Article 19

Aristotle suggested that transmission of heredity was essentially transmission of information. And this information was used to build an organism from scratch inside the female womb. Although the science is primitive, he was right in the way that information is transmitted from parents to their offspring. Modern genetics is built on studying such information which has been coded into each cell as DNA. Scientists are now able to sequence the DNA and extract valuable information about each individual and about the human species as a whole. They have been able to use such information to understand humans better; for example the identification of BRCA mutation responsible for cancer has nudged great strides in cancer biology. Another important application which has varied implications in society is the use of DNA in forensics. Although already in use since its discovery in 1995, the exponential rise in the significance of information extracted using DNA Profiling warrants regulation.

DNA Technology Bill

All major nations which use DNA Profiling have a legislation in place to regulate the use of the technology. However, in India the technology is completely unregulated even though successive governments have worked on such legislation since 2003. If global examples are not enough, the 2017 puttaswamy judgement has made such a legislation necessary. The judgement asserted that privacy is a fundamental right guaranteed by the Indian Constitution and that the right to privacy includes protection over the physical body. Therefore for the State to collect or store DNA data, a legislative mechanism principled on necessity and proportionality is requisite. 

Currently, DNA testing is being done on a very limited scale in India. There are about 30-40 DNA experts working in 15-18 laboratories. They are able to process only about 2-3% of the total need and even such limited testing in unregulated and unmonitored. According to the NCRB data for 2018, although 85% of rape complaints have been chargesheeted, the conviction rate for rape in just 27.2%. This technology, however, has a good record of increasing conviction rates; for example, a 2006 UK parliamentary report suggested that detection of crime increased from a mere 26% to a healthy 40% after DNA samples were loaded into a national database. Apart from crime detection, the technology will also help in identification of more than six million missing persons in India. Thus a legislation facilitating the DNA technology to help expedite justice is long overdue.

The DNA Technology (Use and Application) Bill, 2019 is the latest form of the DNA bill and is currently at the parliamentary committee stage for further deliberations. The bill, among other things, talks of a national DNA data bank and a DNA regulatory board to store DNA data and regulate DNA technology used in criminal and civil cases. The bill in its current form has raised many concerns including privacy issues with respect to use of DNA data, the ‘perfunctory consent’ clause which makes it hard for an individual to deny permission to collect his/her data, ethical issues in collecting and storing DNA data in DNA banks, the fear of caste based criminal profiling due to the endogamous nature of Indian society and so on. But the biggest concern is one of state capacity which in a way umbrellas other concerns.

Problems with State Capacity

In young nations like India, the State, although large and bloated, is not highly effective and efficient. This may cause even government interventions with noble intentions to backfire. Therefore it is necessary to identify places where lack of state capacity could cause worry in order for the legislation to work effectively. 

Three basic concerns could be summed up from the DNA Technology bill with respect to state capacity. Firstly, the high cost of the technology and lack of basic technological training with respect to data collection in a crime scene. Secondly, the issue of backlog burden with respect to the Justice system. And finally, the lack of clarity in the bill as to what is being collected and stored.

The India Justice Report 2019 published by Tatatrusts reveal important information on the Justice system in India. Over the last five years, only 6.4% of the police force have been provided in-service training. For an advanced technology like DNA fingerprinting, frontline police should have basic training and knowledge of the technology. It starts from how to read and deal with the crime scene. And without awareness, the technology cannot be exploited desirably. To go from training 6.4% to at least half the police force will become a herculean task which should be contemplated before implementing the legislation. The DNA bill gives the responsibility of developing training modules to the DNA Regulatory board which will be set up. But, it does not provide a realistic road map to reach the desired level of training to better use the technology. 

The report also suggests that on average, per-capita police spending in 2017 was Rs 820. No big or medium sized state has spent more than Rs 1160 per person and Bihar has spent as low as Rs 498. Only one state has made 100% use of the modernization funds allocated for capital expenditure and technology upgradation. But DNA fingerprinting technology is a costly affair. Each test could cost as much as Rs 10,000. Even if only high profile cases use DNA tests, a robust database of DNA has to be present for effective identification from the three indices mentioned in the bill. And such collection and storage of DNA samples could become another strain in the public exchequer. The bill also mandates the use of DNA testing for criminal as well as civil cases which could again flood the system.

