#Deathpenalty cannot be fairly implemented in the US. Is India different?



Martha C. NussbaumThe Indian Express
28 February 2013

The execution of Afzal Guru on February 9 reopened the question of India’s continuing attachment to capital punishment. Like relatively few large industrial democracies, India and the US continue to practise and defend the death penalty. Both recently voted against a UN General Assembly resolution calling for a moratorium on executions with a view to abolition.

 

The two nations are very different in their practices. India has nearly 500 prisoners on death row, but only four have been executed since 1995. In the US, 43 people were executed in 2012 alone. Capital punishment in the US is a state matter, because the federal government chooses not to use it. However, the number of states in which it is still legal is gradually diminishing, with only nine out of 50 still practising it. My own state, Illinois, abolished the death penalty in 2011.

 

Attitudes in the US are changing, but not, on the whole, because of inherent objections to the death penalty. Instead, there is a growing conviction, shared by supporters and opponents, that it cannot be justly implemented. For a long time, it has been evident that the penalty in practice has been biased on grounds of class and race. People able to pay for high-powered lawyers almost never get it, and there is evidence that juries at the sentencing phase are apt to tilt towards people who look more like the majority. Bias is probably present in other criminal penalties as well, especially where juries are used, but the irrevocability of capital punishment makes people attend to it more. When the US Supreme Court briefly invalidated the death penalty in 1972, citing these grounds, states hastened to adopt rule-governed procedures that applied the death penalty without discretion to certain classes of murders defined in advance — only to be told by the Supreme Court in 1976 that criminal defendants facing death have a constitutional right to present their individualised histories at the penalty phase, pleading for mercy. If only a rule-bound death penalty can avoid the problem of bias, and if rule-bound penalties are unacceptable for other reasons, one might conclude that the death penalty cannot be fairly implemented, and this is what I believe. But that conclusion was not drawn by the Supreme Court, so at that level the matter remains open.

More recently, the Supreme Court has held that execution of juveniles and people with severe mental retardation violates the US constitution‘s prohibition of “cruel and unusual punishment”.

 

The recent reaction against the death penalty, however, has other sources, again focused on implementation, but with new information driving the protest. DNA evidence has shown a high level of wrongful convictions in crimes across the board, including some capital crimes, where error, of course, is irremediable. Eyewitness testimony has been shown to be extremely unreliable. Prosecutorial discretion — about when to try a case rather than arranging a plea bargain, and concerning when to ask for the death penalty — has emerged as a frequent source of bias. And — especially pertinent to recent reversals of opinion — confessions have been shown to be highly unreliable, particularly when not videotaped. Police exhaust and mislead defendants until they confess falsely. It was this set of concerns that caused Illinois governor George Ryan to order a moratorium on the death penalty; some years later, our current governor, who insists that in theory he supports it, nonetheless signed the law banning it.

The death penalty, in short, cannot be fairly implemented in the US. We do not need to reach the knotty issue of theoretical justification to conclude that it should be abolished. Is India different? The sparing use of the penalty does, to some extent, undercut the objection of racial and class bias, and the problems of evidence might possibly be surmounted if it is considered only in a small number of cases where all the evidence has been sifted with unusual care. Police conduct might be intensely scrutinised by videotaping all interrogations, although at present that is not the case. Indeed, the police are more often part of the problem, and we might ask whether “encounter killings” are not a de facto form of capital punishment — possibly very biased in implementation. For India, we probably should at least ponder the standard theoretical pros and cons before drawing firm conclusions.

The most common justification for the death penalty is its potential for deterrence. The deterrent effect, however, has not been proved. In the US, it is possible to study the question, since states otherwise demographically similar have adopted different policies — and yet there is no conclusive evidence that the death penalty deters. For India, we should certainly reject deterrence as a rationale, since the types of killers who have been executed in recent years (serial killers and terrorist/political killers) are especially unlikely to be deterred. The latter may even seek martyrdom, as did Nathuram Godse, when he asked for the death penalty in order to show that Gandhi’s non-violence was “being hanged”.

