Friday, August 21, 2015
CFCL’s feedback on The Human DNA Profiling Bill, 2015
Citizens Forum for Civil Liberties (CFCL)
Department of Biotechnology
Union Ministry of Science & Technology
Government of India
R. No. 713, Block 2, C.G.O. Complex
New Delhi – 110 003
20th August, 2015
Subject- CFCL’s feedback on The Human DNA Profiling Bill, 2015
With reference to the announcement on the website of Department of Biotechnology, Union Ministry of Science & Technology seeking feedback on The Human DNA Profiling Bill, 2015 available at http://www.dbtindia.nic.in/archives/6992, having been perusing the earlier versions of the Bill since 2007, Citizens Forum for Civil Liberties (CFCL) wishes to make the following submissions:
1. I have read and compared the 35 page long DNA Profiling Act, 2007, 58 page long Draft Human DNA Profiling Bill, 2012, 48 page long Draft Human DNA Profiling Bill, 2015 (16th January, 2015 ) and 37 page long the Human DNA Profiling Bill, 2015 (9th June, 2015 Version, Legislative Department).
2. I am enclosing/attaching two relevant documents- Public Statement signed by 21 eminent and concerned citizens and a Statement of Concern signed by 17 eminent citizens in this regard.
3. I understand that the Human DNA Profiling Bill, 2015 (9th June, 2015 version) is aimed at regulating the use of Deoxyribose Nucleic Acid (DNA) analysis of human body substances profiles and to establish the DNA Profiling Board for laying down standards for laboratories, collection of body substances, custody trail from collection to reporting and also to establish a National DNA Data Bank and for matters connected therewith or incidental thereto.
4. In chapter I, clause 2, 1 (h) of the Bill, “DNA laboratory” has been defined. This definition is quite problematic. It reads: “any laboratory or facility established by the Central Government or State Government or any other individual or Organization to perform DNA profiling”. How can “any other individual or Organization” be deemed an authorized ‘DNA laboratory’ “to perform DNA profiling”? This definition can give rise to misuse and will result in questionable implications. The provisions of chapter III, Clause 14 of the Bill must be incorporated in this definition.
5. In chapter I, clause 2, sub clause (2) of the Bill reads: “all words and expressions used and not defined in this act but defined in the Indian Penal Code, the Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973, shall have the same meanings respectively assigned to them in that act or those Codes.” The drafters of the Bill forgot that ‘DNA’ finds mention in Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000. They also forgot that Biometrics “means the technologies that measure and analyse human body characteristics, such as 'fingerprints', 'eye retinas and irises', 'voice patterns', "facial patterns', 'hand measurements' and 'DNA' for authentication purposes”. By implication they are suggesting legislation for each of human body characteristics-biometric data separately. It reveals that the Bill has not been thought through. It has been drafted hurriedly.
6. 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.
7. Chapter 2, clause 3 Sub Clause 3 provides that DNA Profiling Board will be established in Hyderabad. This seems to reveal the mastermind behind the bill- Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad. It appears that Department of Biotechnology has become subservient to whims and fancies of CDFD with no agency of its own in this regard for some reason.
8. It is noteworthy that in Chapter 2, clause 4, the Bill proposes to include Chairman, National Human Rights Commission (NHRC) as the ex-officio member of the proposed DNA Profiling Board. On behalf of Citizens Forum for Civil Liberties (CFCL), I wish to place on record civil society’s appreciation for the intervention of our National Human Rights Commission (NHRC)’s in the case wherein 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. It is germane to note that radio collar is based on biometric data like voice print. If making Indian students wear biometric radio collar constitutes an act which Government of India admitted as an act of violation of human rights, indiscriminate DNA profiling is also an act of violation of human rights. It appears that the proposal for inclusion of Chairman, National Human Rights Commission (NHRC) is motivated and is aimed at co-opting and blunting likely opposition from the NHRC to several provisions of the proposed law. Coincidentally, NHRC’s views on National Identification Authority of India Bill, 2010 helped Parliamentary Standing Committee on Finance in its recommendation to trash the Bill and the biometric data based UID/aadhaar programme.
