#Pakistan #Taliban: agent or victim?


 

Afiya Shehrbano Zia [1] 24 October 2012, opendemocracy.net

In their attempt to assassinate girl-activist, Malala Yousufzai, has the Taliban inadvertently rescued the narrative of violence against women?

Just as in other patriarchal societies, violence against women (VAW) in Pakistan is endemic and cuts across all classes and ethnicities. Men of all ideological bents instrumentalise the political economy of VAW as a highly lucrative and politically successful strategy of maintaining material supremacy and social power.

Over the last three decades, Pakistan has been at the receiving end of donor-assisted campaigns and gender-empowerment awareness programmes on violence. These projects were sub-contracted to NGOs that had been set up by feminists who themselves, in the 1980s, had been involved in direct action activism on cases of violence. With the sponsorship of international development assistance, “women’s NGOs” have steadily embraced the concept and become advocates of linking VAW to neo-liberal development agendas. This has re-directed analysis and activism from its primary focus on survivors and perpetrators of violence. Instead, increasing attention and funding has led to a change that is more in tune with the UN and donor-preferred approach known as ‘Gender-Based Violence’ (GBV).

The shift has meant more than a replacement of acronyms. The impetus of both, VAW and GBV activism, may be the overlapping theme of violence but for the latter, the emphasis is much more on the context and sites where violence is ‘gendered’ and sustained. The long-term developmental aim of GBV is to change power inequalities between men and women in society. Exacerbating factors such as poverty, injustice, discrimination or lack of awareness or dis-empowerment of women and girls, is the core of the GBV agenda. However, the UN preference for GBV linkages with developmental goals has meant that the politics of VAW has deflected or at least, diluted, the focus from the immediate perpetrators, purpose and benefits of violence. Instead, the GBV approach looks closer at socially constructed masculinity rather than material-based patriarchy, to be the direct motivation or cause of criminal intent behind such violence.

Perversely, this is allowing generations of perpetrators to metaphorically but also literally, get away with murder. This is because GBV projects offer to rehabilitate masculinities, change the broader power structures, and improve the justice-education-health systems or gender relations in communities, rather than simply recognize the criminal and his immediate motivation. Nor do GBV projects sponsor punitive methods to address such violations. The recent attack on a 14 year old girl-activist, Malala Yousufzai, by the Tehreek e Taliban Pakistan (TTP) in Swat, Pakistan, has pushed the reset button on the momentum [18] that was being gained by Gender-Based Violence (GBV). The Taliban’s attack may have inadvertently rescued the narrative of the VAW approach, which calls for more direct focus on immediate causes and perpetrators and more urgent responses to cases of violence against women.

Responses to the Taliban attack 

The range and multitude of the global response to the attempted assassination of Malala have been far-reaching. They span from Madonna’s puzzling bare-back tribute [19] to the young activist at a concert just days after the attack, to the equally jingoistic decision [20] by the government of Pakistan to name three of its Frontier Corps platoons, ‘Malalai’, ‘Shazia’ and ‘Kainat’, as a ‘tribute’ to all three school girls targeted and injured by the Taliban. While the case has received near-universal condemnation, various interests groups in Pakistan are competing to add to the multiple layers of ascribed motivations, causes and responsibilities. There is also much political mileage to be availed in view of the sweep of outrage and sympathy across the world. A virtual supermarket of ‘Blame’ brands are available for commentators ranging from American hegemony, imperialism, drone attacks and even, anti-Islam blasphemous material produced in the West.

”We demand the end of Extremism and Terrorism” – Protest in Pakistan by
left and women’s groups. Photo: member of WAF.

While GBV approaches link the low rate of literacy and abysmal indices for girls’ education in the country to gender based discrimination, the narrative that has spun around Malala’s case has thrown up a host of deeper, unresolved and critical issues with reference to violence. The Taliban have categorically reclaimed religious patriarchy as a deliberate base for the kind of violence it consciously employs. In several press releases [21], the Taliban spokesman has refuted all the defenses being spun by Islamists and conservatives (such as drone attacks), as the motivation behind the assassination attempt. The statements have impatiently corrected the rationalisations and confirmed that they attacked Malala specifically for her adversarial intent to “secularise society” by educating girls according to a non-Islamic curricula. Her aimed defiance to the Tehreek e Taliban Pakistan (TTP) qualifies her as anti-Islamic and the Taliban claim [22], “We did not attack her for raising voice for education. We targeted her for opposing mujahideen and their war”. The aim to kill her was the natural culmination of their larger campaign of systematically blowing up girls’ schools over the last five years, in northern Pakistan.

For decades, women’s rights activists resisted the monopoly of violence claimed by the state, and unpacked the lease of this to men in communities who then target women with impunity under the guise of cultural practices and patriarchal traditions. Over the last two decades, with donor encouragement, several development practitioners became engaged with the idea of instrumentalising Islam [23] as a tool for women’s empowerment. This premise allowed them to pursue the case for educating women and girls through religious didacticism. It also allowed for the co-option of clergy who resisted contraceptive use to become its promoters. Theoretically, it was thought that this strategy would counter what were labeled ‘anti-Islamic’ traditions that sanctioned violence against women. VAW proved far more resilient. What these activists underestimated was that instrumentalising Islam is not a parochial privilege limited to rights based activists. The Taliban and sympathetic Islamists do not doubt nor resist the need for women’s education as a Quranic prescription– just its nature, purpose and ‘secularising’ ends.