Secondly, the DNA technology could increase the backlog burden of the already burdened system. In the US, with relatively strong state capacity, DNA backlogs are in the thousands. The National Institute of Justice (USA) reports that the current backlog of rape and homicide cases is 350,000. It also estimates that there are ‘between 500,000 to 1 million convicted offenders samples that are owed but not yet collected’. Additionally, the FBI has a backlog of approximately 18,000 convicted offender samples. Therefore in India with an already strained Justice system, DNA backlogs could cause worry. Also due to the significance of DNA information, backlogs could also invoke privacy concerns.

Finally, there is a lack of clarity. This concern however is not one of lack of state capacity but one of potential overreach by the State.

Non-coding DNA is used for identification purposes. The bill, however, does not restrict DNA Profiling to only use non-coding DNA which cannot be used for determining personal and medical characteristics. Given that the bill mandates data from all criminal and civil cases to be stored in the National data bank, concerns of privacy impingement cannot be hushed away. The lack of strong data protection legislation in place couples such concern. As the parliamentary committee suggests, the bill can also be termed ‘premature’ with respect to data protection. 

Although the bill is creating a strict code of ethics with respect to collection, storage and accessibility of  DNA information, it is ambiguous on removal of data. Clause 31(3) says that DNA data will be removed if a person requested in writing to the DNA bank, given that such a person is ‘neither an offender nor a suspect or an undertrial’ and whose DNA information has entered into the bank ‘through crime scene index or missing persons’ index’. But it is not quite clear on what will happen if such data is not removed. It is important to answer these questions due to the significance of DNA information and the fact that the bill does not restrict banks to store only non-coding DNA. Also these questions could raise concerns about state capacity in safeguarding important data of its citizens.

Conclusion

To address these concerns, building state capacity is the key. A staggered implementation of DNA technology could help in building capacity and credibility for the technology. For example, if the bill provides a roadmap of implementation- say, starting with addressing the identification of missing persons and further developing capacity for criminal and civil investigation, allocation of resources could be streamlined. This limited implementation could also help in addressing new issues that could arise during implementation. These details cannot be let out to be decided by a regulatory body because of the importance of DNA data and the breach of fundamental rights in collecting and storing it.

It is said that one has to cross the river by feeling the stones. The stable rule of law and a robust data protection regime which will make sure the technology is used judicially are basic requisites for a technology with societal implications. Even though DNA profiling  has huge potential to expedite justice, implementation of such complex technology has to be step by step. The Parliamentary Committee on Science and Technology has been scrutinizing the bill rigorously contemplating the varied problems that might befall the implementation of the bill. But it remains to be seen if the government will heed to such advice and not dismiss them altogether; that is, if it will feel the stones or deep dive into the river without contemplating the consequences. 

India is a rapidly urbanizing state. The 2011 census estimates that 31% of Indians live in urban areas. It counts 4041 statutory towns, 3892 census towns and 474 urban agglomerations as urban areas. These numbers however are quite outdated in 2020 and also there is considerable consensus among experts that there is an underestimation of urban spaces owing to the outdated definition of ‘urban’ in India. Regardless, the fact remains that these urban spaces should be governed democratically with the spirit of the 74th amendment. The COVID-19 situation further reasserts the importance of such governments and their role in Indian society.

Cities and urban spaces have emerged as hotspots of the Coronavirus. It is from the cities that the virus subsequently spread to other rural areas. In today’s globalized world, it is not irrational to predict another globalized disease perpetuated by cities. This warrants a greater need to safeguard the cities which are the essential links that connect nation states to the globalized world. The first step in this direction would be to empower urban governments for efficient crisis management and prevention of preventable diseases by assuring basic public goods.

Subsidiarity

The principle of subsidiarity advises that the Central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level. The principle therefore asserts the sovereignty of the citizen in a democracy and places her at the center of decision making.

In line with the principle, everything that can be done better locally, including providing basic services like safe drinking water and ensuring public goods like clean air, should be done by the local governments. The rationale being that, one, it increases efficiency and promotes self-reliance; two, it provides legitimacy to democracy and three, it creates awareness among people and develops responsible citizens. And another obvious reason is that it is most effective in understanding the local problems and in providing a pragmatic feedback loop.

All these reasons become much more clearer in times of crisis such as the Covid pandemic when local assessment and rapid service delivery becomes difficult. The Urban Local Bodies (ULBs) neither have properly delineated functions to perform nor they have the finances to do so. The 12th schedule of the Indian Constitution lists a group of 18 subjects on which the local governments can act upon, but only if the States ‘may’ wish to assign those functions by virtue of another State legislation. Even when legislated, States usually encroach into the domain of the purview of the local governments.

