DNA Bill : On democratic processes and dystopian outcomes #IFFExplainer #SaveOurPrivacy

An Explainer on the Parliamentary Report on the DNA Bill that despite following a thorough, participatory process suffers in ignoring the advice of experts and adopting a rights based framework

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Tl;dr

The Standing Committee on Science and Technology recently submitted its report on the DNA Technology (Use and Application) Regulation Bill, 2019. Several concerns have been raised over the report, with two members of the Committee filing dissent notes. Thus, we decided to provide this explainer that breaks down the key issues with both the report and the original Bill.

Introduction

The Standing Committee on Science and Technology, Environment, Forests and Climate Change submitted its report on the DNA Technology (Use and Application) Regulation Bill, 2019 on February 3rd, 2021. The Bill was introduced in the Lok Sabha on July 8th, 2019, and was referred to the Standing Committee on October 17th, 2019.

The Report contains certain general observations by the Committee. The Committee expressed the view that while the concerns raised about the misuse of DNA technology are not unfounded, such concerns do not negate the need for a robust legislation that would enable the creation of an ecosystem where DNA profiling is done in a manner consistent with Constitutional principles. However, the Committee did underline the need for the government to assuage any such concerns. Additionally, the Committee stated the following:

  • The components of the framework (police, prosecution, and judicial services) must be independent, and impartial checks and balances must be implemented at each step
  • In line with the Rule of Law, illegally procured evidence must be made inadmissible so as to protect against the erosion of fundamental rights
  • Natural rights such as rights against self-incrimination must be ensured (especially given the prominent role of the same in the constitution)
  • All evidence, and not simply evidence of guilt, must be presented before courts
  • A well-developed system of independent experts must be established that can verify the government’ claims in court
  • This must be complemented by a well trained judicial system that is equipped to handle complexities arising from scientific evidence.

The Committee also had clause-by-clause recommendations on the provisions of the bill, including:

  • Clause 2 1(iv) - Acknowledging the concerns raised by members of the Committee, a ‘crime scene index’ may be admitted but the government must address the aforementioned concerns
  • Clause 2 1(v) - Regional DNA data bank are not required, and a National DNA data bank will suffice
  • Clause 2 1(vii) - ‘Testing’ should replace profiling to make it clear that DNA data banks will only store profiled DNA and not all tested DNA
  • Clause 4 (a), (d),  - Given that the regulatory board must be an independent body: 1) a person of eminence in the field of biological sciences or genetics must be added to the board and be given the position of chairman, 2) the Director-General of the NIA and the Director of the CBI should be replaced with a retired Director of the CBI.
  • Clause 26 2(a) - GIven the concerns raised by members of the Committee, ‘suspects index’ and ‘undertrials index’ may be kept, by the government must address these concerns in Parliament.

What are its legislative and policy origins?

Document Recommendations/provisions
The DNA Technology (Use and Application) Regulation Bill, 2019 Provides for the regulation of use of DNA technology for establishing the identity of certain persons.

What are the proposed objectives of the DNA Bill?

As stated by the Committee, the Bill’s purpose is:

  1. enabling the identification of victims
  2. apprehending repeat offenders of heinous crimes
  3. developing stringent standards for DNA profiling
  4. regulating the use of DNA profiles for lawful uses.

A regulatory board is proposed to be created, whose functions will be to:

  1. Advise governments on related issues
  2. Grant accreditation to DNA laboratories
  3. Establish DNA data banks at the national and regional levels.

Noting the lack of research on the use of scientific evidence in courts that has resulted in unrigorous evidence being accepted, the Committee also hoped that the Bill would foster the creation of an ecosystem that will allow the legal system to become experienced in the use of DNA evidence.

What is public opinion on the issue?

Two members of the Committee, Asaddudin Owaisi and  Benoy Viswam, have filed dissent notes to the report, alleging that the report does not adequately take into account concerns about privacy and may result in the targeting of minority groups.

Asaddudin Owaisi lamented the fact that despite recognising such concerns, the Committee has retained clauses that would allow the systematic profiling of dalits, muslims, and adivasis, given that these groups are disproportionately incarcerated. He stated that the Bill failed to meet the standards set by the Puttaswamy judgement of the Supreme Court which acknowledged the right to privacy as fundamental and laid down certain proportionality standards required to be met for the infringement of the same. He also noted the concerns about privacy would be exacerbated by the absence of a data protection legislation, and called for stringent safeguards to protect against inherent institutional biases and genetic discrimination.