 

If the death penalty doesn’t deter, should we still retain it because people favour it? We must then turn to the primary rationale for banning the death penalty offered by the UN resolution: it “undermines human dignity”. Appeals to human dignity are evocative, yet notoriously slippery. The notion of dignity has little clear content except when used in connection with a family of other concepts and principles. All too often, however, whether in bioethics or in law, people use this resonant term to bring debate to a halt, rather than to pursue the inquiry further. In the case of the death penalty, the need for a fuller argument is all the more urgent when we recollect that Immanuel Kant, a primary defender of the idea that the human being must always be treated as an end and not a mere means — probably the best general articulation of the notion of dignity — wrote that the death penalty is not only permitted but actually required by the respect we owe human dignity. Kant was wrong about many concrete ethical conclusions, but his views should prompt us to search for a fuller account.

 

I see no inherent reason why the death penalty must always violate human dignity, though I am ready to be persuaded. Certainly in both India and the US, prison conditions can often be far more degrading than a painless execution. For me, the telling point against the death penalty (apart from the concerns over implementation that I have raised) is that it encourages vindictive passions and in effect, enacts a type of mob justice. A system of justice should be above revenge; it should express a calm and balanced attitude towards wrongdoing. It is difficult for me to believe that the death penalty can ever express the virtues we rightly associate with the rule of law.

 

This theoretical debate is not over, and should continue. What is crystal clear, however, is that problems of fair implementation render the death penalty utterly unacceptable in today’s United States, and, very likely though not surely, in today’s India as well.

 

 

The writer is a professor of law and ethics at the University of Chicago and author of ‘The Clash Within: Democracy, Religious Violence and India’s Future’, express@expressindian.com

 

India 262 pending rape cases caught in DNA tangle in A.P #Vaw #Justice


By , TNN | Jan 11, 2013, 06.44 AM IST

HYDERABAD: The distraught family of Nirbhaya can hope for early justice with the Delhi High Court fast-tracking investigation in the December 16 incident, but the 23-year-old rape victim’s case is clearly a rarity.

Back home in Andhra Pradesh, the kin of at least 262 such women are awaiting justice since 2011 with all these cases caught up at the DNA testing stage. Interestingly, AP is home to a good half a dozen forensic laboratories, with Hyderabad being one of the three cities in India to house a Central Forensic Science Laboratory (CFSL).

Despite the numbers, the disposal rate of rape cases in AP is abysmally low.

One of the primary reasons for this ‘poor show’ is the jurisdictional restriction on DNA labs, rue experts. Much like in the case of police stations, these centres too are bound by ‘borders.’ For instance, as per the existing law, all rape cases filed with the police anywhere in the state are customarily forwarded to the Andhra Pradesh Forensic Science Laboratory (APFSL) in the city. The centre would be clearing files it had received in the year 2010 this year.

While the government-run CFSL is just a few kilometers away, the centre has a mandate to handle only cases pertaining to another state or Union territory. Rapes reported from within AP are incidentally out of its jurisdiction. “This indeed is a hindrance. There should be a unified system of handling rape case samples wherein any lab can run DNA tests to speed up investigation. In case of high pendency at APFSL, the CFSL should be brought in to share the burden,” said Dr G V Rao, a DNA analyst.

He also suggested the strengthening of the regional forensic laboratories that are currently ill-equipped and poorly-staffed. Among other districts, AP has one lab each in Vijayawada and Visakhapatnam. “It is for the government to take appropriate measures to revamp these centres to speed up the process of DNA tests,” reiterated Venugopal Venkatamuni, deputy director of CFSL.

The Centre for DNA Fingerprinting and Diagnostics (CDFD), set up well over a decade ago to ease the burden on APFSL, too has failed to live up to expectations, say experts. While the centre does step in to assist the police with DNA tests, it is only an occasional affair. “The CDFD is unfortunately not doing what it is supposed to do. It lays more emphasis on research as against on routine cases these days,” said eminent scientist P M Bhargava, who is also the founder director of the Centre for Cellular and Molecular Biology (CCMB).

