Now that Lok Sabha has listed 36 page long DNA Technology (Use and Application) Regulation Bill, 2019 for its consideration and passing after the submission of the 144 page long report of Jairam Ramesh headed Parliamentary Standing Committee on Science & Technology, Environment, Forests and Climate Change, Citizens Forum for Civil Liberties (CFCL)'s submission is no more confidential. The report was presented to the Rajya Sabha and Lok Sabha on 3rd February, 2021. CFCL has argued for long that the Human DNA Profiling Bill in question must be read with Clause2 (g) of Aadhaar Act2016 that defines 'biometric information' and includes human DNA profiling and voice samples by mentioning "other such biological attributes of an individual" by any future regulation, apart from photograph, fingerprint and Iris scan. The report acknowledges CFCL's submission.
CFCL had objected to the inclusion of Director, Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad as a member of the proposed DNA Regulatory/Profiling Board "given the fact that CDFD is likely to be involved in undertaking tests of DNA samples. How can it be expected to be impartial in the assessment of its own work? CDFD has already compromised its credentials by disclosing its bias by including caste requirements in its attached Identification Form."
The report reveals that "As per the advice, “caste” has been removed from the “Identification Form” and uploaded in the CDFD website. In place of the “caste” in the Identification Form, only “name of the population” or “population name” to be used for the analysis of DNA profiling data in a scientific manner." This does not seem to address the issue of caste based DNA profiling. It is significant that the Parliamentary Committee has recommended replacing the word “profiling” with that the word “testing” besides suggesting alternative definition of “DNA profile”, "Offender" and DNA Data Bank, . It recommended replacement of "DNA data" with “DNA profile”.
The Bill is yet to attract the public attention it deserves. Annexure-III of the Parliamentary Committee report provides written views of eminent persons like R.K. Raghavan, IPS (Retd) and former Director CBI, Justice B.S. Chauhan, retired Supreme Court Judge and former Chairman Law Commission, Justice Madan Lokur, retired Supreme Court Judge, India Police Foundation and an unidentified eminent jurist on the Bill. The report draws government's attention towards their concerns and seeks redress.
In the light of the inclusion of "suspects‟ and "undertrials‟ in the Long Title of the Bill, some provisions like Clause 22 and 23 create a compelling for their rigorous scrutiny. The dissenting opinion expressed by members of this Parliamentary Committee also deserves to the attention of the citizens and the states. Their submissions are included in the report. These include Note of Dissent received from the Shri Asaduddin Owaisi, M.P., Lok Sabha (page no. 38-49) which among other things raises the issue of fallibility of DNA Evidence, absence of Data Protection Law and disregard of verdicts in Puttaswamy case and Subramanian Swamy case and Note of Dissent received from Shri Binoy Viswam, M.P., Rajya Sabha (page no. 50). Viswam observes, "the impact of this law on marginalized and minority communities such as, Dalits, Adivasis, religious and gender minorities, among others, make it impossible for me to support it. In light of the social, political and economic realities of India especially given the history of oppression faced by particular social groups cannot be ignored while considering such laws. It is time that the Government puts a hiatus on the passing of legislations that continue to encroach upon the right to privacy in the name of reasonable restrictions, till the time comprehensive data protection laws are not passed in the country." He also raised the issue of non-compliance with verdict in Justice K.S. Puttaswamy v. Union of India and breach of fundamental rights recognized by the Constitution of India.
In his long dissent note Owaisi draws attention towards Crimes solved by DNA evidence fall despite millions being added to database (telegraph.co.uk). It has been noted by Christopher Hope that the case for the national DNA database has been undermined by figures showing that the addition of millions of profiles in the past six years has not increased the number of crimes solved by DNA evidence. In the past year the number of crimes solved using DNA has actually fallen despite the number of people on the database rising to more than four million. The news comes as European Union judges decide whether to wipe over a million profiles from innocent people from the database. Figures show that for the past six years the number of crimes solved using DNA evidence has remained static at between 0.34 and 0.36 per cent - about one in 300 of all recorded crimes. The number of crimes which were solved by a DNA match fell by 13 per cent to 17,614 last year as recorded crime fell overall, according to figures contained in Parliamentary answers. Over the same period the number of people's whose identity was on the national DNA database more than doubled in size from 1.9million people to 4.1million. There was a big boost to the figures in April 2004 when police were able to take DNA from anyone arrested for a recordable offence before they were charged. Previously, they had to wait until the offenders were charged. "If your DNA is on the database the government could use it to track you or your relatives, even if you are innocent of any crime. A smaller database would be much cheaper and also more effective" observes Helen Wallace.
The new report records the observation of Liberal Democrats' shadow home affairs spokesman Chris Huhne saying: "These figures undermine the Government's flawed argument in favour of holding the DNA of innocent people. Bigger is not always better..."The DNA database is not the universal panacea to crime ministers would have us believe – the huge expansion of the database has not improved detection. It also record the view of the Tories’ shadow Home Secretary Dominic Grieve. He said: “It is a sign of this Government’s skewed priorities that a million innocent citizens have been swabbed and sampled onto the DNA database, while serious criminals are left off. This latest research just strengthens the case for a national debate on the scope of this database, including the criteria for retention of DNA.” CFCL's submission echoes these concerns as well.