Benoy Viwam raised similar concerns, once again noting the contravention of Puttaswamy standards and the right to privacy. He pointed out that the lack of adequate safeguards would lead to the misuse and abuse of the law as a tool for targeting people over their caste, religion, or political affiliations. Here, IFF submitted extensive testimony and analysis to the Parlimentary Committee which to our regret has not been incorporated in the recommendations of the report or the changes suggesed to specific clauses.

What are the fundamental issues?

We thank the chairman on the committee for the extensive and wide-ranging consultation process. However, we would like to note our disappointment about the outcome of the process. As acknowledged by the Committee, there are a host of issues that surround the regulation of the use of DNA technology for criminal profiling. Given the wide-ranging consultation conducted, it is regrettable that recommendations which could have helped ameliorate such concerns have not been adopted by the Committee. That the dissent notes filed by the members convey this very sentiment adds to the sense of dissatisfaction.  

One of the key issues is the nature of DNA technology itself. The use of DNA samples to determine culpability has faced questions over its effectiveness - while its usefulness has been acknowledged, the unrestricted use of DNA as incontrovertible (due to notions of its infallibility) has been criticised as unscientific. In Jitendra v. State of MP, the Madhya Pradesh High Court admitted the casual nature of DNA based inferences and did not acknowledge the presence of DNA material as direct evidence of culpability. Furthermore, as acknowledged by the Committee as well, a significant lack of capacity pervades the india DNA technology landscape, which further hinders the quality of DNA analysis. This has been acknowledged by the legal system as well, as seen in Rajiv Singh v. State of Bihar where the Supreme Court dismissed improperly analysed DNA evidence.

Privacy and data security

Another important issue is the invasion of privacy. The Supreme Court’s judgement in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. enshrined the right to privacy as fundamental and provided 5 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. This was argued at length by our executive director, Apar Gupta in his testimony before the Parliamentary Committee.

Indeed, even basic standards of consent may be overridden, as clause 21 of the Bill allows bodily substances to be obtained from a person without consent if the appropriate magistrate believes that analysing said substances may confirm or disprove culpability. Apart from the vaguely worded definitions that confer significant discretionary powers, such provisions constitute a gross violation of an individual’s right to privacy.

The absence of a robust data protection law provides further space for the misuses of DNA data by state or potentially even private actors. Standards timelines for data retention have also not been mentioned - existing laws such as the Habitual Offenders Act specify timelines for data collection, retention, and deletion - while no data protection obligations have been explicitly imposed on DNA testing laboratories.

Additionally, the majority view of the Committee seems to be that privacy and data security concerns have been adequately addressed: when responding to Asaddudin Owaisi’s dissent note, the chairman Jairam Ramesh stated that he did not “see the connection” between the DNA bill and the Personal Data Protection Bill, 2019 since “the Bill deals with as different universe of data”, and that the Data Protection Authority proposed by the latter should not have powers of oversight over the DNA regulatory board. We find this reasoning to be inadequate as the Draft Data Protection Bill, 2019 does classify DNA to be a senstivite class of personal data but then provides for large exemptions to Government entities from the operative safeguards.

Discretionary powers and fiscal costs

The amount of discretionary powers granted under the Bill have also not been adequately addressed. For example, clause 54 of the Bill allows the government to supersede the board through a simple notification. Such a provision could be misused to increase the scope of powers beyond what may be necessary or proportionate, while also contravening the Supreme Court’s judgement in Dr.Subramanian Swamy vs Director, Cbi & Anr, which clarified that the excessive delegation of legislative powers to a statutory authority would make a law susceptible to being stuck down. Clauses 56 and 57 are similarly extravagant in their granting of powers; the former allows the Centre to amend schedule, thereby allowing it to potentially expand the Bill beyond the scope of its original intention and thus violating the principle of purpose limitation, while the latter bars the operations of the DNA regulatory board from judicial review. Once again, it is disconcerting that the Committee failed to acknowledge such concerns and accepted these clauses without modification.