The debate is shifting away and being reframed by all the actors involved and reconfiguring around notions of religious and secular forms of violence. As a result, the symbol of woman as a carrier of both the virus and cure, the seed of destruction and resurrection, war and peace, continues to serve as the barometer of Pakistan’s unresolved issue of Islamic vs secular options and pursuits.

Clarity in the Taliban agenda 

In the post War on Terror (WoT) period, incrementally, Pakistani women have been the direct targets [24] of Islamic militancy. At first, activists struggled to decode the patriarchal impulses and gendered impact of a more generic conflict. By 2007, however, the Swat Taliban came to have virtual control over Swat. Girls’ schools were bombed, barbers and music shop owners were attacked, women warned not to come to the bazaars or hospitals or to leave their houses alone, and were assaulted when in violation of regulations. Women performers, called the ‘dancing girls of Swat’ were assaulted, and at least one, Shabana, was shot dead and her body hung on display at a crossing dubbed Khooni Chowk (Bloody Crossing) as a symbol of the Taliban’s regimen of moral cleansing. The use of women as a signpost is not exclusive to the Taliban but unlike in inter-community or inter-ethnic murders, Islamic militants leave messages to the state, government and citizens by literally pinning post-its to dead bodies routinely and systematically. So too, Shabana’s body was strewn with currency notes as a mocking reminder of the fate of those deemed un-Islamic [25] (in her case, prostitutes) by the Taliban’s sharia rule.

Unlike men of sub-nationalist movements or even mainstream Islamists, the Taliban are overt and unapologetic in their exploitative and symbolic use of the female body. Despite the self-confessed assassination attempt on Malala and repeated explanations of why they will continue such acts, the Islamists and conservatives in Pakistan have launched a counter-campaign to disassociate this crime (against Malala) from the criminal (the Taliban militant). The argument in the media spin that followed the targeted assassination attempt was that Malala had been attacked by an abstraction [26] – American hegemony, imperialism, Islamic freedom, militancy, Westernisation, class aspirations, honour, nationalism, secularism, women’s rights. By not recognizing the self-confessed murderer, Islamists absolve the criminal and dissolve the crime. 

Such unprecedented violence has diverted attention and hindered the struggle of women and human rights activists who were more committed to normative and routine public and private cases of VAW. Activism meant rescuing women under threat, offering legal assistance and providing shelter as well as, pressurizing the state and justice system to deal with the perpetrators. Even as we observed the course of the ‘war on terror’ and its fall-out in Pakistan, the growth of GBV projects continued to divert the emphasis away from direct action and towards developmental and rehabilitative approaches. Islamic militants such as the TTP have directly challenged all apologia that argues that they are victims of some misguided masculinities, brutalized by tribal war and poverty. Neither do they view themselves as jihadi proxies used and discarded by the Pakistani state, or as citizens who are denied justice. They do however agree with some sympathisers who continue to view the Taliban as products and resistance armies of US anti-imperialism. Is it viable to continue viewing the conscious agent as a victim?

Agent as victim

To deflect the direct responsibility of a crime away from the individual and place it on the breadth of society, government, the state, global powers or imperialism, then empties the perpetrator of criminal motivation and refills him with a higher, larger-than-life, mission.

The creation of such noblesse oblige is done by converting the agent into a victim. This laundering opens a new line of defense. It suggests (as several Islamists have done) that, under certain circumstances, a case of justifiable homicide may be made. However, in the views of the same sympathisers, this flexibility is a limited moral commodity.  The defense of a higher moral purpose as the motivation for murder is not a universally available tool for all citizens regardless of class, creed or gender. It is a selective application reserved only for those who are deemed Islamic enough and soaked in the cause of promoting/defending Islam as defined by powerful or political clergymen.

In other words, Malala may be worthy of sympathy due to her status as a minor but does not qualify for justice because of her near-fitna (seductive, luring, chaotic) activities. In the minds of these apologists, her would-be assassins were absolved of their crime even before they were caught, despite their stated motivation (which has not been cited as the drone attacks but due to Malala’s adversarial intent to secularise her society) and even prior to a judicial hearing. In such a world-view, justice must not be blind but dependent on the perceived beliefs or religious weightage of the individuals or parties involved.

One of the complaints made by proponents of the Taliban-as-victim [27] group, is that violations against women by secular landed politicians, do not receive as much media attention or outraged response. This is a completely dishonest proposal. The case that is often quoted as ‘exaggerated’ or ‘sensationalised’ to expose the Taliban’s Islamic justice system following the peace deal with the government in 2009, is that of a woman flogged [28] by Taliban ‘police’ in the streets of Swat. The mobile phone amateur video went viral on national and international channels.  In 2008, soon after the new incumbent civilian government was installed, two high profile cases [29] involving the landed politicians of the ruling party were equally ‘sensationally’ splashed across the media. With reference to one of these cases of the alleged ‘live burial’ of girls who refused their arranged marriages, Pakistani women’s groups lobbied, protested and came on TV channels demanding the removal [30] of the cabinet minister from the said constituency. They did so, in protest of his defense [31] of such ‘traditions’, which he offered as a justification for this crime. To suggest that religious militancy is the only crime that is picked up by the media or liberal groups is an intellectually dishonest claim. The spectacle of the flogging caught on video made the case more visual and hence caused more outrage than the other cases.

