LAW RESOURCE INDIA

India is Lacking in the Amount of Sexual and Violent Crime Cases that Utilize DNA to Link the Accused to the Crime Scene

CA more aggressive DNA approach at crime scene, in the lab and in the court, will increase conviction rates and make India safer for women

New Delhi, Delhi, India

Crime in India is seen to be on an upsurge, especially rape and sexual assault cases where the conviction rate has fallen from 49% to as low as 29% in the last 3 years (between 2012 and 2015) in Delhi alone, and over 1,37,458 rape cases still stand pending for trial across India[1]. The lack of scientific methods in investigations is hampering justice delivery and the need for DNA casework expansion in India is now increasingly critical and urgent to build conviction in such cases.

“India is simply not collecting enough DNA at violent and sexual crime scenes,” said Tim Schellberg, President, Gordon Thomas Honeywell Governmental Affairs (GTH-GA), a legal and policy expert of forensic DNA. “DNA is the world’s greatest crime fighting tool. Consequently, DNA should be aggressively collected, tested and compared to the accused. DNA testing is happening in India, but not nearly enough,” added Schellberg.

GTH-GA estimates that the United Kingdom completes DNA testing on over 60,000 crime scenes annually. India is over 13 times larger in population that the United Kingdom, yet GTH-GA estimates that India’s crime labs collectively complete DNA testing on less than 7,500 cases annually. This is a very low number.

Furthermore, when DNA is collected, it often goes into large backlogs due to India’s lack of DNA testing infrastructure. The pendency of the backlogs for sample testing in the FSL at Rohini is 5661 and for the one at Chanakyapuri are 458[2. GTH estimates that most of the backlog cases mentioned is likely DNA.

As per the statistics available on the website of Directorate of Forensic Science, Himachal Pradesh[3], the pendency of DNA cases has gone up. In January 2017, the pendency of cases was 605 and in June 2017 was 674, whereas, the average collection of DNA cases is around 30 per month and average disposal of 15 cases a month. This shows almost 50 per cent increase in pendency at FSL per month.

As per the NCRB data, more than 34,651 rapes were registered in 2015. On the contrary, the annual report of the Centre for DNA Fingerprinting and Diagnostics (CDFD)[4] available for the latest year 2015-16 shows that they have received 99 DNA cases specifically for rape from different states.
B
Senior Advocate, Delhi High Court, Vivek Sood agrees that not enough DNA is being utilized in rape cases. “In Delhi, the numbers of rape cases have tripled over the last five years, registering an increase of 277% from 572 in 2011 to 2,155 in 2016. In these cases, I rarely see DNA evidence presented by the prosecutors during trial. This is because DNA is not properly collected at crime scenes on a routine basis, and when it is collected, it is stuck in long backlogs in our underfunded crime laboratories. As a result, there is an over reliance on verbal statements provided by witness/witnesses in the court that can result in wrongly convicting the innocent. We must have more DNA testing to ensure a swift and just result for both the victims and the accused.”

Collection, transportation and storage of DNA forensic evidence are the key factors in rape investigations, which unless well-preserved and transported to FSL result in weak prosecutions and low conviction rate. India currently has approximately 30 FSLs with varied capacity to examine DNA Samples. To strengthen the criminal justice system, it is therefore critical to invest in the much required infrastructure and upgrading the FSLs for DNA – Collect, Test and Compare.

The availability of DNA when at trial to link the accused to the crime is seen throughout the world as the best way to increase charging and conviction of criminal offenders. One study from Denver, Colorado (United States) shows that when DNA is available the prosecutions, ‘charging rate’ was 8 times higher than cases that did not have DNA casework that matched a known suspect. While this data shows prosecution ‘charging’ and not conviction, the point is made showing how the system likes it when DNA is present. A charge rate that is 8 times higher when DNA is present is a big number and obviously will lead to a higher conviction!

EIndia can be a far safer place for women if DNA was collected and tested at all violent and sex crime scenes where the criminal offender leaves DNA. This is a must for all law enforcement authorities, and courts and prosecutors to ensure that the DNA be tested quickly and be used in courts to expedite the judicial process.