The lack of capacity for operationalising DNA testing infrastructure and conducting widespread training of DNA professionals, prosecutors, and even judges also has a significant cost. The estimates of Rs 20 crore as an initial capital investment plus Rs 5 crore per annum for conducting the relevant activities are quite steep, and indeed likely underestimate the actual cost that would be incurred. In an economy ravaged by the pandemic and with government revenues shrinking, government expenditure may be better directed towards more urgent issues, especially for an endeavour that has faced concerns from several concerns and may significantly infringe upon the privacy of citizens.

Potential for Profiling and Discriminatory Targeting

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.

The evidence in numbers

This is even more important in the Indian context, since, as has been pointed out in the dissent notes filed by the members of the Committee, the indian justice system disproportionately incarcerated minorities and marginalised communities. Data from the National Crime Records Bureau states that as of September 2020, 16.6% of convicts, 18.7% of undertrials, and 35.8% of detenues are muslim, even though muslims make up only 14.2% of the population. Similarly, 21.7% of convicts, 21% of undertrials, and 18.15% of detenues are dalits, even though dalits make up only 16.6% of the population.

The Committee itself mentioned the case of a false encounter in which innocents who were thought to be militants were killed. In such a situation, the use of DNA technologies may lead to the targeting of different segments of society. The use of wide ranging crimes indices, which in the view of some members are unnecessary and possess the potential for abuse, further stokes concerns about group-based profiling. Yet again, despite the concerns raised by members (including the chairman), recommend the retention of the provision.

Recommendations

In light of the above, here are a few suggestions to address these issues as we hope to avoid a dystopian outcome that has DNA Databases that are used to target vulnerable sections of Indians for decades:

  1. Puttaswamy Compliance: The sensitive nature of DNA data and its multifarious uses necessitate a significant review of the Bill from a daa security and privacy perspective. This need is all the more pressing given that the Bill was framed before both the Puttaswamy judgement and the Personal Data Protection Bill, 2019, and thus relies on outdated notions of privacy. Thus, it is recommended that the Data Protection Authority contemplated by the Personal Data Protection Bill, 2019 (or any other forthcoming Authority) be empowered to conduct an extensive review of the Bill to ensure that its provisions are consistent with the standards laid down in the Puttaswamy judgement.
  2. Reduced scope: The use of crime indices must be dropped from the Bill. Given the lack of evidence of its efficacy in civil cases, DNA evidence must be barred from use in the same. In case the use of DNA evidence in civil cases is accepted, such evidence must be barred from storage in any database. Possible uses of DNA Data must be restricted to those laid down in the Bill, and any powers of delegation accorded to the government must be removed. The use of DNA data for training purposes must also be banned.
  3. Consent as paramount: Under the presumption of innocence, overrides to the obligation for consent must be rethought. At the very least, stringent standards must be set for the overriding of a lack of consent.
  4. Reduced discretion: Discretionary powers provided to the government and the regulatory board, such as those mentioned above, must be reduced. The appropriate provisions must be codified and laid before the parliament. All rules and regulations notified under the Bill must be mandated to be laid before the parliament as well.
  5. Data Security: Clear standards and timelines for data retention and deletion must be mentioned. Extraneous data from crime scenes, as well as the data of suspects and under trials must be barred from being processed as evidence, and only the DNA data of convicts must be allowed to be processed and stored.
  6. Remedies for harms: While the Bill does specify certain penalties for committing offences that fall under the ambit of the Bill, the Committee has not recommended any additional mechanism for providing remedies for those whose DNA data is used in an unlawful manner.

Important Documents

  1. IFF's explainer on the DNA Bill Report (link)
  2. The Standing Committee's report on The DNA Technology (Use And Application) Regulation Bill, 2019 (link)
  3. IFF's legislator's brief on the DNA Technology Regulation Bill, 2018 (link)
  4. Apar Gupta's written testimony to the Standing Committee's report on The DNA Technology (Use And Application) Regulation Bill, 2019 (link)
  5. IFF's submissions on the DNA Technology (Use and Application) Regulation, 2019 to the Parliamentary Standing Committee on Science and Technology, Environment, Forests and Climate Change (link)