9. The proposal of inclusion of Director, Central Bureau of Investigation (CBI) or Joint Director, CBI is highly questionable given the fact that legality of CBI remains to be decided. The matter with regard to CBI is pending with a Constitution Bench in the aftermath of the verdict by Justice I A Ansari, headed Guwahati High Court bench which is the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh. Justice Ansari passed a landmark judgment on November 6, 2013 in W. A. No. 119 of 2008 (in W. P. (C) No. 6877 of 2005) setting aside and quashing the resolution of Union Ministry of Home Affairs (MHA) dated 1st April, 1963, whereby CBI has been constituted. The judgment has been challenged in the Supreme Court. The bench of Justice Ansari and Dr. (Mrs.) Justice Indira Shah refused to accept questionable status quo as a fait accompli. By now it is clear that the way MHA created and operated CBI incorrectly arguing that it is being done under Delhi Special Police Establishment (DSPE) Act, 1946. The judgment on CBI begins with the quote of Thomas Jefferson on how tyranny is when people fear the government and its liberty when government fears the people. Jefferson was the principal author of USA’s Declaration of Independence (1776) and the third President of the United States (1801–1809).
The High Court judgment in the matter of CBI was pronounced after examining questions like: Whether ‘Central Bureau of Investigation’, popularly called CBI, is a constitutionally valid police force empowered to ‘investigate’ crimes?, Could a ‘police force’, empowered to ‘investigate’ crimes, have been created and constituted by a mere Resolution of Ministry of Home Affairs, Government of India, in purported exercise of its executive powers?, Could a ‘police force’, constituted by a Home Ministry Resolution, arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheet and/or prosecute alleged offender?, Whether CBI is a ‘police force’ constituted under the Union's Legislative powers conferred by List I Entry 8?, Do Entry 1 and 2 of the Concurrent List empower the Union Government to raise a ‘police force’ and that, too, by way of Executive instructions of Union Home Ministry?, Whether Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a ‘police force’ in the name of CBI? and above all, is it permissible for the Executive to create a ‘police force’ with power to ‘investigate’ crimes in exercise of its executive powers, when exercise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21?
The petitioner had sought quashing of the impugned Resolution No. 4/31/61-T, dated 01-04-1963, where under the Central Bureau of Investigation stands established, as ultra vires the Constitution of India. It was argued that since police is a State subject within the scheme of the Constitution of India inasmuch as it is only a State Legislature, which, in terms of Entry No. 2 of List-II (State List) of the Seventh Schedule to the Constitution of India, is competent to legislate on the subject of police and, therefore, the Central Government could not have taken away the power, which so belongs to State legislatures, and create or establish an investigating agency, in the name of CBI, adversely affecting or offending the fundamental rights, guaranteed under Part III of the Constitution of India.
The High Court judgment in the matter of CBI has noted that the Constituent Assembly debates, dated 29-08-1949, wherein Dr. B R Ambedkar had clarified that the word ‘investigation’, appearing in Entry 8 of List I (Union List) of the Seventh Schedule, which read, “Central Bureau of Intelligence and Investigation”, would not permit making of an ‘investigation’ into a crime by the Central Government inasmuch as ‘investigation’ would be constitutionally possible only by a police officer under the Cr.P.C., police being exclusively a State subject and the word ‘investigation’, appearing in Entry 8 of List I (Union List), would, in effect, mean making of merely an ‘enquiry’ and not ‘investigation’ into a crime as is done by a police officer under the Code of Criminal Procedure. The word `investigation’ is, therefore, according to the Constituent Assembly Debates, intended to cover general enquiry for the purpose of finding out what is going on and such an investigation is not an investigation preparatory to the filing of a charge- sheet against an offender, because it is only a police officer, under the Criminal Procedure Code, who can conduct ‘investigation’.
