Arpita Jaya and Md. Tarique Alam
The DNA Profiling Bill (officially known as the DNA Technology (Use and Application) Regulation Bill, 2019) is yet another draconian legislation in the making, which has urgent implications on questions of justice, privacy, and rule of law in India. The conception of this idea of enacting legislation to regulate the use of DNA samples in the criminal justice system began in the year 2003.1 Originally introduced in the draft form in 2007 by The Department of Biotechnology (DBT), this bill received several criticisms concerning issues of privacy, data security and ethics among other indicators of constitutional safeguards. An expert committee was thereafter formed by the DBT to address the said concerns.
The Government attempted to table the bill in 2015 as well as in 2016 but failed to do so amidst a lot of criticisms from members of civil society and the scientific community. In 2016, the application of DNA-based technology in civil and criminal proceedings, disaster victim identification, identification of missing persons among other related medical research purposes, was introduced to the draft bill. One of the many objections raised was that there is no regulation in place to ensure that sensitive data like DNA-based medical information is not accessed and misused by private companies or third parties.
In 2018, based on the report made by the Law Commission of India in its 271st report, titled “Human DNA Profiling – A Draft Bill for the Use and Regulation of DNA Based Technology”, the draft bill named the “DNA Based Technology (Use and Regulation) Bill 2017” was prepared. The bill was tabled in Lok Sabha in 2019, after which it was referred to a Parliamentary Standing Committee where objections were put forward as to how the bill violated the basic right to privacy by infringing personal liberties, and at the same time granted excessive powers to the investigation agencies, which could be potentially used to fabricate cases, and profile people as suspects, offenders and criminals using their discretion.
It joins a long line of draconian laws that do not comply with the standards of constitutional safeguards and principles of natural justice, but have time and again been justified in the guise of a ‘patriotic’ response to a ‘grave danger’ situation to ‘national security’ or a step towards bolstering the criminal justice system. Such laws have been invoked repeatedly to profile and defame entire communities and institutionalize Islamophobia and other forms of structural violence. For instance, the stringent provisions brought in with the amendments to UAPA, which grant wider powers to the prosecution, has vague descriptions of what constitutes an act of terrorism or who a terrorist is, the admissibility of confessions (extracted through torture) as evidence, the impossibility of getting bail, extended periods of incarceration without a trial etc. are justified in the ambit of the ‘secular’ anti-terror legislation.
Despite the low rate of conviction in cases filed under POTA, TADA and now UAPA, Muslim minorities, Adivasis, critics of the Government policies and the State, and other marginalized communities continue to be profiled, falsely implicated in cases, subjected to torture and are defacto categorized as suspects, offenders and criminals.
The language of the State, law and public policy across regimes, has largely been grounded in an administrative ‘neutral’ and ‘secular’ language. It has always been careful in not invoking any terminology that explicitly encodes prejudice or discrimination. The State has throughout history monopolized and steered this duality of discourse as it is on paper in the undeniable form of an ordinance, and the dominant propagandist political discourse around it. The legal jargons have acted as a smokescreen to enact divisive and exclusive legislations and policies, which have had and continue to have devastating implications on the lives of marginalized individuals and communities. The current fascist regime has mastered the use of this duality and goes beyond.
There has been a shift in State’s modus operandi under the current regime, whereby the language of the law that earlier was more apolitical in its form, has now taken a more brazen face to it.
There has, however, been a shift in State’s modus operandi under the current regime, whereby the language of the law that earlier was more apolitical in its form, has now taken a more brazen face to it. The clarity with which the Citizenship Amendment Act (CAA), 2019 and National Register of Citizens (NRC) for instance, are worded is a testimony to the same. The fascist State has also further done away with procedural safeguards and has focussed increasingly on the centralization of power and authority. For instance, The National Investigation Agency (NIA), formed to investigate terror cases and mitigate the supposedly growing concern of terrorism in India, operates directly under the Ministry of Home Affairs.2 The NIA has been vested with the power to take over any State Government-run investigation at any point thereby undermining the federal structure of India.
