0

Reporters in Delhi should get a wintertime allowance

Over Delhi. Credit: souravdas/Flickr, CC BY 2.0

Featured image credit: souravdas/Flickr, CC BY 2.0.

I recently moved out of Delhi. The air made it easier to decide to leave. What I’ve learnt is that a source of amusement to many friends in the country’s south is actually a nightmare up north, where a five-minute stroll outside can leave you with an irritated throat, watering eyes and the feeling that something is burning its way through your nose. In the week right after Deepavali, you woke up in the morning smelling something toasty; the view through your window was always more orange than it ought to be. You couldn’t go to and return from work without feeling short of breath – irrespective of how you travelled.

The effects of the disaster are undoubtedly classist – and sometimes more than they need to be. Recently, Delhi’s chief minister Arvind Kejriwal announced that air purifiers would be installed at a few major traffic intersections around Delhi to clean up the air. Sarath Guttikunda, a scientist and environmental activist, wrote for The Wire about how insipid the idea is. His article highlights the vacuity of Kejriwal’s desperation, that he would resort to a downstream solution that would affect so few people in the city instead effecting something upstream – at the sources – that would help everyone. What about those who can’t afford air filters? What about those who live on the roads?

The scale of changes that will have to be implemented implies that Delhi’s wintertime pollution problem will maintain its classist manifestation for a few years at least – assuming that the changes are implemented at all. To quote Guttikunda, they are broadly to increase the quality of public transportation and reduce the amount of waste sent to landfills. Now, the issue here is that – assuming you’re a middle-class person with a job that pays 25k to 75k a month – unless your boss is perfectly reasonable and considerate (or is a Kejriwal under pressure to be seen to act), you’re not going to get time off work unless the pollution makes you really sick (i.e. enough to have you bed-ridden for the day).

Delhi has four popular public transportation options: auto, bus, metro and cab (Ola/Uber). There are also rickshaws but they operate over shorter distances. Only the metro is immune to traffic jams; the others contribute to and are stuck in one regularly, especially when going from south Delhi, east Delhi and Gurgaon to central Delhi in the morning and the other way in the evening. If you want to get to work on time, the metro is your best option. Even then, however, given the number of stations together with the size of the city, your odds of finding a metro station that’s close to home as well as close to where you work are really low. You’re going to have to walk, or take an auto/rickshaw, through the crappy air over the course of a few arduous minutes.

What’re these daily minutes of exposure going to do, you ask? Deepak Natarajan, a cardiologist in Delhi, has a list of diseases likelier to beset you after short-term exposure to heightened PM2.5 levels:

  1. Acute myocardial infarction
  2. Unstable angina
  3. Increased likelihood of heart attacks by 8-26%
  4. Heightened risk of thrombosis
  5. Endothelial dysfunction,

and a host of other cardiovascular ailments. As Natarajan writes, air pollution kills more people every year than AIDS and malaria. The next time you’re walking through the smog, feel free to imagine you’re walking through a cloud of Aedes aegypti mosquitoes.

Circling back to the fact that there are no laws securing anyone’s choice to not work – or at least to not have to visit the workplace – with that bilious overhang: consider the plight of journalists. Reporters among them have an especial obligation to spend time on the outside, and the more seasoned among whom hardly ever think about the pollution as a vocational hazard. It’s a job that requires a modicum of physiological fitness that’s simultaneously almost never discussed. In fact, the conversation is swept away by the pretext of a ‘reporter allowance’. I used to receive one at The Hindu, a Rs 1,600 to cover intra-city travelling expenses. But it could cover very little that my salary (then at Rs 30,000) already hadn’t. And this was in Chennai, where the cost of living is lower than that in Delhi.

(Just the way poverty makes all the small, niggling issues in life seem more maddening, a rapidly shrinking set of class-sensitive solutions available to those labouring in wintertime Delhi can drive people similarly close to the edge: such as auto-drivers refusing rides to certain areas, a perpetual shortage of buses and surge pricing. We all know these are not immediately fixable, so how about doing a Kejriwal and heading downstream to check in on your local news-bearers?)

The reasonableness and consideration of your supervisors and employers matters in this context because Delhi’s pollution becomes easier to live through the more privileged you are. And if your editor isn’t considerate enough, then she’s probably assuming pollution affects you the way it does her, which isn’t good if she lives closer to central Delhi. Many media houses*, almost all government offices and all the more-genteel things are located towards the centre, a.k.a. Lutyens’ Delhi, which is marked by open spaces, abundant greenery, its radial outlay and wide roads – all contributing to the reduced prevalence of dust. The cost of living drops as you move further away from this area (with a marked drop once you exit the radial areas). This means the hierarchy in a journalist’s workplace is likely to be mirrored by each employee’s residence’s proximity to Lutyens’ Delhi – evidently, a proximity by proxy to healthiness.

And privilege, as has often been the case, often blinds those who enjoy it to the travails of those who don’t. In this case, it is established by having access to the following (at a cost that doesn’t burn holes in clothing):

  1. A house in a clean neighbourhood away from dusty roads
  2. Abundant greenery in your immediate neighbourhood
  3. An air-conditioner
  4. Air filters/purifiers/fresheners
  5. A car to commute in
  6. A proximate workplace
  7. Clean, well-maintained public spaces
  8. Sufficient time and/or resources to keep the house clean
  9. Affordable medicines and medical assistance

Without access to them, daily life can be quite disorderly, unfulfilling and hard to establish a routine with – especially if you can’t really live dirty without such a state of affairs taking a toll on your productivity and peace of mind. As a result, Delhi’s pollution imposes high entry barriers for healthy living on its residents – barriers that become less surmountable the farther away from the city’s centre you are (to add to which you spend longer to get to the city’s centre). And if you’re a reporter, you’re likelier to have it well and truly harder than most others of your means, thanks (in sum) to central Delhi being cleaner, areas farther more removed from it cheaper, air pollution being easier to live through the more privileged you are, and there being no laws to secure your right to a clean working environment.

To address these issues and even out inequities, reporters in wartime wintertime Delhi should receive an additional allowance as well as shorter and more flexible working hours. Other staffers should also be allowed to work from where they feel comfortable apart from receiving an allowance that will help cover medical expenses, to begin with. (These measures make immediate sense for online news establishments comfortable with decentralised work environments – but they aren’t to exonerate newspaper offices that are used to having everyone work out of a common newsroom.) Those who can’t or won’t should be kept mindful of what they’re asking their journalists to give up and compensate them accordingly as and when the opportunities arise. And even so, no amount of fondness or pride for situating themselves in the national capital can save journalism establishments from the steady toll the city is taking on their journalists.

*Offices are becoming more spread out – but that doesn’t matter.

0

An identity for ISRO through a space agreement it may or may not sign

The PSLV takes off on its 24th mission in April 2014 to launch the IRNSS 1B satellite. Source: ISRO

Indians, regardless of politics or ideology, have a high opinion of the Indian Space Research Organisation (ISRO). Conversations centred on it usually retain a positive arc, sometimes even verging on the exaggerated in lay circles – in part because the organisation’s stunted PR policies haven’t given the people much to go by, in part because of pride. Then again, the numbers by themselves are impressive: Since 1993, there have been 32 successful PSLV launches with over 90 instruments sent into space; ISRO has sent probes to observe the Moon and Mars up close; launched a multi-wavelength space-probe; started work on a human spaceflight program; developed two active launch vehicles with two others still in the works; and it is continuing its work on cryogenic and scramjet engines.

