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Shri Mahaveer Chand Bhandari Memorial Lecture*
The Advance of Science and the Need to Evolve Compatible Legal Systems
by Prof MGK Menon**
Cite as : (1995) 5 SCC (Jour) 18
It is a great honour for me to have been invited to deliver the Shri Mahaveer Chand Bhandari Memorial Lecture. I am deeply grateful to his son, Shri Justice Dalveer Bhandari of the Delhi High Court, for this privilege.
Shri Mahaveer Chandsa and I studied in Jaswant College, Jodhpur, together, and then separated after taking our degrees. I went on to do science, whilst he studied English and Law at the University of Lucknow. He returned to Jodhpur to work in the chambers of his eminent father, Shri B.C. Bhandari, and stayed on for the rest of his life in Jodhpur; whilst I spent my life in Bombay, Bristol in the United Kingdom, and Delhi. But, for me, Jodhpur was always home; and I returned to it again and again. And there to greet me, to look after me, and to make me feel that it was indeed my home, was Shri Mahaveer Chand Bhandari: affectionate, jovial, hospitable and warm. I have deeply missed him since he passed away at a relatively young age.
I did not personally know him as a lawyer, nor did he know me as a scientist. But did that matter between two people whose personal rapport and affection ran so deep. I knew that he had a formidable reputation. It was based on his remarkable understanding of legal principles and knowledge of case-law. It was his personal charm, and the way he held his hand out in friendship, his courtesy, his fearlessness, his respect for seniors and regard for juniors, and many more such human qualities that set him apart as a truly remarkable person. Had he chosen to move to the great legal centres of India he would have reached the highest levels. But he was happy to live with his family and friends in Jodhpur which he loved; as I do. For me this lecture is an opportunity to pay a personal tribute to one whom I truly regarded as a brother.
PREAMBLE : A LAYMAN'S VIEWPOINT CONCERNING THE DEVELOPMENT OF LEGAL SYSTEMS
In the earliest stages of evolution, human beings lived as hunter-gatherers, and somewhat later as nomads. Even then, there was the concept of a community or a tribe, with norms and principles to define behaviour, relationships and community functions. And there were the equivalent of primitive legal systems to deal with violations. In the case of nomadic existence, there was a further concept of property, largely in the form of animals, cattle, horses, camels, goats and the like. There was also domestic property because nomadic tribes settled at locations for limited time periods before they moved on. With the advent of agriculture around 10,000 years ago, land, dwellings of a more lasting nature, and various items used in domesticated living became important elements of property. One saw the emergence of community structures such as villages, and later cities, and the concept of the more defined, longer term, neighbourhood in contrast to "territory" of earlier periods. The dimensions of the neighbourhood were largely defined by human physical capabilities e.g. walking, shouting etc; later, there was an extended neighbourhood accessible using animals. With the sense of food security that agriculture brought, there was time for leisure, leading to a more effective use of the human brain for the development of science, of arts, of language beyond requirements for essential needs, and the creation of products which were functional, aesthetically satisfying and decorative.
It was thus that civilization as we know it today started to develop, with a flowering of creativity, and its codes of conduct and behaviour. These were based on philosophical considerations and value systems which were ultimately to serve the interests of the individual as also of society. These principles constitute the fundamentals of ethics and morality: with the concept of good and bad, of right and wrong. They were the essential basis of all the great religions as they developed in their myriad forms in different parts of the world. In addition, religion also grew out of the great unknown, both within one's being, as also all around up to the greatest depths of the Universe, the concept of a cosmic order, and of enormous forces that lay well beyond the ordinary human being and of the society of which he or she was part. With it arose the concept of a Superior Being or God. There was thus a fusion of God with the concepts of what would be true, just, honest, right and the many other principles of a moral order. Along with this, however there were also rituals and detailed aspects arising from superstitions, traditions, locale-specific situations and the inspired thoughts of great leaders and Prophets, which grew into the differentiated religions in the world.
There was then need for systems that would ensure observance of this moral order, and governance of society based on it. It was thus that legal systems came into existence, both unwritten as well as written and codified. There were legal systems which related very specifically to religious texts and injunctions in these; in many cases, these did not become law but were observed by convention, tradition and belief. By and large, what developed was a great body of first principles and their applications to specific instances which developed into case-law. The systems that developed related naturally to the functioning of society at the time when these systems were formulated.
THE ONWARD MARCH OF SCIENCE AND THE NEED FOR
COMPATIBLE LEGAL SYSTEMS
There was also the onward march of science. This was based on the great powers of the human brain for logical reasoning; on the ability for tool-making and the general intelligent manipulation of objects, which called for coordination between the hand and brain; and on the development of capabilities relating to speech and of sophisticated vocabulary with the capacity for self-development and cooperation within the species. The sense of curiosity and wonder, the ability to ask questions and seek answers, and the desire to probe the mysteries of nature around led to an increasing fund of knowledge and great deal of understanding of the laws of nature. In this connection, there is an interesting anecdote. When early Jesuit Missionaries went to China, and they talked about the laws of nature, they were asked how inanimate objects as seen in nature possessed understanding to obey laws; how was it that a stone or a planet or the apple in the story of Newton understood that they had to obey the law of gravitation; and indeed, what penalties would be imposed if they did not obey the law. Those who asked these questions were familiar with the laws enacted in human society, which needed some understanding of values, norms, and traditions to follow a prescribed pattern of behaviour, and that serious wilful departures were punishable. This clearly brings out the difference between law as seen in the natural world explored by science, and law as it evolved for a social system. As social systems are being transformed (as they are today under the impact of science and technology), the legal systems will also have to evolve appropriately.