While CCMB, at one point, figured on the list of centres used by the police for DNA testing, its services are no longer sought. “It was an expensive affair. So, the tests were restricted to APFSL,” said a senior police official.

The possibility of roping in private laboratories like the city-based Truth Labs, especially in sensitive cases such as rape, too was highlighted by experts. “But increasing the network of labs in not the only solution,” confessed Dr Gandhi P C Kaza, founder chairman of the centre stressing on the need for increased accountability. “If there is a will among investigators, at least 90% of all rape cases can be resolved within a set time-frame,” he said.

 

America’s Retreat From the #DeathPenalty


Published: January 1, 2013 , NY times

When the Supreme Court reinstated the death penalty in 1976, it said there were two social purposes for imposing capital punishment for the most egregious crimes: deterrence and retribution. In recent months, these justifications for a cruel and uncivilized punishment have been seriously undermined by a growing group of judges, prosecutors, scholars and others involved in criminal justice, conservatives and liberals alike.

A distinguished committee of scholars convened by the National Research Council found that there is no useful evidence to determine if the death penalty deters serious crimes. Many first-rate scholars have tried to prove the theory of deterrence, but that research “is not informative about whether capital punishment increases, decreases, or has no effect on homicide rates,” the committee said.

A host of other respected experts have also concluded that life imprisonment is a far more practical form of retribution, because the death penalty process is too expensive, too time-consuming and unfairly applied.

The punishment is supposed to be reserved for the very worst criminals, but dozens of studies in state after state have shown that the process for deciding who should be sent to death row is arbitrary and discriminatory.

Thanks to the Innocence Project and the overturning of 18 wrongful convictions of death-row inmates with DNA evidence and the exonerations of 16 others charged with capital crimes, the American public is increasingly aware that the system makes terrible mistakes. Since 1973, a total of 142 people have been freed from death row after being exonerated with DNA or other kinds of evidence.

All of these factors have led the states to retreat from the death penalty in recent years — in both law and in practice. In 2012, Connecticut became the fifth state in five years to abolish the penalty. Nine states executed inmates, the fewest in two decades. Three-fourths of the 43 executions in 2012 were carried out in only four states. The number of new death sentences remained low at 77 — about one-third the number in 2000 — with just four states accounting for almost two-thirds of those sentences. While 33 states retain the death penalty on their books, 13 of them have not executed anyone for at least five years.

Those 13 states plus the 17 without the penalty means that 30 states are not carrying it out — and that includes California, which retained the death penalty in a November referendum vote. Almost one-quarter of the 3,146 death row inmates in the United States, as of October, are imprisoned in California, but that state has not executed anyone in seven years.

California’s chief justice said recently that the state’s official moratorium, which has been in place for six years, is likely to continue for at least three more because of problems with the execution method.

In January, executions are scheduled to take place in Pennsylvania, Virginia and Texas. As it happens, major reviews of the death penalty are under way in each of those states. The reviews are very likely to find that those states have failed to meet standards of fairness under the Constitution, just as reviews of the capital systems in other states have concluded in the last decade.

The large number of states no longer carrying out executions indicates a kind of national consensus. It points to “the evolving standards of decency that mark the progress of a maturing society,” an idea that the Supreme Court has evoked in judging the constitutionality of punishments. The court used that analysis most recently when it ruled that mandatory life sentences without possibility of parole are unconstitutional for juvenile offenders even if they are convicted of homicide.

It should similarly recognize that under evolving standards capital punishment is cruel and unusual and should be abolished.

