Towards a genetic panopticon (The DNA Bill in the parliament)

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Towards a genetic panopticon (The DNA Bill in the parliament)

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• A new law in the making: The government has introduced a very strong law - The DNA Technology (Use and Application) Regulation Bill, 2018 - in the Rajya Sabha.
• Various issues with it: This draft was approved by the Cabinet in July, 2018. There are many issues with it.

1. Creation of a national DNA database carries massive ethical implications, about which it is totally silent
2. It treats DNA as an infallible solution that will cure our criminal justice system of its ills
3. The almost indiscriminate collection of DNA will lead to huge loss of civil liberties
4. The DNA bank that is to be created is invasive and imposes a Faustian bargain!

• Genes in our DNA: These can be collected from blood, skin, hair or any body fluid etc. They are useful in cracking criminal cases through forensics, as they are unique like fingerprints. (only exception is identical twins)
• Why investigators love it? Very small amount of genetic material is needed to create a DNA profile. Many innocent people have actually been exonerated worldwide due to this technology.
• The 2005 amendment to CrPC: The Code of Criminal Procedure was amended in 2005 to authorise investigating officers to collect DNA samples from accused with the help of a medical practitioner. So, a new law is surely needed, to regulate all this.
• National DNA Data Bank: It will be maintained using various categories - crime scene index, suspects' index, offenders' index, etc. All this can be used in criminal cases, judicial proceedings and even civil matters ('parental disputes' or 'establishment of individual identities'). Sadly, the law is vague on all this, and the inclusion of civil matters is a bad idea.
• Only in special cases: In this Bill, in cases where the punishment is death or more than 7-years' imprisonment, no consent is needed to draw bodily fluids from the accused person(s). But in all other cases, based on a Magistrate's order, it can be done. It is clear that coercive power of state is immense.
• Right to Privacy: The Justice K.S. Puttaswamy (Retd.) v. Union of India case in August 2017 led to the right to privacy being declared as a fundamental right (by a nine-judge bench). The ruling said that any meaningful right to privacy covers protection over the physical body.
• Right against self-incrimination: Our constitution guarantees this right to all. So, is the mandatory withdrawal of bodily fluids (as per new law) not a violation of this basic right?
• So what to do? We need a legislative regime guided by principles of necessity and proportionality. The State must show that there's a legitimate reason to get DNA, and extraction won't disproportionately contravene right to privacy. This Bill does neither.
• World versus Us: World over, any DNA Data Bank is used to match samples collected from crime scenes with stored profiles. In India, we want to use it for many other disconnected purposes also, including civil cases! The danger is that a person wrongfully accused (in a minor crime) who is forced to give DNA, may find later that it is being used in a civil case!
• Illegally obtained evidences are admissible: Indian courts allow this, if evidences are genuine. In the absence of checks on collection, we are staring at a nightmarish scenario.
• Building the ultimate Panopticon: The Bill gives the State the power to allow subsequent regulations to use the existing DNA data base, thereby building a "genetic panopticon". Also, the draft Bill does not restrict profiling only to the use of non-coding DNA (thereby revealing not just identity, but also medical conditions etc.).
• Profile each citizen: So a complete personal profile of everyone can be made! Today, even caste is being asked by the "Centre for DNA Fingerprinting and Diagnostics". The dangers are there for all to see!
• A menacing weapon: The present version is surveillance magnified, over deeply personal material.
• Summary : The draft DNA bill is one step towards building a massive "genetic panopticon" with all attendant consequences!
  

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