Citizens
would face an unprecedented onslaught from the provisions of Aadhaar Act and
Human DNA Profiling Bill and other related surveillance measures being bulldozed by unregulated
and ungovernable technology. Aadhaar Act paves the way for the manufacturing
legitimacy of the proposed Human DNA Profiling Act. Biometric profiling of every
sort is dehumanizing.
The
dangers of trusting identification technologies for determining social policies
is bound to be consequential in a situation where “[A] warrant requirement will
not make much difference to a society that, under the sway of a naive and
discredited theory of genetic determinism, is willing to lock people away on
the basis of their genes.”
The
21st century ideology of genetic determinism is being promoted
through biometric identification. Such identification includes DNA profiling.
DNA profiling is ‘undesirable particularly as forensic DNA
developments are intertwined with significant changes in legislation and
contentious issues of privacy, civil liberty and social justice.’ The argument
which is often mouthed in defence of biometric National Population Register
(NPR) and unique identification (UID)/Aadhaar number is that it is meant for
social security akin to social security number in the US, which incidentally is
not based on biometric data. This must be seen along with a similar argument
being advanced for a DNA profile. They say such profiling is required because
it “is very much like a social security number—though it is longer and is
assigned by chance, not by the federal government”. Clearly, the ramifications
of automatic profiling, tracking and surveillance is
unfolding and trapping unsuspecting citizens in its ambit.
The
Draft Human DNA Profiling Bill, 2018 (listed for introduction) is linked to the
emergence of a surveillance and database state using Union Surface Transport
Ministry’s Radio Frequency Identification (RFID), Union Finance Ministry’s
National Information Utility, Unique Identification (UID)/Aadhaar, Union Rural
Development Ministry’s Land Titling Bill, World Bank’s e-Transform Initiative,
North Atlantic Treaty Organisation (NATO)’s identification policy and Public Information
Infrastructure and Innovations etc. Notably, Lokniti Foundation, an entity of
questionable integrity which unsuccessfully tried to get UID/Aadhaar linked to
mobile phones had also filed a writ petition in the Supreme Court seeking DNA
Profiling. l
Having
initiated collection of biometric data like fingerprints and iris scan for NPR
and UID number, the Draft Human DNA Profiling Bill
takes the next step and provides for procurement of “intimate body sample”
which means a sample of blood, semen or any other tissue, fluid, urine, or
pubic hair, a dental impression; or a swab taken from a person’s body orifice
other than mouth obtained through “intimate forensic procedure”.
A
paper ‘Prelude to a Miss: A Cautionary Note against Expanding DNA Databanks in
the Face of Scientific Uncertainty’ by Jennifer Sue Deck wherein a text of
Office of Technology Assessment, US Congress, ‘Genetic Witness: Forensic Uses
of DNA Tests’ reads: “DNA
fingerprinting is all but foolproof, but some fool is going to use it”.
This is apt about all kinds of biometric identification.
Profiling
based on Deoxyribose Nucleic Acid (DNA) is aimed at examination of human
biological material acquired through intimate forensic procedure. This
biological material is coded with "the past history and thus dictate the
future of an individual's racial and genealogical makeup, and influence an
individual's medical and psychological makeup."
The
intimate forensic procedure means the following forensic procedures, namely:-
(a)An
external examination of the genital or anal area, the buttocks and also breasts
in the case of a female breast;
(b)
Taking of a sample of blood;
(c)
Taking of a sample of pubic hair;
(d)
Taking of a sample by swab or washing from the external genital or anal area,
the buttocks and also breasts in the case of a female;
(e)
Taking of a sample by vacuum suction, by scraping or by lifting by tape from
the external genital or anal area, the buttocks and also breasts in the case of
a female;
(f)
Taking of a dental impression;
(g) Taking
of a photograph or video recording of, or an impression or cast of a wound
from, the genital or anal area, the buttocks and also breasts in the case
of a female.
DNA
Profiling is aimed at regulating the use of DNA analysis of body substance
profiles and making provision for establishment of DNA Profiling Board
consisting of eminent scientists, administrators and law enforcement officers
to lay down standards for laboratories, collection of body substances, custody trail from collection to reporting and establishment
of a databank and to create policies for use and access to information from
such data bank, appointment of a DNA Databank Manager to supervise, execute and
maintain the databank and for matters connected therewith.