The case of the cryogenic engine is particularly interesting and, as it happens, relevant to a certain agreement that India and the US haven’t been able to sign for more than a decade now. These details and more were revealed when a clutch of diplomatic cables containing the transcript of conversations between officials from the Government of India, ISRO, the US Trade Representative (USTR) and other federal agencies surfaced on Wikileaks in the week of May 16. One of themdelineates some concerns the Americans had about how the Indian public regarded US attempts to stall the transfer of cryogenic engines from the erstwhile USSR to India, and the complications that were born as a result.

In 1986, ISRO initiated the development of a one-tonne cryogenic engine for use on its planned Geosynchronous Satellite Launch Vehicle (GSLV). Two years later, an American company offered to sell RL-10 cryogenic engines (used onboard the Atlas-Centaur Launch Vehicle) to ISRO but the offer was turned down because the cost was too high ($800 million) and an offer to give us the knowhow to make the engines was subject to approval by the US government, which wasn’t assured. Next, Arianespace, a French company, offered to sell two of its HM7 cryogenic engines along with the knowhow for $1,200 million. This offer was also rejected. Then, around 1989, a Soviet company named Glavkosmos offered to sell two cryogenic engines, transfer the knowhow as well as train some ISRO personnel – all for Rs.230 crore ($132 million at the time). This offer was taken up.

However, 15 months later, the US government demanded that the deal be called off because it allegedly violated some terms of the Missile Technology Control Regime, a multilateral export control regime that Washington and Moscow are both part of. As U.R. Rao, former chairman of ISRO, writes in his book India’s Rise as a Space Power, “While the US did not object to the agreement with Glavkosmos at the time of signing, the rapid progress made by ISRO in launch vehicle technology was probably the primary cause which triggered [the delayed reaction 15 months later].” Officials on the Indian side were annoyed by the threat because solid- and liquid-fuel motors were preferred for use in rockets – not the hard-to-operate cryogenic engines – and because India had already indigenously developed such rockets (a concern that would be revived later). Nonetheless, after it became clear that the deal between Glavkosmos and ISRO wouldn’t be called off, the US imposed a two-year sanction from 1992 that voided all contracts between ISRO and the US and the transfer of any goods or services between them.

Remembering the cryogenic engines affair

This episode raised its ugly head once again in 2006, when India and the US – which had just issued a landmark statement on nuclear cooperation a year earlier – agreed on the final text of the Technical Safeguards Agreement (TSA) they would sign three years later. The TSA would “facilitate the launch of US satellite components on Indian space launch vehicles”. At this time, negotiations were also on for the Commercial Space Launch Agreement (CSLA), which would allow the launch of American commercial satellites onboard Indian launch vehicles. The terms of the CSLA were derived from the Next Steps in Strategic Partnership (NSSP), a bilateral dialogue that began during the Vajpayee government and defined a series of “quid-pro-quos” between the two countries that eventually led to the 2005 civilian nuclear deal. A new and niggling issue that crept in was that the US government was attempting to include satellite services in the CSLA – a move the Indian government was opposed to because it amounted to shifting the “carefully negotiated” NSSP goalposts.

As negotiations proceeded, the cable, declassified by the then US ambassador David Mulford, reads:

“Since the inception of the NSSP, reactionary holdouts within the Indian space bureaucracy and in the media and policy community have savaged the concept of greater ties with the US, pointing to the progress that India’s indigenous programs made without assistance from the West. The legacy of bitterness mingled with pride at US sanctions continues in the present debate, with commentators frequently referring to US actions to block the sale of Russian cryogenic engines in the 1990s as proof that American interest continues to focus on hobbling and/or displacing India’s indigenous launch and satellite capabilities.”

The timing of the Glavkosmos offer, and the American intervention to block it, is important when determining how much the indigenous development of the cryogenic upper stage in the 2000s meant to India. After ISRO had turned down Arianespace’s HM7 engines offer, it had decided to develop a cryogenic engine from scratch by itself over eight years. As a result, the GSLV program would’ve been set back by at least that much. And it was this setback that Glavkosmos helped avoid (allowing the GSLV development programme to commence in 1990). Then again, with the more-US-friendly Boris Yeltsin having succeeded Mikhail Gorbachev in 1991, Glavkosmos was pressurised from the new Russian government to renegotiate its ISRO deal. In December 1993, it was agreed that Glavkosmos would provide four operational cryogenic engines and two mockups at the same cost (Rs.230 crore), with three more for $9 million, but without any more technology transfer.

The result was that ISRO had to fabricate its own cryogenic engines (with an initial investment of Rs.280 crore in 1993) with little knowledge of the challenges and solutions involved. The first successful test flight happened in January 2014 on board the GSLV-D5 mission.

So a part of what’re proud about ISRO today, and repeatedly celebrate, is rooted in an act whose memories were potential retardants for a lucrative Indo-US space deal. Moreover, they would also entrench any concessions made on the Indian side in a language that was skeptical of the Americans by default. As the US cable notes:

“While proponents point to ISRO’s pragmatism and scientific openness (a point we endorse), opponents of the [123] nuclear deal have accused ISRO of selling out India’s domestic prowess in space launch vehicles and satellite construction in order to serve the political goal of closer ties with the US. They compare ISRO’s “caving to political pressure” unfavorably with … Anil Kakodkar’s public statements drawing a red line on what India’s nuclear establishment would not accept under hypothetical civil-military nuclear separation plans.”

How do we square this ‘problematic recall’ with, as the same cable also quotes, former ISRO chairman G. Madhavan Nair saying a deal with the US would be “central to India’s international outreach”? Evidently, agreements like the TSA and CSLA signal a reversal of priorities for the US government – away from the insecurities motivated by Cold-War circumstances and toward capitalising on India’s rising prominence in the Space Age. In the same vein, further considering what else could be holding back the CSLA throws more light on what another government sees as being problematic about ISRO.

Seeing the need for the CSLA

The drafting of the CSLA was motivated by an uptick in collaborations between Indian and American entities in areas of strategic interest. The scope of these collaborations was determined by the NSSP, which laid the groundwork for the civilian nuclear deal. While the TSA would allow for American officials to inspect the integration of noncommercial American payloads with ISRO rockets ahead of launch, to prevent their misuse or misappropriation, it wouldn’t contain the checks necessary to launch commercial American payloads with ISRO rockets. Enter CSLA – and by 2006, the Americans had started to bargain for the inclusion of satellite services in it. (Note: US communications satellites are excluded from the CSLA because their use requires separate clearances from the State Department.)

However, the government of India wasn’t okay with the inclusion of satellite services in the CSLA because ISRO simply wasn’t ready for it and also because all other CSLAs that the US had signed didn’t include satellite services. The way S. Jaishankar – who was the MEA joint secretary dealing with North America at the time – put it: “As a market economy, India is entitled to an unencumbered CSLA with the US”. This, presumably, was also an allusion to the fact that Indian agencies were not being subsidised by their government in order to undercut international competitors.