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- Justice AP Shah expert Groups Report on #Privacy #Planning Commission #mustread


pic ocurtsey – The Hindu

With the initiation of national programmes like Unique Identification number,  (UID)
NATGRID, CCTNS, RSYB, DNA profiling, Reproductive Rights of Women, Privileged
communications and brain mapping, most of which will be implemented through ICT
platforms, and increased collection of citizen information by the government, concerns
have emerged on their impact on the privacy of persons. Information is, for instance,
beginning to be collected on a regular basis through statutory requirements and through egovernance projects. This information ranges from data related to: health, travel, taxes,
religion, education, financial status, employment, disability, living situation, welfare
status, citizenship status, marriage status, crime record etc. At the moment there is no
overarching policy speaking to the collection of information by the government. This has
led to ambiguity over who is allowed to collect data, what data can be collected, what are
the rights of the individual, and how the right to privacy will be protected The extent of
personal information being held by various service providers, and especially the enhanced
potential for convergence that digitization carries with it is a matter that raises issues
about privacy.
II. Global data flows, today, are no longer the result of a file transfer that was
initiated by an individual’s action for point-to-point transfer over 30 years ago. As soon
as a transaction is initiated on the Internet, multiple data flows take place simultaneously,
via phenomena such as web 2.0, online social networking, search engine, and cloud
computing. This has led to ubiquity of data transfers over the Internet, and enhanced
economic importance of data processing, with direct involvement of individuals in transborder data flows

. While this is exposing individuals to more privacy risks, it is also challenging businesses which are collecting the data directly entered by users, or through
their actions without their knowledge, – e.g. web surfing, e-banking or e-commerce – and
correlating the same through more advanced analytic tools to generate economic value
out of data. The latter are accountable for data collection and its use, since data has
become one of the drivers of the knowledge based society which is becoming even more
critical to business than capital and labor. The private sector on the other hand, uses
personal data to create new demands and build relationships for generating revenue from
their services. The individuals are putting out their data on the web in return for useful
services at almost no cost. But in this changed paradigm, private sector and the civil
society have to build legal regimes and practices which are transparent and which inspire
trust among individuals, and enhance their ability to control access to their data, even as
economic value is generated out of such data collection and processing for all players. In
order to understand these concerns and identify interventions for effectively addressing
these issues, a brainstorming session on privacy-related issues was held in the Planning
Commission under the chairmanship of Justice A P Shah, former Chief Justice of Delhi
High Court. The meeting was presided over by Dr. Ashwani Kumar, MOS (Planning,
S&T and MoES) and attended by representatives from industry, civil society NGOs,
voluntary organizations and government departments.
III. During the meeting it was decided to constitute a small Group of Experts to
identify key privacy issues and prepare a paper to facilitate authoring of the Privacy bill
while keeping in view the international landscape of privacy laws, global data flows and
predominant privacy concerns with rapid technological advancements. Accordingly a
Group of Experts was constituted under the chairpersonship of Justice A P Shah. The 4
constitution and the terms of reference of the group is at Annex 1. The Group held several
meetings to understand global privacy developments and challenges and to discuss
privacy concerns relevant to India. The Group was divided into two sub-groups – one for
reviewing privacy regimes around the world with a view to understand prevalent best
practices relating to privacy regulation and the other for reviewing existing legislation and
bills to identify prevalent privacy concerns in India. However, the committee did not
“make an in-depth analysis of various programs being implemented by GOI from the
point of view of their impact on privacy.” This report, which is a result of the work of
both sub-groups, proposes a detailed framework that serves as the conceptual foundation
for the Privacy Act for India.
IV. This report proposes five salient features of such a framework:
1. Technological Neutrality and Interoperability with International Standards:

The
Group agreed that any proposed framework for privacy legislation must be
technologically neutral and interoperable with international standards. Specifically,
the Privacy Act should not make any reference to specific technologies and must be
generic enough such that the principles and enforcement mechanisms remain
adaptable to changes in society, the marketplace, technology, and the government. To
do this it is important to closely harmonise the right to privacy with multiple
international regimes, create trust and facilitate co-operation between national and
international stakeholders and provide equal and adequate levels of protection to data
processed inside India as well as outside it. In doing so, the framework should
recognise that data has economic value, and that global data flows generate value for
the individual as data creator, and for businesses that collect and process such data.
Thus, one of the focuses of the framework should be on inspiring the trust of global
clients and their end users, without compromising the interests of domestic customers
in enhancing their privacy protection.
2. Multi-Dimensional Privacy:

This report recognises the right to privacy in its
multiple dimensions. A framework on the right to privacy in India must include
privacy-related concerns around data protection on the internet and challenges
emerging therefrom, appropriate protection from unauthorised interception, audio and
video surveillance, use of personal identifiers, bodily privacy including DNA as well
as physical privacy, which are crucial in establishing a national ethos for privacy
protection, though the specific forms such protection will take must remain flexible to
address new and emerging concerns.
3. Horizontal Applicability:

The Group agreed that any proposed privacy legislation
must apply both to the government as well as to the private sector. Given that the
international trend is towards a set of unified norms governing both the private and
public sector, and both sectors process large amounts of data in India, it is imperative
to bring both within the purview of the proposed legislation.
4. Conformity with Privacy Principles:

This report recommends nine fundamental
Privacy Principles to form the bedrock of the proposed Privacy Act in India. These
principles, drawn from best practices internationally, and adapted suitably to an Indian
context, are intended to provide the baseline level of privacy protection to all
individual data subjects. The fundamental philosophy underlining the principles is the
need to hold the data controller accountable for the collection, processing and use to
which the data is put thereby ensuring that the privacy of the data subject is
guaranteed.
5. Co-Regulatory Enforcement Regime: This report recommends the establishment of
the office of the Privacy Commissioner, both at the central and regional levels. The
Privacy Commissioners shall be the primary authority for enforcement of the
provisions of the Act. However, rather than prescribe a pure top-down approach to
enforcement, this report recommends a system of co-regulation, with equal emphasis
on Self-Regulating Organisations (SROs) being vested with the responsibility of
autonomously ensuring compliance with the Act, subject to regular oversight by the
Privacy Commissioners. The SROs, apart from possessing industry-specific
knowledge, will also be better placed to create awareness about the right to privacy
and explaining the sensitivities of privacy protection both within industry as well as to
the public in respective sectors. This recommendation of a co-regulatory regime will
not derogate from the powers of courts which will be available as a forum of last
resort in case of persistent and unresolved violations of the Privacy Act.

DOWNLOAD FULL REPORT HERE

 

#India- Bill to create bank for DNA profiling of accused coming #Privacy


Access to data only for victim’s or suspect’s relatives
21 October 2012 , By Aarti Dhar, The Hindu

A Bill to create a DNA data centre to profile people accused of serious crimes and unknown deceased is in the works. The proposal was originally mooted in 2007 but was dropped to factor in ethical, moral and legal issues on the sensitive matter.

Crafted by the Department of Biotechnology, it allows Deoxyribose Nucleic Acid (DNA) profiling for cases of culpable homicide, murder, death by negligence, miscarriage, dowry deaths, causing death of new born child, sexual assault, unnatural offences, outraging the modesty of a woman, co-habitation with a woman by deceit, adultery, enticing a married woman with criminal intent, among others.

Protecting privacy

Addressing issues related to protecting privacy of individuals, the draft Bill envisages that access to the information in the National DNA Data Bank will be restricted to those related to the victim or suspect; any individual undergoing a sentence of imprisonment or death sentence can apply to the court which convicted him, for an order of DNA testing of specific evidence under specific conditions.

The Human DNA Profiling Bill seeks to establish a DNA Profiling Board that will lay down the standards for laboratories, collection of human body substances and custody trail from collection to reporting. It also has a provision for setting up a National DNA Data Bank.

The DNA analysis of body substances that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and to establish the biological relationship, if any, between two individuals.

The “forensic material” from which the DNA sample can be lifted is biological material from the body and represents intimate body samples. They include blood, semen, or any other tissue fluid.

DNA Profiling Board

As envisaged in the Bill, the DNA Profiling Board at the national level, with similar structures at the State level, will be headed by a renowned molecular biologist with the other members being from police, legal, biological and related fields.

It will deliberate and advise on all ethical and human rights issues emanating out of DNA profiling in consonance with the United Nations vis-à-vis the rights and privacy of citizens, civil liberties and issues having ethical and other social implications.

