The DNA Technology (Use and Application) Regulation Bill, 2019, fails on all three Puttaswamy threshold tests and violates the fundamental right to privacy, according to (Retd.) Justice B.N. Srikrishna, a former judge of the Supreme Court.
“In my general assessment, prima facie, the Bill fails on all three Puttaswamy threshold tests. It thus violates the fundamental right to privacy guaranteed under Art.21 as interpreted by Puttaswamy,” Justice Srikrishna said in his comments to the Parliamentary Committee on the DNA Technology Regulation Bill, led by Congress MP Jairam Ramesh.
It’s worth noting that Justice Srikrishna headed a Committee that drafted the first iteration of India’s proposed privacy law — the Personal Data Protection Bill, 2018.
The Jairam Ramesh Committee submitted its report (see our summary) on the DNA Technology Regulation Bill in February. The Bill, which has been in the making for years now, aims to establish laboratories and DNA data banks to scale the use of DNA profiles in the criminal justice system. Among the core tenets of the Bill are the creation of data banks that will house the DNA profiles of not just convicts, but also undertrials, suspects, missing people, and of samples gathered from crime scenes. The bill proposes the setting up of a DNA Regulatory Board — an evidently government-heavy body — to oversee operations, standardise labs, ensure ethics around privacy and civil liberties, among other functions.
The Bill was referred to the Standing Committee on Standing Committee of Science and Technology, Environment, Forests and Climate Change in October 2019. The Committee consulted 15 experts on the bill (see full list here). In addition, Ramesh sought the views of some distinguished jurists and police administrators, including Justice Srikrishna.
Collection of samples for DNA testing contrary to right to privacy, SC ruling
Justice Srikrishna explained that in a ruling in 2010 (Selvi v State of Karnataka), the Supreme Court of India declared that three prominent police interrogation techniques i.e. narco-analysis, the lie-detector test, and electronic brain-mapping violated an accused person’s right against self-incrimination under Article 20(3), and their right to life and personal liberty under Article 21 of the Constitution. The court ruled that such evidence would be inadmissible.
Prima facie ‘unconstitutional’: According to Justice Srikrishna, this would be prima facie unconstitutional in other cases too. The bill also cannot be justified on the basis of criminal law. As ruled in Selvi, “involuntary tests are anathema” to the fundamental rights against self-incrimination and the material thus collected is inadmissible.
Magistrate powers run contrary to right to privacy: Under the bill, bodily substances can be collected from arrested persons only with consent, except when the offence in question is punishable with death or a prison term of more than seven years. The bill, via Clauses 21(2) and 21(3), introduces another exemption to this consent. If the arrested person does not consent or consent cannot be obtained for other reasons, the clauses permit a magistrate to order collection of bodily substances from the arrested person if he/she is convinced that the sample would confirm/disprove whether the arrested person was involved with an offence.
These clauses, according to Justice Srikrishna, seem to empower the magistrate to do something “contrary to the right of privacy and collect evidence that may be inadmissible in view of the Selvi judgment“.
Involuntary collection counters Puttaswamy: In another section (Section 23 and its sub-clauses), the bill permits collection of samples for DNA testing from victims, a suspect, a relative of a missing person, a minor, or a disabled person with written consent. For context, bodily substances that can be collected under this include intimate substances such as semen, blood sample, public hair, urine, tissue from orifice or internal organ of a alive or dead person. Non-intimate substances include hair, nail sample, mouth swab, saliva, skin impression.
Section 23(2)(b) permits “involuntary collection of material and would prime facie run counter to the Puttaswamy judgment“, the former judge said.
The sweep of the Bill seems rather over-wide and beyond the legitimate concerns of the state, as can be seen from the Title, Justice Srikrishna said. In addition, Clause 2(iv), which lays down the Crime Scene Index, violates the triple test of Puttaswamy “as it is oversize in is ambit”, he said.
“To sum up, the Bill would appear to violate the privacy rights of all persons and particularly violative of the rights of accused and suspects also, if the collection of material is without consent.”
Find Justice Srikrishna’s comments on Page 128-9 of the Report.