DNA samples law: A genetic panopticon?

In September, the Karnataka Assembly passed a bill to amend the Identification of Prisoners Act, 1920. The amended law has the potential to transform policing in Karnataka and will have ramifications for privacy and the criminal justice system.

The Identification of Prisoners Act, 1920 is a central legislation that empowers the police to take measurements, finger impressions, foot impressions and photos of convicted persons. Similarly, the police may collect finger impressions and foot impressions of a person who has been arrested but not convicted yet. The Act also empowers a Magistrate to permit the police to click photographs, take foot impressions and finger impressions of any person while investigating a crime.

Karnataka's amendment drastically alters the scope of the Act. The amendment allows a police officer to collect blood samples, DNA samples, voice samples and Iris scan samples of arrestees and convicts. While speaking in the Assembly, Home Minister Araga Jnanendra said that the data collected from these samples will be stored in a database linked to the Criminal Tracking System in Bengaluru. Section 4 of the 1920 Act allows the police to take measurements, foot impressions and finger impressions of an unconvicted person only if he had been arrested for an offence punishable with rigorous imprisonment for more than one year. However, the amendment empowers the police to exercise this power on a person arrested for an offence punishable with even one-month simple imprisonment.

The amendment confers vast powers and discretion on Superintendents of Police and Deputy Commissioners of Police. Section 5 of the Act which empowers Magistrates to order any person to be photographed or measured during the investigation of a crime has been amended to confer the same power on SPs and DCPs. These officers will also have the power to direct any person to allow the police to collect samples of his blood, DNA, voice and Iris scan. Clause 7 of the amended law stipulates that if the samples of a person previously not convicted for any offence were collected but he/she is eventually acquitted, the samples shall be returned or destroyed after 10 years from the date of acquittal or when the person attains the age of 60, whichever is earlier. Despite this, SPs and DCPs may direct retention of the data after recording reasons.

Through these sweeping changes, the State can enhance its surveillance powers and dominance over citizens. In fact, the Statement of Objects and Reasons of the amendment bill declared that it intends to facilitate "effective surveillance". A cursory glance may induce a belief that the new provisions merely facilitate greater use of technology in detecting crimes and tracing criminals. However, there are serious constitutional concerns plaguing the amended law.

Firstly, the fundamental right to privacy enshrines bodily integrity and sovereignty over one's body. Under our constitutional scheme, the State may intrude into privacy only when there is a "compelling State interest". Any intrusion pursuant to a compelling State interest must satisfy the test of proportionality which requires the intrusive measure to be the least restrictive measure to achieve the objective. Therefore, even when there is a compelling State interest, such as the need to detect crimes, an unreasonable intrusion into privacy is unconstitutional.

This being the case, empowering police officers to collect DNA samples and other sensitive data from even people accused of trivial offences is problematic. For instance, even persons arrested for allegedly insulting or defaming others may be asked by the police to provide DNA samples as these are offences punishable with imprisonment for more than one month. It is unreasonable to presume that every person who gets arrested -- rightly or wrongly -- may commit another offence and genetic information would be vital to investigate that offence.

Creating a DNA databank is fraught with risks when India lacks a robust and comprehensive data protection law. Furthermore, a DNA databank is not a panacea for the criminal justice system as there are risks of false identification and matches. There have been instances of people -- including relatives of the actual offender -- being wrongly charged and convicted pursuant to partial DNA matches. Carelessness in storing and analysing DNA samples has led to erroneous convictions as well. In the United States, African-Americans have often borne the brunt of false positives as they are disproportionately represented in the databanks.

A law like this can exacerbate the power asymmetry between the State and citizens. By diminishing bodily autonomy and empowering the State to intrude into the privacy of citizens on flimsy grounds, such laws erode constitutional values. Justice Antonin Scalia had described the attempt to create DNA databanks by recklessly collecting samples as an attempt to create a genetic panopticon. If intrusive surveillance is not nipped in the bud, it will render citizens docile and vulnerable to miscarriage of justice.

(The writer is an advocate)