How government plans to use DNA


By Sowmiya Ashok , Amitabh Sinha | New Delhi, Pune Published in The Indian Express

After a series of attempts to legislate DNA technology, a Bill on the subject has been cleared by the Cabinet. Whose DNA does the Bill propose to use, and how? How will it address privacy concerns?

With DNA technology being relied upon worldwide in crime investigations, identification of unclaimed bodies, or determining parentage, India has been attem

pting for several years to pass legislation on use of DNA technology to “support and strengthen the justice delivery system”. Last week, the Union Cabinet approved the DNA Technology (Use and Application) Regulation Bill, 2018. This follows attempts to frame a Bill in 2007, 2015 and 2017, each under a different name.

Broad features

According to the final draft prepared in December 2017, the Bill seeks to “provide for the regulation of use and application of DNA technology for the purposes of establishing identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith…” Its major features include:

DNA REGULATORY BOARD: The board, which will have regional offices as required, will certify labs authorised to carry out DNA testing, approve establishment of DNA databanks and supervise their functioning, and lay down procedures and guidelines for collection, storing, sharing and deletion of DNA information.

DNA DATABANK: A National DNA Databank and certain regional DNA Databanks will store DNA profiles received from DNA labs in a specified format. “As I see from earlier drafts of the Bill, the DNA Databank will have various categories of indices such as crime scene index, suspect index or undertrials index, offenders index, missing persons index.” said Madhusudhan Reddy, lab-in-charge of DNA Fingerprinting Services at the Centre for DNA Fingerprinting and Diagnostics in Hyderabad. This, he said, will help solve and prevent crimes and can also be used for civil matters. “According to the NCRB, there are almost 40,000 unidentified bodies within the country. And if in a nearby area an FIR has been registered reporting a missing person, the family member’s DNA can be compared with the unidentified person to see if it matches.”

Limited purpose

The Bill states that the DNA data, including DNA profiles, samples and records, contained in any DNA labs and Databank “shall be used only for the purpose of facilitating identification of the person and not for any other purpose”. It will only be made available to facilitate the identification of persons in criminal cases in accordance with the rules of admissibility of evidence, to facilitate prosecution or defence, and in investigations relating to civil matters.

Other than in suspects and offenders’ index, the identity of a person is not to be stored in other indices. Only case reference numbers are to be stored in such cases, the Bill states. If a person is not an offender, suspect or undertrial, his/her DNA information cannot be matched with the offenders’ or suspect index. DNA profiles of suspects or undertrials can be removed from the index as per court orders.

The Bill states that DNA information cannot be taken from an arrested person without consent. The exception is only for specified offences, though

the Bill does not elaborate on this. Samples can also be obtained from persons who are witness to a crime, or want to locate their missing relatives, or in similar instances in which they can volunteer, in writing, to offer their DNA samples for a specific purpose. But volunteer samples would not be stored in any index. In case, the Bill states, a suspect or criminal refuses to give consent for DNA collection, and his/her DNA information is considered vital for investigation of a crime, the DNA information can be collected from him/her only with the approval of a magistrate.

Safeguard against misuse

The Bill states that disclosure of DNA information to unauthorised persons, or for unauthorised purposes, shall lead to penalties: up to three years in jail and up to Rs 1 lakh as fine. Principal Scientific Adviser K VijayRaghavan, a former secretary of the DBT, said that the new version looks at the DNA sequence in a manner where all major genes are anonymous. “They look at those elements which identifies the person, but don’t identify any of your genes. Genetic background is protected, but the person is still identified,” he said. “This is just like how your fingerprints will identify the person but not tell you whether he has diabetes or not. So this law cannot use DNA identification in criminal cases, loss of lives, paternity, in a manner which reveals anything about the person’s health.”

Previous attempts

The draft Bill was first named DNA Profiling Bill in

2007 and then Human DNA Profiling Bill in 2015. In July 2017, the Law Commission’s report proposed a new amended draft called ‘DNA based Technology (Use and Regulation) Bill’, 2017, addressing some concerns on privacy and possible misuse. This current Bill is modelled largely on the Law Commission proposal, except for some nominal changes.

The Secretary of the Department of Biotechnology has been made the ex-officio chairman of the proposed DNA Regulatory Board. In previous versions, including the draft of the Law Commission, this job was open for other “eminent persons” as well, provided they had expertise and knowledge of biological sciences for at least 25 years. The head office of the board, earlier proposed in Hyderabad, is now to be in the National Capital Region.

