Why Aadhaar Act is a Black Act -Part III

Citizens would face an unprecedented onslaught from the provisions of Aadhaar Act and Human DNA Profiling Bill and other related surveillance measures being bulldozed by unregulated and ungovernable technology. The Aadhaar Act paves the way for the manufacturing legitimacy of the proposed Human DNA Profiling Act. Biometric profiling of every sort is dehumanizing.

The dangers of trusting identification technologies for determining social policies is bound to be consequential 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”.

The 21^st-century ideology of genetic determinism is being promoted through biometric identification. Such identification includes DNA profiling. 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’. The argument which is often mouthed in defence of biometric National Population Register (NPR) and unique identification (UID)/Aadhaar number is that it is meant for social security akin to social security number in the US, which incidentally is not based on biometric data. This must be seen along with a similar argument being advanced for a DNA profile. They say such profiling is required because it “is very much like a social security number—though it is longer and is assigned by chance, not by the federal government”. Clearly, the ramifications of automatic profiling, tracking and surveillance are unfolding and trapping unsuspecting citizens in its ambit.

The Draft Human DNA Profiling Bill, 2018 (listed for introduction) is linked to the emergence of a surveillance and database state using Union Surface Transport Ministry’s Radio Frequency Identification (RFID), Union Finance Ministry’s National Information Utility, Unique Identification (UID)/Aadhaar, Union Rural Development Ministry’s Land Titling Bill, World Bank’s e-Transform Initiative, North Atlantic Treaty Organization (NATO)’s identification policy and Public Information Infrastructure and Innovations etc. Notably, Lokniti Foundation, an entity of questionable integrity which unsuccessfully tried to get UID/Aadhaar linked to mobile phones, had also filed a writ petition in the Supreme Court seeking DNA profiling.

Having initiated collection of biometric data like fingerprints and iris scan for NPR and UID number, the Draft Human DNA Profiling Bill takes the next step and 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”.

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”. This is apt about all kinds of biometric identification.

Profiling based on Deoxyribose Nucleic Acid (DNA) is aimed at examination of human biological material acquired through intimate forensic procedure. This biological material 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 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) Taking of a sample of blood;

(c) Taking of a sample of pubic hair;

(d) 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) 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) Taking of a dental impression;

(g) 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.

DNA profiling is aimed at regulating the use of DNA analysis of body substance profiles and making provision for establishment of DNA Profiling Board consisting of eminent scientists, administrators and law enforcement officers to lay down standards for laboratories, collection of body substances, custody trail from collection to reporting and establishment of a databank and to create policies for use and access to information from such data bank, appointment of a DNA databank manager to supervise, execute and maintain the databank and for matters connected therewith.

A decision of the European Court of Human Rights (ECHR) about violation of the right to privacy and family life by DNA profile retention in criminal justice databanks is relevant here. The case was heard publicly on 27 February 2008, and the unanimous decision of 17 judges was delivered on 4 December 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 (UK) had “overstepped any acceptable margin of appreciation” in this regard. This was before David Cameron became the Prime Minister in May 2011 defeating Tony Blair's Labour Party which had introduced identity card legislation and compulsory DNA recording.

The technique of DNA profiling was pioneered in the UK and it was the first nation to establish a criminal justice DNA databank. The decision is non-appealable. Unmindful of this, in India, a national DNA databank is being proposed.

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, a readymade DNA-based inference adversely impacts impartiality of the criminal justice system and other systems become questionable. Contrary to the existing legal provisions under the Census Act and the 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".

The Bill once it becomes a law will grant the authority to collect a vast amount of sensitive DNA data of citizens merely on the ground of suspicion in a criminal case. The data will be held until the person is cleared by the court. Under the Identification of Prisoner Act, there is a reference of a 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 Draft Human DNA Profiling Bill is far more regressive than the colonial law. The provision of a collection of citizens’ DNA data in the Draft Bill for DNA database in effect treats the citizens worse than prisoners. UID/Aadhaar database (CIDR) and DNA database can turn citizens’ body itself into a prison.

It has been admitted 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 will be headed by an officer in the rank of a Joint Secretary to the Government of India. Similar provisions exist in the Aadhaar Act. There is a section in the Draft DNA 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) too had initially claimed that enrolment based on biometric data is voluntary. Subsequent events and official documents reveal that it is explicitly mandatory by implication.

The DNA Data Bank like other databases like Centralized Identity Data Register (CIDR) of UID/Aadhaar and NPR are saleable commodities but the Draft Bill provides for the imprisonment of a few months or a fine of Rs 50,000 for "misuse" of the DNA profiles. All databases are commodities. Like all commodities, they are available for a price in the global data market.

In all likelihood DNA Data Bank, CIDR and the criminal database will get converged in furtherance of World Bank’s e-Transform 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 whose targeting is imminent.

It may be noted that the US Genetic Information Non-discrimination Act (GINA), 2008 prohibits US insurance companies and employers from discriminating on the basis of information derived from genetic tests. The necessity of such law underlines that biometric and genetic information like DNA facilitates discrimination.

In all likelihood, the manifesto of biometric identification promoters of CIDR of UID/Aadhaar numbers and Human DNA Profiling Bill will read like the 1,500-page regressive manifesto titled “2083: A European Declaration of Independence” brought out by Norwegian gunman and neo-Crusader, Anders Behring Breivik who carried out the heinous attacks on his fellow citizens. It refers to the word “identity” over 100 times, “unique” over 40 times and “identification” over 10 times. There is a reference to “state-issued identity cards”, “converts’ identity cards”, “identification card”, “fingerprints”, “DNA,” etc., as well in this manifesto. Biometric profiling of every sort is an invitation to deeper, structural and physical violence.

These words and their imports merit attention in order to safeguard human rights of present and future generation of citizens which faces an unprecedented onslaught from the provisions of the Aadhaar Act and the Human DNA Profiling Bill and other related surveillance measures. These are being pushed down citizens’ throats by unregulated and ungovernable technology vendors at the behest of their beneficial owners. A joint reading of the Aadhaar Act, Collection of Statistics Act, Human DNA Profiling Bill and manifesto titled “2083: A European Declaration of Independence” reveals that profiling of human body is being done in such a manner that it has genocidal implications.

The author is a public policy and law researcher, convener Citizens Forum for Civil Liberties (CFCL) and editor of www.toxicswatch.org. CFCL had appeared before the Parliamentary Standing Committee on Finance that examined and trashed the Aadhaar Bill, 2010. It has been working on the subject of UID and surveillance technologies since 2010.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]