In its affidavit CBI, claimed that “it had been exercising functions and powers of police under the Delhi Special Police Establishment Act, 1946. In its affidavit, filed in the writ petition, the CBI further submitted that the CBI has had been functioning for more than four decades, but its constitutional validity has never been challenged by any one and, hence, this settled position may not be unsettled.” This is a bizarre defence. Similar defenses are being advanced for UIDAI and aadhaar in the Supreme Court.
The petitioner argued that “Delhi Special Police Establishment Act, 1946 (in short, ‘the DSPE Act, 1946’) is ultra vires the Constitution, for, it offends, according to Mr. Choudhury, Article 372 of the Constitution inasmuch as Parliament is not competent to make law on police for whole of India and it is only a State legislature, reiterates Mr. Choudhury, which can make, or could have made, law, on police by taking resort to Entry No.2 in the State List (List II).” Therefore, the DSPE Act, 1946, cannot continue anymore inasmuch as its continuance violates the basic Constitutional scheme. The Executive Order dated 1st April, 1963 that created CBI, does not disclose that the CBI has been constituted under DSPE Act.
Though “Union of India’s executive powers may, in the light of Article 73, be co-extensive with its legislative powers, the fact remains that the executive powers cannot be exercised offending fundamental rights, guaranteed by Part III, unless the exercise of such executive powers is backed by appropriate legislation; but, in the cast at hand, the resolution, dated 01-04-1963, where under CBI has been constituted, is not backed by any legislation”, the judgment notes.
Even otherwise there is a manifest conflict of interest given the fact that CBI is and will remain an interested party at least as long as it exists legally or under questionable legal mandate.
10. The inclusion of Director General of Police of a State as a member of the DNA Profiling Board as one of its 15 members is questionable because of conflict of interest. Also why should Director, Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad be a member of the proposed board given the fact that CDFD is likely to be involved in undertaking tests of DNA samples. How can it be expected to be impartial in the assessment of its own work? CDFD has already compromised its credentials by disclosing its bias by including caste requirements in its attached Identification Form.
11. In chapter II, Clause 7, the Bill makes a statement saying, “Any Member having any direct or indirect interest, whether pecuniary or otherwise, in any matter coming up for consideration at a meeting of the Board shall, as soon as possible after relevant circumstances have come to his knowledge, disclose the nature of his interest at such meeting and such disclosure shall be recorded in the proceedings of the Board, and such Member shall not take any part in any deliberation or decision of the Board with respect to that matter.”
I submit that mere recusal is not sufficient. Such persons should not be part of the Board under any circumstances to avoid valid charges of moral turpitude and unethical conduct on the part of the Board.
12. I submit that it is quite immoral to suggest that “No act or proceeding of the Board shall be invalid merely by reason of (a) any vacancy in, or any defect in the constitution of, the Board; or (b) any defect in the appointment of a person acting as a Member of the Board; or (c) any irregularity in the procedure of the Board not affecting the merits of the case” in chapter II, Clause 9 of the Bill.
The fact is that the Board ceases to be a Board in letter and spirit of it suffers from any of the above mentioned three defects.
13. I submit that in Chapter II, Clause 12 sub clause 4 of the Bill reveals that there can be “persons and groups of persons whose rights and related interests may be affected or impacted by any DNA collection, storage, or profiling activity” but it only provides for consultation by Board with such persons. This is hardly a sufficient safeguard.
It is also quite strange that the word “public interest” has been removed from Chapter II, Clause 12, Sub Clause 5 of the Bill.
The January 16, 2015 version of the draft Bill had the provision that the Board “shall, while considering any matter under its purview, co-opt or include any person, group of persons, or organisation, in its meetings and activities if it is satisfied that that person, group of persons, or organisation, has a substantial interest in the matter and that it is necessary in the public interest to allow such participation”.
It is puzzling to note that there is someone who is allergic to the word “public interest.”