Reclaiming agendas

This defensiveness stems from a more common refrain used by the apologists of Islamists’ politics of violence – that secular political forces are no better. Feminists, including myself, have persistently made this critique [32] of not only liberal, secular men, but also of the state, as abusers of the political potential of women’s bodies and also because their acts sanction a regulation of women’s sexuality and all its manifestation. However, the Malala case falls outside of this framework. The concern of the Taliban in this case was not to regulate the girls’ sexualities (although it may be elsewhere), nor to accrue material benefit, nor revenge for drones and nor was the purpose to restore ‘honour’, as some communities employ this motivational excuse in cases of VAW. In these non-theocratic cases, perhaps the GBV framework is a useful one. However, the Taliban are not hiding behind socio-economic or tradition based excuses. It is time for analysts to recognise the self-acclaimed agency of the perpetrators and clearly identify the victim in cases of VAW, rather than defend the criminal as victim and dissolve the crime as an abstraction.

The TTP has reminded us of the simple core of VAW and reiterated what feminists always knew – VAW removes any threat that the liberationist ‘Woman’ may pose to the religio-patriarchal social order. If eliminating girls’ schools does not do the job, then a stronger signal of directly removing all agents (women/girls), should secure the message for those who may be harbouring plans to disrupt the Islamic order they seek to impose. Foreign donors scramble to rebuild schools, and the state attempts to resist militancy by giving symbolic significance to the services and resilience of girls such as Malala, in order to boost their public relations campaign in the fight against militancy in north Pakistan. Meanwhile, the Taliban have recovered the simple lesson of success achieved by direct action, and the symbolic value and immense ideological success available through the act of removing the obstacle. Will we?

 [41]

This article is published under a Creative Commons licence. If you have any queries about republishing please contact us [42]. Please check individual images for licensing details.

 

#China #Censorship – Chinese dissident goes `Gangnam Style` #mustread #mustwatch


OCTOBER 27, 2012 06:25
Ai Weiwei does Gangnam Style. Link to this video

Ai Weiwei, the dissident Chinese artist, has officially hopped on theGangnam Style bandwagon. On Wednesday Ai tweeted a cover version of South Korean rapper Psy‘s enormously popular music video, featuring the hefty 55-year-old artist – brow furrowed, grey-bearded, sunglasses on – dancing frenetically with a cohort of associates in his Beijing courtyard studio.

In the four-minute video Ai, wearing a bright pink shirt and black suit, imitates Psy’s signature horse-riding dance and at one stage loses his sunglasses in the process. The footage is spliced with clips from Psy’s original video but none of it showing the rapper himself. About 55 seconds in Ai pulls a pair of handcuffs from his pocket and waves them above his head, a possible reference to the 81 days he spent in detention last spring.

Ai’s parody is titled Grass Mud Horse Style after an alpaca-like animal invented by China‘s web users as a protest against internet censorship – its pronunciation in Chinese (Cao Ni Ma) sounds similar to a profane insult, forbidden on the country’s social networking sites. Ai’s 2011 work Grass Mud Horse Blocking the Centre shows a nude Ai holding a Grass Mud Horse plush toy over his genitals – the title sounds like an obscenity hurled directly at China’s central party leadership.

PSY’s Gangnam Style has more than 530m views and counting on YouTube. On Tuesday the United Nations secretary general, Ban Ki-Moon, met with the rapper to commend him on his international appeal. “You are so cool; I hope that you can end the global warming,” Ban said, according to Reuters.

Rapper Psy teaches Ban Ki-moon to dance Gangnam Style. 

Ai continues to be a looming presence in the international art world. He’s the subject of a sprawling exhibition at the Smithsonian’s Hirshhorn Museum in Washington DC called Ai Weiwei: According to What? Recently he has contributed commentaries to The Guardian and guest-edited an issue of the New Statesman.

gangam-style-psy-ban-ki-moon-dance-video

Yet Ai’s troubles with the government are far from over. Since his release in June authorities have kept him under close watch. They refuse to return his passport, barring him from accepting a faculty position at Berlin’s University of the Arts. In late September Ai and his company Fake Cultural Development lost their final appeal against a $2.4m tax fine.

“Ai Weiwei’s art and his activism resonate far beyond the art world and encourage an expanded dialogue on crucial social, cultural, and political issues of the day,” Hirshhorn museum director Richard Koshalek said in an exhibit catalogue, according to CNN.

He’s a pretty good dancer to boot.

 

Rethinking DNA Profiling in India


Vol – XLVII No. 43, October 27, 2012 | Elonnai Hickok , Economic Political Weekly

DNA profile databases can be useful tools in solving crime, but given that the DNA profile of a person can reveal very personal information about the individual, including medical history, family history and so on, a more comprehensive legislation regulating the collection, use, analysis and storage of DNA samples needs included in the draft Human DNA Profiling Bill.

Elonnai Hickok (elonnai@cis-india.org) is a Policy Associate with the Centre for Internet and Society.

DNA evidence was first accepted by the courts in India in 1985 1, and in 2005 the Criminal Code of Procedure was amended to allow for medical practitioners, after authorisation from a police officer who is not below the rank of sub-inspector, to examine a person arrested on the charge of committing an offence and with reasonable grounds that an examination of the individual will bring to light evidence regarding the offence. This can include

the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples, and finger nail clippings, by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case”.2

Though this provision establishes that authorisation is needed for collection of DNA samples, defines who can collect samples, creates permitted circumstances for collection, and lists material that can be collected, among other things, it does not address how the collected DNA evidence should be handled, and what will happen to the evidence after it is collected and analysed. These gaps in the provision indicate the need for a more comprehensive legislation regulating the collection, use, analysis and storage of DNA samples, including for crime-related purposes in India.