In the light of these findings, in his Dissent Note Owaisi observes,
The “intimate bodily substance” means a sample of blood, semen or any other tissue, fluid, urine or pubic hair, or a swab taken from a person's body orifice other than mouth; or skin or tissue from an internal organ or body part, taken from or of a person, living or dead. The “intimate forensic procedure” means any of the following forensic procedures conducted on a living person, namely:—(i) external examination of the genital or anal area, the buttocks and breasts in the case of a female; (ii) taking of a sample of blood; (iii) taking of a sample of pubic hair; (iv) taking of a sample by swab or washing from the external genital or anal area, the buttocks and breasts in the case of a female; (v) taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks and breasts in the case of a female and vi) 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 “non-intimate bodily substance” means any of the following taken from or of a person, living or dead, namely:—(i) handprint, fingerprint, footprint or toe print; (ii) a sample of hair other than pubic hair; (iii) a sample taken from a nail or under a nail; (iv) swab taken from any part of a person's body including mouth, but not any other body orifice; (v) saliva; or (vi) a skin impression.
The “non-intimate forensic procedure” means any of the following forensic procedures conducted on a living individual, namely:—(i) examination of a part of the body other than the genital or anal area, the buttocks and breasts in the case of a female, that requires touching of the body or removal of clothing; (ii) taking of a sample of hair other than pubic hair; (iii) taking of a sample from a nail or under a nail;(iv) taking of a buccal swab with consent; (v) taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks and breasts in the case of a female; (vi) scraping or lifting by tape from any external part of the body other than the genital or anal area, the buttocks and breasts in the case of a female; (vii) taking of a handprint, fingerprint, footprint or toe print; or (viii) taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body other than the genital or anal area, the buttocks and breasts in the case of a female.
In its recommendation, the Parliamentary Committee states that it "some Members have expressed their fears that this Bill when it becomes a law could be used to target certain sections of our society. The Government must assuage these fears both in Parliament and outside." It records that "some Members believe that in order to ensure the prevention of misuse of the provisions of the Bill and avoid targeting of certain categories of people, the application of the Bill must be limited to the terms "victims‟ "offenders‟, "missing persons‟ and "unknown deceased persons‟ and not cover "suspects‟ and "undertrials‟ as well as provided for presently in the Long Title. The Committee has taken on board these concerns that must be addressed by the Government in a suitable manner." Despite such gnawing concerns regarding inclusion of "suspects‟ and "undertrials‟ in the Long Title of the Bill, in keeping with the majority view expressed in the Committee, the Committee was compelled to recommend retention of "suspects‟ and "undertrials‟ in the Long Title.
The Long Title of this Human DNA Profiling Bill "provides for the regulation of use and application of Deoxyribonucleic Acid (DNA)technology for the purposes of establishing the identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith or incidental thereto." Its overarching ambit leaves the scope of its misuse by totalitarian regimes in future. It is likely to face constitutional challenge in the Supreme Court of India.
Parliamentary Committee has strongly objected for making serving Secretary to the Government of India to be the Chairperson of an independent regulatory board under the administrative jurisdiction of the Department/Ministry concerned. It recommended that the words “the Secretary to the Government of India in the Department of Biotechnology” be replaced with “a person of eminence in the field of biological sciences or genetics having experience of not less than twenty-five years in the field, who shall be the Chairperson of the Board" to ensure that Regulatory Board as a statutory body is independent and professional. It suggests overhaul of the composition of the Board. CFCL too had made a case for it in its submission.
The Parliamentary Committee has recommended that its Short Title "may be called The DNA (Use and Application in Justice Delivery System) Regulation Bill, 2021”.
Given the fact that words have meaning in specific national contexts, the reference to “Crime Scene Index” cannot be explained by referring to similar provision in Australian and Canadian law. The Parliamentary Committee righty observes that "The risk with a national databank of crime scene DNA profiles is that it will likely include virtually everyone since DNA is left at the “crime scene” before and after the crime by several persons who may have nothing to do with the crime being investigated. There is also DNA to be present of those who were nowhere near “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 has recommended that "crime scene DNA profiles can be used in the investigation and trial but (i) should not be put in a databank; and (ii) destroyed once the case concludes with acquittal. If there is a conviction, only the DNA profile of the convict could be included in the databank." There was no consensus on this fundamental issue. Some Members feel that the “crime scene index” is unnecessary and is not a required feature to solve crimes. The Committee expressed the hope that the Government will address the concerns raised by the critics of the very idea of a “crime scene index” in the revised version of the Bill and when it is re-introduced in Parliament.
Parliamentary Committee's recommendation with regard to the deletion of provision for "a Regional DNA Data Bank” seems to indicate its bias towards the virtues of centralised electronic online database like Central Identities Data Repository (CIDR), a centralised database in one or more locations containing all Aadhaar numbers issued to Aadhaar number holders along with the corresponding demographic information and biometric information of such individuals and other information related thereto. It demonstrates that no lessons have been learnt from the ongoing leakage of centralised online databases by likes of Julian Assange and Edward Snowden. Ideally, such databases should be in decentralised silos.
