Indian legislators must learn from the mistakes of other countries like the United Kingdom and the United States of America that have well established regulation and DNA databases.
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IN India, the initiative to draft a Bill regulating the use of DNA samples for crime-related reasons began in 2003, when the Department of Biotechnology established a committee known as the DNA Profiling Advisory Committee to make recommendations for the drafting of a DNA Profiling Bill. An Indian legislation to regulate DNA technology has in the works for the past 15 years.
The Indian Parliament has finally passed the Criminal Procedure (Identification) Bill, 2022 earlier this month. This is a Bill “to authorise for taking measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental.” It is to be noted that Section 2(1)(b) of the Bill defines measurements to include “finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis”.
Although the use of biological samples or DNA has proven to be extremely beneficial for the purposes of criminal investigation, there are certain risks and potential violations of human rights that the regulatory legislation has not taken into consideration.
Also read: Unravelling concerns over the Criminal Procedure (Identification) Bill, 2022
Right to Privacy
It is important to note that the National Crimes Record Bureau [NCRB] has been given the power to collect, store, preserve, process, share and disseminate to other agencies, the measurements of convicts and other persons under Section 4 of the Bill. Further, the measurements shall be retained for a period of 75 years from the date of their collection. Also, Section 3(a) of the Bill only allows for the taking of measurements of only those persons convicted of an offence punishable under Indian law. However, the proviso to the section gives a Magistrate the power to retain the measurements of undertrials, suspects and even acquitted persons – hereinafter referred to as ‘other persons’ – by recording the reasons for the same in writing.
The Bill gives a Magistrate the power to retain the measurements of undertrials, suspects and even acquitted persons by recording the reasons for the same in writing. This power is a gross violation of the right to privacy of the persons, and completely goes against the principle of ‘presumed to be innocent until proven guilty’.
This power of the Magistrate is a gross violation of the right to privacy of the other persons and completely goes against the principle of ‘presumed to be innocent until proven guilty’ as per Article 11 of the Universal Declaration of Human Rights. Further, it needs to be highlighted that the cellular data and DNA profiles of such other persons is likely to be shared with third parties as provided under Section 4(1)(d) of the Bill.
Let us understand how this goes against the right to privacy of the aforementioned categories of individuals in light of the judgement delivered in Justice K.S Puttaswamy vs. Union of India (2017). The judgement affirmed that the Constitution of India guarantees a fundamental right to privacy to each individual under Article 21. It further held that the right to privacy imposes on the State a duty to protect the privacy of an individual, corresponding to the liability that is to be incurred by the State for intruding the right to life and personal liberty. This right to privacy includes privacy of one’s sexual orientation, information related to health, ethnicity as well as genetic data.
These rights are violated by the inclusion of the category of not only other persons in the wordings of the Bill, but also convicted persons. For this purpose, it is essential to refer to international jurisprudence on the same.
Also read: Shifting stakes of privacy
S & Marper vs. The United Kingdom
The case of S and Marper vs. The United Kingdom (2008) remains one of the most significant judgments relating to the use of DNA profiles, delivered by the European Court of Human Rights. The applicants, in this case, were two British nationals; they complained under Articles 8 and 14 of the European Convention for Protection of Human Rights and Fundamental Freedoms. Their complaint was that the authorities had continued to retain their fingerprints, cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or discontinuance of proceedings.
After their cases had formally come to an end, both applicants had asked for their fingerprints and DNA samples to be destroyed but the police refused in both the cases. They contended that the indefinite retention of fingerprints, cellular samples and DNA profiles of non-convicted persons could not be regarded as “necessary in a democratic society” for the purpose of preventing crime. They submitted that the retention interfered with their right to respect for private life as they were crucially linked to their individual identity and concerned a type of personal information that they were entitled to keep within their control. They further emphasised that retention of cellular samples involved an even greater degree of interference as they contained full genetic information about a person, including genetic information about their relatives. They argued that an individual was entitled to a guarantee that such information which fundamentally belonged to them would remain private and not be communicated or accessible without their permission.
Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned: European Court of Human Rights.
The court in this case reflected on its past jurisprudence and recalled that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. Further, elements such as gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 of the Convention. Beyond a person’s name, their private and family life may include other means of personal identification and of linking to a family. The court also recalled that the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 of the Convention.
The court then cited the case of Van der Velden vs. the Netherlands (2012), wherein it was considered that, given the use to which cellular material in particular could conceivably be put in the future, the systematic retention of that material was sufficiently intrusive to disclose interference with the right to respect for private life. The court held that an individual’s concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference.
Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. The fact that only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion.
The court opined that the DNA profiles’ capacity to provide a means of identifying genetic relationships between individuals is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned. Lastly, the possibility the DNA profiles create for inferences to be drawn as to ethnic origin makes their retention all the more sensitive and susceptible of affecting the right to private life. It was finally held that retention of the cellular material, DNA profiles and fingerprints of accused persons who are acquitted or against whom a proceeding has been discontinued, was a violation of their right to privacy.
Also read: Decoding the Criminal Procedure (Identification) Bill, 2022
What government reports and the Supreme Court have said in India
In light of the above judgement, Indian policy makers need to consider the fact that the passing of a legislation for the purposes of regulating DNA profiling is entirely contingent on a comprehensive privacy law, which India does not have at the moment. This Bill can only be passed if and when the Draft Data Protection Bill becomes a law. It is crucial to rethink the inclusion of the DNA of “other persons” when the collection of this genetic data can be used to track their genealogy. For this purpose, in many countries, DNA profiling to establish the identity of a person is done using a specific portion of the DNA that does not reveal any additional information about the individual.
Report No. 271 of the Law Commission of India in 2017 gave this recommendation as well. The Bill fails to provide any clear mechanism to handle such additional or resultant sensitive and personal data. Further, the Report of the Group of Experts on Privacy, headed by Justice A.P. Shah in 2012 identified the need for a mechanism using which citizens can appeal against the retention of data. However, not only does the Bill not provide for such a mechanism, but it also goes to the extent of stating that resistance or refusal to allow taking of measurements will be deemed to be an offence under Section 186 (obstructing public servant in discharge of public functions) of the Indian Penal Code, and the police can thus forcibly take the same. This authority remains unchecked and can potentially be misused to target people belonging to minority communities.
The report further suggested that the purpose for which data was being collected should be stated publicly, and the data should be destroyed after the purpose has been served and the time frame has expired. The report said that the bodies collecting, analysing, and storing DNA data should be made to release an annual report, detailing their practices and organisational structure.
However, the Bill has failed to shed light on these significant considerations. It has placed an unreasonable retention period of 75 years, the basis for which has no legal justification. It is submitted that criminal identification procedures in the form of modern technologies should balance the individual rights to freedom and privacy along with improving procedural dimensions to sharpen the criminal justice system.
The right to privacy of an individual is essential as it goes hand in hand with the privilege of an accused against self- incrimination as per Section 161(2) of the in the Code for Criminal Procedure and Article 20(3) of the Indian Constitution. Here, we must consider the landmark judgement given by the Supreme Court in the case of Selvi vs. State of Karnataka (2010), which addressed the issue whether the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile test for the purpose of criminal investigation goes against the privilege of self-incrimination of the accused.
The Supreme Court referred to the English case of Woolmington vs. DPP (1935) whereby it was held that the `right to silence’ is a principle of common law, and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the court. It was finally held that such tests come within the scope of testimonial compulsion and attract the shield of right against self-incrimination.
The legislators must reconsider the provisions to include the essential element of consent, which forms the basis of data privacy worldwide, as this will otherwise hinder the privilege of the accused against self-incrimination.
In light of this judgement, it is significant to address whether the collection of the measurements and storing of the same by the NCRB without an individual’s consent can lead to a violation of the accused’s privilege. As per the provisions of the Bill, there is no requirement of consent. The legislators must reconsider the provisions to include the essential element of consent, which forms the basis of data privacy worldwide, as this will otherwise hinder the privilege of the accused against self-incrimination. Such hindrance can prove to be extremely dangerous and lead to the cruel and degrading treatment of individuals by the authorities during the course of investigation.
Lessons from abroad
Indian legislators must learn from the mistakes of other countries like the United Kingdom and the United States of America that have well established regulation and DNA databases. It must be noted that one of the key goals of the development of a DNA database is to deter crime. A study in Denmark showed that DNA profiling increases detection probability and reduces recidivism within the following year by as much as 43 per cent. It is with this mindset that the Bill has included the category of other persons, along with that of offenders to be included in the NCRB’s database.
However, it must be noted that increasing the size of your database is not directly proportional to deterring crime. Such a fallacy can lead to various wrongful convictions. Legislators must consider that DNA profiling is largely dependent on statistical predictability. Thus, it is crucial to account for mismanagement of DNA evidence, contamination, false positives and other errors that could potentially degrade the quality of the DNA massively. The current Bill fails to do the same.