Furthermore the establishment of parastatals has reduced the functions of the local governments. The Parastatals perform specific functions which are supposed to be performed by ULBs and are accountable only to the State government thereby circumventing the ULBs. In addition, the Union government also takes a share of the implementation space with centrally sponsored schemes thereby making proper delineation of powers impossible for ULBs.

The Veerappa Moily commission’s sixth report dealing with local governance sums it up perfectly.

“Confusion, unnecessary duplication, inefficiency, wastage of funds, poor outputs and outcomes are the result of this organisational jungle. The local organisations which should be the most directly and fully concerned are at best treated as a small part of the implementation, occasionally consulted but, in most cases, by-passed and ignored”

What happened on June 23 requires unequivocal condemnation. A citizen of a free democracy that is ruled by law does not deserve to be a victim of arbitrary abuse of power. Many try to reassure themselves by treating it as an isolated incident without any bearing to the structural problems of policing in India but it should be noted that police brutality and arbitrary discretion is not just exclusive to what happened at Thoothukudi; it is in a way the story of India.

I was listening to the daughter and sister of the victims, she raises a pertinent question “Who gave this much power to the police?”

I would like to stretch the question a little further and ask essentially the same question with different words, Why do governments wield such power without consequences in a democracy?

Before attempting to answer these questions, we will look at some bizarre data.

The National Crime Records Bureau (NCRB) data for 2017 shows that there were 100 custodial deaths. They also further classify the deaths based on reasons for such death. The classification is misleading to say the least, for example, there were five deaths due to physical assault by police during custody and twenty eight deaths while the victim was in a hospital- it could be due to an illness or other treatment. Now when the police beat a person to plump and then neglect medical attention to a point of no return, then later take him to a hospital where he dies, which classification will such death account to?

Similarly there are also deaths due to escape from custody, deaths due to road accidents while travelling during investigation and ‘other’ reasons. It is not rational to believe the data at face value because the data just shows how the police recorded it. In fact, the NCRB data for 2018 shows that there were only three custodial deaths due to physical assault by the police and in Tamil Nadu there were no custodial deaths due to physical assault by the police- one must live under a rock to believe those numbers.

On the basis of 5,479 cases registered against police personnel in 2018, only 580 were arrested and only 41 were convicted; seven percent conviction rate- these include all types of cases.

The data goes on to classify the cases against police personnel based on the incidence of Human Rights violation separately. The violations include encounter killing, death in custody, torture, illegal detention, extortion and ‘others’. Here there are 40 personnel arrested for 89 registered cases but none of them have been convicted- zero percent conviction rate.

All this could mean either two things. One, majority of these cases are fake and does not have evidence to prove any Human Rights violation by the police personnel; or two, the trials and data are a sham. The latter is more convincing.

Also read illustrative cases of Human Rights violation meted out by the NHRC [Report, pg 44]

Now back to the question in hand.

Two reasons can be thought of as to why there is abuse of executive power; one, the shadowy rule of law in India and two, the structural psychology of the executive.

There are many instances of the executive punishing people without the breach of law, providing special treatment for certain individuals in favour of money or power and more importantly instances where individual rights are blatantly undermined. This absence or partial presence of the rule of law is an established fact in India. So this essay will primarily concern itself with the second reason which could also be read as to why there is callousness in following the rule of law.

Genesis

The white man took it upon himself to educate and ‘civilize’ the nether world which he called ‘the white man’s burden’. When he came to the Indian subcontinent, he made simplistic explanations to understand the myriad complex cultures and values of the subcontinent. Donning his Victorian glasses, he was convinced that the subcontinent had to be taught how to be civilized and progressive; he was convinced that the people lacked understanding of modern concepts of rights and freedom. He would go on to exploit that apparent ignorance for about 200 years whilst convincing his fellow countrymen that he was doing noble things to civilize the natives.

When the time came, the White man left the subcontinent not just breaking it into two, but also after entrenching the idea that the people of India lacked political knowledge and that they will not be able to look after themselves without a benevolent despot looking out for them.