14. I submit that from Chapter II, Clause 13, Sub Clause (g) of the Bill it gets revealed that “DNA profiling and related issues” have some relationship with “intellectual property issues”. Instead of being telegraphic, the drafters of the Bill should have disclosed how intellectual property rights are impacted.
15. Chapter II, Clause 13, Sub Clause (i) of the Bill states that the Board will be “recommending for optimum use of DNA techniques and technologies for administration of justice or for such other relevant purposes as may be specified by the regulations”.
Such wide scope of subordinate legislation for use of DNA techniques and technologies beyond administration of justice extending to “such other relevant purposes as may be specified by the regulations” cannot be deemed acceptable. It is undemocratic and paves the way for unlimited government. It is a license for misuse of DNA techniques and technologies.
The January 16, 2015 version of the draft Bill did not have the latter part of the provision. The desire to maximize the use of DNA is inherent in the Bill but it does not factor in global experiences which point out that biometric data is inherently fallible. SUCH BLIND FAITH IN DNA techniques and technologies can only be termed as scientism-which is not based on science but the vested interests of institutions involved.
17. Chapter II, Clause 13, Sub Clause (l) of the Bill states that the Board will be “making recommendations for provision of privacy protection laws, regulations and practices relating to access to, or use of, stored DNA samples or DNA analyses, and ensure
(i) sufficiency and implementation of such protections ;
(ii) making specific recommendations to ensure the appropriate use and dissemination of DNA information;
(iii) ensure the accuracy, security and confidentiality of DNA information;
(iv) timely removal and destruction of obsolete, expunged or inaccurate DNA information; and
(v) such other steps as may be required to protect privacy;”
This recommendation underlines that The Human DNA Profiling Bill, 2015 must await the enactment of privacy protection laws in our country. Unless this is done the enactment Human DNA Profiling Bill, 2015 will be akin to putting the cart before the horse.
16. Chapter II, Clause 13, Sub Clause (p) of the Bill states that the Board will be “deliberating and advising on all ethical and human rights issues emanating out of DNA profiling in consonance with international guidelines enumerated by the United Nations Organization and its specialized agencies, inter alia, relating to-
(i) the rights and privacy of citizens;
(ii) the issues concerning civil liberties;
(iii) issues having ethical and other social implications in adoption of DNA profiling technology; and
(iv) professional ethics in DNA profiling.
This provision also underlines why this Bill must go back to the drawing board and return only after right to privacy act has been enacted in keeping with “international guidelines enumerated by the united nations organization” to which India is a signatory .
17. I submit that Chapter IV, Clause 23, Sub Clause (1) of the Bill provides that samples for DNA profiling may be collected from the sources such as bodily substances, scene of occurrence, or scene of crime, clothing and other objects or “such other sources as may be specified by the regulation”.
Such vagueness with regard to sources of samples for DNA profiling, leaves enormous powers in the hands of officials unchecked which is likely to be misused.
18. Chapter IV, Clause 23, Sub Clause (2) (a) of the Bill provides that “any intimate body samples from living persons shall be collected, and intimate forensic procedures shall be performed by a medical practitioner” and Sub Clause (2) (b) provides for collection of non-intimate body samples by technical staff under the supervision of medical officer or scientist having expertise in molecular biology “or such other person as may be specified by the regulations.”
Such vagueness with regard to which person is qualified and competent to collect non-intimate body sample for DNA profiling, leaves enormous powers in the hands of officials unchecked which is likely to be misused.
19. 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.
20. In the matter of Human DNA Profiling Bill, 2015, 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.
21. 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.
22. 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”.
23. 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.
24. 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.
25. In chapter I, clause 2, 1 (q) of the Bill, “offender” is defined. This definition is quite problematic. It reads: “‘offender’ means a person who has been convicted of, or is an under-trial charged with, a specified offence.” Why should and how can “an under-trial charged with, a specified offence” be deemed an offender. Isn’t he being pre-judged even before the verdict in the case his/her trial by doing so? In view of the same, how can “an under-trial charged with, a specified offence” be included in the chapter I, clause 2, 1 (r) of the Bill which defines “offenders’ index as index of DNA profiles from known samples of bodily substances taken from an offender especially given the fact that “undertrial” has been defined as “a person against whom charges have been framed for a specified offence in a court of law” in chapter I, clause 2, 1 (zc) of the Bill.