Reddy said that India is 15 years behind the rest of the world in putting in place such a legislation. “We started off on par with western countries, and DNA profiling was used in the Rajiv Gandhi case and later DNA fingerprinting in the tandoor murder case. But slowly from 2007 onwards, we have been lagging behind, largely because people had some questions and issues regarding privacy. I do think this version is a best version of the Bill, incorporating suggestions that came in from stakeholders,” he said.

Reddy points to laws in countries like the US, to pr

otect genetic privacy. “Basically, there are enough safeguards here. But it would be strengthened if there was an overarching set of provisions and safeguards to protect our genetic information,” he said.

Despite the government’s pitch that such a DNA bank will be useful in solving crimes, activists and lawyers have argued that India does not have a data protection law and that information like ancestry or susceptibility to a disease, or other genetic traits, is liable to be misused. It has also been argued that DNA tests have not led to an improvement in conviction rates in countries where legislation is already being followed.


Reward to informer not wholly justiciable

Sukumar Mukhopadhyay / New Delhi August 16, 2010, 0:09 IST

Reward to informer has been a fascinating subject for those who like to have a glimpse of how the underworld operators are brought to book by its own partners and how the later profit from the booty that is finally seized and confiscated. But for the officers working in the preventive department, it is usually seen as a tussle between their desire not to expose the modus operandi of the seizure on the one hand and the necessity to supply details to satisfy the Court on the other. The Supreme Court and the High Courts have therefore maintained a very sharp line of distinction between what should be subject to scrutiny by the judicial authority and what should be the domain of the preventive department which makes the seizure. In one of the latest judgements in the case of D R Chowdhury vs UOI – 2010(255)ELT217(Cal.), theCalcutta High Court has enunciated the principle that the writ jurisdiction of the High Court is only for considering whether the decision making process for giving the reward has been in accordance with the circular issued by the Ministry of Finance but not for not going into the propriety of the decision by prying into the various details. The High Court elaborated that there is a circular No.13011/3/85 – Ad. V dated 30.3.1985 as amended which has made it clear that the reward is purely an ex-gratia payment which (subject to the guidelines) may be grated at the absolute discretion of the competent authority and cannot be claimed as a matter of right.

The Court also held that in the writ proceedings the Court cannot adjudicate the dispute with regard to the extent of the information given by the informer or the exact amount of duty and penalty recovered on the basis of the information. This exposition being one of the latest, has once again reiterated the position which earlier the Supreme Court had occasion to propound in some important cases.

In the case of UOI vs C Krishna Reddy – 2004 (163) E.L.T. 4 (SC), the Supreme Court held that the scheme of the Government for given reward to the informer mentions that reward is an ex-gratia payment and subject to the guidelines and may be granted on the absolute discretion of the authority competent and further that no one can claim the reward as a matter of right.

The Supreme Court has quoted this part of the Government policy for reward quite approvingly. The Court also observed that it is well settled by a catena of decisions of this Court that a Writ of Mandamas can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation.

In a later judgement of the Supreme Court in the case of D.G, RI vs Amrit Lal Mehta -2007 (220) E.L.T. 9 (S.C.), it was held that there is no vested right in the person to claim reward as per Reward Scheme. Reward, at the highest, can be ex-gratia payment. The Supreme Court also set aside the order of the Madras High Court which had granted interest and cost to the informer.

In another important judgement Union of India v. R.K. Ranganathan – 2009 (242) E.L.T. A85 (S.C.), the Supreme Court held that reward cannot be denied only because the seizure has taken place after the lapse of time so long as there is an nexus between the information and the seizure.

The conclusion is that the preventive departments of the governments who effect the seizures of goods are well protected by the judicial decisions to the extent that the details of the modus operandi are not to be exposed in the Courts and are not also called to question. What is justiceable is that the broad principles laid down by the Government itself are obeyed and no arbitrariness is committed in that respect. No interest can be claimed on reward and mere delay in detection cannot bar the grant of reward. These are all principles of fairness.


Be wary of ordering DNA to settle paternity: Supreme Court


The Supreme Court has asked courts to be extremely careful in ordering a DNA examination to determine paternity, as sometimes such scientific tests may bastardise an innocent child even though its mother and her spouse were living together at the time of conception.The court, while ascertaining the paternity of the child when there is a dispute, must be reluctant to use such scientific tools which would invade privacy. Such invasion might not only be prejudicial to the rights of the parties but might also have a devastating effect on the child, said a Bench of Justices Aftab Alam and R.M. Lodha.

