Monday, March 10, 2014

83rd Death Anniversary of Shaheed Bhagat Singh, Biometric profiling, and dharna gainst human rights of common citizens

To

Shri Nitish Kumar
Hon’ble Chief Minister
Government of Bihar
Patna

Date: March 11, 2014

Subject- Upcoming 83rd Death Anniversary of Shaheed Bhagat Singh, Biometric profiling of citizens, and dharna to protest against human rights of common citizens

Sir,

This is to draw your considered attention towards the upcoming 83rd death anniversary of Shaheed Bhagat Singh, biometric profiling of citizens and the dharna to protest against human rights of common citizens held on March 10, 2014 at Shahid Bhagat Singh Chowk, Gandhi Maidan, Patna. The dharna was organized by People’s Union for Civil Liberties (PUCL).

We submit that while in Pakistan struggle is on to get Shadman Chowk square in Lahore, renamed as Bhagat Singh Chowk, the dharna at at Shaheed Bhagat Singh Chowk, Patna to protest against inhuman acts of Police in particular and the State in general merits attention.

We submit that while almost the entire political class has been misled on the issue of the dangers of trusting biometric identification technologies for determining social policies is bound to be consequential 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.”

We submit that the 21st century ideology of genetic determinism is being promoted through biometric identification. Such identification includes DNA profiling. 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.’ The argument which is often mouthed in defence of biometric National Population Register (NPR) and unique identification (UID)/Aadhaar number is that it is meant for social security akin to social security number in the US, which incidentally is not based on biometric data. This must be seen along with a similar argument being advanced for a DNA profile. They say such profiling is required because it “is very much like a social security number—though it is longer and is assigned by chance, not by the federal government”. Clearly, the ramifications of automatic profiling, tracking and surveillance is unfolding and trapping unsuspecting citizens in its ambit.

We submit that the 58-page Draft Human DNA Profiling Bill, 2012 which is the revised version of the 35-page DNA Profiling Act, 2007 appears linked to the emergence of a surveillance and database state using Union Home Ministry’s biometric 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 e-Transform Initiative, North Atlantic Treaty Organisation (NATO)’s identification policy and Sam Pitroda’s Public Information Infrastructure and Innovations etc.

We submit that the State Government which displayed its legal imagination in opposing NCTC merits salute. But it is quite sad that it escaped the attention of the State Government to demand scrapping of biometric data based unique identification number branded as aadhaar being promoted by Shri Nandan Manohar Nilekani, the candidate of Indian National Congress from Bangalore and biometric National Population Register (NPR) is being promoted by Shri Yashwant Sinha, BJP leader and Chairman, Parliamentary Standing Committee on Finance.   

We submit that having initiated collection of biometric data like fingerprints and iris scan for NPR and UID number, the Draft Human DNA Profiling Bill takes the next step and 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”.

We 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”. This is apt about all kinds of biometric identification.

We submit that profiling based on Deoxyribose Nucleic Acid (DNA) is aimed at examination of human biological material acquired through intimate forensic procedure. This biological material 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 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) Taking of a sample of blood;

(c) Taking of a sample of pubic hair;

(d) 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) 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) Taking of a dental impression;

(g) 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.

We submit that DNA Profiling is aimed at regulating the use of DNA analysis of body substance profiles and making provision for establishment of DNA Profiling Board consisting of eminent scientists, administrators and law enforcement officers 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 and for matters connected therewith.

We submit that a decision of the European Court of Human Rights (ECHR) about violation of the right to privacy and family life by DNA profile retention in criminal justice databanks is relevant here. The case was heard publicly on 27 February 2008, and the unanimous decision of 17 judges was delivered on 4 December 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. This was before David Cameron became the Prime Minister in May 2011 defeating Tony Blair's Labour Party which had introduced identity card legislation and compulsory DNA recording.

We submit that the technique of DNA profiling was pioneered in the UK and it was the first nation to establish a criminal justice DNA databank. The decision is non-appealable. Unmindful of this, in India National DNA databank is being proposed.

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 a readymade DNA based inferences adversely impacts impartiality of the criminal justice system and other systems become questionable. 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".

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 in a criminal case.

We submit that the biometric data will be held till the person is cleared by court. Under the Identification of Prisoner Act, 1920 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.

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 will be headed by an officer in the rank of a Joint Secretary to the Government of India. There is 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) too had initially claimed that enrolment based on biometric data is voluntary. Subsequent events and official documents reveal that it is explicitly mandatory by implication.

We submit that the 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 Rs50,000 for "misuse" of the DNA profiles. The Department of Biotechnology (DBT), Union Ministry of Science and Technology have circulated this Bill to other ministries for their inputs.

