The Bharatiya Janata Party-led government has envisaged a smooth passage of over 20 key bills during the ongoing Monsoon session of the Parliament. One of these key bills being tabled in the session is the DNA Technology (Use and Application) Regulation Bill. The bill, which was initially formulated back in 2019, is being reintroduced again. However, it has remained in the eye of a storm with many crucial questions raised about privacy of Indian citizens in the absence of a data protection law.
The bill allows investigative agencies to profile victims, the accused, and others present at the crime scene. The Bill provides for the establishment of a National DNA Data Bank and Regional DNA Data Banks, for every state, or two or more states. DNA laboratories will be required to share the DNA data prepared by them with the National and Regional DNA Data Banks.
While the government states that the bill aims to modernise the information gathering process and identification of criminals, experts have been reiterating the lacuna in the bill which could lead to discriminatory targeting and profiling of minorities.
Speaking to NewsClick, Angnidipto Tarafder, Assistant Professor, West Bengal National University of Juridical Sciences, explained, “The repercussions of the bill are widespread and unknown since we do not have a data protection legislation yet. The law was to protect people from various subsets of these laws, but it has not taken shape yet. There is no way in which the bill envisages the protection of the privacy of the people whose data is being collected. It is not just the person who has been accused of the crime; the DNA of those present at the crime scene will also be picked up. Through the process of elimination, the agencies will try to reach the suspects. The question is what happens to the others’ data that has been collected. What if we do not want to be a part of the repository? That is the bigger question. A major concern with the bill which is not adequately addressed by the parliamentary committee is also about the people who have lesser access to justice. It may make things very difficult for disadvantaged groups. The insidious thing that is being done here is the delay in creation of the data protection mechanism.”
Earlier in February this year, the Parliamentary Standing Committee on Science and Technology, Environment, Forests and Climate Change had recommended that the government assuage concerns raised over the DNA Technology (Use and Application) Regulation Bill, 2019, including over creation of a national databank of crime scene DNA profiles as well as fears of communities being targeted. In its report the committee recognised, “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.”
Along with the report of the committee, dissent notes flagging similar concerns were submitted by MP Asaddudin Owaisi and MP Benoy Viswam.
Further, a report by the Internet Freedom Foundation says: “The most dangerous outcome that may result from improper usage of DNA technology is the discriminatory DNA profiling of citizens, as has been admitted by the Committee itself. The nature of DNA data necessitates extreme precautions with respect to its processing, as well as additional safeguards to protect against biases. The very methods of analysis have also been questioned, as the statistical modelling algorithms used in DNA analysis have been found to embed judgements of those who created them. At the very least, such concerns should promote an approach towards DNA testing that does not promote DNA evidence as infallible.”
Speaking about the concerns over privacy, Apar Gupta, the executive director of the Internet Freedom Foundation, argued that the Supreme Court’s judgement in Justice K. S. Puttaswamy vs Union of India case enshrined the right to privacy as fundamental and provided five key standards which would have to be met when affecting the right to privacy: legality, a legitimate state aim, necessary for the specified objective, proportionality, and the existence of procedural safeguards. The DNA profiling of citizens through a DNA data bank may fail these standards, as such a move may disproportionately affect citizens’ right to privacy. This stems from the Bill’s reliance on archaic notions of privacy, given that it was drafted before the Puttaswamy judgement. The bill therefore runs the risk of overriding even the most basic standards of consent and privacy.
Speaking to NewsClick, Pallavi Bedi, senior officer at the Center for Internet and Society (CIS) said, “The PDP bill should be enacted before the DNA bill is passed. DNA is sensitive personal data as per the language of the PDP bill and therefore any bill that deals with processing of such sensitive personal data should not be passed before the enactment of the PDP Bill. Secondly, the list of civil disputes for which DNA testing is permissible is very broad and expansive. This needs to be either totally removed or seriously tailored down to take into account the human rights and privacy concerns.”