18, Jul 2018 | CJP Team

E. A. S. Sarma, who previously served as Secretary to the Government of India, has written to Prime Minister Narendra Modi, exhorting him to reconsider the Central Government’s plans to introduce a bill regarding DNA-based technology to be used for the genetic profiling of Indian citizens. 

Earlier this month, the Union Cabinet approved the DNA Technology (Use and Application) Regulation Bill, 2018, which permits law enforcement agenciesto gather DNA samples, establish ‘DNA profiles’ and special databases that can be used for criminal investigations. The latest bills comes after previous efforts to draft similar bills in 2007, 2015, and 2017. 

According the bill’s final draft, which was readied in December 2017, the bill aims to “provide for the regulation of use and application of DNA technology for the purposes of establishing identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith…,” the Indian Express reported, noting that the bill’s features include a DNA regulatory board, along with a national DNA databank and some regional DNA databanks. According to the bill, the DNA data, including profiles, samples and records that are stored in any DNA labs and databanks “shall be used only for the purpose of facilitating identification of the person and not for any other purpose.” The Indian Express notes that The data is only to be accessible to help with identifying of individuals in criminal cases in adherence to the rules of admissibility of evidence, to help with prosecution or defence, and for civil investigations. 

Sarma has expressed distress in his letter to Modi, saying that “a legislation on DNA-profiling of the citizens has serious implications for the citizens’ privacy,” adding, “In view of the far reaching public interest implications associated with any proposal to identify citizens through their DNA profiles, there should have been a much wider public discussion and debate on the subject, prior to the government going ahead with the drafting of such a law.” 

Noting the right to privacy “as one of the basic rights of the citizen,” Sarma highlights that the right is enshrined in the Indian Constitution as well, recalling that the Supreme Court, too, “has reiterated the right to privacy as intrinsic to right to life granted under Article 21 of the Constitution.” Sarma also expresses surprise over the fact that the “government should rush into a law on DNA profiling” in spite of the fact the Justice BN Srikrishna Committee, which was appointed to formulate a framework and law for protecting data, has not submitted his report. 

Sarma has acknowledged that although “DNA technology can be a good investigative tool, its wider use can result in the violation of human rights of the citizens and invasion of their privacy.” He notes that, in light of this, several other governments are attempting reduce it use. “Indiscriminate use of this technology can lead to an Orwellian environment, detrimental to the interests of a free and open society. It can be misused by irresponsible governments and officials,” Sarma emphasises. 

Sarma stressed the need “to de-politicise the police and the other investigating agencies, professionalise them and train them in scientific investigation techniques,” noting that, up until now, “no government has thought it fit to implement the order issued by Hon’ble Supreme Court in Prakash Singh case to delink the police from the political executive and subject it instead to independent judicial oversight.” Sarma takes note of the irony in overlooking “such basic reforms and rush into areas such as DNA-profiling,” and calls on the government to “rest its priorities.” 

The full text of Sarma’s letter can be read here:

To

Shri Narendra D Modi

Prime Minister

Dear Shri Modiji,

I understand that the Central Government is about to introduce a law to facilitate the use and regulation of DNA-based technology with the primary objective of DNA-profiling the citizens of the country. Such a proposal is apparently based on a recommendation made in July, 2017 by the Law Commission in their Report No 271.

If what has been reported is true, I feel distressed, as a legislation on DNA-profiling of the citizens has serious implications for the citizens' privacy. There are ethical and human rights concerns arising from such an enactment. In view of the far reaching public interest implications associated with any proposal to identify citizens through their DNA profiles, there should have been a much wider public discussion and debate on the subject, prior to the government going ahead with the drafting of such a law.

Protection of the privacy of the individual has been globally recognised as one of the basic rights of the citizen and several countries are presently enacting laws in that direction. In our own Constitution, Article 20(3) guarantees the right against self-incrimination and Article 21 guarantees protection of life and liberty of every person. Hon'ble Supreme Court has reiterated the right to privacy as intrinsic to right to life granted under Article 21 of the Constitution. 

Meanwhile, Justice BN Srikrishna Committee appointed for suggesting a framework and a new law for protecting institutional and private data in India is yet to finalise its report. The proposal to DNA-profile the citizens can run counter to protecting the private data of the citizens. It is surprising that the government should rush into a law on DNA profiling without waiting for the Srikrishna Committee to finalise its report.

While DNA technology can be a good investigative tool, its wider use can result in the violation of human rights of the citizens and invasion of their privacy. In most countries accross the world, the respective governments are trying to minimise the use of DNA technology as evident from the UK law, namely, Protection of Freedoms Act, 2012. In view of the privacy concerns, most governments are restricting the use of DNA technology for the purpose of investigation only, that too, subject to judicial oversight. Indiscriminate use of this technology can lead to an Orwellian environment, detrimental to the interests of a free and open society. It can be misused by irresponsible governments and officials. 

I am sure that it has never been the intention of NDA government to move in that direction.

A more urgent change that is called for in India is to de-politicise the police and the other investigating agencies, professionalise them and train them in scientific investigation techniques. Till date, no government has thought it fit to implement the order issued by Hon'ble Supreme Court in Prakash Singh case to delink the police from the political executive and subject it instead to independent judicial oversight. It is somewhat ironic that the government should ignore such basic reforms and rush into areas such as DNA-profiling. The government should, in my view, reset its priorities.

In view of what I have stated above, I feel that the proposal to enact a law in a hurry to DNA-profile the citizens is inopportune at this moment. Before suggesting the formulation of such a law, there should be a wide ranging debate on the efficacy of the use of the DNA technology per se, the extent to which it may be used in investigations as envisaged in Criminal Procedure Code and Indian Evidence Act and the state of preparedness of the investigating agencies to use it meaningfully. It will be highly imprudent for the government to enact a law to introduce DNA profiling of the citizens accross the board.

Regards,

Yours sincerely,

E A S Sarma

Former Secretary to GOI

Visakhapatnam

17-7-2018