The initiative to draft a Bill regulating the use of DNA samples for crime-related reasons began in 2003, when the Department of Biotechnology (DoB) established a committee known as the DNA Profiling Advisory Committee to make recommendations for the drafting of the DNA profiling Bill 2006, which eventually became the Human DNA Profiling Bill 2007.3. The 2007 draft Bill was prepared by the DoB along with the Centre for DNA Fingerprinting and Diagnostics (CDFD).4 The CDFD is an autonomous institution supported by the DoB. In addition to the CDFD, there are multiple Central Forensic Science Laboratories in India under the control of the Ministry of Home Affairs and the Central Bureau of Investigation5, along with a number of private labs6 which analyse DNA samples for crime-related purposes.

In 2007, the draft Human DNA Profiling Bill was made public, but was never introduced in Parliament. In February 2012, a new version of the Bill was leaked. If passed, the Bill will establish state-level DNA databases which will feed into a national-level DNA database, and proposes to regulate the use of DNA for the purposes of

“enhancing protection of people in the society and the administration of justice”.7

The Bill will also establish a DNA Profiling Board responsible for 24 functions, including specifying the list of instances for human DNA profiling and the sources of collection, enumerating guidelines for storage and destruction of biological samples, and laying down standards and procedures for establishment and functioning of DNA laboratories and DNA Data Banks.8 The lack of harmonisation and clear policy indicates that there is a need in India for standardising the collection and use of DNA samples. Although DNA evidence can be useful for solving crimes, the current 2012 draft Bill is missing critical safeguards and technical standards essential to preventing the misuse of DNA and protecting individual rights.

Concerns that have been raised with regards to the Bill are both intrinsic, including problems with effectiveness of achieving the set objectives, and extrinsic, including concerns with the fundamental principles of the Bill. For example, the use of DNA material as evidence and the subsequent creation of a DNA database can be useful for solving crimes when the database contains DNA profiles 9 from DNA samples10 only from crime scenes, and is restricted to DNA profiles from individuals who might be repeat offenders. If a wide range of DNA profiles are added to the database, the effectiveness of the database decreases, and the likelihood of a false match increases as the ability to correctly identify a criminal depends on the number of crime scene DNA profiles on the database, and the number of false matches that occur is proportional to the number of comparisons made (more comparisons = more false matches).11 This inverse relationship between the effectiveness of the DNA database and the size of the database was found in the UK when it was proven that the expansion of the UK DNA database did not help to solve more crimes, despite millions of profiles being added to the database.12

The current scope of the draft 2012 Bill is not limited to crimes for which samples can be taken and placed in the database. Instead the Bill creates indexes within every databank including: crime scene indexes, suspects index, offender’s index, missing persons index, unknown deceased persons’ index, volunteers’ index, and such other DNA indices as may be specified by regulations made by the Board.13 How independent each of these indices are, is unclear. For example, the Bill does not specify when a profile is searched for in the database – if all indices are searched, or if only the relevant indices are searched, and the Bill requires that when a DNA profile is added to the databank, it must be compared with all the existing profiles.14 The Bill also lists a range of offences for which DNA profiling will be applicable and DNA samples collected, and used for the identification of the perpetrator including, unnatural offences, individual identification, issues relating to assisted reproductive technologies, adultery, outraging the modesty of women etc.15 Though the Bill is not incorrect in its list of offences where DNA profiling could be applicable, it is unclear if DNA profiles from all the listed offenses will be stored on the database. If it is the case that the DNA profiles will be stored, it would make the scope of the database too broad.

Unlike other types of identifiers, such as fingerprints, DNA can reveal very personal information about an individual, including medical history, family history and location.16 Thus, having a DNA database with a broad scope and adding more DNA profiles onto a database, increases the potential for misuse of information stored on the database, because there is more opportunity for profiling, tracking of individuals, and access to private data. In its current form, the Bill protects against such misuse to a certain extent by limiting the information that will be stored with a DNA profile and in the indices,17 but the Bill does not make it clear if the DNA profiles of individuals convicted for a crime will be stored and searched independently from other profiles. Additionally, though the Bill limits the use of DNA profiles and DNA samples to identification of perpetrators18, it allows for DNA profiles/DNA samples and related information related to be shared for creation and maintenance of a population statistics database that is to be used, as prescribed, for the purpose of identification research, protocol development, or quality control provided that it does not contain any personally identifiable information and does not violate ethical norms.”19

An indication of the possibility of how a DNA database could be misused in India can be seen in the CDFD’s stated objectives, where it lists “to create DNA marker databases of different caste populations of India.”20 CDFD appears to be collecting this data by requiring caste and origin of state to be filled in on the identification form that is submitted with any DNA sample.21 Though an argument could be made that this information could be used for research purposes, there appears to be no framework over the use of this information and this objective. Is the information stored along with the DNA sample? Is it used in criminal cases? Is it revealed during court cases or at other points of time?