Along with the development of basic science, many techniques were also developed empirically. All of this led to the great civilizations and cultures of China, India, Mesopotamia, Central Asia, Egypt, Greece, Rome and of South America. But as far as science was concerned, there were only bursts of activities in these places and periods, but no self-sustaining growth process. It is only a few hundred years ago, in Europe, that the Scientific and Industrial Revolutions occurred, and took root. Ever since, the development of science has been a continuing process on an exponential growth curve; and in particular, we have seen, in this century, an explosive growth of information, knowledge and understanding based on scientific research and its rapid applications. As a result, the world in which we live, is in material form, entirely a result of these scientific developments, manifested in products and ways of functioning. These advances have changed profoundly the capabilities and concepts of human society, which is today very different from what existed a century ago or even a few decades ago. This onward march of science has not come to a stop; nor is it yet slowing down. It is, therefore, clear that even more profound changes are in the offing, as we move into the future. In these circumstances, one cannot but conclude that whereas the basic principles of ethics, relating to good and bad, right and wrong, and so on should continue to be the principles by which human society is governed, the manner in which one would have to interpret these principles has to relate to the nature of society today, and its capabilities and ways of functioning. Legal systems responsible for the governance of society and interpretation of these ethical principles must take note of the new circumstances. Unlike the past, as we move into the future, there will be no ready case-law to go by; and one would have to learn afresh how to search for truth and for justice in the new societies as they emerge. And it is this question that I wish to explore in this lecture, by looking at a few areas where the advance of science has profound ethical, legal and social implications.
The specific areas that I propose to take up are: the common heritage of humanity and the evolving area of law relating to the environment; aspects relating to the administration and management of justice; the impact of the Informatics Revolution on society; and advances in modern biology and their ethical, legal and social implications. All these will demonstrate how important it is for legal systems to evolve that are compatible with the great advances taking place in science.
THE COMMON HERITAGE OF HUMANITY AND THE EVOLVING AREA OF LAW RELATING TO THE ENVIRONMENT
A major concept which has brought humanity and nations closer together in the recent past is that relating to the common heritage of humankind. This is a relatively new concept, existing in its present form only over the last few decades.
The concept is essentially that the interests of all humanity should be safeguarded in predetermined areas by special legal regimes. Historically, international law evolved as a matter of relationship between States on the basis of reciprocity. There was a change in 1815 when the Congress of Vienna set principles which were general in scope, such as freedom of navigation on international rivers (later expanded to inter-oceanic canals), prohibition of slave trade and the like. However, the first expression concerning common heritage of humanity was in the Antarctica Treaty signed in 1979, to preserve and conserve this area in the common interest of humankind, and exclusively for peaceful purposes. The moon has also been adopted as a common heritage of humankind by a treaty adopted in 1979. The use of the radio spectrum (which is a limited resource) on an appropriate agreed basis, as also of dedicated satellite orbits, are examples of developments in science and technology which necessitate internationally agreed management of common resources. The most developed formulation relating to common heritage of humanity is the Law of the Sea Convention of 1982. UNESCO had earlier adopted the Convention for the Protection of the World's Cultural and Natural Heritage in 1972. The objective in this case is to ensure conservation and preservation of artefacts of great and unique value. Whilst these would undoubtedly belong to a nation state where they are located, this convention seeks to convey the thought that these represent a heritage of such significance that, in a sense, they belong to all humanity. The group (e.g. neighbourhood, ethnic, religious, community, national) which has inherited this is to be a trustee of the heritage, on behalf of all of humanity.
There are many who have been unhappy that the common heritage concept has been very restrictive in its application, dealing largely with cultural heritage or areas outside national boundaries like the moon or Antarctica. Indeed, some have asked whether knowledge and technology are not a common heritage. These issues are coming to a head in discussions on intellectual property rights, particularly in relation to traditional knowledge and living systems.
Four years ago, in 1992, the United Nations Conference on Environment and Development (UNCED) was held in Rio de Janeiro, Brazil. It derived its raison de etre from the Report of the World Commission on Environment and Development, which had called for a global agenda for change, so that the process of development would be sustainable, and in harmony with the life support systems on the earth and with its carrying capacity. It placed development in a context far beyond economics alone; development had to ensure equity within the present generation as also between generations. The output from UNCED was: the Rio Declaration which consists of 27 principles to cover the transition to sustainability; the Framework Convention on Climate Change; the Convention on Biological Diversity; and the (non-binding) Declaration of Principles on Forests.
The Framework Convention on Climate Change was essentially based on a very detailed work done by the Inter-Governmental Panel on Climate Change, whose report was endorsed by the Second World Climate Conference held in late 1990 in Geneva. The thrust of the Convention is that measures should be taken so that human activities do not bring about changes in the composition of the atmosphere, and of climate, on a scale which would affect long-term sustainable development; in particular, it deals with those human activities that result in large-scale additions of greenhouse gases (principally carbon dioxide), in the earth's atmosphere. It is interesting to note that the entire basis for this Convention was very detailed and careful scientific work carried out over a long period of time. This is an issue which would have never come to the notice of society or of Governments except through such scientific work. There is also increasing awareness of the fact that the atmosphere does not respect the various, often artificial, boundaries that human beings have created on grounds of ethnicity, language, religion, nationality and the like.
