21st December 2018
Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.
Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.
GS II: POLITY
Q1. Discuss the drawbacks of the DNA Technology (Use and Application) Regulation Bill, 2018.
- The DNA Technology (Use and Application) Regulation Bill, 2018, has been introduced for consideration by the Rajya Sabha an especially invidious proposition.
Problems with the draft Bill
- The Bill 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 his/her DNA. The state must show that there exists a legitimate reason for extracting DNA evidence, and that the extent and scope of such extraction does not disproportionally contravene a person’s right to privacy. In its present draft, however, the Bill woefully falls short of meeting these tests. World over, the idea behind maintaining a DNA database is to help match and compare samples collected from a crime scene against a set of stored profiles, thereby helping in the identification of a potential suspect in a criminal investigation. India’s Bill, though, seeks to make the DNA Bank available for a slew of unconnected purposes, including permitting its use in civil cases.
- What’s more ominous is that the Bill potentially allows DNA evidence to be used for any other purpose that may be specified through subsequent regulations, thereby according to the state a potential power to create a “genetic panopticon,”. That this is a distinct possibility is clear from the range of privacy protections that are absent in the Bill.
- As a result, the state will effectively have at its disposal the ability to profile every one of its citizens. It’s been reported previously, for instance, that the Centre for DNA Fingerprinting and Diagnostics, whose director will occupy an ex officio place in the DNA Regulatory Board, already seeks information on a person’s caste during the collection of genetic material. One hardly needs to spell out the dangers inherent in gathering such data.
GS II: POLITY
Q2. Discuss the drawbacks of the Transgender Persons (Protection of Rights) Bill, 2018.
- The Lok Sabha recently passed the Transgender Persons (Protection of Rights) Bill, 2018. After several submissions made by the transgender community and the recommendations of a parliamentary standing committee, the definition of transgender has been rectified and made inclusive of diverse gender identities.
- However, all nuance of people’s self-identified gender expression is lost in the Bill. It proposes setting up a District Screening Committee comprising five people, including a medical officer and a psychiatrist to certify a transgender person. This process is in direct violation of the Supreme Court’s directions in National Legal Services Authority v. Union of India (or NALSA), 2014 that affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery (SRS). In fact, NALSA had clearly directed that “any insistence for SRS for declaring one’s gender is immoral and illegal”.
- Drafted by the Ministry of Social Justice and Empowerment in 2016, the Bill was met with immediate protests from the transgender and intersex community as it has several provisions that take away from the rights accorded through NALSA while injecting disempowering and regressive clauses. The Bill does not provide for employment opportunities through reservations, disregarding the directions of the Court in NALSA “to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”
- The Bill criminalises begging, thereby targeting transgender persons who rely on begging for sustenance. Such provisions disregard the lived realities of transgender persons for whom begging often is the last resort. In fact, provisions such as these could give immunity to the police to exert force on transgender persons and “rehabilitate” them in beggars’ homes or detention centres against their will.
- The Bill fails to extend protection to transgender persons who might be victims of sexual assault or rape, as the Indian Penal Code recognises rape in strict terms of men and women as perpetrator and victim, respectively. While the Bill makes “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice. Moreover, the Bill does not grapple with the realisation of civil rights such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.
- The need of the hour is a robust Bill with strong anti-discrimination provisions that will remedy the historical injustices faced by the transgender community, which continues to fight for the most basic rights even today. It is hoped that the Bill will be revised and brought in line with the NALSA judgment to ensure full realisation of transgender persons’ fundamental right