A cable tracking the negotiations in 2009 noted that:

“ISRO was keen to be able to launch U.S. commercial satellites, but expected its nascent system to be afforded flexibility with respect to the market principles outlined in the CSLA. ISRO opposed language in the draft CSLA text on distorting competition, transparency, and improper business practices, but agreed to propose some alternate wording after Bliss made clear that the USG would not allow commercial satellites to be licensed in the same way as non-commercial satellites … indicating that commercial satellites licenses would either be allowed through the completion of a CSLA or after a substantial period of time has passed to allow the USG to evaluate ISRO’s pricing practices and determine that they do not create market distortions.”

ISRO officials present at the discussion table on that day asked if the wording meant the US government was alleging that ISRO was unfairly undercutting prices (when it wasn’t), and if the CSLA was being drafted as a separate agreement from the TSA because it would allow the US government to include language that explicitly prevented the Indian government from subsidising PSLV launches. USTR officials countered that such language was used across all CSLAs and that it had nothing to do with how ISRO operated. (Interestingly, 2009 was also the year when SpaceX ditched its Falcon 1 rocket in favour of the bigger Falcon 9, opening up a gap in the market for a cheaper launcher – such as the PSLV.)

Nonetheless, the underlying suspicion persists to this day. In September 2015, the PSLV C-30 mission launchedASTROSAT and six foreign satellites – including four cubesats belonging to an American company named Spire Global. In February 2016, US Ambassador Richard Verma recalled the feat in a speech he delivered at a conference in New Delhi; the next day, the Federal Aviation Administration reiterated its stance that commercial satellites shouldn’t be launched aboard ISRO rockets until India had signed the CSLA. In response to this bipolar behaviour, one US official told Space News, “On the one hand, you have the policy, which no agency wants to take responsibility for but which remains the policy. On the other, government agencies are practically falling over themselves to grant waivers.” Then, in April, private spaceflight companies in the US called for a ban on using the PSLV for launching commercial satellites because they suspected the Indian government was subsidising launches.

A fork in the path

India also did not understand the need for the CSLA in the first place because any security issues would be resolved according to the terms of the TSA (signed in 2009). It wanted to be treated the way Japan or the European Union were: by being allowed to launch American satellites without the need for an agreement to do so. In fact, at the time of signing its agreement with Japan, Japan did not allow any private spaceflight entities to operate, and first considered legislation to that end for the first time in 2015. On both these counts, the USTR had argued that its agreement with India was much less proscriptive than the agreements it had struck with Russia and Ukraine, and that its need for an agreement at all was motivated by the need to specify ‘proper’ pricing practices given India’s space launches sector was ruled by a single parastatal organisation (ISRO) as well as to ensure that knowhow transferred to ISRO wouldn’t find its way to military use.

The first news of any organisation other than ISRO being allowed to launch rockets to space from within India also only emerged earlier this year, with incumbent chairman A.S. Kiran Kumar saying he hoped PSLV operations could be privatised – through an industrial consortium in which its commercial arm, Antrix Corporation, would have a part – by 2020 so the rockets could be used on at least 18 missions every year. The move could ease the way to a CSLA. However, no word has emerged on whether the prices of launches will be set to market rates in the US or if ISRO is considering an absolute firewall between its civilian and military programmes. Recently, a group of universities developed the IRNSS (later NAVIC), India’s own satellite navigation system, alongside ISRO, ostensibly for reducing the Indian armed forces’ dependence on the American GPS system; before that was the GSAT-6 mission in August 2015.

If it somehow becomes the case that ISRO doesn’t ever accede to the CSLA, then USTR doubts over its pricing practices will intensify and any commercial use of the Indian agency’s low-cost launchers by American firms could become stymied by the need for evermore clearances. At the same time, signing up to the CSLA will mean the imposition of some limits on what PSLV launches (with small, commercial American payloads) can be priced at. This may rob ISRO of its ability to use flexible pricing as a way of creating space for what is after all a “nascent” entity in global terms, besides becoming another instance of the US bullying a smaller player into working on its terms. However, either course means that ISRO will have to take a call about whether it still thinks of itself as vulnerable to getting “priced out” of the world market for commercial satellite launches or is now mature enough to play hardball with the US.

Special thanks to Prateep Basu.

The Wire
May 23, 2016

5

#ChennaiRains – let’s not forget

Chennai. Poda vennai. Credit: Wikimedia Commons
Chennai. Poda vennai. Credit: Wikimedia Commons
Chennai. Poda vennai. Credit: Wikimedia Commons

It was a friend’s remark in 2012 that alerted me to something off about the way I’ve looked at natural disasters in India’s urban centres – especially Chennai. At that time – as it is today – long strips of land in many parts of the city were occupied by trucks and machinery involved in building the Metro. At the same time, arbitrary overcharging by auto-rickshaws was rampant and almost all buses were overcrowded during peak hours. Visiting the city for a few days, she tweeted: “Get your act together, Chennai.”

Like all great cities, Chennai has always sported two identities conflated as one: its public infrastructure and its people. There has been as much to experience about Chennai’s physical framework as its anthropological counterpart. For every dabara of filter coffee you had, visit to the Marina beach you paid on a cloudy evening, stroll around Kapaleeshwarar Temple you took during a festival, you could take a sweaty bus-ride at 12 pm, bargain with an auto-rickshaw driver, and get lost on South Usman road. This conflation has invoked the image of a place retaining its small-townish charm while evolving a big-town bustle. And this impression wouldn’t be far off the mark if it weren’t for one problem.

In the shadow of its wonderful people, Chennai’s public infrastructure has been fraying at the seams.

The ongoing spell of rains in the city have really brought some of these tears to the fore. Large swaths are flooded with upto two feet of water while Saidapet, Kotturpuram, Eekkattuthangal, Tiruvanmiyur and Tambaram areas have been wrecked. A crowdsourced effort has registered over 2,000 roads as being water-logged. Hundreds of volunteers still ply the city providing what help they can – while a similar number of others have opened up their homes – as thousands desperately await it. The airport has been shut for a week, all trains cancelled and major arterial roads blocked off. The Army, Navy and the NDRF have been deployed for rescue efforts but they’re overstretched. Already, the northern, poorer suburbs are witnessing flash protests amidst a building exodus for want of supplies.

Nobody saw these rains coming. For over three decades, the annual northeast monsoons have been just about consistently short of expectations. But this year, the weather has seemed intent on correcting that hefty deficit in the span of a few weeks. For example, December 1-2 alone witnessed over 300 mm of rainfall as opposed to a full month’s historic average of 191 mm.

But as it happens, there’s no credible drainage system. The consequential damage is already an estimated Rs.15,000 crore – which is really just fine because I believe that that number’s smaller than all the bribes that were given and taken by the city’s municipal administrators to let builders build where and how they wished: within once-swamps, in the middle of dried lakebeds, using impervious materials for watertight designs, with little care for surface runoffs and solid waste management, the entire facade constructed to be car- and motorbike-friendly.

What I think is up for change now is that we don’t forget, that we don’t let the government surmount the disaster this time with compensation packages, reconciliatory sops and good ol’ flattery – the last one by saying the people of Chennai have stood tall, have coped well, and move on, just like that. But what made the crisis that required the fortitude in the first place – any more than the fortitude we already display to get on with our lives? It was only drawn out by what has always been a planned but ignored crisis. Even if it’s the sole silver-lining, focusing on it also distracts us from understanding the real damage we’ve taken.