The Board will make recommendations on the use and dissemination of DNA information, ensure the accuracy, security and confidentiality of DNA and guidelines destruction of obsolete, expunged or inaccurate information.

Jail, fine for data misuse

It will also will lay down standards and procedures for establishment and functioning of DNA laboratories and Data Banks and prepare guidelines for storage of biological substances and their destruction. Any misuse of DNA data will attract imprisonment up to three years and monetary fine.

The working draft of the Bill has been sent to the Centre for Internet and Society for analysis and comments. The Citizens Forum for Civil Liberties has already opposed the proposed legislation and sought pre-emptive intervention to stop “dangerous” erosion of privacy by DNA profiling of citizens.

In a representation submitted to the National Human Rights Commission, the Forum has said DNA profiling is “undesirable, particularly as forensic DNA developments are intertwined with significant changes in legislation and contentious issues of privacy, civil liberty and social justice.”

The Forum has sought “immediate intervention to safeguard citizens’ privacy and their civil liberties, which face an unprecedented onslaught from the provisions of the DNA Profiling Bill and other related surveillance measures being bulldozed by unregulated and ungovernable technology.”

 

 

 

Press Release-DNA profiling Bill does not address the rights of suspects and prisoners


 

The use of DNA samples for forensics purposes has been increasing as law enforcement in India are relying on DNA samples as a source of evidence to solve crimes. India currently does not have a legislation specifically regulating the collection, use, and storage of DNA samples for forensics purposes.

To address this gap, in 2007 a draft DNA Profiling Bill was created by the Centre for DNA Fingerprinting and Diagnostics. In February 2012 a new draft of the bill from the department of biotechnology was been leaked. The draft Bill envisions creating state level DNA databases that will feed into a national level DNA database for the purposes of solving crime.

On September 27th the Centre for Internet and Society hosted a public talk at the Indian International Centre focused on the draft DNA Profiling Bill. Presenting at the meeting were international experts Dr. Helen Wallace director of GeneWatch UK and Jeremy Gruber president and executive director of the Council for Responsible Genetics US, and Dr. Anupuma Raina senior scientist at AIIMs.

Opening the meeting was a presentation by Dr. Anupama that focused on how DNA analysis has been used in various cases in India. Dr. Anupama emphasized the important role that DNA plays and the usefulness of the technology, but also cautioned that the police are still perfecting the use of DNA samples for forensic purposes. She promoted the passing of the DNA profiling bill with the correct safeguards. Dr. Anupama also provided insight into the current procedure for DNA analysis in India noting that consent is taken from individuals before taking DNA samples, and that ethical clearance is taken before DNA samples are taken and used for research purposes. She also noted that labs are working on improving quality insurance and emphasized the importance of chain of custody in ensuring that DNA samples are not contaminated.

Following Dr. Anupama, Jeremy Gruber spoke about the US experience with DNA databases and explained how DNA testing was initially introduced as a tool for establishing additional evidence for convicting violent felony offenders or freeing innocent individuals on a case to case basis. He explained how the technology of DNA sampling and its use in forensic cases can be both a useful tool when used justly and democratically, or can be harmful when used unjustly and undemocratically.

He noted that there has been an increase in the routine use and retention of DNA by law enforcement today for purposes such as using DNA databases for familial searching purposes, and using DNA analysis to create profiles of individuals. Concerns that Jeremy Gruber raised with respect to the draft DNA Profiling Bill included the assumption in the preamble of the bill that DNA is an infallible piece of evidence, pointing out that when DNA is used for forensic purposes it is vulnerable to inaccuracies such as false matches, sample contamination, and analysis error.

He also made the point that the definitions found in the bill are overly broad and work to expand the scope by defining a wide range of crimes for which individuals will be added to the DNA database for. These broad definitions essentially turn the database into an all crimes database. Other concerns with the bill included that DNA laboratories are not clearly independent of the police, and that the bill allows for the additional collection of DNA from missing persons and victims.

