Creation of a Genetic Bank in India: Unconstitutional and Threat to Human Rights

by | Apr 1, 2021

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,Rakshitt Bajpai and Aviral Agrawal, “Creation of a Genetic Bank in India: Unconstitutional and Threat to Human Rights”, (April 2021, OxHRH Blog) <https://ohrh.law.ox.ac.uk/creation-of-a-genetic-bank-in-india-unconstitutional-and-threat-to-human-rights/> [date of access]

The DNA Technology (Use and Application) Regulation Bill seeks to facilitate the application of DNA-based forensic technologies in the administration of law and justice in India, by enabling the use of DNA evidence and the establishment of DNA data banks. The utility of DNA based technologies for solving crimes and to identify missing persons is well recognized. However, some provisions within this bill raise concerns regarding its constitutionality and compatibility with human rights.

Under clause 21 of the bill no consent is required for taking biological samples of a person arrested for an offence punishable with death or imprisonment for more than 7 years. On the other hand, consent is required for taking a biological sample of a person arrested for an offence with imprisonment for 7 years or less. This violates Article 14 of the Constitution. As established in State of West Bengal v. Anwar Ali Sarkar, a law must have a reasonable nexus with the objective sought to be achieved by it. If the objective of the law is to secure conviction on the basis of scientific evidence, then classification based on the term of imprisonment has no rational nexus with the object sought to be achieved.

Furthermore, involuntary sampling for DNA profiling violates the right to privacy enshrined in Article 21 of the Constitution, and runs contrary to the threshold imposed in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India. Therein it was held that if such rights are to be infringed, the government must show that its action is sanctioned by law, proportionate to the need for such interference, and in pursuit of a legitimate aim. According to the parliamentary standing committee report, the fundamental right to privacy of suspects or under-trials will be infringed if their DNA is held in an indexed data bank. The committee pointed out that DNA profiles can reveal extremely sensitive information about an individual and could be misused for caste/community-based profiling, which would defeat the legitimate purpose this bill intends to serve. Moreover, given the probability of being misused, the law is not narrowly tailored to fulfil the legitimate purpose, and is therefore not proportionate. Furthermore, the law provides dominant authority to the executive without any checks and balances, and hence cannot qualify as a legitimate procedure to serve the purpose behind introducing this bill. This can be clearly fathomed by a bare reading of Clause 56, wherein an unfettered discretion has been granted to the government to supersede the board established through clause 3(1) of the bill, through a simple notification. This also contravenes the Supreme Court’s judgement in Subramanian Swamy v. Director CBI, which held that the excessive delegation of legislative powers to a statutory authority would make a law susceptible to being stuck down. Even if such a statue is to empower the executive, the limits of such delegation must be fixed.

Many countries around the world employ DNA technology for criminal investigation. However, these countries ensure proper oversight in its execution by means of multiple regulatory authorities. In the absence of any such grievance redressal mechanism, individuals in India will be left in a precarious position.

The absence of a robust data protection law in India grants space for the misuse of DNA data by state as well as private actors. Moreover, standard timelines for data retention have not been mentioned under the bill, whereas existing laws such as the Habitual Offenders Act specify timelines for data collection, retention, and deletion. Additionally, no data protection obligations have been explicitly imposed on DNA testing laboratories. Thus, there exists a direct link for the government to exploit the collected data because even the Draft Data Protection Bill classifies DNA as a sensitive class of personal data, but then provides for large exemptions to government entities from operative safeguards. The bare minimum expected from the government is to increase the powers vested in the regulatory authorities to prevent any catastrophic consequences.

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