The Union Government's Approach Paper for Legislation on Privacy aptly noted that "While many agencies of government collect personal data, this information is stored in silos with each agency of the government maintaining information using different fields and formats. Government databases do not talk to each other and given how differently they are organized, the information collected by different departments cannot be aggregated or unified. Data privacy and the need to protect personal information is almost never a concern when data is stored in a decentralized manner. Data that is maintained in silos is largely useless outside that silo and consequently has a low likelihood of causing any damage." It is crystal clear that centralised databases like DNA Data Bank and CIDR is aimed at eliminating the separation of data that currently exists between multiple databases. Indeed such a vast interlinked public information database has been unprecedented in India. This is being dome without steps to protect personal data before the vast government storehouses of private data are linked up and the threat of data security breach becomes real.
Submission of CFCL on DNA Technology (Use and Application) Regulation Bill, 2019
Sir,
With reference to the announcement on the website of Parliamentary Standing Committee on Science & Technology, Environment, Forests and Climate Change which is presently examining "The DNA Technology (Use and Application) Regulation Bill, 2019", I submit that having been following the earlier versions of the Bill since 2007, Citizens Forum for Civil Liberties (CFCL) wishes to make the following submissions:
1. I have read and compared the current version of the 37 page long Bill of July 3, 2019 with the 35 page long DNA Profiling Act, 2007, 58 page long Draft Human DNA Profiling Bill, 2012, 48 page long Draft Human DNA Profiling Bill, 2015 (16th January, 2015) and 37 page long the Human DNA Profiling Bill, 2015 (9th June, 2015 Version, Legislative Department). The first thing I wish to point out is that it is crystal clear that this is essentially about Human DNA Profiling and profiling unsuspecting citizens and non-citizens for the “nth time”. The order of Justice S K Kaul as part of the right to privacy verdict in Justice K.S. Puttaswamy (retd.) v Union of India underlined it.
2. I understand that the current Bill is aimed at providing “for the regulation of use and application of Deoxyribonucleic Acid (DNA) technology for the purposes of establishing the identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith or incidental thereto.” It is apparent that it is aimed at regulation of the analysis of human body substances profiles, collection of samples of body substances, custody trail from collection to reporting and also to establish a National DNA Data Bank besides laying down standards for DNA laboratories.
3. As per the Section 23 (1) of the July 2019 Bill, samples for DNA testing may be collected from the sources like (a) bodily substances; (b) scene of occurrence or scene of crime; (c) clothing and other objects; or (d) such other sources as may be specified by regulations.
It is not made clear as to the duration for which the collected samples will be stored. The procedure for its destruction is not provided. It cannot be the case that such samples and related data will be stored for an unlimited period by a government limited by Constitution of India.
4. Section 23 (2) states that (a) any intimate bodily substance from living persons shall be collected, and intimate forensic procedures shall be performed, by a medical practitioner; (b) any non-intimate bodily substance shall be collected and non-intimate forensic procedure shall be performed by the technical staff trained for the collection of samples for DNA testing, under the supervision of a medical practitioner or a scientist having expertise in molecular biology or such other person as may be specified by regulations. It is provided that before collecting bodily substances for DNA testing of a victim or a person reasonably suspected of being a victim who is alive, or a relative of a missing person, or a minor or a disabled person, written consent of such victim or such relative or the parent or guardian of such minor or disabled person shall be obtained and, in case of refusal, the person investigating the case may make an application to the Magistrate having jurisdiction, for obtaining such bodily substances and the Magistrate, if he is satisfied that there is reasonable cause for taking the bodily substances from such person, order for taking of bodily substances from that person.
This provision states that samples of intimate bodily substance of a person reasonably suspected of being a victim who is alive, or a relative of a missing person, or a minor or a disabled person can be taken subject to “written consent of such victim or such relative or the parent or guardian of such minor or disabled person”.
Section 23 (3) states that (a) “intimate bodily substance” means a sample of blood, semen or any other tissue, fluid, urine or pubic hair, or a swab taken from a person's body orifice other than mouth; or skin or tissue from an internal organ or body part, taken from or of a person, living or dead.
It further states in Section 23 (b) that “intimate forensic procedure” means any of the following forensic procedures conducted on a living person includes (i) external examination of the genital or anal area, the buttocks and breasts in the case of a female; (ii) taking of a sample of blood; (iii) taking of a sample of pubic hair; (iv) taking of a sample by swab or washing from the external genital or anal area, the buttocks and breasts in the case of a female; (v) taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks and breasts in the case of a female; Sources and manner of collection of samples for DNA testing.
It also provides for “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 July 2019 Bill provides for collection of “non-intimate bodily substance” which refers to (i) handprint, fingerprint, footprint or toe print; (ii) a sample of hair other than pubic hair; (iii) a sample taken from a nail or under a nail; (iv) swab taken from any part of a person's body including mouth, but not any other body orifice; (v) saliva; or (vi) a skin impression of a person, living or dead.
The “non-intimate forensic procedure” provided for in the Bill refers to the forensic procedures like (i) examination of a part of the body other than the genital or anal area, the buttocks and breasts in the case of a female, that requires touching of the body or removal of clothing; (ii) taking of a sample of hair other than pubic hair;(iii) taking of a sample from a nail or under a nail;(iv) taking of a buccal swab with consent;(v) taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks and breasts in the case of a female; (vi) scraping or lifting by tape from any external part of the body other than the genital or anal area, the buttocks and breasts in the case of a female; (vii) taking of a handprint, fingerprint, footprint or toe print; or (viii) taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body other than the genital or anal area, the buttocks and breasts in the case of a female conducted on a living individual.