The Convention on Biological Diversity was essentially based on pressure from the scientific community and environmentalists that, with the present pathways of development, major reductions are taking place in existing global biodiversity, and that measures to reverse this trend are called for. The Convention recognizes the importance of biodiversity for long-term sustainable development. Since UNCED, there has been greater emphasis relating to biotechnology in regard to the Biodiversity Convention, because of increasing awareness that the available biodiversity has in it enormous potential to be utilized for the creation of new products of great value in agriculture, medicine and industry. This has given rise to very significant interest in this area on the part of the biotechnology industry. On biodiversity and forestry, there is recognition of the sovereign rights of nations with regard to the resources within their territories; at the same time, there is implicit common interest of all humanity in ensuring that this richness can survive, and actions are taken to ensure this.
Another area where, in recent years, nations have come together, again based entirely on scientific work and forewarning, relates to the earth's ozone layer. It is not well known that the ozone layer is subject to damage as a result of certain chemicals, the CFCs, which have been used extensively in refrigeration, air-conditioning and aerosol industries. International agreements have therefore been reached (Montreal Protocol, London Agreement etc.) that these chemicals, harmful to the ozone layer, should be phased out, and substituted with ozone-friendly chemicals.
We have seen in above paragraphs, an account of three areas relating to the atmosphere, biodiversity and ozone, in which nations of the world have been forced to come together in common interest. In all three areas, the awareness which has given rise to the agreements, has come about because of careful, detailed and extended scientific work. It is this work, placed before Governments and society, which has forced them to come to this level of agreement.
DEVELOPMENT OF INTERNATIONAL LAW IN RELATION TO
DEVELOPMENTS IN SCIENCE AND TECHNOLOGY
International law has had to develop over the past 50 years to meet situations created by political events or by scientific advances. The creation of international human rights law between 1948 and 1969, although intellectually prepared in the first half of the century, was a direct reaction to the massacres and atrocities of the Second World War. International Space Law was a response to the developments that followed the launch of the Sputnik in 1957. The Law of the Seas resulted from increasing use of the oceans and a recognition of their economic potential.
In the case of environmental law, the first approach of international lawyers was to consider the problem as a conflict between two parties (e.g. two sovereign states) arising from transfrontier pollution. This tendency of confining onself to an increasingly archaic bilateral approach still persists. But the examples already given, and many more (e.g. the Paris Convention of 1974 for Prevention of Marine Pollution from Land-Based Sources; the 1979 Geneva Convention on Long-Range Transboundary Air Pollution; the Helsinki Protocol of the 1979 Geneva Convention; which relates specifically to sulphur emissions) illustrate the importance of multilateral conventions.
There is now clearly a strong tendency towards globalization in every sense, not restricted to economics alone. International transportation of toxic or dangerous chemical substances or 'waste', the export of harmful activities to other (largely developing) countries, the trade in drugs, or the struggle against global diseases such as AIDS, clearly bring out our interdependencies, and the need for international legislation. There are interesting aspects in the development of such international law: the evolution of "Soft Law" instruments which are instruments adopted by States without being legally binding; the number of international bodies endowed with power to adopt only recommendations and not mandatory texts; the development of programmes of action rather than immediate obligations; provisions for cooperation which will lead to more precise obligations; the method of relative standards, whereby the obligations vary from one contracting party to the other, including a recognition of different stages and levels of development, e.g. in the Montreal Protocol and the WTO agreements such as on TRIPS; umbrella conventions to reach agreement on the principles of common action, which later lead to precise rules and standards; provisions for easy updating of the instrument; mechanisms for surveillance and monitoring which call for an acceptance of intrusion into the traditional spheres of Sovereign States; and the like.
One has a great deal of work ahead: in defining international liability, and also of damage which cannot be directly established or measured, but nevertheless constitutes a violation of treaty provisions; and in establishing institutions and procedures for implementing the provisions of international law. In the emerging circumstances, international "public law" is concerned with the interests of humankind, while private interests are those of the individual States. This is based on the new awareness of the "common interests of humankind".
I shall rest my case with the statement that all of this constitutes a wholly new developing area where our national capabilities in India are today minimal, and hence call for serious attention.
ASPECTS RELATING TO THE ADMINISTRATION AND MANAGEMENT OF JUSTICE, PARTICULARLY NEW
COMPUTER-BASED INITIATIVES ON THE INDIAN SCENE
We are all aware of the vast amount of paperwork involved in the legal system. What is recorded on paper is essentially information. Information today can be stored electronically in computers, rapidly accessed from any location using modern communication systems, and worked upon. This will lead to an enormous increase in efficiency, as well as in speed of processing.
To enable the country to move forward with regard to these possibilities, the National Informatics Centre (NIC), which was created by the Government of India promoting an informatics culture in Government at all levels of its hierarchy, has started major programmes in the area of informatics relating to court administration.
NIC has set up a Court Informatics Division to deal with several of the areas of our legal system where computerisation can play a significant role. In the first instance, NIC has embarked on computerisation in the Supreme Court, and all the 18 High Courts in the country. Almost all the High Courts are now equipped with hardware. With increasing computer awareness, there are now serious demands from the Judges for providing terminals in courtrooms, chambers and residential offices of the Judges. An increasing amount of typing is now done through word processing, which essentially implies that all errors can be corrected where they occur, without wholesale retyping that has been necessary so far; and further, that the information can be recorded in computer memory and transferred, as appropriate and needed, across locations.