An opinion piece that appeared in The Hindu on December 3 provides a convenient springboard to further explain my views. An excerpt:

Many outsiders who come to the city say it’s hard to make friends here. The people are insular, they say. It’s true, we Chennaites stick to ourselves. There is none of the brash socialising of the Delhiite, the familiar chattiness of the Kolkatan, or the earthy amiability of the Mumbaikar. Your breezy hello will likely get a grunt in return and chirpy conversational overtures will meet austere monosyllables. That’s because we don’t much care for small talk. We can spend entire evenings making few friends and influencing nobody, but give us a crisis and you’ll find that few cities stand up tall the way Chennai does. It is unglamorously practical, calmly efficient, and absolutely rock-solid in its support systems.

Apropos these words: It’s very important to glorify the people who’ve stood up to adversity but when the adversity was brought on by the government (pointing at AIADMK for its construction-heavy reigns and at the DMK for having no sense of urban planning – exemplified by that fucking flyover on South Usman Road), it’s equally important to call it out as well. Sadly, the author of the piece blames the rain god for it! It’s like I push you in front of a speeding truck, you somehow survive a fatal scenario, then I applaud you and you thank me for the applause. I think that when you’re able to celebrate a life-goes-on narrative without talking about what broke, you’re essentially rooting for the status quo.

Moreover, thousands of cities have stood tall the way Chennai has. Kalyan Raman had penned a justifiably provocative essay in 2005 where he argued that India’s biggest metros have largely been made (as opposed to being unmade) by daunting crises. I think it’s important in this context to cheer on rescue efforts but not the physical infrastructure itself (which has a cultural component in having established it), and which is neither “calmly efficient” nor has a rocky quality to it. The infrastructure stinks (a 10-year timeline for building the Metro is another example) and must now earn its own narrative in stories of Chennai instead of piggybacking on the city’s other well-deserved qualities.

In the same vein, I don’t think different cities’ different struggles are even comparable, so it’s offensive to suggest few cities can stand up tall the way Chennai has. Let’s cheer for having survived, not thump our chests. We made the floods happen, and unless we demand better from our government, we won’t get better governance (for starters, in the form of civic infrastructure reform).

0

DNA Bill uploaded for feedback

The Department of Biotechnology, under the Ministry of Science & Technology, is soliciting feedback on the Human DNA Profiling Bill, a scanned copy of which has been uploaded to the DBT website – accessible here. It is dated June 9, 2015, and is accompanied by some handwritten corrections. Public feedback is being solicited after the Bill was slated to be introduced in the monsoon session of the Parliament. However, the introduction eventually didn’t happen at all thanks to washed out sessions.

The last date for submitting feedback is August 20, 2015, at this email address.

On July 24, The Wire had reported on numerous shortcomings in the draft Bill, largely concerning the lack of accountability and privacy safeguards, as well as the absence of any financial memoranda. While a government representative – Dr. J. Gowrishankar, director of the Centre for DNA Fingerprinting and Diagnostics – had responded to our criticisms on July 25, he nonetheless didn’t mention if the draft Bill would or wouldn’t be modified in response to the issues we had raised.

However, the June-9 version of the Bill on which feedback from the people has been solicited differs from the working draft we had used – dated January 16, 2015.

In the new version, the table of contents and preamble aren’t included; Gowrishankar had previously noted that the Bill would be tabled without the preamble. However, it’s unclear why the table of contents was left out, too, apart from having uploaded a scanned version of the Bill.

Anyway, such minor changes have been made throughout the Bill – although a few significant changes stand out as well. For instance, Section 12(k) of the working draft has been excluded from the new version, that the supervising DNA Profiling Board will be “making recommendations for maximising the use of DNA techniques and technologies in administration of justice”.

For another, the self-contradictory Section 14(2) of the draft Bill has been removed in the new draft, i.e. that DNA profiling labs in already in existence at the time of passing the Bill needn’t get approval to perform tests. Now, all labs – no matter how old or new – will require the Board’s permission to serve the Bill’s interests.

While largely well-intentioned, the older draft Bill lacked watertight safeguards against the abuse of the DNA profiles that’d be stored in the database. Specifically, it abdicated the responsibility of defining best practices for extracting the profiles, didn’t define any operational costs, didn’t factor in any of the privacy-related course corrections suggested by the 2012 Report of the Group of Experts on Privacy, provided for no anonymisation protocols, and vested too many powers in the overseeing Board.

With the removal of Section 12(k), the new draft gives the Board a less self-indulgent ambit, even if the drafting committee hasn’t gone farther than that to ensure there will be independent regulatory oversight. In a previous conversation, Gowrishankar had said that such oversight would stem by default from the Parliament, but the just-concluded monsoon session illustrates how important decisions concerning the database could be delayed simply because MPs are distracted by other commitments.

Just as well, the Group of Experts’ privacy recommendations are also still missing. Without them, the Bill doesn’t do the following things, even as they’ve come to be recognised as important limbs of an effective privacy law around the world.

  1. Provide a notice that DNA samples were collected from so-so areas of the body
  2. Inform anybody – particularly the individual – if and when her/his DNA is contaminated, misplaced or stolen
  3. Inform a person if a case involving her/his DNA is pending, ongoing or closed
  4. Inform the people when there are changes in how their DNA is going to be accessed, or if the way their DNA is being stored or used is changed
  5. Distinguish between when DNA can be collected with consent and when it can’t
  6. Say how volunteers can contribute their DNA to the database even though the draft Bill has a provision for voluntary submissions
  7. Provide any explicit guarantee that the collected DNA won’t be used for anything other than circumstances specified in the Bill
  8. Specify when doctors or the police can or can’t access DNA profiles

The new draft also contains a new provision – under Section 24(5) – that DNA profiles’ databases will set up in individual states as well without saying if the same safeguards that apply to the national repository will apply to the regional ones. So, as a result of all these omissions the new draft Bill remains, like its previously availed version, in a suboptimal state. But while it is odd that the draft was opened up for public feedback after it was set to to be introduced in Parliament – it usually happens before – it has been opened now, until August 20.

The Wire
August 18, 2015

0

The devil in Obama’s new emissions target for the US lies in base year details

President Barack Obama announced a new climate change target for the United States’ electricity generation sector on August 3. Hailed by many as ambitious, the plan dictates that power plants in the world’s largest economy and second largest polluter reduce their emissions below 32% of their 2005 levels by 2030. The US had already committed to a 25% reduction from 2005 levels by 2025 in a deal with China made in October 2014. The new commitment now requires more than a doubling of the pace of emission cuts.

Such declarations allow economies like the US to assume leadership of the international climate negotiations at a time when declarations from other countries have been tardy. At the same time, the US has also given itself some leeway despite the symbolic headstart, the advantages of which lie in the historic details. Consider this chart, compiled by the World Resources Institute:

Source
Source

Among the five greenhouse gases that countries prioritise cutting down on, two contain carbon: methane and carbon dioxide. The chart above shows the methane emissions of the USA and the five BRICS nations from 1990 to 2011. The US’s methane emissions were at their minimum in 2005 – so any future commitment on methane emissions premised on 2005 levels are likely to represent daunting challenges. The dip happened because at that time the US was maximising its extraction and processing of shale gas, activities that emit little methane. But on the question of carbon dioxide emissions, consider the chart below:

Source
Source

The US’s carbon dioxide emissions peaked in 2005, at 5,828.63 million metric tons. This convenient choice of a base year allows the US a leeway that’s 18.64% higher than its 1990 emissions – 1990 being the year that the Kyoto Protocol uses as a base. The absence of any rules on what can or can’t constitute base years is leveraged by many countries. In Europe, for example, the base year is 1990 because that’s when emissions peaked followed by a steady decline in industrial activity as well as a growing adoption of renewable energy options.