These provisions under Section 23 do not address the situation when someone who gave the “consent” chooses to withdraw his/ her consent after realizing that it was taken amidst an asymmetry of information between him/her and the concerned official of the government.
It is noteworthy that both Sections 23 and 21 states that if the consent required under sub-section (1) for taking of bodily substances from a person is refused or cannot be obtained, the person investigating the case may make an application to the Magistrate having jurisdiction for obtaining bodily substances from the arrested person. The Magistrate may, if he is satisfied that there is reasonable cause to believe that the bodily substances may confirm or disprove whether the person so arrested was involved in committing the offence, order for taking of bodily substances from such person.
This provision is contrary to the verdict of the Hon’ble Supreme Court in Amrit Singh v State of Punjab (2007) where the Hon’ble Court has held that the accused has right to refuse to give specimen of his hair for the purpose of identification. He cannot be made a witness against himself in view of Article 20 (3) of the Constitution of India, which protects the fundamental right against self-incrimination.
Not only that Hon’ble Court has held in Nar Singh Pal v Union of India, Yousuf Ali v M.S. Kasbekar, Omega Advertising v State Electricity Board and Basheshar Nath case that an individual cannot waive any of his fundamental right. It implies that individuals cannot waive their right to their own body nor can any Magistrate be empowered to forcefully take samples of human body for DNA profiling.
3. In Section 2 (1) (vii) of the Bill, “DNA laboratory” has been defined. This definition is quite problematic. It reads: “any laboratory or facility established by the Central Government or State Government or any other individual or Organization to perform DNA profiling”. How can “any other individual or Organization” be deemed an authorized ‘DNA laboratory’ “to perform DNA profiling”? This definition can give rise to misuse and will result in questionable implications.
5. In Section 2 (2) of the Bill reads: “all words and expressions used and not defined in this act but defined in the Indian Penal Code, the Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973, shall have the same meanings respectively assigned to them in that act or those Codes.” The drafters of the Bill forgot that ‘DNA’ finds mention in Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000. They also forgot that Biometrics “means the technologies that measure and analyse human body characteristics, such as 'fingerprints', 'eye retinas and irises', 'voice patterns', "facial patterns', 'hand measurements' and 'DNA' for authentication purposes”. By implication they are suggesting legislation for each of human body characteristics-biometric data separately. It reveals that the Bill has not been thought through. This provision has been drafted hurriedly.
6. It may be noted that US Genetic Information Non-discrimination Act (GINA), 2008 prohibits U.S. insurance companies and employers from discriminating on the basis of information derived from genetic tests. The necessity of such law underlines that genetic information like DNA facilitates discrimination. The DNA Technology (Use and Application) Regulation Bill, 2019 must take help from the GINA law.
7. It appears that Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad is the mastermind behind the Bill in question. It is also apparent that Department of Biotechnology seems to have become subservient to whims and fancies of CDFD with no agency of its own in this regard for some reason.
8. It is noteworthy that in Section 4 (c), the Bill proposes to include Chairman, National Human Rights Commission (NHRC) as the ex-officio member of the proposed DNA Regulatory Board. On behalf of Citizens Forum for Civil Liberties (CFCL), I wish to place on record civil society’s appreciation for the intervention of our NHRC’s in the case wherein Indian students in USA were made to wear radio collars. NHRC ensured that the government acted to ensure that the human rights of students are protected. It is germane to note that radio collar is based on biometric data like voice print. If making Indian students wear biometric radio collar constitutes an act which Government of India admitted as an act of violation of human rights, indiscriminate DNA profiling is also an act of violation of human rights. It appears that the proposal for inclusion of Chairman, NHRC) is motivated and is aimed at co-opting and blunting likely opposition from the NHRC to several provisions of the proposed law. Coincidentally, NHRC’s views on National Identification Authority of India Bill, 2010 helped Parliamentary Standing Committee on Finance in its recommendation to trash this Aadhaar Bill and the biometric data based UID/Aadhaar programme.
9. The proposal of inclusion of Director, Central Bureau of Investigation (CBI) or Joint Director, CBI is highly questionable given the fact that legality of CBI remains to be decided. The matter with regard to CBI is pending with a Constitution Bench in the aftermath of the verdict by Justice I A Ansari, headed Guwahati High Court bench which is the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh. Justice Ansari passed a landmark judgment on November 6, 2013 in W. A. No. 119 of 2008 (in W. P. (C) No. 6877 of 2005) setting aside and quashing the resolution of Union Ministry of Home Affairs (MHA) dated 1st April, 1963, whereby CBI has been constituted. The judgment has been challenged in the Supreme Court. The bench of Justice Ansari and Dr. (Mrs.) Justice Indira Shah refused to accept questionable status quo as a fait accompli. By now it is clear that the way MHA created and operated CBI incorrectly arguing that it is being done under Delhi Special Police Establishment (DSPE) Act, 1946. The judgment on CBI begins with the quote of Thomas Jefferson, the principal author of USA’s Declaration of Independence on how tyranny is when people fear the government and its liberty when government fears the people.