This idea found currency among the political elite who deemed fit that India should have a strong Center which will lead the socioeconomic transformation towards an equal society. India’s founders thought of local governments to be burdened with a set of old practices which disabled individualism; there is obvious truth to that but Centralization transferred power from local identity groups to the Center leaving the individual behind. This excessive centralization of decision making shows disbelief in the people to elect their own deserving self governments mirroring the White man’s claim that natives are incapable of self-rule.

This disbelief can also be seen in the case of Fundamental Rights conferred by the Indian Constitution; the rights are conditional in nature with more restrictions and caveats than the Rights themselves. K.T Shah rightly pointed out in the Constituent Assembly that the legislators are ‘still unable to trust in full, the people’.

The first intuition of the government is that people are ignorant and do not know anything unless we teach them by force to march towards an equal society. Everything is pedagogical in nature from basic concepts like freedom and liberty to specific nuances; everything is to be taught and enforced for the ‘common good’. It somehow eludes the government’s thought process that values like freedom and liberty are universal and one does not need a college degree to understand what absence of such values entail.

This benevolent despotic attitude leads to frustration and irritation to the executive because it is now led to believe that its existence is necessary to stop the people from denigrating into barbarians; therefore it assigns undue importance to itself thereby planning an hierarchical society where people need to obey the executive for their own good. With this kind of outlook towards power structure, executive abuse of power is understandably normal because the executive does things only for the people’s own good.

Missed Watershed

This outlook has always existed since the beginning of independent India, but the 1970s exemplified it to a point of no return. We could see this outlook in action when the government forced people out of their homes without any form of consent if the name of beautifying the city.

“To them, the long-time residents of the walled city (Delhi) were bare bodies, without rights and without claims to their homes and their persons”

It is also well documented how sterilization camps were set up during the Emergency and how many Indians were forced to undergo medical procedures without their consent. These are the problems of an impersonal Central government legislating on local personal issues of the community. To them, people were mere numbers and Malthus had told that if the number increases the nation can not survive, therefore it legitimizes use of excessive power; after all it is for the people’s good.

This outlook is not just exclusive to the Central government, it seeps deep through all the rungs of the ivory tower; from the Prime Minister to the nearby Collector. The abuse of power by the police is the most visible because they have the legal monopoly on violence and violence attracts attention. The legally illegal preventive detention laws like the MISA during the Emergency has been etched in the minds of people because it was the most visible not because it was the only abuse of power that happened during the 21 months.Therefore if blame has to be assigned, this hierarchical power setup should stand before individual lapses of judgments, because such lapses are the manifestation of the hierarchical psychology ingrained in every person working for the government.

The 1977 elections after the revocation of the Emergency should have been the watershed moment in India’ struggle for freedom and liberty. But the Janata party which won the elections after enduring continuous abuse of power, went behind the individual Indira Gandhi rather than the hierarchical structure of power. They essentially transferred power from one party to another thereby leaving freedom, which they claimed to fight for, in a limbo. The hierarchical structure of power was preserved thereby being back to business as usual.

Bad Teacher

“The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic”

The founders were not wrong in the concern that rule of law and constitutional morality is not a natural sentiment and that it has to be cultivated. But what the subsequent governments overlooked is that such concepts are of most importance to the people working in the executive more so than the normal public. Therefore in the process of trying to cultivate the concept of rule of law among the ‘undemocratic’ people of India, they created the hierarchical structure where a noble end justifies the unlawful means. This cycle of trying to civilize but becoming the oppressor is a vicious one which can be broken only if the executive asserts the rule of law as supreme however noble their ends they think might be.

Values like democracy, freedom and liberty are not something that has to be taught, if people enjoy and exercise their free rights they will automatically cultivate respect to the constitution and the importance of the law. But the executive’s attempt to command and control the people directly without any consideration of the law is therefore a failure of post colonial politics in cultivating such values at the ground level. The power imbalance between the executive and the people lays bare the reasons for continuous abuse of power and the negligence in following the rule of law.

American thinker Thomas Paine famously wrote that “so far as we approve of monarchy, in America the law is king”; similarly, the executive must realize that it is an instrument to implement the rule of law and not the king themselves. Without such realization, abuse of power will be a common recurrence in Indian society and more such lives of free people will be lost due to the hierarchical structure of power which essentially runs contrary to what we call democracy.

[Podcast] Also listen to The Seen and the Unseen Epi 179 where they discuss the plight of street vendors and how the government stands in between people and growth.

By Benolin

Mute Spectator is the primary series of the blog where we express our thoughts on current affairs