Further, To build a totalitarian technocracy to curb dissent and further the exclusion of marginalized communities, the State has built an architecture of mass surveillance and identification as seen through efforts like UID databases, Aadhar, Aarogya Setu, Cowin etc., use of CCTVs equipped with facial-recognition technology by Delhi Police during the anti-CAA, NRC protests, cyber-attacks such as the latest Pegasus scandal, and processes like the National Register of Citizens (NRC), National Population Register (NPR) etc. It is in this context that we must locate the discussion of the implications of DNA Technology (Use and Application) Regulation Bill, 2019, and its proposed nationally administered DNA data banks, to build a critique that is not just limited to the procedural gaps in the law, but to understand its political implications as a whole in the context of a fascist state, and its instrumentalization of the rule of law.
The DNA Profiling Bill, 2019 attempts to extend, standardize, and regulate the use of DNA technology in criminal and civil cases. Its stated purpose is to establish the identity of victims, suspects, undertrials, offenders, missing persons, and unknown deceased persons (and their relatives). The bill in its 2015 draft form was extensively criticised for its overconfidence in DNA technology and lack of regulatory standards in terms of privacy, separation of powers, and scientific vigilance. The draft bill tabled in 2019, which is imminently going to be passed considering the ruling parties’ endorsement for it, is purported to be addressing such concerns and establishing regulatory standards for the application of DNA technology, within the standards of rule of law and constitution. However, its critics both within parliament and outside, including legal, scientific, and human rights experts, have strongly maintained that the bill in its current form has problematic and dangerous implications for questions of privacy and the criminal justice system in India.
In basic terms, DNA technology allows access to a person’s genetic profile, which in ideal conditions, can establish the unique identity of a person through bodily substances, ranging from major substances like blood to even minor things like cells on the outer skin. But it has other applications too, like tracking ancestry, disease detection, population analysis, and ambitious uses like behavioural analysis etc. In its controversial uses, it has been used for purposes of racial profiling and legitimising racist ideologies. Many have also noted that, in the absence of proper privacy and data protection legislation, DNA data collection, usage, and storage can deny citizens the right to privacy. While the regulatory bill tries to introduce a consent form before DNA collection, it also tries to establish exceptions in situations of ‘serious crimes’.
It is not unreasonable to doubt the effectiveness of a consent form in India, where investigation forces have a colourful history of torture, use of stock witnesses, false testimonies, and other forms of tactics used against the accused. The bill has a serious lack of clarity and precision on the parameters of its use and storage, the imprecision by which its abuse could be materialised.
Even in its formal claims, the consent provision is quite superficial in the sense that it is not even legally defined in the bill. In the first instance, it has created a major exception by allowing a magistrate to override an earlier refusal of consent – such an overriding power over the right to privacy has not been put under check in the bill thus allowing its arbitrary use. Furthermore, in such cases, the bill has no provision that gives the right to the profiled person to be informed about the sample collection, which in turn gives investigation agencies invasive power for DNA profiling. It also has no provision for individuals to revoke DNA sampling and profiling thus granting unlimited retention powers over sensitive and personal data.
One of the criticisms, Usha Ramanathan (one of the 2015 committee dissenters) and others have raised, was the overconfidence with which the bill sells the accuracy of DNA technology. There are many limits and exceptional problems that can degrade the accuracy of DNA samples to accurately establish the identity of a person. While it may locate a person in a particular vicinity, the other extrapolations cannot have the same degree of confidence. While the new regulation-focused bill appears to have more humility, it still does not provide a proper scientific framework that can advance the scrutiny of DNA-based evidence.
Although the bill presents itself as having a transparent regulatory mechanism, it is sheer irony that the members of the proposed regulatory board are the same as the drafters of the bill. The very drafters who were previously uncritical about DNA technology and its scientific and constitutional limits, are also self-appointed to regulate and formulate its potential applications. The bill even suggests the application of DNA technology to problematic uses like population studies. In a country where citizenship is being racially categorised, and discriminations based on caste, religion, and region are institutionally legitimated, to be alert of its potential for racial profiling is not at all unwarranted, especially since the bill itself does not have any regulatory protection from this scenario.