Hon’ble High Court judgment in the matter of CBI was pronounced after examining questions like: Whether ‘Central Bureau of Investigation’, popularly called CBI, is a constitutionally valid police force empowered to ‘investigate’ crimes?, Could a ‘police force’, empowered to ‘investigate’ crimes, have been created and constituted by a mere Resolution of Ministry of Home Affairs, Government of India, in purported exercise of its executive powers?, Could a ‘police force’, constituted by a Home Ministry Resolution, arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheet and/or prosecute alleged offender?, Whether CBI is a ‘police force’ constituted under the Union's Legislative powers conferred by List I Entry 8?, Do Entry 1 and 2 of the Concurrent List empower the Union Government to raise a ‘police force’ and that, too, by way of Executive instructions of Union Home Ministry?, Whether Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a ‘police force’ in the name of CBI? and above all, is it permissible for the Executive to create a ‘police force’ with power to ‘investigate’ crimes in exercise of its executive powers, when exercise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21?
The petitioner had sought quashing of the impugned Resolution No. 4/31/61-T, dated 01-04-1963, where under the Central Bureau of Investigation stands established, as ultra vires the Constitution of India. It was argued that since police is a State subject within the scheme of the Constitution of India inasmuch as it is only a State Legislature, which, in terms of Entry No. 2 of List-II (State List) of the Seventh Schedule to the Constitution of India, is competent to legislate on the subject of police and, therefore, the Central Government could not have taken away the power, which so belongs to State legislatures, and create or establish an investigating agency, in the name of CBI, adversely affecting or offending the fundamental rights, guaranteed under Part III of the Constitution of India.
The Hon’ble High Court judgment in the matter of CBI has noted that the Constituent Assembly debates, dated 29-08-1949, wherein Dr. B R Ambedkar had clarified that the word ‘investigation’, appearing in Entry 8 of List I (Union List) of the Seventh Schedule, which read, “Central Bureau of Intelligence and Investigation”, would not permit making of an ‘investigation’ into a crime by the Central Government inasmuch as ‘investigation’ would be constitutionally possible only by a police officer under the Cr.P.C., police being exclusively a State subject and the word ‘investigation’, appearing in Entry 8 of List I (Union List), would, in effect, mean making of merely an ‘enquiry’ and not ‘investigation’ into a crime as is done by a police officer under the Code of Criminal Procedure. The word `investigation’ is, therefore, according to the Constituent Assembly Debates, intended to cover general enquiry for the purpose of finding out what is going on and such an investigation is not an investigation preparatory to the filing of a charge- sheet against an offender, because it is only a police officer, under the Criminal Procedure Code, who can conduct ‘investigation’.
In its affidavit CBI, claimed that “it had been exercising functions and powers of police under the Delhi Special Police Establishment Act, 1946. In its affidavit, filed in the writ petition, the CBI further submitted that the CBI has had been functioning for more than four decades, but its constitutional validity has never been challenged by any one and, hence, this settled position may not be unsettled.” This is a bizarre defence. Similar defences were advanced for UIDAI and UID/Aadhaar in the Hon’ble Supreme Court. The petitioner argued that “Delhi Special Police Establishment Act, 1946 (in short, ‘the DSPE Act, 1946’) is ultra vires the Constitution, for, it offends, according to Mr. Choudhury, Article 372 of the Constitution in as much as Parliament is not competent to make law on police for whole of India and it is only a State legislature, reiterates Mr. Choudhury, which can make, or could have made, law, on police by taking resort to Entry No.2 in the State List (List II).” Therefore, the DSPE Act, 1946, cannot continue anymore inasmuch as its continuance violates the basic Constitutional scheme. The Executive Order dated 1st April, 1963 that created CBI, does not disclose that the CBI has been constituted under DSPE Act.
Though “Union of India’s executive powers may, in the light of Article 73, be co-extensive with its legislative powers, the fact remains that the executive powers cannot be exercised offending fundamental rights, guaranteed by Part III, unless the exercise of such executive powers is backed by appropriate legislation; but, in the cast at hand, the resolution, dated 01-04-1963, where under CBI has been constituted, is not backed by any legislation”, the judgment notes.
Even otherwise there is a manifest conflict of interest given the fact that CBI is and will remain an interested party at least as long as it exists legally or under questionable legal mandate.
10. The inclusion of the Director-General of the National Investigation Agency and the Director of the Central Bureau of Investigation or their nominees not below rank of the Joint Director, the Director-General of Police of a State, to be nominated by the Central Government by rotation every three years from amongst the States in alphabetical order is questionable. This shows non-application of legal mind and is contrary to principles of constitutionalism.
The inclusion of Director General of Police of a State as a member of the DNA Profiling Board as one of its 15 members is questionable because of conflict of interest. Also, why should Director, Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad be a member of the proposed board given the fact that CDFD is likely to be involved in undertaking tests of DNA samples. How can it be expected to be impartial in the assessment of its own work? CDFD has already compromised its credentials by disclosing its bias by including caste requirements in its attached Identification Form.
11. In Section 7, the Bill makes a statement saying, “Any Member having any direct or indirect interest, whether pecuniary or otherwise, in any matter coming up for consideration at a meeting of the Board shall, as soon as possible after relevant circumstances have come to his knowledge, disclose the nature of his interest at such meeting and such disclosure shall be recorded in the proceedings of the Board, and such Member shall not take any part in any deliberation or decision of the Board with respect to that matter.” I submit that mere recusal is not sufficient. Such persons should not be part of the Board under any circumstances to avoid valid charges of moral turpitude and unethical conduct on the part of the Board.