Similarly, in the Report of the Working Group for the Eleventh Five Year Plan, it lists the following as a possible use of DNA profiling technology:

“Human population analysis with a view to elicit profiling of different caste populations of India to use them in forensic DNA fingerprinting and develop DNA databases.22

This objective is based on the assumption that caste is an immutable genetic trait and seems to ignore the fact that individuals change their caste and that caste is not uniformly passed on in marriage. Furthermore, using caste for forensic purposes and to develop DNA databases could far too easily be abused and result in the profiling of individuals, and identification errors. For example, in 2011 the UK police, in an attempt to catch the night stalker Delroy Grant, used DNA to (incorrectly) predict that he originated from the Winward Islands. The police then used mass DNA screenings of black men. The police initially eliminated Delroy Grant as a suspect because another Delroy Grant was on the DNA database, and the real Delroy Grant was eventually caught when the police pursued more traditional forms of investigation.23

Other uses for DNA databases and DNA samples in India have been envisioned over the years. For example, in 2010 the state of Tamil Nadu sought to amend the Prisoners Identification Act 1920 to allow for the establishment of a prisoners’ DNA database – which would require that any prisoner’s DNA be collected and stored.24 In another example, the home page of BioAxis DNA Research Centre (P) Limited, a private DNA laboratory offering forensic services states, “In a country like India which is densely populated there is huge requirement for these type of databases which may help in stopping different types of fraud like Ration card fraud, Voter ID Card fraud, Driving license fraud etc. The database may help the Indian police to differentiate the criminals and non criminals.”25 Not only is this statement incorrect in stating that a DNA database will differentiate between criminals and non-criminals, but DNA evidence is not useful in stopping ration card fraud etc. as it would require that DNA be extracted and authenticated for every instance of service. In 2012, the Department of Forensic Medicine and Toxicology at AFMC Pune proposed to establish a DNA data bank containing profiles of armed forces personnel.26 And in Uttar Pradesh, the government ordered mandatory sampling for DNA fingerprinting of dead bodies.27 These examples raise important questions about the scope of use, collection and storage of DNA profiles in databases that the Bill is silent on.

The assumption in the Bill that DNA evidence is infallible is another point of contention. The preamble of the Bill states that, “DNA analysis of body substances is a powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead with any doubt.”28 This statement ignores the possibility of false matches, cross-contamination, and laboratory error29 as DNA evidence is only as infallible as the humans collecting, analysing, and marshalling the evidence. These mistakes are not purely speculative, as cases that have relied on DNA as evidence in India demonstrate that the reliability of DNA evidence is questionable due to collection, analysis, and chain of custody errors. For example, in the Aarushi murder case the forensic expert who testified failed to remember which samples were collected at the scene of the crime30; in the French diplomat rape case, the DNA report came out with both negative and positive results;31 and in the Abhishek rape case the DNA sample had to be reanalysed after initial analysis did not prove conclusive.32 Yet the Bill does not mandate a set of best practices that could help in minimising these errors, such as defining what profiling system will be used nationally, and defining specific security measures that must be taken by DNA laboratories – all of which are currently left to be determined by the DNA board.33

The assumption in the preamble that DNA can establish if a relationship exists between two individuals without a doubt is also misleading as it implies that the use of DNA samples and the creation of a database will increase the conviction rate, when in actuality the exact number of accurate convictions resulting purely from DNA evidence is unknown, as is the number of innocent people who are falsely accused of a crime based on DNA evidence in India. This misconception is reflected on the website of the Department of Biotechnology’s information page for CDFD where it states:

“…The DNA fingerprinting service, given the fact that it has been shown to bring about dramatic increase in the conviction rate, will continue to be in much demand. With the crime burden on the society increasing, more and more requests for DNA fingerprinting are naturally anticipated. For example, starting from just a few cases of DNA fingerprinting per month, CDFD is now handling similar number of cases every day.”34

In addition to the claim that the DNA fingerprinting service has shown a dramatic increase in the conviction rate, is not supported by evidence in this article, according to the CDFD 2010-2011 annual report, the centre analysed DNA from 57 cases of deceased persons, 40 maternity/paternity cases, four rape and murder cases, eight sexual assault cases, and three kidney transplantation cases.35 This is in comparison to the 2006 – 2007 annual report, which quoted 83 paternity/maternity dispute cases, 68 identification of deceased, 11 cases of sexual assault, eight cases of murder, and two cases of wildlife poaching.36 From the numbers quoted in the CDFD annual report, it appears that paternity/maternity cases and identification of the deceased are the most frequent types of cases using DNA evidence.

Other concerns with the Bill include access controls to the database and rights of the individual. For example, the Bill does not require that a court order be issued for access to a DNA profile, and instead leaves it in the hand of the DNA bank manager to determine if communication of information relating to a match to a court, tribunal, law enforcement agency, or DNA laboratory is appropriate37. Additionally, the Data Bank Manager is empowered to grant access to any information on the database to any person or class of persons that he/she considers appropriate for the purposes of proper operation and maintenance or for training purposes.38 The low standards for access that are found in the Bill are worrisome as the possibility for tampering of evidence and analysis is increased.

The Bill is also missing important provisions that would be necessary to protect the rights of the individual. For example, individuals are not permitted a private cause of action for the unlawful collection, use, or retention of DNA, and individuals do not have the right to access their own information stored on the database.39 These are significant gaps in the proposed legislation as it restricts the rights of the individual.