26. I submit that chapter I, clause 2, 1 (zb) of the Bill provides the definition of “suspects’ index”. This definition should specify that the DNA profile has been taken under a specific legal mandate.
27. I submit that chapter I, clause 2, 1 (zf) and (zg) of the Bill that deals with “volunteer’ and “volunteers’ index” must be removed. It evident from the ongoing exercise and experience with regard to admittedly “voluntary” biometric unique identity number aadhaar as to how it can be structurally and coercively be made mandatory. In fact it is quite a bizarre assumption of the drafters of the Bill that parent or guardian of child or incapable person can volunteer on behalf of the child or incapable person to subjugate and enslave them in a DNA Database. In this way all possible future ministers, legislators and security personnel can be biometrically profiled for good just because their parents or guardians were compelled because of one reason or the other to undertake such task. This is a very regressive proposition.
28. 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.
29. 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.
30. 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".
31. 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.
32. 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 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.
33. 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.
34. 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.
35. I submit that 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), imminent 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 Public Information Infrastructure and Innovations etc.
36. 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. 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.
37. 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.’
38. I submit that one of the primary goals of the Citizens Forum for Civil Liberties (CFCL) is to oppose biometric enrollment, profiling, databasing and surveillance. Whether biometric collection is done at the central, state or private level does not matter. With indirect access and direct access to state databases, the government and private foreign companies and governments access the asset of personal sensitive information.
39. I submit that there is no dispute with the fact that there is a need for a law to regulate the collection, storage and use of the human genetic code. But what is happening is that in garb of doing so, the draft 2015 Bill is attempting to establish casteism for ever through genetic determination, profiling and databasing.
40. I submit that so far the recommendations of the Justice A P Shah Commission on Privacy has not been acted upon to ensure that an Act is enacted for protection of right to privacy before pursuing DNA Bill or any other project that entails collection of biometric data.
41. I submit that while DNA profiling is deemed useful in many criminal cases, to identify bodies in the aftermath of accidents and disasters, and in civil paternity and maternity suits. The fact remains that DNA data can be obfuscated, tampered with, or they can suffer from contamination, or from simple filing error. DNA can be tied to sensitive information such as caste and religion, since criminals and accused in the Indian penal system are automatically classified by caste and religion.
42. I submit that Government ought to consider issuing notice to Centre for DNA Fingerprinting & Diagnostics (CDFD) which is creating DNA marker databases of different caste populations to ensure that such practice is stopped with immediate effect.
43. I submit that biometric profiling in general and DNA profiling in particular are unlike comparisons between digital signatures which can either have matches or no matches, biometric signatures will have a level of accuracy, so there can be a few false matches.
44. I submit that the results of DNA analysis is not infallible. DNA is probabilistic, not absolute. It is interpretative. There is a margin of error and overlap in DNA profiling that may occur due to ‘coincidental matching’. There is human error including that which occurs while collecting the DNA, lapses in the chain of custody, contamination, errors in labelling and reporting. There can be intentional misuse and abuse of biological material. Notably, false matches are more likely to occur with relatives, since they share some of the DNA sequences.
45. I submit that the issue of the biometrics collection is a "global" endeavor because the biometrics of people being collected in countries are in accordance with ISO (International Organization for Standardization) standards (ISO 19794-XX), be it by companies, corporations or governments.
46. William C Thomson’s 2008 article, “The Potential for error in forensic DNA testing (and how that complicates the use of DNA databases for criminal identification” contains illustrations that should lend caution to claims of infallibility. It reads: “In cases I have reviewed over the past few years, evidentiary samples from crime scenes often produce incomplete or partial DNA profiles. Limited quantities of DNA, degradation of the sample, or the presence of inhibitors (contaminants)can make it impossible to determine the genotype at every locus.”