12. I submit that it is quite immoral to suggest that “No act or proceeding of the Board shall be invalid merely by reason of (a) any vacancy in, or any defect in the constitution of, the Board; or (b) any defect in the appointment of a person acting as a Member of the Board; or (c) any irregularity in the procedure of the Board not affecting the merits of the case” in Section 9 of the Bill.
The fact is that the Board ceases to be a Board in letter and spirit of it suffers from any of the above mentioned three defects.
13. I submit that the Bill of 2015 in Section 12 sub clause 4 had the provision that acknowledged that there can be “persons and groups of persons whose rights and related interests may be affected or impacted by any DNA collection, storage, or profiling activity”. This provision has been removed. The absence of this provision in the July 2019 Bill removes the acknowledgement and compromises the rights of “persons and groups of persons whose rights and related interests may be affected or impacted by any DNA collection, storage, or profiling activity”
14. The January 16, 2015 version of the draft Bill had the provision that the Board “shall, while considering any matter under its purview, co-opt or include any person, group of persons, or organisation, in its meetings and activities if it is satisfied that that person, group of persons, or organisation, has a substantial interest in the matter and that it is necessary in the public interest to allow such participation”. It is puzzling to note that there is someone in the concerned public institution who is allergic to the word “public interest” and individuals and groups which work in public interest. This provision n needs to re-introduced in the July 2019 Bill.
14. From Section 12 (f) of the July 2019 Bill, it gets revealed that “DNA profiling and related issues” have some relationship with “intellectual property issues”. Instead of being telegraphic, the drafters of the Bill should have disclosed how intellectual property rights are impacted. Under 12 (f) the Board's functions include identify scientific advances and recommend research and development activities in DNA testing and related issues, including intellectual property issues.
15. Section 12 (h) empowers the Board to recommend methods for optimum use of DNA techniques and technologies for administration of justice or for such other relevant purposes as may be specified by regulations.
Such wide scope of subordinate legislation for use of DNA techniques and technologies beyond administration of justice extending to “such other relevant purposes as may be specified by the regulations” cannot be deemed acceptable. It is undemocratic and paves the way for unlimited government. It is a license for misuse of DNA techniques and technologies.
The January 16, 2015 version of the draft Bill did not have the latter part of the provision. The desire to maximize the use of DNA is inherent in the Bill but it does not factor in global experiences which point out that biometric data is inherently fallible. Such blind faith in DNA techniques and technologies can only be termed as scientism-which is not based on science but the vested interests of institutions involved.
16. The word “privacy” has been mentioned five times in the July 2019 Bill. As per Section 12 (i), Board’s function includes adoption and dissemination of best practices, concerning the collection and analysis of DNA sample to ensure quality and consistency in the use of DNA techniques, and on all ethical and human rights issues relating to DNA testing in consonance with international guidelines enumerated by the United Nations Organisation and its specialised agencies, inter alia, relating to—(i) the rights and privacy of citizens; (ii) the issues concerning civil liberties;(iii) issues having ethical and other social implications in adoption of DNA testing technology; and (iv) professional ethics in DNA testing.
As per Section 12 (k), Board’s function includes making recommendations to the Central Government for the application of privacy protection in relation to the access to, or the use of, DNA samples and their analyses, and ensure—(i) implementation and sufficiency of such protection; (ii) appropriate use and dissemination of DNA information;(iii) accuracy, security and confidentiality of DNA information; (iv) timely removal and destruction of obsolete, expunged or inaccurate DNA information; and (v) such other steps as may be required to protect privacy.
It is quite puzzling as to why there is no reference to the enactment of a comprehensive fundamental right to privacy and data protection law despite Hon’ble Court’s 9-Judge Constitution Bench verdict and despite the recommendations of the DNA Profiling Advisory Committee of 2003 and the Expert Committee of 2012 and the Law Commission of India.
This recommendation underlines that the July 2019 Bill must await the enactment of privacy protection laws in our country. Unless this is done the enactment of this Bill, 2015 will be akin to putting the cart before the horse.
16. The Bill refers to “ethics” at four places but no substantive provisions have been made ensure that such references do not end up paying lip-service to ethical conduct.
This provision also underlines why this Bill must go back to the drawing board and return only after right to privacy act and mandatory ethical conduct provisions.
17. I submit that Section 23 (1) of the Bill provides that samples for DNA profiling may be collected from the sources such as bodily substances, scene of occurrence, or scene of crime, clothing and other objects or “such other sources as may be specified by the regulation”.
Such vagueness with regard to sources of samples for DNA profiling, leaves enormous powers in the hands of officials unchecked which is likely to be misused.
18. Section 23 (2) (a) of the Bill provides that “any intimate body samples from living persons shall be collected, and intimate forensic procedures shall be performed by a medical practitioner” and Sub Clause (2) (b) provides for collection of non-intimate body samples by technical staff under the supervision of medical officer or scientist having expertise in molecular biology “or such other person as may be specified by the regulations.”
Such vagueness with regard to which person is qualified and competent to collect non-intimate body sample for DNA profiling, leaves enormous powers in the hands of officials unchecked which is likely to be misused.