 GTH-GA works globally on DNA

Gordon Thomas Honeywell Governmental Affairs is globally recognised public affairs consultancy firm that has expertise with forensic DNA database policy, legislative, and law. For nearly twenty years, consultants at GTH-GA have consulted in over 50 countries and states on legislation and policies to establish or expand criminal offender DNA databases. GTH-GA collaborates closely with governmental officials, crime labs, police and the DNA industry. GTH-GA operates the DNAResource.com website that has been used as the world’s primary source for DNA database policy and legislative information since 2000.

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Revised SOP issued for Lawful Interception of Communication

Posted in RIGHT TO PRIVACY by NNLRJ INDIA on March 13, 2012

The Central Government, with regard to Central Intelligence and Security Agencies, keeps updating the internal SOPs/instructions for processing, executing and conducting oversight of interceptions of telephones. The Government constituted an Inter-Ministerial Group headed by Home Secretary to consider issues relating to institutional frame work of Government for interception of messages/tapping of telephones, e-mail etc. As a result, on 19th May 2011, revised/updated SOPs to deal both with changing technology and ensuring a strict compliance of Rule 419-A were issued. The procedure to be followed for lawful interception of telephones permissible under Section 5(2) of the Indian Telegraph Act 1885 is governed by Rule 419-A of the Indian Telegraph (Amendment) Rules, 2007.

Section 5(2) of the Indian Telegraph Act, 1885 provides for lawful interception in the interests of the sovereignty, and integrity of India, the security of the State, friendly relations with Foreign States or public order or for preventing incitement to the commission of an offence. This Section read with Rule 419(A) of the Indian Telegraph (Amendment) Rules, 2007 imply statutory requirement that specific order/authorization of the Government is required for any lawful interception of communications.

Therefore, the Agencies have to statutorily obtain specific authorization from the Competent Authority (Union Home Secretary in the Central Government and the State Home Secretary for the States) for each case of lawful interception in accordance with provisions of Section 5(2) of the Indian Telegraph Act 1885 and Rule 419(A) of the Indian Telegraph (Amendment) Rules, 2007. Accordingly, it would be inaccurate to state that any Agency of the Centre or State Government, per se, is given a general authorization to undertake Lawful Interception. However, the Central Government from time to time lists some agencies which may make such requests for authorization in specific cases. The issue of listing NTRO can be considered & decided as per the national security imperatives, whenever required.

A constitutional value for privacy

Posted in RIGHT TO PRIVACY by NNLRJ INDIA on July 30, 2011

USHA RAMANATHAN IN THE HINDU

The fine line between transparency for accountability and transparency as a stand-alone ambition is getting fudged.

The notion of privacy has been under attack in recent times. Information technology, with its seemingly limitless capacity to hold, and give access to, all kinds of data and details about peoples, places, happenings and scores of other facts and fiction, has overwhelmed concerns about privacy. Facebook and its kin, though of remarkably recent origin, have already spun a web of forgetfulness around the significance of privacy.

The possibilities offered by technology have encouraged the state to get greedy for all that it can gather about people. In the beginning, it was only the census. The census was confidential. Not even a court could demand, and get, information about an individual collected as part of the census. The census was to get to know the state of the nation; not to delve into details about individuals. The census belongs to a tradition that is being edged into obscurity by more recent forays into data gathering and use.

Collection of statistics

In the past three years, the state has begun to work at enhancing its capacity to reach into people’s lives and know all. Take, for instance, the 2008 law authorising the collection of statistics. This replaced a law of 1953 vintage that was concerned with “industry, trade and commerce,” and sought the help of returns filed and registers maintained in collecting data and churning out statistics. The 2008 Act is ambitious and expands its interest to “economic, demographic, scientific and environmental aspects.” The 2008 law derives its information from multiple sources, including individuals and households who are bound to give information when asked, on pain of punishment if they refuse or give information that was misleading. The law provides no boundaries reining in the statistician’s curiosity. So, to study sex selective abortion, and given that the skewed sex ratio is a matter for national concern, if the statistician decides to seek household data on miscarriages and abortions, that information has to be provided. And, ultrasound clinics can be called upon to be “informants” (a term the law uses), and we may never know that our personal history has travelled from database to database. Confidentiality is crumbling away, unheeded.

