National Human Rights Commission
Date: May 31, 2012
Subject- Seeking pre-emptive intervention to stop dangerous erosion of privacy by DNA profiling of citizens
This is with reference to the threats to human rights of present and future generation of Indians from Union Ministry of Science and Technology’s 58 page Draft Human DNA Profiling Bill, 2012. This Bill is the revised version of the 35 page DNA Profiling Act, 2007. The texts of both the Bills are attached.
On behalf of Citizens Forum for Civil Liberties (CFCL), I wish to place on record civil society’s appreciation for NHRC’s intervention in the case where 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. I submit that NHRC’s views on National Identification Authority of India Bill, 2010 helped Parliamentary Standing Committee on Finance in its recommendation to reject the Bill and the biometric data based UID/aadhaar programme.
In the related matter of Draft Human DNA Profiling Bill, 2012, I submit that the Bill supports 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” among other adverse effects.
I submit that the Bill provides for procurement of “Intimate body sample” which means a sample of blood, semen or any other tissue, fluid, urine, or pubic hair, a dental impression; or a swab taken from a person’s body orifice other than mouth obtained through “Intimate forensic procedure”. The intimate forensic procedure means the following forensic procedures, namely:-
(a) an external examination of the genital or anal area, the buttocks and also breasts in the case of a female breast;
(b) the taking of a sample of blood;
(c) the taking of a sample of pubic hair;
(d) the taking of a sample by swab or washing from the external genital or anal area, the buttocks and also breasts in the case of a female;
(e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks and also breasts in the case of a female;
(f) the taking of a dental impression;
(g) the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks and also breasts in the case of a female.
I wish to inform that the DNA Profiling Bill is aimed at regulating the use of Deoxyribose Nucleic Acid (DNA) analysis of body substance profiles and making provision for establishment of DNA Profiling Board consisting of eminent scientists, administrators, law enforcement officers, etc. to lay down standards for laboratories, collection of body substances, custody trail from collection to reporting and establishment of a databank and to create policies for use and access to information from such data bank, appointment of a DNA Databank Manager to supervise, execute and maintain the databank, etc. and for matters connected therewith or incidental thereto.
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.” The proponents of the Bill hope that DNA profiling tool can make all citizens ‘safe’ forever.
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”.
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. 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 nonappealable. Unmindful of this, in India National DNA databank is being proposed.
I wish to draw your attention towards the argument that a DNA profile “is very much like a social security number—though it is longer and is assigned by chance, not by the federal government”. Profiling of citizens in the name social security is a dehumanizing act.
I submit that once the DNA databank is in place the enlargement of scope for its new predictive uses, cannot be ruled out given scientific advancements underway. In such a situation readymade DNA based inferences makes impartiality of the criminal justice system and other systems become questionable.
I wish to inform you that contrary to the existing legal provisions under Census Act and Citizenship Act, the Bill states that the DNA data will also be used for the “creation and maintenance” of population statistics that can be used for “identification, research, protocol development or quality control”.
I submit that DNA profiling means “results of analysis of the DNA identification information in a body sample” for DNA record which is a record of the identification information derived from the samples by the analysis based on DNA testing of biological evidence using DNA technologies.
I submit that the Bill once it becomes a law will grant the authority to collect vast amount of sensitive DNA data of citizens merely on the ground of suspicion. The data will be held till the person is cleared by court. Under the Identification of Prisoner Act, there is a reference of collection of sensitive biometric data like fingerprints wherein biometric data of prisoners can be collected that too with the permission of a Magistrate but on acquittal the biometric data is required to be destroyed. The Draft Human DNA Profiling Bill is far more regressive than the colonial law. The provision of collection of citizens DNA data in the Draft Bill for DNA Database in effect treats the citizens worse than prisoners. DNA Profiling is also inappropriately referred to as DNA fingerprinting.
I submit that the preamble to the Bill admits that “DNA analysis offers sensitive information which, if misused, can cause harm to a person or society”. It proposes the creation of a National DNA Data Bank which be headed by an officer in the rank of a Joint Secretary to the Government of India. Once this is done the security of sensitive National DNA Data Bank relies on the presence or absence of the honesty of the officer in question.
I wish to draw your attention towards a section in the Bill that allows for “volunteers” to give their DNA profiles. It is quite strange that “volunteers” are expected to share their sensitive data with the government. It is noteworthy that Unique Identification Authority of India (UIDAI) had initially claimed that enrolment based on biometric data is voluntary. Subsequent events and official documents reveal that it is explicitly mandatory by implication.
I submit that Draft Human DNA Profiling Bill appears linked to the emergence of a Surveillance and Database State using Union Home Ministry’s National Population Register (NPR), National Intelligence Grid (NATGRID), National Counter Terrorism Centre (NCTC), Union Surface Transport Ministry’s Radio Frequency Identification (RFID), Union Finance Ministry’s National Information Utility, Planning Commission’s Unique Identification /Aadhaar, Union Rural Development Ministry’s Land Titling Bill, World Bank’s eTransform Initiative, NATO’s identification policy and Shri Sam Pitroda’s Public Information Infrastructure and Innovations etc. This merits examination by the NHRC.
I submit that DNA Data Bank like other databases like Centralized Identity Data Register (CIDR) of UID/aadhaar and NPR are saleable commodities but the Bill provides for the imprisonment of a few months or a fine of Rs 50,000 for “misuse” of the DNA profiles. The Department of Biotechnology (DBT), Union Ministry of Science and Technology has circulated this Bill to other ministries for their inputs.
I submit that in all likelihood DNA Data Bank, CIDR, NPR and Criminal Database will get converged in furtherance of World Bank’s eTransform Initiative unfolding in partnership with six transnational companies namely, Gemalto, IBM, L-1 Identity Solutions, Microsoft and Pfizer and two national governments of France and South Korea. Such convergence poses a threat to minorities and political opponents as they can be targeted in a situation where government is led by any Nazi party like political formations.
It may be noted that US Genetic Information Nondiscrimination 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.
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.’
In view of the above facts and precedents, I seek your immediate intervention to safeguard citizens’ privacy and their civil liberties which faces an unprecedented onslaught from the provisions of DNA Profiling Bill and other related surveillance measures being bulldozed by unregulated and ungovernable technology mentioned.
Citizens Forum for Civil Liberties (CFCL)
A-124/6, Katwaria Sarai
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
 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, 2000
]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
 Simon J. Walsh , Legal perceptions of forensic DNA profiling, Forensic Science International, Volume 155, Issue 1 , Pages 51-60, 1 December 2005