TODAY’S TALK ON EDITORIALS CIVILS360
AUGUST 14, 2017
Beauty and the regulatory beast
Threat of designer babies
- Since its evolution, CRISPR/Cas9 has been tested across an array of domains, such as human health (gene-based therapy) and agro biotech (pest-resistant crops).
- In fact, trials for gene-based therapies are already under way, with scientists successfully editing out genetic mutations that code for disorders such as hypertrophic cardiomyopathy (a functional impairment of the heart) and retinitis pigmentosa (a degenerative disorder of the eye).
- The question now is: if we can edit out medically problematic gene sequences, can we also alter genes to make us look more attractive? Smarter? Stronger? Fairer? In other words, can we beautify the babies of tomorrow? It is this scary spectre of a new age eugenics that forms the starting point for this piece.
Safety, efficacy of techniques
- How do we establish the “safety” and “efficacy” of these techniques? Most drug regulatory regimes insist that drug makers submit clinical trial data to establish that their drugs are safe and effective. Gene therapies and the defect-free babies that flow forth ought to be subject to a similar regulatory standard.
- However, the question is: how long must these trials last? Genetic changes and alterations take years to manifest and side effects perhaps even more so. Do we put all these potentially life-saving medical advances on hold till then?
Innovation and ethics
- One must therefore balance out the innovation imperative with that of ethics.
- The fight today is more about which of these threats rate higher on the Frankenstein index: Artificial Intelligence (AI) or gene editing?
- As these tech titans fight it out, one shudders at the prospect of a fearsome future, where AI robots begin to edit our babies! Given these concerns, the line between the permissive and the prohibited will always remain contested. However, we could begin by establishing certain baseline principles.
- First, one might insist on a more rigorous regulatory standard (safety/efficacy data, etc.) for interventions that cuddle close to the “cosmetic”. And a less onerous one for critical life-saving therapies.
- Second, and more importantly, all data relating to safety and efficacy of these new technologies ought to be put out in the public domain. This is where most governments get it wrong — cosying up to big corporate behemoths who argue that this trial data is a “trade secret”, a valuable intellectual property of sorts!
- This argument was recently endorsed by the Indian regulator before the Chief Information Commissioner (CIC) in the context of clinical trials for GM mustard. Fortunately, the CIC ruled that the wider public interest trumped any potential IP interest in the trial data.
An odd leniency
- Before the 2013 amendment came in, the law was ill-equipped to deal with the offence of stalking. The closest it came to being addressed was Section 509 of the Indian Penal Code (IPC): “Word, gesture or act intended to insult the modesty of a woman.”
- The provision was inadequate in tackling the menace of stalking because one had to prove that the accused intended to ‘outrage the modesty of the woman’ through his act.
- Other provisions such as Section 354 — “Assault or criminal force to woman with intent to outrage her modesty” — necessitated the use of physical force.
- Further, the phrase “outraging the modesty of a woman” is not defined anywhere in the law, leaving its interpretation open-ended.
- The Information Technology Act, 2000 also lacks adequate provisions to deal with electronic stalking. Under it, Section 66E, on the violation of the privacy of an individual, requires the intentional capturing, publishing or transmission of an obscene image of a person without their consent.
- It took mass outrage and public pressure after the Nirbhaya gang rape in Delhi in 2012 to compel the government to recognise the varied dimensions of sexual violence against women.
- Apart from expanding the scope of rape and penalising voyeurism and eve-teasing, the 2013 Amendment also defined and recognised stalking as a standalone offence.
- Section 354-D of the IPC makes both physical and electronic stalking an offence. Here, under subsection 1, the intention of the perpetrator is irrelevant as long as the woman in question “has clearly expressed her disinterest”. Subsection 2 criminalises the monitoring of a woman’s online behaviour.
- While the 2013 Amendment is a welcome step, some believe subsection 2 goes too far. The Verma Committee draft stated that online monitoring should amount to stalking only when it results “in a fear of violence or serious alarm or distress in the mind” of the victim. In view of this, it has been argued that subsection 2 has the potential to be used arbitrarily.
- Further, there are three exceptions to the offence if the conduct was:
- (i) pursued for prevention or detection of crime by a person authorised to do so,
- ii) pursued under any law or
- iii) reasonable and justified in the circumstances.
- While exception iii can to a certain extent counter the open-endedness of subsection 2, it is in itself vague and can prove to be an escape clause given that stalking is culturally normalised. Such loose drafting can be attributed to the fact that the 2013 Amendment was a knee jerk reaction.
The parochial discourse
- While sexual violence of varying degrees and forms is a routine affair for women in India, it is the “grave” forms of sexual violence primarily, such as rape, that dominate our everyday understanding of the issue.
- Other “minor” forms such as stalking and “eve-teasing” are not only normalised but are often romanticised and encouraged, especially in popular culture such as Indian cinema. One only needs to watch Badrinath ki Dulhania and Raanjhanaa to understand this argument.
- The perception that violence against women must necessarily involve some form of bodily harm does not only inform societal attitudes but also the law.
- The fact that it took a heinous incident of rape for stalking, eve-teasing and voyeurism to be recognised as offences demonstrates the myopic lens through which sexual violence against women is viewed in India.
- One can also argue that these offences would have never been introduced in the law had the government not come under pressure from the public.
- Interestingly, the introduction of stalking as an offence was met with deep resistance from some parliamentarians.
- Some argued that it could be misused by women while others viewed stalking as an acceptable norm in the country since “everyone has stalked women at some point in their lives”.
- Finally, the Committee’s recommendation of making stalking a non-bailable offence was rejected. Now, only repeated stalking is non-bailable.
- Courts too have been complicit in this process of trivialisation. In 2015, a court in Australia acquitted an Indian man accused of stalking two women on the ground that Bollywood had influenced him and thus such behaviour was normal for Indian men.
Broadening the narrative
- Had these series of events not involved politicians and bureaucrats, it is likely that neither the criminal justice system nor the media would have acted. The reality is that while rape is a heinous crime, it is not the only form of sexual violence women in India face.
- So-called “minor” sexual offences such as stalking, voyeurism and eve-teasing in effect deprive us of our fundamental right to occupy public space without fear.
Wages of neglect
(Background: Gorakhpur tragedy)
- Reducing the incidence of fatal or crippling disease calls for robust medical infrastructure, which governments can create quickly, if they have the will.
- In the case of U.P., the epidemics have their roots in weak social determinants such as housing and sanitation, coupled with ecological changes.
- Encephalitis is correlated with expansion of irrigation and construction of dams four decades ago, resulting in an increase in disease-transmitting mosquitoes.
- Proximity to pigs and birds created viral transmission pathways.
- The Centre has a vaccination programme in place and a stated commitment to build paediatric intensive care units in priority districts, but these have not had significant impact.
- The way forward would be for the Indian Council of Medical Research to launch a special commission for U.P., treating it as a public health emergency. It is also an appropriate moment for the Centre and the States to consider their poor record.
- They trail even other developing economies, such as neighbouring Thailand and some African countries, in moving to universal health care. Such a system should be non-commercial and regulated to contain costs, giving everyone affordable access to doctors, diagnostics and treatment.