However, the absence of options in choosing a base year – as under the Kyoto Protocol – is problematic for developing nations. Their domestic demands for energy translate to increasing emissions, so the choice of 1990 as a base year restricts such economies to feeble, economically infeasible increments in energy production. This is one reason why India and China feature among the protocol’s second-phase’s non-ratifiers, being opposed to agreements that legally bind them to their targets.

As it happens, the US is also a non-ratifier for the same reason. Based on the WRI data, its rate of emission cuts between 2005 and 2011 was 70.8 million metric tons of CO2 per year. Assuming a simplistic linear rate of cuts until 2030, its power plants will have to knock off 83.53 million metric tons of CO2 emissions per year starting 2015 to meet its target of having 32% less carbon emissions than it did in 2005. But had it gone with 1990 as the base year, it would’ve had to knock off 122.46 million metric tons of CO2 year on year – an averaged annual leeway of 46.6%.

The Wire
August 5, 2015

0

Replies to the government’s concerns with our criticism of the DNA Profiling Bill

Credit: stewdean/Flickr, CC BY 2.0.

In response to the piece ‘Modi Wants the DNA Profiling Bill Passed Right Away. Here’s Why It Shouldn’t Be‘, published July 24, 2015, Dr. J. Gowrishankar, Director of the Centre for DNA Fingerprinting and Diagnostics, wrote a spirited response describing the benign intentions behind the Bill and why there is a real need for it in India, where the criminal justice system is known to be tardy.

I agree with large sections of his response, but am disappointed that they don’t address any specific points of failures – especially the lacklustre privacy and accountability safeguards. This is also why I don’t ask for the Bill to be shredded but that it be referred to a Parliamentary Standing Committee (at least) before it can be tabled. The following is a an unnumbered ‘listicle’ of my replies to Gowrishankar’s response.

That a part of the Indian Bill’s strength lies in having borrowed parts of laws from other countries, where DNA profiling has been around for more than a decade

The text of India’s Human DNA Profiling Bill may in large part be based on that from the USA, UK, Canada, etc., but many of the problems that the Bill could exacerbate are unique to India – such as the many privacy and accountability concerns highlighted in my article. Those parts of the Bill can’t be compared to what’s happening in the West. In fact, the USA, UK and Canada also have legislations in place that explicitly specify how the DNA profiles can be collected, the best practices for storing and indexing them, as well as who can access them, in what circumstances and how. TheDNA Identification Act 1994 (USA) specifies that all federally supported DNA labs comply with operational standards for collection, storage and analysis set by the FBI. The Criminal Justice and Public Order Act 1994 does the same in the UK. The DNA Identification Act 1998 (Canada) also does the same and further requires a periodic review of itself every five years.

That DNA profiling has a steadfast record in being able to solve disputes and that my skepticism of it is misplaced

Yes, DNA-profiling has a fabulous track record in settling disputes. However, the drafting committee, as well as anyone interested in the Bill’s tabling, would do well to learn from the mistakes of those who have been systematically pressing DNA-profiling to the resolution of civil and criminal disputes in modern times. I am skeptical of the technique – as I’m skeptical of all techniques – so I’ve asked that the Bill be cognisant of the various statistical blips and prescribe best practices to eliminate them. As I write in my article: “This isn’t to say that a reliable [match] can never be arrived at, but only that the draft Bill does not have the commensurate depth required to identify and tackle the sort of statistically motivated mistakes in DNA profiling. In fact, it also abdicates itself from specifying any best practices for the collection, storage and analysis of DNA samples…”

That only identity-neutral information derived from a person’s DNA will be stored in the database

The Bill doesn’t say this. As far as the draft document is concerned, the contents of the database are profiles – not identity-neutral profiles, just profiles. I respect your attitude to privacy but I only ask that it be reflected fully in the Bill as well.

That a database of DNA profiles will only contain the profiles of offenders, missing persons, unidentified bodies and volunteers and that its regulation will, beyond the Bill’s sanctions, require judicial oversight

Bringing criminals to justice faster is a good aspiration to have, but it must be done not at the expense of anybody’s privacy and definitely while the government’s actions – in the form of the Board’s – are always accountable. On the question of retention: it’s understandable if you want to store the profiles of those who are repeat offenders – but why indefinitely? The law in the UK stipulates that profiles can be retained for a maximum of six years. And what’s the rationale behind storing the profiles of those who have been sentenced for life or to death?

That the Board has been given discretionary powers to empower them to keep up with advances in DNA profiling, and that the Board will be staffed by, for example, the Chairperson of the NHRC

Those staffing the Board may be upstanding folk but the Bill has a responsibility to account for the worst of times as well. I don’t want to have to keep a check on who’s on the Board and who’s not – I want the Bill to provide guarantees once and for all that things won’t go wrong. Please also note that the Bill is scheduled to be introduced at a time when the country’s leadership is unwilling to accept that the right to privacy is a fundamental right, at a time when the Central government insists on interfering in the management of highly regarded public institutions. I can only read the Bill’s intentions through the lens of the government that will enact and, ultimately, be responsible for enforcing it.

That the DNA profiles’ database will contain only digital information and not the physical samples from which the data has been derived

I have already stated that setting up the Indian database will incur a one-time cost of Rs.20 crore. And on the other hand, I would like you to explain who will pay for acquiring the DNA profiles at costs that could well run into thousands of crores. In fact, the Bill does not contain the word ‘cost’ in it and seems unconcerned about how its implementation will be funded.

Next, on the question of whether the DNA database will store the physical samples from which the profiles will be derived: Usha Ramanathan – a researcher and advocate who was a dissenting member of the Bill’s drafting committee – has revealed an email communication she had with Gowrishankar dated June 25, 2014, in which he states the following:

“On your question of destruction of DNA collected from the relatives, I wish to state that the CDFD has so far not destroyed any DNA sample received by it since its inception. These samples are being maintained in safe custody in the institute. Once again, it is my assessment that the policy on such destruction needs to be developed and evolved by the proposed DNA Profiling Board.”

As a result, could the costs could be comparable to the NDNAD in the UK?

That my criticism has cherry-picked facts from the Bill

I have cherry-picked facts, but never out of context (that’s the reason the article runs into 4,000 words). I still want a Human DNA Profiling Bill to be passed and agree with you that it has benefits – but it gets to them at a great cost. That’s why I’d like to repeat my statement that the Bill be referred to a Parliamentary Standing Committee, and its niggling as well as substantial issues be resolved to everyone’s satisfaction, before it’s tabled.

The Wire
July 25, 2015

Featured image credit: stewdean/Flickr, CC BY 2.0.

0

Here’s why the Human DNA Profiling Bill shouldn’t be passed in its current form

Credit: johnnieb/Flickr, CC BY 2.0.

The Human DNA Profiling Bill which the Narendra Modi government wants to pass in the current session of Parliament is one of the most intrusive enactments of its kind anywhere in the world, a measure that will render obsolete the national debate on privacy before it has even begun.