In conclusion, India could benefit from having a legislation regulating, standardising, and harmonising the use, collection, analysis, and retention of DNA samples for crime-related purposes. The current 2012 draft of the Bill is a step in the right direction, and an improvement from the 2007 DNA Profiling Bill. The 2012 draft draws upon best practices from the US and Canada, but could also benefit from drawing upon best practices from countries like Scotland. Safeguards missing from the current draft that would strengthen the Bill include: limiting the scope of the DNA database to include only samples from a crime scene for serious crimes and not minor offenses, requiring the destruction of DNA samples once a DNA profile is created, clearly defining when a court order is needed to collect DNA samples, defining when consent is required and is not required from the individual for a DNA sample to be taken, and ensuring that the individual has a right of appeal.

1 Law Commission of India. Review of the Indian Evidence Act 1872. Pg. 43 Available at:http://lawcommissionofindia.nic.in/reports/185thReport-PartII.pdf. Last accessed: October 9th 2012.

2 Section 53. The Criminal Code of Procedure, 1973. Available at:http://www.vakilno1.com/bareacts/crpc/s53.htm. Last accessed October 9th 2012.

3 Department of Biotechnology. Ministry of Science & Technology GOI. Annual Report 2009 – 2010. pg. 189. Available at: http://dbtindia.nic.in/annualreports/DBT-An-Re-2009-10.pdf. Last Accessed October 9th 2012.

4 Chhibber, M. Govt Crawling on DNA Profiling Bill, CBI urges it to hurry, cites China. The Indian Express. July 12 2010. Available at: http://www.indianexpress.com/news/govt-crawling-on-dna-profiling-bill-cbi-urges-it-to-hurry-cites-china/645247/0. Last accessed: October 9th 2012.

5 Perspective Plan for Indian Forensics. Final report 2010. Table 64.1 -64.3 pg. 264-267. Available at: http://mha.nic.in/pdfs/IFS%282010%29-FinalRpt.pdf. Last accessed: October 9th 2012. And CBI Manual. Chapter 27. Available at: http://mha.nic.in/pdfs/IFS%282010%29-FinalRpt.pdf. Last accessed: October 9th 2012.

6 For example: International Forensic Sciences, DNA Labs India (DLI), Truth Labs and Bio-Axis DNA Research Centre (P) Limited

7 Draft Human DNA Profiling Bill 2012. Introduction

8 Id. section 12(a-z)

9 Id. Definition l. “DNA Profile” means results of analysis of a DNA sample with respect to human identification.

10 Id. Definition m. “DNA sample” means biological specimen of any nature that is utilized to conduct CAN analysis, collected in such manner as specified in Part II of the Schedule.

11 The UK DNA database and the European Court of Human Rights: Lessons India can learn from UK mistakes. PowerPoint Presentation. Dr. Helen Wallace, Genewatch UK. September 2012.

12 Hope, C. Crimes solved by DNA evidence fall despite millions being added to database. The Telegraph. November 12th 2008. Available at: http://www.telegraph.co.uk/news/uknews/law-and-order/3418649/Crimes-solved-by-DNA-evidence-fall-despite-millions-being-added-to-database.html. Last accessed: October 9th 2012

13 Draft Human DNA Profiling Bill 2012. Section 32 (4(a-g))

14 Id. Section 35

15 Id. Schedule: List of applicable instances of Human DNA Profiling and Sources of Collection of Samples for DNA Test.

16 Gruber J. Forensic DNA Databases. Council for Responsible Genetics. September 2012. Powerpoint presentation

17 Draft Human DNA Profiling Bill 2012. Section 32 (5)-((6)(a)-(b)). Indices will only contain DNA identification records and analysis prepared by the laboratory and approved by the DNA Board, while profiles in the offenders index will contain only the identity of the person, and other profiles will contain only the case reference number.

18 Id. Section 39

19 Id. Section 40(c)

20 CDFD. Annual Report 2010-2011. Pg19. Available at:http://www.cdfd.org.in/images/AR_2010_11.pdf. Last accessed: October 9th 2012.

21 Caste and origin of state is a field of information that is required to be completed when an ‘identification form’ is sent to the CDFD along with a DNA sample for analysis. Form available at:http://www.cdfd.org.in/servicespages/dnafingerprinting.html

22 Report of the Working Group for the Eleventh Five Year Plan (2007 – 2012). October 2006. Pg. 152. Section: R&D Relating Services. Available at:http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_subdbt.pdf. Last accessed: October 9th 2012

23 Evans. M. Night Stalker: police blunders delayed arrest of Delroy Grant. March 24th 2011. The Telegraph. Available at: http://www.telegraph.co.uk/news/uknews/crime/8397585/Night-Stalker-police-blunders-delayed-arrest-of-Delroy-Grant.html. Last accessed: October 10th 2012.

24 Narayan, P. A prisoner DNA database: Tamil Nadu shows the way. May 17th 2012. Available at:http://timesofindia.indiatimes.com/india/A-prisoner-DNA-database-Tamil-Nadu-shows-the-way/iplarticleshow/5938522.cms. Last accessed: October 9th 2012.

25 BioAxis DNA Research Centre (P) Limited. Website Available at: http://www.dnares.in/dna-databank-database-of-india.php. Last accessed: October 10th 2012.

26Times of India. AFMC to open DNA profiling centre today. February 2012. Available at:http://articles.timesofindia.indiatimes.com/2012-02-08/pune/31037108_1_dna-profile-dna-fingerprinting-data-bank. Last accessed: October 10th 2012.