A
decision of the European Court of Human Rights (ECHR) about violation of the
right to privacy and family life by DNA profile retention in criminal justice
databanks is relevant here. The case was heard publicly on 27 February
2008, and the unanimous decision of 17 judges was delivered on 4 December 2008.
The court found that the “blanket and indiscriminate nature” of the power of
retention of the fingerprints, cellular samples, and DNA profiles of persons
suspected but not convicted of offenses, failed to strike a fair balance between competing public and private interests and
ruled that the United Kingdom had “overstepped any acceptable margin of
appreciation” in this regard. This was before David Cameron became the Prime
Minister in May 2011 defeating Tony Blair's Labour Party which had introduced
identity card legislation and compulsory DNA recording.
The technique of DNA profiling
was pioneered in the UK and it was the first nation to establish a criminal
justice DNA databank. The decision is non-appealable. Unmindful of this, in
India National DNA databank is being proposed.
Once
the DNA databank is in place the enlargement of scope for its new predictive
uses cannot be ruled out given scientific advancements underway. In such a
situation a readymade DNA based inferences adversely impacts impartiality
of the criminal justice system and other systems become questionable. Contrary
to the existing legal provisions under Census Act and Citizenship Act, the Bill
states that the DNA data will also be used for the "creation and maintenance"
of population statistics that can be used for "identification, research,
protocol development or quality control".
The
Bill once it becomes a law will grant the authority to collect vast amount of
sensitive DNA data of citizens merely on the ground of suspicion in a criminal case. The data will be held till the person is
cleared by court. Under the Identification of Prisoner Act, there is a
reference of collection of sensitive biometric data like fingerprints wherein
biometric data of prisoners can be collected that too with the permission of a Magistrate but on acquittal the biometric
data is required to be destroyed. The Draft Human DNA Profiling Bill is far
more regressive than the colonial law. The provision of collection of citizens
DNA data in the Draft Bill for DNA Database in effect treats the citizens worse
than prisoners. UID/Aadhaar database (CIDR) and DNA database can turn citizens’ body itself into a prison.
It
has been admitted that "DNA analysis offers sensitive information which,
if misused, can cause harm to a person or society". It proposes the
creation of a National DNA Data Bank which will be headed by an officer in the
rank of a Joint Secretary to the Government of India. Similar provisions exist
in Aadhaar Act. There is a section in the Draft DNA Bill that allows for
"volunteers" to give their DNA profiles. It is quite strange that
"volunteers" are expected to share their sensitive data with the
government. It is noteworthy that Unique Identification Authority of India
(UIDAI) too had initially claimed that enrolment based on biometric data is
voluntary. Subsequent events and official documents reveal that it is
explicitly mandatory by implication.
In
all likelihood DNA Data Bank, CIDR and criminal database will get converged in
furtherance of World Bank’s e-Transform Initiative unfolding in partnership
with six transnational companies namely, Gemalto, IBM, L-1 Identity Solutions,
Microsoft and Pfizer and two national governments of France and South Korea.
Such convergence poses a threat to minorities and political opponents whose
targeting is imminent.
It
may be noted that US Genetic Information Non-discrimination Act (GINA), 2008
prohibits US insurance companies and employers from discriminating on the basis
of information derived from genetic tests. The necessity of such law underlines
that biometric and genetic information like DNA facilitates discrimination.
In
all likelihood the manifesto of biometric identification promoters of CIDR of
UID/Aadhaar numbers and Human DNA Profiling Bill will read like the 1,500 page
regressive manifesto titled “2083: A European Declaration of Independence”
brought out by Norwegian gunman and neo-Crusader, Anders Behring Breivik who
carried out the heinous attacks on his fellow citizens. It refers to the word
“identity” over 100 times, “unique” over 40 times and “identification” over 10
times. There is reference to “state-issued identity cards”, “converts’ identity
cards”, “identification card”, “fingerprints”, “DNA” etc as well in this
manifesto. Biometric profiling of every
sort is an invitation to deeper, structural and physical violence.
These
words and their imports merit attention in order to safeguard human rights of
present and future generation of citizens which faces an unprecedented
onslaught from the provisions of Aadhaar Act and Human DNA Profiling Bill and other
related surveillance measures. These are being pushed down citizens’ throats by
unregulated and ungovernable technology vendors at the behest of their
beneficial owners. A joint reading of Aadhaar
Act, Collection of Statistics Act, Human DNA Profiling Bill and manifesto
titled “2083: A European Declaration of Independence” reveals that profiling of human body is
being done in such a manner that it has genocidal implications.
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