In her presentation, Dr. Helen Wallace described the UK experience, where the first DNA database was established in 1995. In 2000 a major expansion of the UK DNA database took place, but was controversial for a number of reasons. In 2008 the European Court of Justice ruled that the regime of retaining DNA samples in the UK was unlawful and a breach of privacy. Now the UK law requires that only a barcode with identifying information be stored. Dr. Wallace also emphasized the fact that the number of convictions resulting from DNA detections has not increased as the UK DNA database has expanded, because the number of solved crimes is driven by the number of crime scene samples.

Thus, samples on a database are only useful if they relate directly to the crime scene and a possible criminal. Therefore the more profiles that are added to the database that are related to petty crimes, civil cases, victims, volunteers etc. the less efficient and accurate the database becomes. Dr. Wallace recommended that a DNA database contain only careful crime scene evidence in order to ensure samples are matched accurately. Concerns with the DNA profiling Bill emphasized by Dr. Wallace included that consent is not provided for in the bill, and court orders are not required. Furthermore, the bill does contain a removal process, and it is unclear what DNA profiling system will be used.

Responding to the presentations made by the speakers, members of the audience raised concerns over the use of DNA sampling in India for reasons beyond forensic purposes, such as requiring surrogate mothers and the children to undergo DNA tests. Other members of the audience pointed out that the bill does not address the rights of suspects and prisoners. Additionally the question of the evidentiary weight of DNA samples in court was raised, along with the concern that the broad collection of DNA samples from individuals is just another example of the growing trend by the Indian government to collect and store information about its citizens.

for more informationcontact

Elonnai Hickok

Policy Associate
Centre for Internet and Society
T: +91 80 40926283 | W: http://cis-india.org

Dalit youth, victim of honour killing


He was invited by his girlfriend’s maternal uncle and done to death.

S.VIJAY KUMAR, The Hindu

In yet another case of suspected honour killing, the Tirunelveli district police on Friday arrested four persons on charges of murdering a Dalit youth who fell in love with a caste Hindu girl.

According to police sources, S. Elango (25) of Periyar Nagar in Erode was invited for a discussion by his girlfriend’s maternal uncle and his former employer Saravanan. When he went to see him in a village near Munnirpallam on August 5, 2011, Saravanan and his associates took Elango to an isolated place and murdered him. The body was thrown into a pond.

Since the victim could not be identified, police disposed of the body after preserving the skull. Elango’s family did not lodge a police complaint since they were under the impression that he had gone to seek his fortunes in the film industry, which was his long-cherished dream.

Deputy Inspector General of Police (Tirunelveli Range) V. Varadaraju said a special team formed to re-investigate the case followed specific clues and apprehended Saravanan and his associates Maharajan, Isakki Pandian and Kannan. The accused confessed to having murdered Elango.

“The body was identified by Elango’s brother last week. We will also go for DNA profiling for scientific confirmation. Though the youth was missing for about six months, his parents did not lodge a complaint with the police,” he said.

Giving details of the case, Mr. Varadaraju said Elango was employed in a grocery owned by Saravanan in Tirupur. When Saravanan’s niece P. Selvalakshmi (18) came to the shop on a few occasions, Elango befriended her and the two fell in love.

In a bid to end their relationship, Saravanan closed the shop and returned to his native village U. Pandiapuram in Tirunelveli district along with his family. However, Elango remained in constant touch with the girl. Enraged over this, Saravanan invited Elango to a place near Munnirpallam for talks and took the help of his relatives to murder him.

“Initially, it was a case of suspicious death. We have altered it to murder…the accused persons will also be booked under the provisions of the SC/ST (Prevention of Atrocities) Act, 1989,” he said, adding that the four were produced in a local court and remanded in judicial custody.

A. Kathir, Executive Director of ‘Evidence,’ a human rights organisation, expressed concern over the increasing number of honour killings in Tamil Nadu. He sought suitable compensation to Elango’s family. Enquiry by a fact-finding team revealed that the murder was a clear case of honour killing, Mr. Kathir added.