This would facilitate the creation of up to date case-law data banks in each High Court; and from such case-law data banks it is possible to prepare a National Judicial Digest, since NIC has a nationwide satellite-based computer communication network, referred to as NICNET, through which one can bring together rapidly all of the relevant information from the Supreme Court, the High Courts, and indeed from the district and lower courts when computerisation can take place there. The information requirements of judges of courts at different levels, of advocates, litigant public, and any others interested in various legal aspects can all then be catered to. The specific information system designed to provide information on the Supreme Court (which uptil now was restricted to decision-making by the Registry of this Court), to a wider range of users is referred to as COURTNIC.
The National Judicial Digest would basically consist of Digests/Headnotes of each judgment delivered in each High Court; these would be prepared by legal experts. Each case would have the subject, case number, cause title, law point involved and brief headnotes. Computerisation will enable access to the vast number of judgments all over the country from the viewpoint of type of case, law points involved, names of judges, and such other headings. It will then be possible to extract the exact category of information desired. This should work out to be commercially viable, with online retrieval.
Another area which has been taken up is referred to as LOBIS, which stands for List of Business Information System. This essential relates to the scheduling of cases in a court, under the broad categories of: (a) fresh matters; (b) after notice matters; (c) adjourned matters; and (d) mentioning slip matters. This list of business is naturally governed by the directions of the Court. Any system in this area must have flexibility and versatility, to take care of frequently changing situations. Furthermore, it must also ensure integrity of the list e.g. prevent unauthorised users from getting a matter listed before a particular bench. All of this can be catered to under the LOBIS system of NIC.
Another area being dealt with is Judgment Information System (JUDIS) which is a comprehensive online case-law library on all reportable judgments of the Supreme Court of India from 1950 onwards. NIC has also a project on a case-law information retrieval system (CIRS) in which all reported cases of the Supreme Court from 1950 onwards have been covered***
This only represents the start of a major programme, whereby the past practices of information on paper are being transformed into a new system of information recorded, accessed and used electronically. One has to do a great deal of work to ensure the integrity and security of information so handled electronically, and corresponding laws concerning their use e.g. when it comes to verbatim records, evidence etc. in the same way that one had in the past to ensure that there was no tampering with the printed word, through means such as forgery, replacement of sheets closely matched with the original and the like. This calls for a cultural transformation of the legal system: to become familiar with, have confidence in, and to make regular use of electronic-based information. When implemented, the advantages will be in the speed with which information can be located and made use of, the ability to classify and categorize information, and availability of a very wide location information on independent basis to all types of users.
Apart from these aspects of informatics-related changes, there are many other developments in science and technology which the legal system will have to understand and take note of as we move into the future. We are aware of the whole area of forensic medicine. The legal system deals today on a regular basis with aspects of armaments, ballistics, fingerprinting photography, chemical, crystallographic and other studies of materials, and the like, arising from scientific advances that have taken place in the past. Far more are taking place, and will take place, as we move into the future. Developments such as DNA fingerprinting are dealt with when we consider the implication of advances in life science for the legal system. Terrorism, narcotics, environmental hazards, admissibility of various categories of evidence are all areas where there will be need for our legal system to have a greater understanding of science and technology and integrate this into the legal framework.
THE AGE OF INFORMATICS AND ITS IMPLICATIONS FOR THE LEGAL SYSTEM
There have been spectacular developments in the fields of computers, micro electronics and communications that have given rise to a wholly new age for humanity: the Age of Informatics. Whilst the early base for this field goes back to the pioneering work of Babbage, Turing and Von Neumann, the major practical developments have taken place with the discovery of the transistor in 1947, and the development of integrated circuits with increasingly higher levels of integration since 1960. These developments in microelectronics have enabled modern computation as exists today. Computers are now smaller in weight and volume, use less power, and have enormous memories and functional capabilities; and the cost of computation has been going down steadily. Instead of earlier bulky stand-alone systems, computers are now an integral part of operating systems, whether they relate to aircraft and space vehicles, computer-aided design and manufacture in industry, as electronic exchanges in telecommunications; and in general as devices for storage of information, and instant location independent access to it for computation, command and control, in an increasing number of areas of human activity. Computers and communications are now coming together on an integrated basis with communication systems also becoming digital.
The onset of computerisation has given rise to a whole range of legal issues. As a result, the term "Computer law" is now an established one in the United States; elsewhere, the term "Information Technology Law" has been used. There is also Informatics law which is concerned with the applications of digital technology to the analysis and understanding of law and legal reasoning. The term "Information Law" has been used to deal with information as a commodity. Again, Telecommunications Law applies to the mass of regulatory attention that needs to be devoted to the enormous technological advances that have been taking place in communications. All of this only illustrates the basic point that there are wholly new areas being spawned in the new Informatics Age; and this calls for legal systems to take care of matters generated in these areas.
There are many issues that are coming up. For example, when we resort to digital storage to hold and convey information, it is possible to vary the information content of the stored data without necessarily disclosing any evidence of alteration. It has, for example, been stated: "With digitization ... (information) ... becomes totally plastic; any message, sound, or image may be edited from anything into anything else." One has already seen examples of this in altered material, such as digital photographs, where the shape or form of the images has been altered leading to legal disputes. These powers to modify the digital images and information will raise questions relating to civil liberties, personal privacy, criminal investigation techniques, evidence and the like. Legal policy debate concerning such matters is only in its easy stages anywhere in the world.
