This article has been authored by Biyanka Bhatia, a third year student at UPES, Dehradun.
Privacy is the ultimate expression of sanctity of an individual, a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination. Human beings appreciate the privacy and security of their personal sphere of existence; some form of control over who knows what about them is significant. One of the core constitutional values reflected in the Indian
Constitution’s Preamble is democracy. Thus, in such a nation, unless an individual is able to develop fully in order to make informed choices for himself which affect his daily life and his choice of how he is to be governed, such a value would remain hollow. The recent developments in information technology have compromised privacy and have decreased the degree of control over personal data, becoming a threat freedom of individuals.
One of such developments is reflected in the recently tabled DNA Technology (Use and Application) Regulation Bill, 2019. The aim of the legislation is to create a national DNA database, to establish identity of a person in order to support the justice delivery system of the country. The article deals with the issue that whether with creation of such regulatory mechanism, clear limits have been defined, taking into consideration the constitutional jurisprudence on right to privacy. If a statute like this is empowering the executive, it is important that it defines the limits of such power, to prevent overriding of the fundamental rights.
Vulnerable to Misuse
DNA technology can be used to assess a person's identity and in profiling of criminals, perpetrators and victims in criminal investigations. In civil disputes, it may be used in matters relating to parentage, immigration and others. Therefore, as a fundamental and the most private element of an individual containing determinative biological information, a strand of DNA has the capacity to benefit the judicial system but does this outweigh the privacy rights of the citizens? In the present draft, the violation of privacy rights can be noted not only in the immediate collection of body samples for DNA profiling, but also in the capacity of state agencies to exploit them in the future.
The justice system in India is already overburdened, with a severe lack of prosecutorial and investigative capacity, therefore such expansive powers related to DNA profiling can be a threat to life, liberty, dignity and privacy of a person. There are chances of information being used by investigative officers to plant evidence against repeated offenders or exchange of data to private parties for monetary benefits. If we consider crimes involving a large number of people (such as riots) in which without any basis, everybody is a suspect, thousands would be called for DNA profiling on mere suspicion. Such widespread police power, is capable of misuse, by targeting innocents, against whom there isn't a shred of evidence.
Though DNA is undoubtedly unique, but high similarities with familial group could lead to arresting of persons based on their genetic makeup and not any reasonable grounds, infringing the privacy of family members of people who have their data recorded.
Another major obstacle to overcome is pertaining to the removal of such data. It is important to know till when would such data be retained because the arrest and conviction of repeat offenders would be facilitated by the comparison of biological evidence at the crime scene. In the case of R(GC) v. The Commissioner of Police of the Metropolis it was held that in the absence of ‘exceptional circumstances,’ the policy of the police force to maintain DNA evidence was illegal and a breach of Article 8 of the European Convention on Human Rights. Such an approach should be adopted by the Indian Legislature as well to prevent infringement of rights. Although all these issues are apprehensions of abuse of a legal provision, but when the nature of data is so intrinsically connected to individual identity, to adopt a “wait and watch approach” over something this significant is not a defensible position.
One of the main issues pertaining to databases is “function creep” which means that, the information is collected for one purpose but its use keeps expanding. Under Chapter VI, Section 34 makes it clear that the records retained can be used for many purposes, from promoting adjudication and conviction of criminal cases to identification in civil matters. Therefore, individuals who agree to provide their DNA for civil matters, can also be subjected to cross referencing of such data in criminal matters. Not only is this a violation of privacy but infringes the fundamental right under Article 20(3) of the Constitution.
There is no mention of separate data banks for DNA samples in the Bill, and a unified database blurs the line between innocence and guilt. Searching of database for individuals who merely consented for civil purpose, will lead to a presumption against the person even though they did not provide their data for criminal investigation. Thus, it will put them at a disadvantageous position when comparing to potential suspects whose data has not been recorded.
The case of Selvi vs State of Karnataka, emphasized the importance of individual autonomy, and stated that any interference with it violates the right to privacy especially in circumstances where a person can face criminal charges or penalties. Thus any involuntary test is anathema to fundamental rights, making it inadmissible. Thus a unified civil and criminal case database may lead to speculative searching and impair one's right to privacy.
Yardstick Set in KS Puttaswamy
In the case of KS Puttaswamy, five ingredients were laid down to check the validity of a legislation impacting the privacy right:
· The legality: It should be a valid law,
· A legislative state aim: The objective of the legislation should be consistent with the constitutional objectives.
· Necessity: That the infringement must be appropriate in order to achieve the specified objective and must not violate the rights to a degree greater than that needed to achieve the purpose.
· Proportionality: There must be a balance between the relevance of the objective and the degree to which rights are violated, a least restrictive measure should be opted by the state.
· Procedural Safeguards: To ensure procedural due process
The DNA profiling of citizens through a DNA data bank may fail these standards, and disproportionately affect citizens’ right to privacy. The draft bill states that the objective of the act is “…establishing the identity of certain categories of persons including the victims, offenders, suspects…”
But the issue to be raised is what this establishment of identities would possibly achieve, what is objective of the state with such an invasive bill? Is such a law which though, aiding investigative agencies, but is compromising on fundamental rights such as fair trial and privacy, falling under the standard of “legislative state aim?” The bill is bound to fail in the “least restrictive measure” test, as there are alternative mechanisms available, for example erasure of all suspects and their family members’ DNA samples once the trial is over or restricting non-consensual DNA collection to very specific instances.
The adoption of such advanced technology would certainly help the court in providing speedier justice which in turn would be beneficial to the public at large. But as emphasised by the Court in the case of Bhabani Prasad, it is important to maintain a fine balance between scientific advances and an individual’s privacy, to harmonize state interests and individual rights. As stated in the case of Anuj Garg vs Hotel Association of India, in order to preserve a delicate balance between the fundamental rights of the individual and the greater interest of society, the State will have to demonstrate that it has adopted a method which infringes fundamental rights in the narrowest possible manner. The present legislation violated inherent rights of the accused to meet the larger public interest, but is there a balance between the two.
As Justice Chandrachud said, Constitutional guarantees cannot be subject to the vicissitudes of technology, the present DNA Technology Bill has a lot of shortcomings which would in turn lead to infringement of individual rights. DNA profiling being a sensitive and complex process, needs a procedural safeguard to prevent manipulation of data. Therefore, before we depend ourselves on such technology it is important to consider the privacy and security of the citizens.