19. In the matter of July 2019 Bill, I submit that the Bill seems to support the ideology of genetic determinism with its implicit and explicit faith in the technology of DNA data banking. The dangers of trusting such technological advances for determining social policies will consequent 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”[1] among other adverse effects.
21. I submit that DNA profiling is aimed at examination of human biological material that 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."[2] The proponents of the Bill hope that DNA profiling tool can make all citizens ‘safe’ forever.
22. I wish to draw your attention towards 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”.
23. I also wish to draw your attention towards a decision of the European Court of Human Rights (ECHR) decision about violation of the right to privacy and family life by DNA profile retention in criminal justice databanks. The case was heard publicly on February 27, 2008, and the unanimous decision of 17 judges was delivered on December 4, 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.[3]
24. The technique of DNA profiling was pioneered in the United Kingdom, 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.
25. In chapter I, clause 2, 1 (xviii) of the July 2019 Bill defines “offenders' index”, a list of entries of DNA profiles of samples taken from offenders, in a DNA Data Bank. The earlier version of 2015 Bill had defined “offender” in a problematic way. The July 2019 version skips its definition as if that is how it was needed to be dealt with.
26. I submit that 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.’[4]
27. I submit that one of the primary goals of the Citizens Forum for Civil Liberties (CFCL) is to oppose biometric enrollment, profiling, databasing and surveillance based on public reasoning. Whether biometric collection is done at the central, state or private level does not matter. With indirect access and direct access to state databases, the government and private foreign companies and governments access the asset of personal sensitive information.
28. I submit that there is no dispute with the fact that there is a need for a law to regulate the collection, storage and use of the human genetic code. But what is happening is that in garb of doing so, the 2019 Bill seems attempting to establish casteism for ever through genetic determination, profiling and databasing.
29. I submit that while DNA profiling is deemed useful in many criminal cases, to identify bodies in the aftermath of accidents and disasters, and in civil paternity and maternity suits. The fact remains that DNA data can be obfuscated, tampered with, or they can suffer from contamination, or from simple filing error. DNA can be tied to sensitive information such as caste and religion, since criminals and accused in the Indian penal system are automatically classified by caste and religion.
30. I submit that PSC ought to seek explanation from the Centre for DNA Fingerprinting & Diagnostics (CDFD) which has been creating DNA marker databases of different caste populations to ensure that such practice is stopped with immediate effect.
31. I submit that biometric profiling in general and DNA profiling in particular are unlike comparisons between digital signatures which can either have matches or no matches, biometric signatures will have a level of accuracy, so there can be a few false matches.
32. I submit that the results of DNA analysis are not infallible. DNA is probabilistic, not absolute. It is interpretative. There is a margin of error and overlap in DNA profiling that may occur due to ‘coincidental matching’. There is human error including that which occurs while collecting the DNA, lapses in the chain of custody, contamination, errors in labelling and reporting. There can be intentional misuse and abuse of biological material. It is noteworthy that false matches are more likely to occur with relatives, since they share some of the DNA sequences.
33. I submit that the issue of the biometrics collection is a "global" endeavor because the biometrics of people being collected in countries are in accordance with ISO (International Organization for Standardization) standards (ISO 19794-XX), be it by companies, corporations or governments.
34. I wish to draw your attention towards William C Thomson’s 2008 article, “The Potential for error in forensic DNA testing (and how that complicates the use of DNA databases for criminal identification” contains illustrations that should lend caution to claims of infallibility. It reads: “In cases I have reviewed over the past few years, evidentiary samples from crime scenes often produce incomplete or partial DNA profiles. Limited quantities of DNA, degradation of the sample, or the presence of inhibitors (contaminants) can make it impossible to determine the genotype at every locus.”
35. “When DNA evidence was first introduced, a number of experts testified that false positives are impossible in forensic DNA testing. According to Jonathan Koehler, these experts engaged in “a sinister semantic game” in which they denied that a DNA test could be wrong by distinguishing error by the test itself from error by the people administering and interpreting the test(which they labelled “human error”). Claims that the tests themselves are error-free have contributed to the rhetoric of infallibility that has surrounded DNA testing. Whether such claims are sinister or not, they are misleading because humans necessarily involved in conducting DNA tests. When assessing the rise of false incriminations, it does not matter whether false positives are due to human or technical failure; what matters is how often (and under what circumstances) such errors occur and how easily they can be detected.”
36. It cites cases of ‘erroneous matches’ due to “false cold to hits” due to “cross-contamination of samples”, mislabelling of samples”, “misrepresentation of test results” and “typing errors” and “intentional planting of DNA.”
37. I wish to draw your attention towards a 2007 paper that refers to an episode where the Houston Police Department (HPD)’s crime laboratory was closed down in 2002 after it was discovered that the employees regularly fabricated DNA and other forensic evidence in their lab and perjured about the results of their test.” An investigation of the HPD casework, they write, revealed 43 cases “in which there are significant doubts about reliability of the work performed, the validity of the Crime Lab's analytical results, or the correctness of the analysts’ reported conclusions. [Office of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room 2006]
38. I submit that in response to an RTI request, the CDFD had, in 2012, revealed that there were four recorded instances of “erroneous labelling of DNA samples of the DNA report” which should raise concern, even with the clarification that “the reconsideration of the report did not in any way alter the conclusion of the earlier DNA report.”