47. “The British Home Office has reported that between 2001 and 2006, 27.6% of the matches reported from searches of the UK National DNA Database(NDNAD) were to more than one person in the database. According to the report, the multiple-match cases arose “largely due to the significant proportion of crime scene sample profiles that are partial.”
48. “Because partial profiles contain fewer genetic markers (alleles) than complete profiles, they are more likely to match someone by chance.”
49. “People sometimes mistakenly assume that if the frequency of the matching profile is 1 in 10 million, that there is only one chance in 10 million that the suspect is not the source of that profile. This is a logical error that has been labelled the prosecutor’s fallacy.”
50. “When the estimated frequency of the DNA profile is 1 in n, where n is a number larger than the earth’s population, some people assume the profile must be unique; an error David Balding has called the uniqueness fallacy.In such cases the expected frequency of duplicate profiles is less than one, but it never falls to zero no matter how rare the profile is. If the frequency of a profile is one in 10 billion, for example, then the expected likelihood of finding duplication in a population of 250 million unrelated individuals is about 1 in 40. This may sound like a low risk, but in a system in which thousands of 1-in-10 billion evidentiary profiles are searched each year against millions of database profiles, coincidental matches will inevitably be found.”
51. “When DNA evidence was first introduced, a number of experts testified that false positives are impossible in forensic DNA testing. According to Jonathan Koehler, these experts engaged in “a sinister semantic game” in which they denied that a DNA test could be wrong by distinguishing error by the test itself from error by the people administering and interpreting the test(which they labelled “human error”). Claims that the tests themselves are error-free have contributed to the rhetoric of infallibility that has surrounded DNA testing. Whether such claims are sinister or not, they are misleading because humans necessarily involved in conducting DNA tests. When assessing the rise of false incriminations, it does not matter whether false positives are due to human or technical failure; what matters is how often (and under what circumstances) such errors occur and how easily they can be detected.”
52. It cites cases of ‘erroneous matches’ due to “false cold to hits” due to “cross-contamination of samples”, mislabelling of samples”, “misrepresentation of test results” and “typing errors” and “intentional planting of DNA.”
53. A 2007 paper refers to an episode where the Houston Police Department (HPD)’s crime laboratory was closed down in 2002 after it was discovered that the employees regularly fabricated DNA and other forensic evidence in their lab and perjured about the results of their test.” (624-25)
An investigation of the HPD casework, they write, revealed 43 cases “in which there are significant doubts about reliability of the work performed, the validity of the Crime Lab's analytical results, or the correctness of the analysts’ reported conclusions. [Office of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room 2006]
54. I submit that in response to an RTI request, the CDFD had, in 2012, revealed that there were four recorded instances of “erroneous labelling of DNA samples of the DNA report” which should raise concern, even with the clarification that “the reconsideration of the report did not in any way alter the conclusion of the earlier DNA report.”
55. I submit that creation of DNA databases is very likely to be accompanied by the digitisation of the database. What is of concern, then, is not only the wisdom or otherwise of creating DNA databases, but also the implications of the technology that will be used in managing, updating and facilitating the use of the database. One, there are questions about security of data. It has been said that ‘electronic’ and ‘secret’ represent a contradiction implying that that which is held electronically is not easy, if not close to impossible, to secure. Encryption is suggested as the way to protect the data; yet, it is acknowledged that encryption only makes it more difficult to crack the code, but that there are hackers, including those who work for other governments, who can break in - a phenomenon that is regularly reported.
