – (i) intrusion with an individual’s physical body, (ii) informational privacy, and (iii) privacy of choice. All three aspects of privacy have been completely ignored by the DNA Bill. Without a data protection regime and necessary protections to safeguard the right to privacy, the DNA Bill is an attack on our fundamental right.
The complete statement may be read here:
The Parliament Committee report
The Parliament Standing Committee on science and technology submitted its report on the DNA Bill on February 3, 2021. The Committee stated that under the law, the statutory Board should be professional and independent and not comprise almost wholly of serving government officials. The Committee also raised its concerns over the “crime scene index” which will be a national databank of DNA left at the crime scene which could include virtually everyone who may have nothing to do with the crime being investigated.
There is also DNA to be present of those who were nowhere near the “crime scene” but bodily material like hair may have been transported to the crime scene inadvertently by a variety of ways. Many of these DNA profiles will then find their way into the “crime scene index” without the knowledge of these persons. The committee also raised its concern over the accuracy, integrity and security of Regional DNA Data Banks and insisted that only a National DNA Data Bank be maintained.
The report recommends including the definition of “offender” as a person convicted of an offence and punished with imprisonment of 7 years or more. The Committee is of the view that the “suspects” index and “undertrials” index is unnecessary for the purpose of solving crimes, and it can be misused for targeting certain categories of people
The Committee opines that the functions of the Regulatory Board must include issuing guidelines, standards and procedures for the establishment and functioning of the DNA Labs and the National DNA Data Bank as also advising the government on establishment of DNA labs.
The Committee also states that the function of the Board must include making recommendations to the government in the interest of privacy protection, for timely removal and destruction of DNA profiles and information that (a) is obsolete, expunged, or inaccurate; or (b) after the purpose for which DNA information has been collected has been served. Currently, the Clause 12k(iv) provides for timely removal of only “obsolete, expunged or inaccurate DNA information”.
The Committee recommended that the Bill should regulate DNA testing for the purpose mentioned in the object of the legislation and should not seek to regulate all other DNA testing
The Committee suggests that when the Magistrate passes the order for collecting DNA sample, the person should be given an opportunity to be heard
The Committee calls for deleting the clause that allows for purpose of collecting DNA samples, “taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, buttocks and breasts in the case of a female”. The Committee states there is no current technology to derive DNA profiles from photographs and videos, and therefore recommends the deletion of the Clause 23(3)(b)(vi) in its entirety.
The Clause 23 (3)(c)(i) provides for taking handprint, fingerprint, footprint or toe print but since there is no current technology to derive DNA profile from these. The Committee recommends the deletion of the Clause in its entirety.
The Clause 30 (1)(c) provides that the DNA data bank can match DNA profiles received from the government with its database and can provide information on a “similar DNA”. The Committee feels that the usage of “Similar” in the Clause is vague and will violate the privacy of relatives of those people whose profiles are in the data bank and recommends the deletion of the Clause in its entirety.
The Bill provides that the data in the DNA data bank will be retained unless removed by certain procedures. The Committee recommends that – “The National Data Bank shall promptly remove the DNA profile entered as an offender within 30 days from the day that the court finds such person not guilty.”
The dissent note from Asaduddin Owaisi stresses upon the need for an overarching regulator to prevent misuse. He cites the example of the United Kingdom where the National DNA Database Strategy Board, which oversees the national DNA database, is overseen by the Ethics Board, Biometrics Commissioner, Forensic Regulator as well as Information Commissioner. He also points out that India still does not have a data protection law and a statutory protection of private data is critical as it provides a mechanism for enforcement of rights.
The Parliament Committee report may be read here:
Related:
Pegasus scandal: SC says serious allegations if reports are true
Pegasus Project: 5 targeted journalists move SC, say have been subject to intrusive hacking
India’s Deep State: Is any citizen safe?