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A DNA profiling law is dystopian nightmare without the fundamental right to privacy

As government readies to table the Human DNA Profiling Bill in Parliament, we need to ask what are the safeguards to ensure the database isn't misused.

 |  Angiography  |  7-minute read |   24-07-2017
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In July 2015, when the Human DNA Profiling Bill was supposed to be tabled in Parliament for the first time, debates about its reliability, efficacy, adherence to privacy and costs forced the Centre to postpone introducing the Bill in the House.

Since that time, however, the debate around Aadhaar and its biometrics-based central database has brought to fore many aspects of privacy and data (in) security.

Moreover, the demand to claim privacy as a fundamental right has gained ground to the extent that a nine-judge Supreme Court bench is finally hearing the matter since last week.

Exactly as the privacy case is being heard in the top court, and legal and constitutional rebuttals are being given to the Centre's claim in June this year that "citizens don't have absolute rights over their own bodies", that "bodily autonomy isn't absolute", we might have the potential introduction of the Human DNA Profiling Bill into Parliament once again.

Centre has indicated to the SC that it's ready to table the DNA Profiling Bill, even though Indians are still without a strong privacy framework, without a privacy law and without a fundamental right to privacy.

It's precisely in the intersection of these two situations that the DNA Profiling Bill's central tenet of forming a DNA database is so problematic, and certainly prone to gross misuse. But before we go there, we need to briefly summarise the criticisms of the DNA Bill itself.

The 2015 draft version of the Human DNA Profiling Bill laid out its goals, which were ostensibly in the interest of quickening and expanding the criminal justice delivery system.

Drafted by the department of biotechnology in the ministry of science and technology, the DNA Profiling Bill intends to use DNA identification to ID the unclaimed dead, to track down missing persons, and to maintain a central database of DNA profiles of those with criminal records, whether convicted or undertrials.

There would be a DNA Profiling Board, which would allow/disallow profiling of DNA in criminal cases, but the question remains who would watch the Board itself and its huge discretionary powers to include or exclude DNA profiles of people.

dnabd_072417052613.jpgThe DNA Profiling Bill's inherent assumption of its inviolability is therefore at the root of the concerns over this draft legislation. (Creative Commons.)

In an exhaustive piece published in The Wire in July 2015, all these concerns were laid out comprehensively, including the question of consent of the individuals whose DNA would be profiled, or added to the data bank.

For example, the clause that part of the database would be used for population studies leaves the vagueness about whose DNA will be included in such studies and why absolutely unanswered.

Because DNA profiling is the most accurate so far in forensic techniques, but is by no means infallible, the DNA Profiling Bill's inherent assumption of its inviolability is therefore at the root of the concerns over this draft legislation.

This is a similar assumption that drives the Aadhaar project of the Unique Identity Authority of India (UIDAI), in which a priori infallibility of a programme informs each and every aspect of how it's legislated and administered, with rules tweaked every now and then to suit the regime, while the rights of citizens become increasingly compromised and eventually dispensable.

Yes, DNA profiling laws have been enacted in countries like the USA, UK and Canada, but here the laws are supplemented with the enshrined right to privacy. Data protection is sacrosanct and the citizens' digital and bodily integrity isn't left at the mercy of a beneficent board that would oversee the collection of DNA profiles from criminals, the dead and the missing.

In addition, the Centre for DNA Fingerprinting and Diagnostics (CDFD) would need to deal with cases of evidence tampering, which, even while being punishable under law, would not deter those with vested interests to interfere with and influence the outcome of the so-called infallible DNA analysis.

There are major and worrying similarities between the way Aadhaar has been pushed to become an illegally mandatory identificatory burden on India's 1.3 billion citizens, most of whom are poor and downtrodden, and the manner in which the Human DNA Profiling Bill and the DNA database is being pushed by those who believe in the project.

Just like Aadhaar was initially marketed as a voluntary identification proof intended for the welfare and public distribution system, only to be expanded staggeringly and now forcibly being linked to each and every aspect of a citizen's life and socioeconomic existence, we have the relatively benign beginning of the DNA Profiling Bill, invested in, as it seems, ensuring a faster and more efficient criminal justice delivery system.

Given the Aadhaar template, we have already seen how an ostensibly limited project meant for welfare delivery becomes too big to fail; how the State brushes under the carpet each and every failing, the massive security breaches and the infringement into the citizens' fundamental rights to freedom, life and liberty, right against exploitation, etc., in order to keep afloat a programme so invasive that it reduces the citizens to data points.

If data is the new oil, then drilling deep into the citizens for data mining and excavating information that is private and sensitive in nature only to allow that to be widely used for commercial purposes is becoming the order of the day.

aadharbd_072417052636.jpgAadhaar has been pushed to become an illegally mandatory identificatory burden on India's 1.3 billion citizens, most of whom are poor and downtrodden.

Aadhaar is the state-approved illegal data mining of the citizens, that even an implied right to privacy couldn't effectively put a stop to.

This is the reason why the nine-judge bench of the Supreme Court is hearing the case to determine if there's a fundamental right to privacy, which can't be changed or tweaked to let citizens be at the mercy of an authoritarian government that is obsessed with controlling, surveiling and curtailing its citizens.

Of course, we have also seen the Centre's double standards on privacy when Aadhaar is compared to the ongoing WhatsApp data sharing case in the Supreme Court, in which the government has held that data is an extension of the citizen and data privacy is therefore absolute.

Similarly, a Human DNA Profiling Bill that intends to build a databank of DNA - culled from "criminals", the dead and the missing - when legislated without the fundamental right to privacy would create a dystopian nightmare for the citizens of the country.

Because the fundamental rights are natural rights, they pre-exist and become the matrix of the social contract between the citizens and the State, a fundamental right to privacy, and a privacy law for data protection, for digital and bodily consent, and related aspects are required before any DNA profiling or biometrics-based databank can be legitimately built.

At a time when citizens are becoming criminalised because of the nature of the meat stored in their refrigerators, or what they eat, choose to wear, whom they love or choose to marry; when crimes, even murders, committed in the name of the cow, or a particular god belonging to majority religion, are automatically exonerated, or not acted upon, or even hailed as vigilante heroism - the line between criminality and innocence is indeed very thin.

With persons of a minority religion being arrested over a received WhatsApp message, that too against the grave charges of sedition, it's increasingly becoming criminal to just be a minority - religious, sexual, linguistic, ideological - in this country.   

Given these very trying times, when our basic values are being questioned and democracy itself is being imperilled by an onslaught of communal and violent propaganda, when history is being airbrushed at an unprecedented pace, the definition of who is a criminal and who isn't is solely at the mercy of a State that views its citizens as data points to perpetuate a national security state.

Without a fundamental right to privacy, a robust and expansive privacy law - any system that relies on human DNA, biometrics and other data that can be stored centrally and accessed by a number of "authorised" entities, becomes a repository of potential abuse, exploitation, exclusion, surveillance and control.

Technology is a double-edged sword and must be handled carefully by those in power, while its impact on the citizens must be limited by generously enshrined laws and constitutional guarantees to life, liberty and freedoms.

Also read: Why the government wants to photograph your private parts

Writer

Angshukanta Chakraborty Angshukanta Chakraborty @angshukanta

Former assistant editor, DailyO

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