Drafted by the Department of Biotechnology (DBT) in the Ministry of Science & Technology, the Bill’s pithy title belies the ambitious, even disturbing, goals that its text envisions. To be sure, that it was drafted at the outset to expedite civil and criminal disputes where possible, to help identify the unclaimed dead, and to track down missing persons is a benign, even desirable, intention to have. Where it fails is in situating this agenda in an accountable and secure framework of rules.

Once passed, the law will set up a national DNA database, a DNA Profiling Board and a mechanism for the use of DNA profiles to resolve criminal and civil disputes with few safeguards to guard against the abuse of this information.

For example, in the Bill, a version of which The Wire was able to access, the Board gives itself wide-ranging discretionary powers about whose name gets into the database (sometimes without consent), who gets to access the DNA profiles, what the database could be used for (“population” studies), and who watches the watchers (in a word, nobody) – readying a potent cocktail of abuse.

The Bill is set to be tabled in the monsoon session of Parliament, which began on July 21. But that could be too soon given the scope and seriousness of the issues the draft raises. The proposed laws’ failures broadly have four facets – reliability, costs, privacy and accountability – and if passed in its current form could gravely jeopardise the integrity of sensitive biological information as well as poison the criminal justice system with a false conviction of judicial infallibility. In the absence of a reason to expedite its passing, the draft Bill could instead be referred to a Parliamentary Standing Committee before it’s tabled.

DNA profiling

Credit: johnnieb/Flickr, CC BY 2.0.
Credit: johnnieb/Flickr, CC BY 2.0.

After human fingerprints were pressed into the service of criminal investigations in 1892, DNA profiles have been the only other biological marker discovered by scientists to be unique to each individual. Since fingerprints at a crime scene can be easily obfuscated, or not left behind at all, and it is almost impossible for a criminal to not leave behind a clue bearing his or her DNA, DNA profiling has assumed great importance in modern forensic science.

Every cell of the body contains a copy of the DNA molecule, a total of three billion base pairs of smaller molecules called nucleotides neatly arranged into structures called chromosomes. Consider this a giant word with three billion letters. Some 99.9% of those letters are identical for every individual – but that 0.01% difference amounts to three million letters that are arranged in a different configuration. Among them, there are parts that contain a short combination of letters repeated a few times. These are called short tandem repeats (STRs), and the frequency of their repetition differs from person to person so much so that no two (known) people have the same DNA overall – unless they’re identical twins or closely related. Identifying this difference forms the basis of DNA profiling, also known as DNA fingerprinting.

The idea of the Bill was first mooted by the DBT in 2003, during the National Democratic Alliance government of Atal Bihari Vajpayee. In 2007, the DNA Profiling Advisory Committee, which had been put together by the DBT, developed the Human DNA Profiling Bill 2007 that has seen changes between 2007 and 2012. In January 2013, a committee of experts was formed to scrutinise the 2012 draft: J. Gowrishankar, Director, CDFD; R.K. Gupta, adviser (C&I), Planning Commission; Jacob P. Koshy, science writer, Mint; Kamal Kumar, retd. IPS, retd. DGP of Hyderabad; C. Muralikrishna Kumar, senior adviser (ICT), Planning Commission; Usha Ramanathan, researcher and advocate; T.S. Rao, adviser, DBT; N. Madhusudan Reddy, staff scientist, CDFD; Raghbir Singh, fmr. Secy., Ministry of Law; Alka Sharma, Director, DBT.

Till late 2014, the committee continued to deliberate and make changes to the draft Bill. Then, it was circulated within the Ministry of Science & Technology for comments, which were then incorporated in the draft.

By January 2015, the revised document had wound its way to the Legislative Department of the Ministry of Law & Justice. According to DBT Secretary K. VijayRaghavan, the department has now finished drafting the Bill and “processed it further for the necessary approval”.

In the same period, 2003-2015, the Central and various state governments have toyed with the idea of collecting and storing DNA profiles. Notably, the Tamil Nadu government sought to amend the Prisoners Identification Act 1920 intending to set up a database of prisoners’ profiles. In 2012, the Uttar Pradesh government made it mandatory for the DNA profiles of dead persons to be saved along with the postmortem.

Although the draft Bill banks on an amendment to the Criminal Procedure Code made in 2005 – to allow DNA evidence to be admissible in a court – its principal and most problematic feature is the central repository it envisages of DNA profiles belonging to crime suspects, criminal offenders, missing persons, unknown deceased persons, and volunteers.

Its contents and operation will be managed by a DNA Profiling Board and a Databank Manager that the Board will appoint, who altogether have too many discretionary powers that drag the credible parts of the document down. These parts include useful mechanisms such as for post-conviction DNA-testing (where a conviction can be overturned by allowing the defendant to appeal for a DNA test).

Overall, the draft Bill has four major flaws:

  1. Reliability of DNA profiling
  2. Visible and hidden costs
  3. Privacy and anonymisation
  4. Power and sunset clauses

I. Reliability of DNA profiling

Credit: kaibara/Flickr, CC BY 2.0.
Credit: kaibara/Flickr, CC BY 2.0.

What are the chances you’ll be killed in an airline accident? There is a number ascribed to this high-cost enterprise, and it is calculated using statistics because it’s hard to estimate how the failure of one of thousands of the components constituting it will or won’t precipitate the failure of the overall entity. So, the chances that you’ll be killed in an airline accident are 1 in 4.7 million. That means if 4.7 million flights are undertaken, one of them will result in a fatal accident, right? Not exactly, because the chances of an accident could be significantly increased if certain components of an aircraft fail, and engineers are not aware of all such precipitant failures.

Analysing the DNA of an individual to look for clues about her/his identity is subject to similar stochastic caveats. This is because, despite the many unique properties of the DNA molecules in our bodies, our ability to preclude errors in indexing them isn’t perfect. The implication is that DNA profiling throws up fewer errors when validating or invalidating less systematic proof, but there are errors nonetheless that a law – and definitely a court interpreting that law – must be aware of.

Moreover, the proofs are also dependent on how rarely or often the STRs have been observed in the past. Estimates of their rarity are based on studying some preset locations on the DNA: the CODIS database of DNA profiles in the US looks at 13 locations, the NDNAD in the UK looks at 10, whereas Interpol analyses look at 12. The CDFD (Centre for DNA Fingerprinting and Diagnostics) – the nodal agency for DNA analysis in the country – plans to look at 17, according to Dr. J. Gowrishankar, its director. These locations were determined to be important in the early days of DNA forensics, and according to lawyers in the US and UK are overdue for a reexamination.

The Human DNA Profiling Bill, on the other hand, is dismissive of this aspect of the technique it is centred on, with its January 2015 draft saying in its introduction that DNA profiling can distinguish between any two people “without a doubt”. The words give the impression that the experts involved in drafting it have no reason to believe that DNA profiles could ever be fallacious. In fact, conspicuously missing from the document are the statistical procedures (performed on DNA information) that will be admissible as evidence in a court of law.

Speaking to The Wire, Gowrishankar clarified that the three words “without a doubt” had been removed from the draft Bill in a later iteration – but only because the Bill would be tabled without that part in Parliament. However, he also added that he would be able to defend the infallibility of the technique.