39. I submit that creation of DNA databases is very likely to be accompanied by the digitisation of the database. What is of concern, then, is not only the wisdom or otherwise of creating DNA databases, but also the implications of the technology that will be used in managing, updating and facilitating the use of the database. One, there are questions about security of data. It has been said that ‘electronic’ and ‘secret’ represent a contradiction implying that that which is held electronically is not easy, if not close to impossible, to secure. Encryption is suggested as the way to protect the data; yet, it is acknowledged that encryption only makes it more difficult to crack the code, but that there are hackers, including those who work for other governments, who can break in - a phenomenon that is regularly reported.
40. I submit that the reliance for technology - both the software and the hardware - on corporations and on agencies such as the FBI merits attention. The adoption of CODIS, which is a software that has been created by the FBI, comes with more than an element of risk. "This is the software they need to build a DNA database which allows sharing of DNA matches with the US," Helen Wallace of GeneWatch wrote in an email, cautioning about the adoption of such technology. The implications of having a data base that the FBI, or any foreign agency, finds compatible must be considered before adopting this technology.
41. A DNA database of the kind envisaged would be a prime candidate for being inducted into the universe of ‘big data’. A DNA database is structurally linked to all biometric data and personal sensitive information.
42. I have reliably learnt that for the vendors, the issue is money. For government, the issue is control. Such sensitive information is power and power is social control. The primary argument used by the promoters of the use of biometrics is to ensure a person is in fact who they say they are. The fact is that biometrics does not establish identity but breeder documents such as, but not limited to birth certificates do.
43. I submit that there is no law in India meant to protect citizens against corporations through governments mandating biometrics and then acquiring the biometrics. Government must consider whether when a person is required to provide their biometrics to a bank or any other entity, can the bank, then be compelled to provide the biometrics of the individual to any government entity or private entity that requests the person's biometrics? As the biometric database regime regime is unfolding, one is witnessing that the transfer of such data is being made "natural" by making structural convergence.
44. I submit that government must ensure that the "third party doctrine' is not applied in India. This doctrine essentially means that if a person provides their information/data to a company, the company then has the right to share that data. Essentially a person's data no longer belongs to the individual but rather the company or companies the individual chooses to do business with. One of the big problems with this concept is there are times when we really do not have a choice about which companies we do business with. As an example, cable companies that provide Internet, TV and/or home telephone use are given/awarded contracts by local government. The same is true of utility providers. In these aforementioned examples, the customer really does not have a choice of who they will do business with. Yes, there are "service agreements" that companies make available to customers but in almost every case the company is given the "right" to share information the user provides.
45. This is a Bill that has been pushed by the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad with full support of the Department of Biotechnology. It places the CDFD at the centre of the DNA labs and allows them to be the agency that makes the regulations, manage the DNA data banks, be the Secretary to the Board set up under the Bill. It asks for the collection of DNA from convicts, accused and suspects; unidentified dead bodies; create a missing persons' index; create a volunteers index and from anyone else as required by regulations - and the regulations will be as made by the Board of which the CDFD is likely to have an ex-officio Secretary. If this goes through, this will be one dangerous data base which faces greedy eyes of transnational powers over which we will have no control.
46. I submit that government must safeguard citizens’ privacy and their civil liberties which face an unprecedented onslaught from unregulated and ungovernable technology companies. It is possible that the several provisions in the proposed bill are being bulldozed by such entities because in the aftermath of the announcement by researchers that Human Genome has been sequenced on 26th June, 2000, the efforts to store and read DNA script of human populations has assumed great significance for entities that deal with Epigenetics, Medicine, Big Data, Social Control, Inheritance, Eugenics and Genetic Determinism.
I submit that that the July 2019 Bill should be sent back to the drawing board and a comprehensive bill on biometrics be prepared by an independent multi-disciplinary task force after elaborate engagements with concerned citizens, women rights activists, states, academia, legal experts, data historians, and groups working on human rights. The text of the Bill has failed to be gender neutral in its drafting.
In view of the above facts and precedents, I wish to make additional written and oral submission before the Committee on all aspects of the Bill.
Thanking You
Yours faithfully
Gopal Krishna, Ph.D
Citizens Forum for Civil Liberties (CFCL)
E-mail:krishnaruhani@gmail.com
Web: www.toxicswatch.org
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[1]Kaye DH: Science fiction and shed DNA quoted in Sarkar and Adshead, Whose DNA Is It Anyway? European Court, Junk DNA, and the Problem With Prediction, The Journal of the American Academy of Psychiatry and the Law, Volume 38, Number 2, 2010
[2] E. Donald Shapiro and Michelle L. Weinberg, DNA Data Banking: The Dangerous Erosion of Privacy, quoted by Kristina Rooker, The Impact of DNA Databases on Privacy, http://academic.udayton.edu/health/05bioethics/00rooker.htm, accessed on November 17, 2019
Judgment in in the case of S. and Marper v. the United Kingdom by European Court of Human Rights, December 4, 2008, http://www.bailii.org/eu/cases/ECHR/2008/1581.html, accessed on November 17, 2019
[4] Simon J. Walsh, Legal perceptions of forensic DNA profiling, Forensic Science International, Volume 155, Issue 1 , Pages 51-60, 1 December 2005
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