27Siddiqui, P. UP makes DNA sampling mandatory with postmortem. Times of India. September 4th 2012. Available at:http://articles.timesofindia.indiatimes.com/2012-09-04/lucknow/33581061_1_dead-bodies-postmortem-house-postmortem-report. Last accessed: October 10th 2012.

28 Draft DNA Human Profiling Bill 2012. Introduction

29 Council for Responsible Genetics. Overview and Concerns Regarding the Indian Draft DNA Profiling Bill. September 2012. Pg. 2. Available at: http://cis-india.org/internet-governance/indian-draft-dna-profiling-act.pdf/view. Last accessed: October 9th 2012.

30 DNA. Aarushi case: Expert forgets samples collected from murder spot. August 28th 2012. Available at: http://www.dnaindia.com/india/report_aarushi-case-expert-forgets-samples-collected-from-murder-spot_1733957. Last accessed: October 10th 2012.

31 India Today. Daughter rape case: French diplomat’s DNA test is inconclusive. July 7th 2012. Available at: http://indiatoday.intoday.in/story/french-diplomat-father-rapes-daughter-dna-test-bangalore/1/204270.html. Last accessed: October 10th 2012.

32 The Times of India. DNA tests indicate Abhishek raped woman. May 30th 2006. Available at:http://articles.timesofindia.indiatimes.com/2006-05-30/india/27826225_1_abhishek-kasliwal-dna-fingerprinting-dna-tests. Last accessed: October 10th 2012.

33 Draft Human DNA Profiling Bill 2012. Section 18-27.

34 Department of Biotechnology. DNA Fingerprinting & Diagnostics, Hyderabad. Available at:http://dbtindia.nic.in/uniquepage.asp?id_pk=124. Last accessed: October 10 2012.

35 CDFD Annual Report 2010 – 2011.Pg.19. Available at:http://www.cdfd.org.in/images/AR_2010_11.pdf. Last accessed: October 10th 2012.

36 CDFD Annual Report 2006-2007.Pg. 13. Available at:http://www.cdfd.org.in/images/AR_2006_07.pdf. Last accessed: October 10th 2012.

37 Draft Human DNA Profiling Bill 2012. Section 35

38 Id. Section 41.

39 Council for Responsible Genetics. Overview and Concerns Regarding the Indian Draft DNA Profiling Bill. September 2012. Pg. 9 Available at: http://cis-india.org/internet-governance/indian-draft-dna-profiling-act.pdf/view. Last accessed: October 9th 2012.

 

#India-WHIPLASH: Capital punishment as a joke #deathpenalty


By ABHISHEK BHALLA

PUBLISHED: 21:41 GMT, 25 October 2012 | , MailonlineIndia

    • The home ministry’s decision to recommend to the President that Mumbai attacker Kasab‘s mercy petition be rejected will fool a few into believing that the mass killer will be executed soon.

But, as our poor death row record shows, they are going to be disappointed. In fact, those who bat against the noose on moral grounds don’t need to take recourse to such principles. As far as India is concerned, there is a much more convincing reason why it ought to be abolished: This is a provision of law that is almost always observed in the breach.

The death sentence may be handed out in the rarest of rare cases, but even then our law enforcers have regularly failed to go the final mile. You only need to look at statistics. The last death sentence was carried out in Alipore jail in Kolkata way back in 2004 when Dhananjoy Chatterjee was hanged to death for raping and killing a 14 year old girl.

Will Mohammed Qasab be the first person to receive the death penalty since 2004? Will Mohammed Qasab be the first person to receive the death penalty since 2004?

These delays are not difficult to explain. For, after the Supreme Court awards the death penalty, begins a complex procedure for seeking the President’s clemency. And this is the point where the provisions turn ambiguous – and open to crass politics.

What else can explain the Tamil Nadu assembly passing a unanimous resolution last year urging the President to review his stand after the mercy petition of Rajiv Gandhi’s killers was dismissed?

A similar attempt was made in the Jammu and Kashmir assembly to get the case of parliament attack convict Afzal Guru reconsidered. This makes it almost certain that Kasab’s death sentence will also be put on hold.

Incidentally, the Mumbai attacker has become the 309th convict to be placed on death row. This track record suggests that it would make sense to do away with the death penalty altogether, if only to spare the law a good deal of embarrassment.

# India – Dr Sunilam Farmer Leader Reaps Bitter Harvest #Madhyapradesh #fabricated


Social activist Sunil Mishra, who dared to fight for farmers’ rights in MP, gets lifer in a rioting case dating back to 1998. Prakhar Jainreports

Fabricated lies? Sunil Mishra, the founder-president of Kisan Sangharsh Samiti, was charged with murdering a fire engine driver and assaulting police officers in 1998

Photo: AFP

DAYS AFTER he spoke about State-led persecution of social activists at a public hearing on fabricated cases in Delhi, Sunil Mishra was sentenced to life imprisonment on 18 October by a local court in Betul district, Madhya Pradesh. He was found guilty in three of the 66 false cases filed against him in 1998.

Mishra, a noted social activist and founder-president of Kisan Sangharsh Samiti (KSS), has been charged with murdering a fire engine driver, attacking a police officer with the intent to take his life and setting an inspector on fire during the 1998 farmer’s agitation in Betul district.