In all likelihood DNA Data Bank, CIDR, NPR and criminal database will get converged in furtherance of World Bank’s e-Transform 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 whose targeting is imminent.

It may be noted that US Genetic Information Non-discrimination Act (GINA), 2008 prohibits US 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.

We submit that common citizens including academicians, social workers and political leaders who participated in the dharna made the following 10 demands:
1.    By a circular or a notification addressing of citizens by referring to them as “Tum” (pejorative “you” in Hindi) must be made a punishable offence.
2.    By a circular or a notification there should be arrangement for the sitting of citizens who visit Government offices. If any citizen is kept standing it should be notified as a punishable offence.
3.    By a circular or a notification in Government offices shaking hands should be notified as a proper greeting instead of greeting with folded hands.
4.     Act of assault by police, use of abusive language or act of humiliating citizens should be declared as a punishable offence to be legally dealt with in a expeditious manner through summary trial.
5.    There should be stoppage of dishonesty and arbitrariness in the investigation of crime sot that the current rule of injustice is ended.
6.    Criminal laws should be properly implemented so that the culprits do not get away and innocent do not get caught.
7.    Police should be transformed into assistance provider for citizens and police stations should be turned into public security centers instead of centers of tyranny.
8.    Civil servants should be made to give up their mentality of being the ruler and the mentality of being a helper of citizens among them should be established.
9.     The ambit of right to service should be expanded and all the services be brought under it and ensure that the defaulters from among the civil servants are punished.
10.    Discrimination between influence rich and influence poor and income rich and income poor should be minimized.              
We submit that these demands were displayed prominently on the banners at Shaheed Bhagat Singh Chowk, the site of dharna.

We submit that the creatures of Indian Police Act, 1861 were conceived and delivered by the colonial government to establish authority over subjects. This must be creatively overhauled to ensure that police system helps citizens’ access justice.

We submit that Shaheed-e-azam Bhagat Singh's trial has been described by the Supreme Court of independent India as "contrary to the fundamental doctrine of criminal jurisprudence" because there was no opportunity for the accused to defend themselves. The Special Tribunal was a departure from the normal procedure adopted for a trial and its decision could only be appealed to the Privy Council located in Britain.The accused were absent from the court and the judgement was passed ex-parte. The ordinance, which was introduced by the Viceroy to form the Special Tribunal, was never approved by the Central Assembly or the British Parliament, and it eventually lapsed without any legal or constitutional sanctity.

We submit that the Supreme Court has established a museum to display landmarks in the history of India's judicial system, displaying records of some historic trials. The first exhibition that was organised was the Trial of Shaheed Bhagat Singh.

We submit that unless the specific demands are accepted and acted upon, it will demonstrate that the system that illegally and illegitimately hanged Shaheed Bhagat Singh on March 23, 1931 remains unchanged and perpetrates similar tyrannies.    

In view of the above, by acting on the above mentioned 10 demands a beginning can be made to give birth to a just police system that replaces unjust colonial system with a circular which may be sent all the IPS officers, IAS Officers and 853 police stations of the state to incorporate these demands of citizens in their day to day activity and to prominently publish it on a display board outside the administrative and police offices in bold letters. A journey to reform the police system may be initiated with these small but doable steps. 

Kindly consider the genocidal ramifications of the manifesto of biometric identification promoters that will read like the 1,500 page regressive manifesto titled “2083: A European Declaration of Independence” brought out by Norwegian gunman and neo-Crusader, Anders Behring Breivik who carried out the heinous attacks on his fellow citizens. It refers to the word “identity” over 100 times, “unique” over 40 times and “identification” over 10 times. There is reference to “state-issued identity cards”, “converts’ identity cards”, “identification card”, “fingerprints”, “DNA” etc as well in this manifesto. These words and their imports merit attention in order to safeguard human rights of present and future generation of citizens which faces an unprecedented onslaught from the provisions of DNA Profiling Bill and other related surveillance measures being bulldozed by unregulated and ungovernable technology. Biometric profiling of any sort is dehumanising. It is high time State Government acted to stop it in the State and in the country.

We will be happy to share more information

Thanking you in anticipation

Yours faithfully
Gopal Krishna
Citizens Forum for Civil Liberties (CFCL)
Mb: 08227816731, 09818089660
E-mail:gopalkrishna1715@gmail.com

Cc

1.    Shri A K Sinha, Chief Secretary, Government of Bihar
2.    Shri Amir Subhani, Principal Secretary, Department of Home, Government of Bihar 
3.    Smt Preeta Verma, Special Secretary, Department of Home, Government of Bihar 
4.    Shri Ashish Ranjan Sinha, Director General of Police, Bihar,
5.    Shri Abhayanand, Additional Director General of Police, Bihar

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