The legal treatment of functional information, redefinition of the notion of copyright, the technical and regulatory conditions by which the information industry and its users might operate within the global digital network, particularly as the information superhighways develop, working out competition rules within a market-place which is in a constant state of flux, as new services, new technologies, new standards and new corporate structures enter the arena, aspects of contracts and liabilities, are all part of the range of legal problems now being thrown up and which will have to be dealt with at great speed and flexibility in response.
The convergence of technologies, products and services that presently comprise the information industry has broadened the range of legal problems. The relevant laws will have to reflect a coherent policy towards information as a commodity. There is information as a natural phenomenon freely available, and information as a commodity of high value with certain rights attached.
This is a technology that will reshape society to its very roots. A legal framework to deal with this is clearly imperative.
ADVANCES IN MODERN BIOLOGY AND THEIR ETHICAL,
LEGAL AND SOCIAL IMPLICATIONS
The study of living systems goes back to the earliest period of human history. It started with observations on the enormous diversity of plant and animal life that one sees all around. The first steps were to classify the observed diversity. It also led to identification of living systems that could be used for food and medicine. The discovery of plants of economic value, initially grains and then pulses, oilseeds and vegetables, led to organised agriculture and human settlements, representing a major departure from the earlier hunter-gatherer and nomadic forms of existence. This was perhaps the first major transformation that led to the form of society as we know it today.
It was not, however, until the 19th century that concepts were envisioned on the basis of which we can truly understand living systems. These were the monumental discoveries of Galton relating to human genetics, and then of Gregor Mendel who is regarded as the founding father of genetics, who discovered the laws governing the transmission of hereditary characteristics. Another monumental advance in the 19th century was Darwin's work on evolution. All of this was underpinned by the work of Buffon in France.
The early part of the 20th century was characterized by the rediscovery of Mendel's laws, and the increasing application in biology of the very powerful techniques developed in physics and chemistry, particularly relating to X-rays, crystallography, electron microscopy and advances in organic chemistry. It became possible to ask important and penetrating questions concerning the nature of life itself. Throughout the 20th century, genetics has played a defining role in human history; first in agriculture, in enabling an enormous increase in food production to feed the large and growing population; and then in human genetics with profound implications in medicine.
Genetics and Eugenics
Since earliest days of history, human beings have been grouped into races (such as Indo-Aryan, Caucasian, Mongoloid, African) and so on. One has also characterized human beings by the colour of skin, hair, eyes, the nature of hair or the type of eyes and so on. One knows that these are inherited characters. In mammals, eye and hair colour are among the best understood of the inherited characteristics; but in human beings such analysis is difficult, because of so many intermediates. Society formulated codes of conduct, established practices and often laid down laws which would largely preserve these inherited characteristics (e.g. of a race, tribe, ethnic group or even superficial inherited appearances) within a community. There were, of course, wars and captured communities, which resulted in significant racial-mixing. However, the concept of race, community or tribe and visible and often superficial differences amongst these has been with us through the ages, and prevails even today e.g. witness the ethnic cleansing in Rwanda or Yugoslavia. This is not the place to go into the detailed aspects of the social, cultural, legal and other implications of these differences and resulting social behaviour. I shall concentrate on certain specific issues relating to the scientific aspects of human genetics.
In particular, I wish to draw attention to the area of Eugenics, whose ramifications have been particularly manifest in the current century. The word eugenics was first introduced by Galton for the possibility of genetic improvement of the human race. There is negative eugenics which aims to decrease or eliminate extreme inherited mental or physical defects; and positive eugenics to increase the number of better individuals, and thereby increase the possibility to obtain even better ones. This approach has been followed on a systematic basis in agriculture, in plant and animal breeding, to enhance important desirable characteristics and to remove defects from succeeding generations. However, the application of these principles in the case of human societies has led to massive violation of human rights, and of human dignity, and terrible crimes on a very large scale, exemplified by the Holocaust under the Nazis in Germany to wipe out entire populations of Jews, gypsies and others.
The eugenics movement had initially the support of a large number of distinguished human geneticists. It was thus not an ideology imposed on science by politicians. Rather, it was primitive scientific analysis, and success in certain simple situations, that tempted scientists to apply it with unjustified confidence in other more complex areas. And these ideas quickly found root and flowered in certain social situations. History is full of laws forbidding marriage between individuals of different races. This was not only in South Africa, with which the current generation is familiar, based on apartheid, but also in the United States; there were immigration laws to prevent people coming in from cultures considered inferior; and then there were laws for involuntary sterilization for low intelligence, certain kinds of criminality, and other characteristics. The Holocaust was the extreme aberration in this line of thinking.
Eugenics thus started with scientific advances and then was taken up by interested political systems. By the time the eugenics movement reached its peak politically, a large part of the scientific support from most geneticists had been withdrawn; but the damage had been done.
The reason for going into these details concerning eugenics is that they led to discriminatory laws, and finally to disastrous consequences, when some of the concepts were pushed to the extreme. We need to think of these because of the possibility of real dangers of this nature repeating again in the future, if one does not exercise due care. I shall go into this a little later.
The Human Genome Project
Life sciences have seen truly revolutionary advances over the past half century. This was heralded with the unravelling of the double helical structure of DNA by Crick and Watson, in 1953; and a succession of spectacular discoveries that followed, some related to basic understanding, and others to techniques of great virtuosity that have given rise to enormous capabilities. As a result, it has become increasingly possible to unravel the structure and functions of living systems at the molecular and cellular levels. Already, with the techniques available, in the case of animals and plants, the process of transgenesis is being implemented: namely, the insertion of a foreign gene into the reproductive cells of a living organism, so that it is altered and becomes capable of transmitting certain desired characteristics to its offspring. In the case of plants, such transgenesis is practised to improve their abilities to handle stress and to obtain desired characteristics. In the case of human beings, one is now having access to increasing knowledge about their own life mechanisms; and one can see ahead the acquisition of capabilities to transform their own species. These possibilities are truly awesome.