56. I submit that the reliance for technology - both the software and the hardware - on corporations and on agencies such as the FBI merits attention. The adoption of CODIS, which is a software that has been created by the FBI, comes with more than an element of risk. "This is the software they need to build a DNA database which allows sharing of DNA matches with the US," Helen Wallace of GeneWatch wrote in an email, cautioning about the adoption of such technology. The implications of having a data base that the FBI, or any foreign agency, finds compatible must be considered before adopting this technology. (See http://www.business-standard.com/article/pti-stories/fbi-installs-codis-software-at-city-based-cdfd-114101001137_1.html for news that CDFD has already installed the software. Whether this should be used for carrying the profiles of our population needs to be debated. See also EU report page 36-37 http://www.enfsi.eu/sites/default/files/documents/enfsi_2014_document_on_dna-database_management_0.pdf and different database software used by Interpol built in-house.)
57. A DNA database of the kind envisaged would be a prime candidate for being inducted into the universe of ‘big data’.
58. I submit that a DNA database is structurally linked to all biometric data and personal sensitive information.
59. I submit that the data basing of DNA is different from DNA profiling.
60. I have reliably learnt that for the vendors, the issue is money. For government, the issue is control. Such sensitive information is power and power is social control. The primary argument used by the promoters of the use of biometrics is to ensure a person is in fact who they say they are. The fact is that biometrics does not establish identity but breeder documents such as, but not limited to birth certificates do.
61. I submit that there is no law in India meant to protect citizens against corporations through governments mandating biometrics and then acquiring the biometrics. Government must consider whether when a person is required to provide their biometrics to a bank or any other entity, can the bank then be compelled to provide the biometrics of the individual to any government entity or private entity that requests the person's biometrics? As the biometric database regime regime is unfolding, one is witnessing that the transfer of such data is being made "natural" by making structural convergence.
62. I submit that government must ensure that the "third party doctrine' is not applied in India. This doctrine essentially means that if a person provides their information/data to a company, the company then has the right to share that data. Essentially a person's data no longer belongs to the individual but rather the company or companies the individual chooses to do business with. One of the big problems with this concept is there are times when we really do not have a choice about which companies we do business with. As an example, cable companies that provide Internet, TV and/or home telephone use are given/awarded contracts by local government. The same is true of utility providers. In these aforementioned examples, the customer really does not have a choice of who they will do business with. Yes, there are "service agreements" that companies make available to customers but in almost every case the company is given the "right" to share information the user provides.
63. This is a Bill that has been pushed by the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad with full support of the Department of Biotechnology. It places the CDFD at the centre of the DNA labs and allows them to be the agency that makes the regulations, manage the DNA data banks, be the Secretary to the Board set up under the Bill. It asks for the collection of DNA from convicts, accused and suspects; unidentified dead bodies; create a missing persons' index; create a volunteers index and from anyone else as required by regulations - and the regulations will be as made by the Board of which the CDFD is likely to have an ex-officio Secretary. If this goes through, this will be one dangerous data base which faces greedy eyes of transnational powers over which we will have no control.
64. I submit that government must safeguard citizens’ privacy and their civil liberties which face an unprecedented onslaught from unregulated and ungovernable technology companies. It is possible that the several provisions in the proposed bill are being bulldozed by such entities because in the aftermath of the announcement by researchers that Human Genome has been sequenced on 26th June, 2000, the efforts to store and read DNA script of human populations has assumed great significance for entities that deal with Epigenetics, Medicine, Big Data, Social Control, Inheritance, Eugenics and Genetic Determinism.
Let me take the opportunity to submit that CFCL is aware that The Human DNA Profiling Bill, 2015 was scheduled for introduction in the monsoon session of the Parliament, it is apparent that it has been uploaded for public comments as an afterthought. There is a logical compulsion to extend the public comment period by at least three months and ensure that the bill is available in Hindi and other vernacular languages before moving ahead any further. I strongly urge you to do so.
In view of the above facts and precedents, I suggest that Human DNA Profiling Bill, 2015 should be sent back to the drawing board and a comprehensive bill on biometrics be prepared by an independent multi-disciplinary task force after elaborate engagements with concerned citizens, states, academia, legal experts, and groups working on human right .
Citizens Forum for Civil Liberties (CFCL)
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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