By Saumya Rastogi
Boston University News Service
The Human DNA bill, which was passed by the Lok Sabha in 2019 and is currently seeking approval in the Rajya Sabha in India, contains significant privacy issues, say advocates of data privacy.
The bill’s use of DNA is intended to assist crime-fighting by putting repeat offenders into an in-depth DNA database. The database would purportedly ensure that enforcement agencies can easily reidentify these offenders in future cases.
However, Rohin Garg, the associate policy counsel for the Internet Freedom Foundation, said that this is only the bill’s stated intention and the database could be used for other purposes.
Garg said that concerns were raised by the Communist Party of India (CPI) and the All India Majlis-e-Ittehad-ul-Muslimeen (AIMIM) when a report was submitted in the Parliament containing dissent notes from both parties. “The chief concern is profiling and a general surveillance mode. This data can be used for targeted profiling as well.”
Garg added that historically, the Indian justice system resulted in the disproportionate imprisonment of marginalized groups, religious minorities, and poor people.
The National Crime Records Bureau (NCRB) stated as of September 2020 that 16.6% of convicts, 18.7% under trial, and 35.8% of detainees are Muslim, even though they found 14.2% of the population. Garg said that there are similar disproportionate statistics for Dalits, who traditionally occupy the lowest caste.
Another problem with the Human DNA bill, said Garg, is that it is scientifically insufficient to be used in criminal cases. “Like said by the Madhya Pradesh high court, DNA evidence drawn itself cannot be used to establish a causal relationship to the crime committed. It cannot just be the burden of proof.”
Garg said that the standing committee looking over the bill had acknowledged these concerns but, in most places, has placed the burden on the government to assuage the fears on the parliament floor. “Instead of imposing the recommendations, they have given it upon the government to accept or reject these recommendations,” said Garg.
There are many recommendations from the standing committee to reduce the bill’s scope, like establishing the need only for a national database instead of regional ones and making the DNA regulatory board have independent membership.
Garg said that they are disappointed with the lack of significant changes made by the committee.
There is fallibility in the bill, too, where DNA evidence has been allowed in civil cases as well. Garg said that as experience with litigators, they know that DNA testing is not required in civil cases.
Garg noted that the financial memorandum at the end of the bill estimates around 20 crore rupees for capacity building (creating infrastructure) since India does not have that level of data set processing centers. It will also require extensive training of prosecutors, litigators, and judges to train them on how to use DNA evidence accurately. “So, the cost implies a long gestation period for getting that, which I don’t think is necessary at this point,” said Garg.
Garg added that the bill infringes upon the right of privacy of individuals. He said that when the Puttaswamy judgment of the right to privacy came in, the bill had already been drafted. The judgment states that if one wishes to infringe upon an individual’s privacy, certain proportionality standards need to be fulfilled. “So, the bill lacks that updated notion of privacy that is part of our legal infrastructure.”
Garg said that the bill has not gone through the process to show that this is a proportionate response to legitimate state aid. “The bill can be construed as unconstitutional.”
Moreover, Garg said that India does not have data protection legislation, so there are clear issues regarding data security and the subsequent impact on someone’s overarching rights.