Towards a genetic panopticon

Parliament today serves less as a locus for debate and discussion and more as one for din and discord. But the pandemonium that appears to be the permanent state of affairs in both Houses scarcely seems to stop the government from passing laws, as we’ve seen this winter session. The government’s disdain for dissent, though, makes the potential introduction of the DNA Technology (Use and Application) Regulation Bill, 2018, for consideration by the Rajya Sabha an especially invidious proposition. Problems with the draft Bill The draft statute, approved by the Union Cabinet in July, not only disregards the serious ethical dilemmas that are attendant to the creation of a national DNA database, but also, contrary to established wisdom, virtually treats DNA as infallible, and as a solution to the many problems that ail the criminal justice system. What’s more, any infringement of civil liberties, caused by an almost indiscriminate collection of DNA, is seen as a legitimate trade-off made in the interests of ensuring superior justice delivery. But what the Bill fatally ignores is that the disproportionality of the DNA bank that it seeks to create, and the invasiveness of its purport and reach, imposes a Faustian bargain on the citizen. The genes encoded in deoxyribonucleic acid (DNA), which can be collected from blood, hair, skin cells and other such bodily substances, have undoubtedly proven to be an important tool in forensic science. Much like fingerprints, a person’s DNA profile is unique (except in the case of identical twins) and can, therefore, help in establishing the identity of, say, a suspect. That only a small amount of genetic material is needed to create such a profile makes the form of evidence especially appealing to criminal investigators. And to be sure, across the world, the use of DNA evidence has helped exonerate a number of innocent people from wrongful conviction, and has also helped find the guilty party in complex investigations. It is to that end that we no doubt need a law to help regulate the manner and circumstances in which the state may be entitled to collect biological material from a person. The requirement for such a law is only accentuated by an amendment made to the Code of Criminal Procedure in 2005, which expressly authorises investigating officers of a crime to collect a DNA sample from an accused with the help of a medical practitioner. But for years, every iteration of a proposed Bill, aimed at regulating the use of DNA, has failed to provide a constitutionally sustainable model. In its latest form, the draft law seeks to create a National DNA Data Bank, which will be maintained on the basis of various different categories, including a crime scene index, a suspects’ index and an offenders’ index, with a view to “facilitating identification of persons”. This attempt at identification may relate, among other things, to a criminal investigation, to a judicial proceeding of any kind, and even to civil cases such as “parental disputes”, “issues relating to pedigree”, and “issues relating to establishment of individual identity”. The proposed law, however, is not only decidedly vague on how it intends to maintain this DNA Bank, but it also conflates its objectives by allowing the collection of DNA evidence not only in aid of criminal investigations but also to aid the determination of civil disputes. Moreover, while consent is not required before bodily substances are drawn from a person accused and arrested for an offence punishable with either death or imprisonment for a term exceeding seven years, in all other cases a person refusing to part with genetic material can be compelled to do so if a Magistrate has reasonable cause to believe that such evidence would help establish a person’s guilt. Therefore, there’s no end to the state’s power in coercing a person to part with her DNA.

Source : https://www.thehindu.com/todays-paper/tp-opinion/towards-a-genetic-panopticon/article25793591.ece

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