In 2009, New Scientist reported the case of Charles Richard Smith. Smith was convicted of a sexual assault on Mary Jackson (not her real name) in Sacramento, California, which took place in January 2006. Jackson was sitting in a parking lot when a stranger jumped into her truck and made her drive to a remote location before forcing her to perform oral sex on him. When police arrested Smith and took a swab of cells from his penis, they found a second person’s DNA mixed with his own.

Mark Henderson’s 2012 book The Geek Manifesto: Why Science Matters elaborates on what happened during Smith’s trial (p. 158):

… a forensic scientist testified that the chances that the sample did not come from Jackson were just 1 in 95,000. Smith was convicted and jailed for 25 years. Genetic evidence, however, can be analysed in multiple ways. The analyst who provided the 1 in 95,000 number was convinced that he saw reliable ‘peaks’, indicating matches, at most of the 13 places in the genome where American forensic scientists compare DNA. His supervisor, whose evidence was also presented, thought fewer of these matches were reliable, and so put the probability that the DNA wasn’t Jackson’s at 1 in 47. A subsequent review of the case used a different technique, based on a computer algorithm, to compare the likelihood of the different interpretations of the evidence advanced by the prosecution and the defence. This suggested that this pattern of evidence was only twice as likely if the DNA was Jackson’s than if it belonged to someone else.

This isn’t to say that a reliable estimate can never be arrived at, but only that the draft Bill does not have the commensurate depth required to identify and tackle the sort of statistically motivated mistakes in DNA profiling. In fact, it also abdicates itself from specifying any best practices for the collection, storage and analysis of DNA samples – while  in countries like the UK and USA, a more matured approach to DNA profiling has been instituted through laws like the DNA Identification Act 1994 (USA), the Criminal Justice and Public Order Act 1994 (UK) and the DNA Identification Act 1998 (Canada).

According to Gowrishankar, “The Bill has been drafted keeping the future in mind, so we have not included the different ways in which the information can be analysed. We want to keep our options open,” and that it was up to the defence attorneys to refute findings.

The upper hand that DNA profiling claims in being able to identify a person is bifurcated: it simultaneously relies on being similar to one set of data and being dissimilar to another. And how much a profile is closer to one and farther from the other can be interpreted in many ways – all of them reliant on a control group, a reference point based on which the analyst can say how much similarity and dissimilarity a profile exhibits. This control group is defined by a sub-database that contains the DNA profiles of volunteers. Gowrishankar said that the significance of each match (or mismatch) will be determined relative to how unique the ‘letters’ in the profiles are. As a result, the size of the volunteers’ database plays a critical role in determining the outcome of cases.

In 2007, the noted legal experts Michael Saks and James Koehler presented a problem called the individualisation fallacy that arises when examiners confuse infrequency with uniqueness – a flaw that can be eliminated (to a certain extent) only by enlarging the control, i.e. volunteers’, database. For example, if an anomalous pattern in the DNA of a person has a one-in-a-quintillion chance of occurring (based on its frequency of occurrence among the volunteers), the examiner will assert that given the population of all the people on Earth only that person’s DNA has that pattern (absolute uniqueness). However, the examiner assumes wrongly that he/she is aware of all the sources of that anomaly in human genetics (relative uniqueness). A similar mix-up between the two kinds of uniqueness results in the prosecutor’s fallacy exemplified in the infamous Sally Clark case of 1999.

Another issue that worsens reliability of results is that the draft bill doesn’t explicitly ask to regularly check if any samples have been contaminated, even if it goes to some length to talk about what will happen to those who are found damaging samples in any way. How credible those sanctions are is a different matter. In at least one high-profile human rights case, the murder of five Kashmiri civilians at Pathribal in 2000, DNA samples were tampered with in an attempt to absolve the security forces of the charge of murder. The police officer who orchestrated the tampering was never punished.

II. Visible and hidden costs

Credit: Wikimedia Commons
Credit: Wikimedia Commons

The CDFD charges Rs.5,000 for each blood sample or person and Rs.10,000 for each “forensic exhibit” – such as an item of clothing from a crime scene – and an additional 12.36% as service charge levied by the Government of India. Though the draft Bill proposes including the profiles of only those under the scanner of the criminal justice system, data from the National Crime Records Bureau shows that over 32.7 lakh people were arrested in 2012 alone on criminal charges (proven and unproven) And while Gowrishankar said the official estimates were Rs.5 crore a year for keeping the database updated, acquiring the DNA profiles alone would cost more than Rs.1,800 crore.

The number of 32.7 lakh (even if only for reference) is too bloated for the database’s purposes because it also includes persons accused of minor crimes. Even if the size of the database has to be as big as possible to minimise the effects of the individualisation fallacy, its size becomes meaningless after a point, as the British government discovered in 2008. In that year, the number of profiles on the NDNAD jumped from 1.9 million to 4.1 million but the number of cases solved by the use of DNA profiles fell by 2,632 to 17,614. This was because the 2.2 million profiles were almost entirely of people who hadn’t been charged with any offences, making their DNA profiles irrelevant when it came to comparing those picked up from crime scenes. Similarly, the draft Bill would do well to include only the profiles of those charged with serious criminal offences – comparisons would be more efficient and costs would be lower.

Next, according to GeneWatch UK: “In 2010, putting someone’s DNA profile on the database in England and Wales was estimated to cost £30 to £40 and storing one person’s DNA sample was estimated to cost £1 a year.” The CDFD analysis rates are comparable to these numbers – so it must be noted that the capital costs of setting up the database in the UK was £300 million (Rs.3,000 crore approx.). Third, there is the operational cost – to maintain the communication and security infrastructure, and ensure it is compatible with indices like the CODIS. In fact, in September 2014, the FBI and the CDFD signed an agreement to install an instance of CODIS in CDFD’s Hyderabad office and train the personnel there. However,  Gowrishankar said all of this would warrant only Rs.20 crore.

None of these expenses are mentioned in the draft Bill.

III. Privacy and anonymisation

Credit: home_of_chaos/Flickr, CC BY 2.0.
Credit: home_of_chaos/Flickr, CC BY 2.0.

A person’s DNA profile contains similar information as a person’s password – however, it is more visceral. In the mammoth spatial configuration of the DNA’s atoms is encoded many of our characteristics and personal tendencies – including colour, race, behavioural features and susceptibility to some diseases. However, the few of the three million positions that the CODIS, NDNAD or the CDFD will be looking at are considered “neutral” – they don’t codify any of our features that might give our identities away, so it’s safe to store them without being anxious about what the government is finding out about us. That’s what Gowrishankar says, too, and that only information of those 17 positions that the CDFD will consider will be stored in the database.

However, this information is missing in the draft Bill, giving the impression that non-neutral information from people’s DNA profiles will be stored as well – and sans any safeguards beyond the Bill itself, like the USA has the Genetic Information Nondiscrimination Act 2008. Gowrishankar said that the Bill omitted this detail because some advancement in the future could require analysing more than 17 neutral positions, or fewer, or others altogether, and that if the Bill had been specific to that extent, it would have to be modified over and over again to keep up with the times. Be that as it may, the draft Bill in its current form neither withholds the database from holding distinctly personal information nor does it acknowledge that possibility.

In that context, the information should be accorded the same rights that information on the Internet, or anywhere else, is if not more. First, a person should be able to appeal the inclusion of her DNA profile in the database – although Gowrishankar insisted no profile could mistakenly enter the database as it would require either a court order or an expression of consent to get there. Second, the person should be able to access her/his own DNA profile whenever the need arises through appropriate legal channels – which he said wouldn’t be possible at all. Third, the person whose profile is under scrutiny should be able to know how the information contained is being used and why, and to ascertain its deletion when due. These three rights are missing in the draft bill.