One of the most ambitious projects taken up, and which has been made possible through the technical advances that have occurred in the past two decades, is the Human Genome Project, the aim of which is to decipher details of the human genome in terms of its physical and linkage maps. That this will be accomplished soon is definite. Already, complete genomes of smaller magnitude have been deciphered; and the technical capabilities for accomplishing this in the case of the human genome are in hand. What use will be made of all this knowledge is not yet clear. But as we shall see, when we consider certain specific areas of application like gene therapy further on, this knowledge has enormous potential.
It is also clear that such fundamental knowledge relating to the human being would raise ethical, legal and social questions. Because of this, in the United States, right from the start of this project, there has been a specific percentage of the project allocation assigned for ELSI (Ethical, Legal and Social Implications.) The reason why this information will not remain exclusively within the scientific domain is because it will lead to applications which affect all aspects of the lives of people: including their private life, family life, community life and life as members of humanity.
Some of the greatest biologists of recent decades have proclaimed: "We used to think our fate was in our stars. Now we know in large measure, our fate is our genes" (James Watson); again "we can have the ultimate explanation for a human being" (Walter Gilbert); and so on. There is an increasingly deterministic and reductionist approach in modern biology. Whilst publicity for great achievements of genetics is warranted, there is need to be aware that genetics in a simplistic form is not all explanatory. One is dealing with a highly complex situation. A large part of life will be multigenetic and multifactorial. There will be need to carefully determine the relative contributions and interplay of heredity (nature) and of the environment and education (nurture). Otherwise, with ideas passing on to persons of lesser vision and with vested interests, one could move into directions that the earlier eugenics movements took.
Pedigree Research
An essential requirement for progressing the Human Genome Project is pedigree study; this is of importance in general in genetic studies. Typically, large numbers of family members are studied to determine patterns of inheritance of a disorder; these patterns are then compared with the inheritance of markers on the genetic linkage map. It is possible to see how an inherited disorder or characteristic has been manifested through generations of an affected family. The most famous example in this regard is that of the disease haemophilia, which ran through the family associated with Queen Victoria of Great Britain. Pedigree studies are of great importance. This can be seen from the great fillip given to the Human Genome Project through work at the Human Polymorphism Study Centre in Paris.
Increasingly, in addition to inherited single flawed genes being identified for specific genetic diseases, attention is being focussed on widespread pathological conditions such as diabetes, cardiovascular or neuropsychiatric (particularly schizophrenic) diseases, and cancers. While these diseases may have a variety of causes, including sociological and environmental factors, they are also undoubtedly inherited and pedigree research will be of importance to unravel them. And regions such as India, with as yet relatively undisturbed population structures, where familial relationships exist and are known, offer great opportunity for such research.
But in moving into this area one must take note of the ethical and legal issues involved. The risks to individuals involved in such studies are primarily social, economic and psychological, rather than physical. Internationally, there is as yet little consensus on these questions. What is important, to start with, is to raise the consciousness and awareness on these matters. The statistical power of large families studied over several generations gives pedigree studies a prominent role in human genetic research. In such research substantial personal information about family members has to be obtained, many of whom will manifest the disease or characteristic under study. This information may range from medical and genetic history to actual DNA samples. It provides information about the particular person's health status, and also similar information about other members of the family, whether they had consented to participate or not. It is these which pose legal and ethical questions. There is also the aspect of information so derived having value under the new intellectual property regimes.
It is not possible to go into all aspects of the developments taking place in the life sciences and their legal ramifications within the scope of this lecture. So, I shall only run over some major areas that have long-term and significant implications. I shall specifically try to cover: gene therapy; genetic screening; organ transplantation; DNA fingerprinting; test-tube babies and related questions; and in general, certain broad ethical principles that should govern any legal framework.
Gene Therapy
We know that a large number of human diseases are due to defective genes. Inherited disease can arise through chromosomal, single gene and multiple gene defects or be multifactorial. When a disease is due to a defective single gene which has been identified, one can think about specific gene therapies to correct the gene or the protein coding it. Since many such inherited diseases are not otherwise treatable, and if treatable, the treatment involves great expenditure or can be painful and would call for life-long efforts, prevention or treatment based on genetic engineering has created a great wave of hope for the future.
Gene therapy can be somatic, namely, when one deals only with the cells of the body (or soma) with no effect on heredity. On the one hand, gene therapy can be germinal, namely, it is concerned with reproductive cells, male as well as female, or with embryos of certain cells; in this case the changes will be handed down to successive generations and human genetic heritage will be altered accordingly. Certainly somatic gene therapy is acceptable, and even possibly germline in the case of a frightening disease due to a defective single gene. But the possibility of the genetic heritage being altered raises profound ethical and moral questions, and is objected to by many.
Gene therapy implies that one has identified defects in one or more genes responsible for a specific inherited disease, and that it is possible to treat the disease by appropriate genetic engineering. The first attempt to use gene therapy was carried out only in 1990, in the case of a girl whose immune system lacked an essential enzyme, (ADA), and was unable to defend her body against infections. The therapy involved taking out cells from the blood, introducing the ADA gene into them, and returning them to the patient's blood. The results were good; except that, in this case, the treatment was one that needed repetition, since the modified cells do not last a long time. Other diseases holding promise for gene therapy are haemophilia, cystic fibrosis, muscular dystrophy and some cancers.