In April 2011, rules made under the Information Technology Act 2000 directed that every user of a cyber cafe should provide information including name, address and identification particulars. This, along with the photograph of the person as also a list of sites the person visited, should be preserved for at least one year. The idea of the friendly neighbourhood cyber café owner being the repository of this information does not seem to have struck the rule-giver as bizarre. Another set of rules, also dated April 11, 2011, gives the government the power to demand and get any data including “sensitive” data from any body corporate. This may include information about mental, physical and physiological health, sexual orientation.

In December 2009, the Home Ministry set up and hosted NATGRID. As a part of this, 21 databases are to feed 11 security agencies. It is closed to scrutiny; so we will never know what is being done with data, but we will all be under surveillance. All, of course, in the interests of national security.

The unique identification, or UID, project, marketed as voluntary and increasingly being projected as mandatory so that enrolment targets can be met, is a tool to achieve convergence of data that exist on various databases. It is, of course, not only the state that has an avid interest in these developments. The “market” supports the idea of connecting databases. Convergence will make the fortunes and foibles of the population transparent to the marketers. It is no wonder that they do not protest.

The explanation

This extraordinary momentum to get to “know” the people of India is explained away as being necessary to curb terrorism, or to prevent leakage and corruption, or as being essential to reach services to the poor. Or to give identity to those who the state does not know exist, and which ignorance can only be remedied by giving them a number by which it may be known that they exist. Or to make it possible to produce good statistics, which could, just perhaps, aid better planning. Ominous terms such as surveillance and “social control” are hardly, if ever, invoked even if they underpin each of these exercises. Revealing a steep decline in respect for civil liberties even among those representing civil society, the National Advisory Council‘s Communal Violence Bill adopted the idea of interception and non-transmission of communication — before it was withdrawn following criticism.

The Jan Lokpal Bill is drenched in a notion of transparency that treats the “private” as the enemy of the public, and as dispensable. In all this, the fine line drawn in the Right to Information discourse between transparency for accountability and transparency as a stand-alone ambition is getting badly fudged.

Now, happily, it has come to pass that the Supreme Court had lent its weight to the constitutional value of privacy in the Black Money judgment (Ram Jethmalani vs. Union of India, decision of July 4, 2011). The government has been objecting to the judgment as being a case of judicial overreach. It is a little difficult to understand this stance. The government had set up a high-level committee comprising 10 senior officers from various revenue and investigating wings of the state. The Supreme Court renamed this as a Special Investigation Team, while including the Director of the Research and Analysis Wing (RAW) in it. It is not clear why, and maybe an explanation would have helped.

What has irked the state, however, is the inclusion of two former judges of the Supreme Court to “guide and direct” the team. The judges found that “the major problem in the matters before us has been the inaction of the state,” and this inertia and lack of urgency needed to be set right. Yet, it is not as though the judges took the matter away from the executive; what they did was to introduce the judicial element, which would monitor progress in the investigation and act as a spur. This could be just what is needed to add a dash of transparency to governmental proceedings.

This same decision goes on to protect the individual person. In a refreshing return to constitutionalism and restoring significance to privacy when placed in a balance with public interest, the judges have expended thought and effort (paragraphs 72-77) in explaining the “right to privacy.” To pluck a couple of statements which are representative of what the judges held: “Right to privacy is an integral part of right to life. This is a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner… We are not proposing that constitutions cannot be interpreted in a manner that allows the nation-state to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly and without forethought as to the damage they may cause.”

The difference between a transparent state and a private citizen has been clearly established. These are words to be weighed while looking for the limits on the power of the state, and as privacy jurisprudence is developed.

(The author is an independent law researcher working on the jurisprudence of law, poverty and rights.)

http://www.thehindu.com/opinion/op-ed/article2306023.ece

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