Moreover, in a separate note, the committee says,

The Expert Committee also discussed and emphasised that the Privacy Bill is being piloted separately by the Government. That Bill will override all the other provisions on privacy issues in the DNA Bill.

But even as the draft DNA-profiling bill seeks to deflect the responsibility of securing privacy to the Privacy Bill, aReport of the Group of Experts on Privacy, Chaired by Justice A.P. Shah (former Chief Justice of the Delhi High Court), explicitly set out the missing privacy and security provisions in October 2012, and a majority of them remain unresolved or unaddressed. By neglecting them, the CDFD and the DNA Profiling Board run the risk of turning themselves opaque and, for all practical purposes, unaccountable. For example, the draft Bill does not:

  1. Provide a notice that DNA samples were collected from so-so areas of the body
  2. Inform anybody – particularly the individual – if and when her/his DNA is contaminated, misplaced or stolen
  3. Inform a person if a case involving her/his DNA is pending, ongoing or closed
  4. Inform the people when there are changes in how their DNA is going to be accessed, or if the way their DNA is being stored or used is changed
  5. Distinguish between when DNA can be collected with consent and when it can’t
  6. Say how volunteers can contribute their DNA to the database even though the draft Bill has a provision for voluntary submissions
  7. Provide any explicit guarantee that the collected DNA won’t be used for anything other than circumstances specified in the Bill
  8. Specify when doctors or the police can or can’t access DNA profiles

Without these protections, the DNA profiles could be collected for one purpose but end up being used for something else. Consider #7 – the draft Bill doesn’t aspire to be self-contained and leaves itself open to expanding in the future. At one point (Sec. 31(4)), it spells out the various indices according to which profiles in the database will be stored:

Every DNA Data Bank shall maintain following indices for various categories of data, namely:

(a) a crime scene index;
(b) a suspects’ index;
(c) an offenders’ index;
(d) a missing persons’ index;
(e) unknown deceased persons’ index;
(f) a volunteers’ index; and
(g) such other DNA indices as may be specified by Regulations.

Why bother to specify any of the indices at all if the committee has (g)? And without specifying what regulations those could be and who, apart from the DNA Profiling Board, has the authority to spell them out, the draft Bill signals it could just about bring anyone’s DNA profiles into the database.

Additionally, who will watch the watchmen? The DNA Profiling Board is tasked – rather tasks itself – with determining which DNA profiles enter the database, who gets to access them, and how the database will be organised and maintained, in effect establishing a low quality check over itself. Although Gowrishankar clarified that there would be a Parliamentary check on the Board’s activities and that Parliament would be the ultimate arbiter for all “major” issues arising due to the Bill, there is still a lack of supervision – and potential for abuse – in the day-to-day dispensation of duties. If the Human DNA Profiling bill has to be effective and honest, it must account for the privacy shortcomings described by the Group of Experts.

Another concern is anonymisation – the process through which information contained in DNA profiles can’t be used to retrace the individuals from whom they were acquired. There is no description of a form or application of any kind that the draft Bill expects to be submitted along with the materials containing human DNA. If the Bill expects to use the form currently being used by the CDFD, there is an anomaly: the CDFD form asks for the applicant to mention her caste. Even if the draft Bill doesn’t explicitly mention that the database will have a ‘caste’ column, being able to associate an application form with a sample – and therefore ‘its caste’ – is plausible, especially in the volunteers’ database.

More troublingly, Section 31(6)(a) states that a DNA profile in the database will bear the identity of its source if its source is an offender, and that (b) all other DNA profiles will be relatable with the case reference number. The problem is that the case reference is not anonymised with respect to the people involved in the case.

IV. Power and sunset clauses

Credit: manoftaste-de/Flickr, CC BY 2.0.
Credit: manoftaste-de/Flickr, CC BY 2.0.

The DNA Profiling Board overseeing the implementation of the bill (when enacted) has given itself, and the bill, some conflicting rules and powers that together result in ambiguity about the scope of the bill and its accountability. Some examples:

Conflicts of interest – Section 12(k) states that the board is responsible for “making recommendations for maximising the use of DNA techniques and technologies in administration of justice”. Then, throughout the bill, the board’s powers are also detailed as extending to specifying the rules for how DNA information is collected and secured. Put them together and the board’s essentially saying, “We’ll try to use DNA evidence for as many things as possible, we’ll decide how the information is collected for those purposes, and we’ll decide how we’ll use it.”

Ex post facto implication – Section 13 states that any laboratory that wishes to undertake human DNA-profiling must get prior consent from the board. Then, Section 14(2) allows any DNA laboratory that’s in existence at the time the bill is enacted to perform human DNA profiling without prior approval from the board.

Use of profiles – Section 39(g) states that “Information relating to DNA profiles, DNA samples and records relating thereto shall be made available” to a slew of judicial and executive agencies as well as “for any other purposes, as may be prescribed”. However, those prescriptions have not been detailed in the Bill, and appear to be at the discretion of the DNA Profiling Board. In fact, Section 39(e) states that the profiles, and “samples and records relating thereto”, may be used for creating a “population statistics” database. This is to facilitate population-wide studies of genetic characteristics, and in the absence of perfect anonymisation, could potentially become associated with caste data.

Moreover, Section 35(2), which deals with the communication of DNA profiles to foreign states and institutions, doesn’t limit it to offenders and convicts but, by not discussing it in detail, allows for any profile in the database to be shared. Put this together with an individual’s inability to appeal the inclusion of her/his profile, and anyone’s profile – as long as it has wound its way into the database – can be shared with foreign entities. There are also no restrictions on if the foreign agencies can index the profile in another database.

Legal recourse after three months – Someone who’s been wronged by any of the provisions of the bill can approach a court only if he/she approaches the board first and gives it three months to act on a complaint. In those three months or before that, Section 57(1) of the bill prevents anyone from approaching the courts except the central government or a member of the board itself.

Finally, there’s the absence of a sunset clause – especially when its provisions will expire, and if there is a period after which a DNA profile will be removed from the database. For the latter, the draft Bill specifies that if a person has been acquitted in a case or if the case is set aside, the corresponding profile will be deleted, but nothing is said about the profiles of missing persons who have been identified, volunteers who have died, and other profiles that are likely to be collected at crime scenes. Moreover, no rationale is presented for retaining the profiles of those who are convicted of offences like rape or murder, who end up spending long years or a lifetime in prison. While Gowrishankar asserted that only the DNA profiles of the unidentified dead would be held forever, the draft Bill does not explicitly exclude the rest.

Given the scale of issues with the draft Bill, and its potentially disastrous sidelining of privacy concerns, its scheduled introduction in the monsoon session of the Lok Sabha seems hurried – despite having first been mooted more than a decade ago. Some of the issues may have escaped the drafting committee’s concerns by way of not having received appropriate feedback – such as the issue of hidden costs – but the committee must explain why there is a lack of access to data of the people by the people, why there are no sound anonymisation protocols, and why there are insufficient self-regulation and protection measures.

Download an annotated copy of the Human DNA Profiling Bill draft here (PDF).

The Wire
July 24, 2015