Genetic Screening/Testing
There are clearly advantages in carrying out gene therapy, where possible, long before the manifestations of a specific disease are apparent, and have already done a great deal of damage. For this, and other reasons, recourse is now made to genetic screening to look for defective genes that can be identified with a specific disease. If a man and woman are carriers of some transmissible defect, they can have a genetic examination. If both carry the same defect they may decide not to have children. In Cyprus, both the Government and the Orthodox Church have used this type of premarital screening to check the spread of thalassaemia. In the UK, since the 1960s, pregnant women have been routinely tested for their rhesus blood group so that damage to babies of rhesus negative women can be prevented by giving the woman an antibody. Since 1973, in the UK, all newborn babies are screened for phenylketonuria, a disease resulting in severe mental retardation and preventable by dietary treatment in the first weeks of life. In France, in the case of Down's Syndrome, doctors suggest, as a matter of course, that families at risk be tested: however, it is for the families to accept the suggestion or not. Other diseases coming into the area of genetic screening are Tay Sachs disease (a fatal brain disease) in the Ashkenazi Jewish population; fragile X syndrome, some of which could be present within individuals with learning difficulties. It can be seen that genetic screening has a positive role in clearly identified situations.
Genetic testing and genetic screening are sometimes used interchangeably. There is significant difference, however, between the two. Testing is of an individual for a condition of defect that other evidence suggests may be present; whereas screening would involve all members of a population for a defect or condition where there is no prior evidence of its presence in any individual.
Prenatal diagnosis also enables the sex of the child to be known before birth. And in societies such as India and China, with social pressure and desire for a male child, this often leads to abortions of the female foetus. This has been dealt with legally by imposing a ban; but this has been done only partially. In any case, within such a social environment, prenatal diagnosis is only a small part of the whole story. Sex determination by ultrasound technology, and female infanticide after birth are all part of the social scene.
Genetic testing also raises the question of whether it is wise to inform apparently healthy individuals that they will develop later an illness with a certain probability, or have the risk of transmitting it to their progeny. This raises a fundamental question relating to information resulting from genetic screening or testing. Is this to be made available to an individual, to the family, to the community, to employers or to the State. One can easily see how in the event of such information, concerning the genetic makeup of an individual, being made available to each one of these parties, there can be immediate and long-term implications and potentially serious consequences: there will be fears and neurosis relating to health and employment, decisions relating to one's future and that of children yet to be born, of discrimination in employment and terms of insurance, of stigmatization and in the extreme, eugenics. What is the legal framework under which genetic screening should be carried out and information provided? There is extensive debate on this internationally.
DNA Fingerprinting
The need to identify an individual explicitly has existed since time immemorial. An increasing number of techniques are now available through the field of modern biometrics to provide foolproof methods for automated personal identification. These include: hand geometry, (the three dimensional shape of a person's hand); fingerprints, (which has been used by the police for more than a century to identify criminals); the detailed unique texture of the iris of the eye; voice verification; and signature dynamics. All of these techniques have been greatly enhanced in capability through the use of computer-based automated recognition systems. Worldwide, there are now over ten thousand computer rooms, vaults, research laboratories and the like using devices to identify people from biometric characteristics.
The most powerful technique which has now come in is that of DNA Fingerprinting, perhaps the greatest advance in forensic science since the development of fingerprinting in 1892.
DNA fingerprints are images derived from a molecular pattern in the body's cells. The pattern is specific to an individual. The patterns are composed of short sequences of base molecules typically 20 bases long, which keep on repeating consecutively along a DNA strand at particular locations. The overall length of the repeating section, and the particular locations on the DNA molecule at which these repetitions occur vary enormously from person to person and are inherited. DNA fingerprinting has been applied to bloodstains, semen stains, hair roots and other such material.
There has been significant debate over forensic DNA typing. Some of this initially arose from poorly defined procedures and interpretation. An aspect relating to population genetics was also brought up. This has been resolved using a "ceiling principle", through which benefit of every conceivable doubt is given to a defendant. Controversies relating to DNA fingerprinting have now been basically settled, and there is no scientific reason to doubt the accuracy of forensic DNA typing results. There is need to recognise that this represents a highly sophisticated technique; and the testing laboratories and specific tests employed must be up to the highest standards adopted in the practice of modern molecular biology.
This development has enabled the unique identification of an individual. It finds application in identification of the source of origin of various materials (blood, semen or their stains, hair, teeth pulp and tissue remnants without ante-mortem records) and is of particular relevance in paternity and maternity dispute cases, as also in crimes such as murder, rape and the like. DNA fingerprinting properly carried out is now giving unequivocal positive evidence in all these cases.
Issues relating to Transplantation
Another area which has assumed significance in the area of life sciences is that of transplantation of human organs and their donation for therapeutic purposes; as also animal to human transplants (Xenotransplantation). For many conditions involving organ failure, transplantation is now becoming routine. At the beginning, because of rejection by the body of a foreign tissue, there were significant failures in such transplantations. But now, with developments relating to immunosuppressive drugs and improved surgical techniques, the success rate has gone up, particularly so in the case of kidney transplants, less so for liver transplants and much less for heart transplants. There are also cornea transplants, neural tissue transplants, and bone and skin transplantation for treatment of burns. The area is, therefore, one of significant growth.