The bill also does not establish a date of expiration for DNA storage or the right to revoke as previously noted, which is quite problematic in civil cases. In criminal cases where the vast majority of cases are minor misdemeanours and crimes of passion or survival, establishing a permanent genetic database of ‘criminal’ citizens is a serious affront to both privacy and rehabilitation efforts; needless to mention, the question of false cases and convictions.
The DNA Profiling Bill, 2019 in its current form remains identical to the 271st report of the Law Commission of India (Human DNA Profiling Bill, 2017), which was submitted to the Government in July 2017. Both the drafts of the bill did not constitute adequate regulations in terms of privacy and data protection. Whereas, one month after the Law Commission report, the Supreme Court bench headed by nine judges held unanimously that the right to privacy is constitutionally protected, and that there is a need for a robust data protection law to protect the privacy of citizens. This landmark judgment Puttaswamy Vs. Union of India was an outcome of the efforts of a retired High Court Judge Puttaswamy, who called into question the Government’s proposed scheme for a mandatory use of a uniform biometrics-based system for issuing identity cards to the citizens, to be eligible for welfare benefits and government schemes. Despite the SC ruling, no steps were taken to bring the DNA Profiling Bill, 2019 in alignment with the standards laid down in the Puttaswamy judgement.
The most concerning problem in the bill is its total lack of separation of power combined with an aggressive centralisation and its consequences for the criminal justice system in India. The bill seeks to establish nationally administered data banks of DNA samples, regulated by both the investigation agencies and the DBT. This is highly problematic as it is the very same organization from which such a delicate process should be independent. As we have recently seen, in cases like Bhima Koregaon, investigation agencies themselves have become completely dependent on the political whims of fascist regimes. To have the very same compromised arms of the state regulate and administer a DNA database is one of the most damaging aspects of the bill.
The potential for sample manipulation, evidence planting and fabrication, and opaque inferences has become easier for a regime where all of this has been done without much trouble. In a particularly brazen demonstration of this potential, DNA evidence was tampered with and manipulated by investigation agencies, to absolve security forces of the charges of kidnapping and murdering 5 Civilians at Pathribal, Kashmir in 2000. The police officers who attempted the tampering were never held accountable.
As the current regime seeks to criminalize and even make attempts to eliminate more of its marginalized population and dissenting citizens, it poses a bigger challenge for the legal defence to go up against the opaque and technically complex standards of DNA evidence. Under such a regime, no law is neutral, let alone something as dynamic as the extension of DNA use and creation of its database. It is therefore very important that we remain vigil in these times and oppose any dilution of civil and political liberties.
Arpita Jaya and Md. Tarique Alam are researchers at Quill Foundation.
- The initiative to draft a Bill regulating the use of DNA samples for crime-related reasons began in 2003, when the Department of Biotechnology (DoB) established a committee known as the DNA Profiling Advisory Committee to make recommendations for the drafting of the DNA profiling Bill 2006, which eventually became the Human DNA Profiling Bill 2007. https://www.epw.in/journal/2012/43/web-exclusives/rethinking-dna-profiling-india.html
- “The last report of the NCRB of 2019 depicts a conviction rate of 29% under the UAPA. But how is this conviction rate arrived at? In 2019, there were 2361 UAPA cases pending trial,113 were disposed off with conviction in 33 cases, acquittal in 64 and discharge in 16 cases. So 29% is the rate in terms of the cases disposed off in a single year. If examined against the total number of cases registered and total number of persons arrested, the rate of conviction comes at a more realistic figure of 2%! Equally important are the figures of ‘Police Disposal rates’ that refer to the pendency of investigation. For UAPA cases the Report shows charge-sheeting rate at 42.5% and pendency rate at 77.8%” https://www.livelaw.in/top-stories/uapa-cases-the-process-itself-the-punishment-stares–death-of-father-stan-swamy-justice-aftab-alam-178112