On 8 January 1998, the KSS had organised a rally of nearly 75,000 farmers in Multai town of the district demanding compensation for crops destroyed in the winter.

Buckling under pressure, the district authorities announced a compensation of 400 per acre. However, this failed to satisfy the farmers and they decided to intensify their protest. On 12 January, more than 10,000 people laid siege to the Multai tehsil office. The police opened fire, killing 24 farmers and injuring 115 others.

Following the incident the Digvijaya Singh-led Congress government filed a series of false cases against Mishra. He was arrested and tortured for three days, ahead of being produced before the magistrate. He was later imprisoned for three months, before being granted bail on 27 March 1998. Of the 66 cases registered against him, most were withdrawn later. However, he continued to face prosecution in 16 cases.

The state government later ordered a judicial inquiry into the firing. The report is yet to be made public. Activists say requests made under the Right to Information Act have revealed that it is untraceable.

The same year, Mishra fought the Assembly election from Multai as the “people’s representative” and won by a margin of over 50 percent.

It did not take long before Mishra became an eyesore for both the ruling and the Opposition party and he has faced the consequences of raising his voice.

The kind of storm he has been able to generate can be understood by the fact that there have been eight attempts to take his life and he has been arrested more than 125 times with over 130 cases filed against him.

Following his latest arrest on 18 October, Mishra, in an open letter, has denied all the charges levelled against him.

“The judgment does not even record the cross-examination done by us. It is disappointing. We are going to appeal against it in the Jabalpur High Court,” says his lawyer Anuradha Bhargava.

Mishra’s conviction has taken the activist fraternity by surprise. Gautam Bandopadyaya, a water rights activist from Chhattisgarh, who has followed Mishra’s work for over three decades, says he is being persecuted for playing the role of an active opposition when political parties have turned a blind eye to the plight of farmers.

“For years, he has taken the issues of the streets to the Legislative Assembly and now false charges are being used to stop him from contesting next year’s election. We will reply to this politically by taking these issues to the people,” says Bandopadyaya.

‘What happened with Binayak Sen is being repeated with Sunilam,’ says Medha Patkar

THAT MISHRA, popularly known as Sunilam, still enjoys considerable support on the ground was evident by the fact that when the judgment was pronounced, the town of Multai suspended all business in protest.

The National Alliance for People’s Movements, an umbrella organisation of several NGOs, has strongly condemned Mishra’s conviction, saying, “This is nothing but a travesty of justice, since those who need to be punished are serving in the police force and have been promoted since then, while those who were struggling for the rights of farmers have been sentenced after 14 years.”

A strongly-worded protest note signed by activists such as Medha Patkar and Prafulla Samantra says, “The wrong sentence given to Sunilam is one thing, but one is left to wonder when the 24 farmers (who were killed) and their families get justice?”

“What happened with Binayak Sen is being repeated with Sunilam,” says Patkar. “He is a non-violent social activist and is being targeted because of his protest against some of the corporate projects. There are loopholes in the judicial process too and the higher judiciary would be approached for relief.”

Prakhar Jain is a Correspondent with Tehelka.
prakhar@tehelka.com

 

#India# Jharkhand # Tribalrights – Dayamani Barla:Gagged Again!


Gagged again!

Minutes after getting bail, tribal activist Dayamani Barla returns to life behind bars. Soumik Mukherjee reports

DAYAMANI BARLA, who was arrested earlier last week (State Ploy to Silence a Dissenting Voice?, 27 October), was rearrested in connection with the same case by the Jharkhand Police minutes after she was granted a judicial bail by a local court on 19 October. Barla’s arrest proves how a dissenting voice is shown little regard by the system, and how a state meant for tribals is safeguarding the interests of all, but tribals.

The police was acting on a separate FIR filed against Barla in 2006 in connection with the case that saw her arrest last week. Both the FIRs were filed after she led a protest outside a Block Development Officer’s office in Ranchi, demanding fair distribution of MGNREGS job cards. Interestingly, while the first FIR mentioned her name, the second FIR, on the basis of which she was rearrested, does not mention it; she was included under the ‘Others’ list.

In January, police questioned Barla for alleged Maoist links after she attended a conference in Ranchi where Binayak Sen and Telugu poet Varavara Rao had demanded the release of political activist Jiten Marandi. Barla’s colleagues term the latest arrest as “a shameless act” by the state authorities. Ranchi SSP Saket Kumar Singh refused to comment on the matter, saying: “Write whatever you want to. What difference will it make anyway?”

Barla has been at the forefront of land rights agitation in Jharkhand and one of the principal voices against State-sponsored atrocities against tribals. It is largely thanks to her efforts that steel companies such as Arcelor-Mittal were forced to stop acquiring large swathes of tribal forestland in Jharkhand.

Since land in Jharkhand is protected under the Chotanagpur Tenancy Act, 1908 and as most areas in the state come under the Fifth Schedule of the Constitution, farmland cannot be used for industrial purposes. But the government has been giving out farmland for industrial and urbanisation projects. Barla has ceaselessly stood up against these projects, constantly drawing the government’s ire.

At TEHELKA’s THiNK fest last year, Barla had drawn attention to the plight of the farmers and tribals in Jharkhand. Ironic that within a year of her rousing speech that was greeted with a standing ovation, this crusader finds herself all alone in her fight against the State’s excesses.

Soumik Mukherjee is a Correspondent with Tehelka.
soumik@tehelka.com