This automatically brings up the question of shortage of human organs compared to demand. There is the promise of developing artificial replacements, such as bioengineered structures for organs and tissues; and research on this will, and must, continue.
We have already seen many issues arising in obtaining human organs for transplantation, such as unlawful removal of an organ from an individual without his/her knowledge, purchase of organs through illegal trade, the suggested growing of humans for such purposes, and the like. Many of these issues have been gone into in detail, initially by a committee set up by the Government of India and later in debates in Parliament. Primarily this was for enactment of legislation regulating removal of organs from dead and living persons, and their donation for therapeutic purposes with due safeguards.
With the shortage of human organs for transplanting, the area of xenotransplantation (e.g. animal to human transplants) has assumed importance. There are issues in this such as: transplant rejection, which is a biological problem; ethical problems about the use of primates for this purpose and therefore attempts to develop applications based on non-primates; concern about animals etc. Since there is the prospect that xenotransplantation may be able to significantly supplement the present inadequate supply of human organs, there is need for regulations which will govern xenotransplantation.
A similar area relates to the use of human tissue for a variety of purposes. Legal matters relating to removal of tissues, need for tissue, the claim of people from whom tissue is removed, patents, safety and quality all arise. One striking area is that of blood transfusion. We are aware of the large number of blood banks that are operated, some well regulated and others not regulated. Apart from diseases like hepatitis, carelessness in the area of blood banks and blood transfusion has led to significant transmission of AIDS. Legal issues relating to responsibility in such cases have already come up in a major way.
This entire area will grow quite rapidly in the future and pose an extensive range of medico-legal questions.
Test-Tube Babies; Surrogate Mothers; Cloning of Embryos
The phrases "test-tube babies", "surrogate mothers" and "cloning" have become part of common vocabulary now. All these relate to developments of the past two decades. They represent possibilities which, as they become large-scale in application, will have a profound impact on the structure of society and bring forth many legal issues, from the silly to the profound.
The phrase "test-tube baby" appeared when it became possible to fertilize a human ovum outside the womb using human sperm. This process of "in vitro" fertilization by Edwards and Steptoe led to the birth of the world's first test-tube baby, Louise Brown, in 1978. The development of an embryo so produced can take place in any womb which is ready for it. Embryo transfer technology is now commonplace in animal breeding - where embryos resulting from fertilization of ova of high-yielding milk cattle, using semen from stud bulls, can be flushed out, and transplanted for further development up to birth in surrogate mothers, which can be scrub cattle. The use of human surrogate mothers who receive fertilized ova and carry it full term to birth is now a reality and is being practised.
The first question this poses relates to the "real" mother. Undoubtedly, on the basis of genetics and DNA fingerprinting, the mother is the woman whose ovum has been fertilized. But biologically, in terms of the intimate relationship between a baby developing in a womb and the woman carrying it, the surrogate mother is the real one. Disputes over possession of the baby have already arisen in this regard. These issues can become highly personal e.g. when a woman becomes a surrogate mother in the case of an embryo resulting from the fertilization of an ovum from her daughter! Issues will crop up in regard to other familial relationships e.g. between siblings, property rights, inheritance etc.
A further development is that a primitive human embryo has been cloned. Such developments had already taken place in the case of cattle, where an embryo is spliced into two or four (or more) parts, each of which is identical e.g. clones. The spliced embryos can be transplanted into surrogate mothers and lead to offspring which are clones. Where will this take us when applied to human beings? Will this be different from the case where selectivity in breeding applied routinely to plants and animals became eugenics when applied in the human situation - and led, as we have seen earlier, to gross violations of human rights and human dignity?
There are several important components to this debate. Already commercial interests have come into the area of sperm banks and there are thousands of frozen embryos sitting in liquid nitrogen storage in North America and Europe. From brokered adoptions, one moves to the sale of embryos and then of clones which will take us down the slippery slope towards eugenics. The problem is that commercial pressures and superficial considerations often weigh heavily with an ordinary human being, and there are risks in it.
We are what we are not because human beings would play God, but because of natural processes in horizontal and vertical evolution that have led to the biodiversity that we all treasure. It is important to ensure that the human body is not regarded purely as an instrument to be exploited for its products or its appearance but as related to a whole personality.
From joint families of relatively recent past, we are now moving into the regime of nuclear families, with both parents working, or single parent families. We might soon move into a situation where the State has to fulfil parental responsibility. What about love, security, togetherness and the like?
It is for the legal system to disentangle the many issues arising from these developments within a basic framework of ethics, human dignity and human rights.
I do not claim originality in what I have said in this Address. All the facts stated are well known to the experts in the disciplines concerned. I have made extensive use of material available with me on these topics: notably reports prepared for the International Bioethics Committee of UNESCO of which I have the privilege of being a member; reports from National Informatics Centre; material published in recognized scientific journals like Nature, Science and several electronics publications etc.; the volume entitled "Environmental Change and International Law" edited by Edith Brown Weiss brought out by the United Nations University etc. I have in some case used material available in these in verbatim form. I have not put these down as quotations, as that would have meant extensive footnotes, references etc. I could have dealt with fewer topics in greater depth. But I had a purpose for this Address: to bring out how science and technology has advanced and continues to do so over a very wide front; how this is transforming so many aspects of societal functioning; and the need to evolve legal systems that are compatible with these developments. My purpose would be more than served if, through this Address, I have been able to convey this broad perspective, as my tribute to Shri Mahaveer Chand Bhandari.
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