Writing the judgment, Justice Lodha said: “When there is an apparent conflict between the right to privacy of a person not to submit himself to forcible medical examination and the duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether, for a just decision in the matter, DNA is eminently needed.”

The Bench said: “DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 12 of the Evidence Act; the pros and cons of such an order and the test of ‘eminent need’ whether it is not possible for the court to reach the truth without use of such test.”

Citing earlier decisions, the Bench said courts could not order a blood test as a matter of course, and such prayers could not be granted for a roving enquiry. There must be a strong prima facie case and the court must carefully examine the consequence of ordering the blood test.

High Court order set aside

In the instant case, Bhabani Prasad Jena was aggrieved by an order of the Orissa High Court, which directed him to undergo a DNA test. He said he had not fathered the child in question in the womb of his wife. But Suvasheree Nayak claimed that he was the father (when the complaint was filed). On her complaint, the Orissa State Commission for Women directed him to maintain her as she needed safe delivery and to take care of the baby. On his appeal against this order disputing the paternity, the High Court ordered the DNA test. The present appeal is directed against this order.Setting aside the order, the Supreme Court said that when a matrimonial dispute was pending in a competent court, the High Court was not justified in ordering the DNA test. The Bench asked the matrimonial court to consider all issues and determine the claims of the parties in accordance with law.

Bhabani Prasad Jena Vs Orissa State Commission

Allow compounding of cognisable offences including 498A cases, says SC

NEW DELHI: To lessen the huge pendency of cases and encourage conciliation among warring litigants, Supreme Court has urged the Centre and Law Commission to examine whether non-compoundable offences under IPC, including those under Section 498A, could be closed after the parties settled.

At present, cases in which a husband or his relative is booked under Section 498A for subjecting a woman to cruelty or anyone charged under Section 326 for causing grievous hurt by dangerous weapon or means fall under the non-compoundable category and courts are barred from closing the cases even after the opposing parties have reached an amicable settlement.

Looking at similar cases before the court and in particular a case under Section 326 where the parties had arrived at an amicable settlement, a Bench comprising Justices Markandey Katju and T S Thakur said, “There are several offences under the IPC that are currently non-compoundable. These include offences punishable under Sections 498A, 326 etc. Some such offences can be made compoundable by introducing a suitable amendment in the statute.”

It added, “We are of the opinion that the Law Commission of India could examine whether a suitable proposal can be sent to the Union government in this regard. Any such step would not only relieve the courts of the burden of deciding cases in which the aggrieved parties have themselves arrived at a settlement, but may also encourage the process of reconciliation between them. We, accordingly, request the Law Commission and the government of India to examine all these aspects and take such steps as may be considered feasible.”

The court asked the SC secretary general to send a copy of the order to the Law Commission and the law secretary. The Bench requested the law secretary to place this order before law minister Veerappa Moily.

Some lessons from the Bhopal outcome

Justice V.R. Krishna Iyer

The court verdict shows that India is still in a Victorian imperial-feudal era, distances away from the socialist dream.

The political parties that were in power during these years are guilty of culpable neglect

One extraordinary feature of the outcome is that the highest officer who was involved in Union Carbide, Warren Anderson, is nowhere in the picture

The mass slaughter that occurred in Bhopal on December 2, 1984 was the consequence of an American multinational corporation dealing with Indian lives in a cavalier manner. Some 20,000 people were “gasassinated.” Yet, after 26 years of trial, the culprits get two years of rigorous imprisonment as punishment. Such a thing can happen only in bedlam Bharat.

The President of the United States and the white world, and the Prime Minister of brown India, shout themselves hoarse against terrorism by the Taliban and the Maoist-naxalites. However, when it came to carnage caused by an American company in a backward region of India, it took all of 26 years to get a court judgment.

India is but a dollar colony, and so the “gasassination” has been treated as a minor crime. This is Macaulay’s justice of Victorian vintage still ruling India. Our Parliament and the Executive are less concerned with the lives of ‘We, the People of India’; their deprivation is of little consequence. The judiciary is another paradigm of insouciance and it is often indifferent to its fundamental duty of issuing a swift verdict. Parliament is too busy making noises to be able to make laws to defend citizens’ lives. The investigative-judicial delay that has occurred is unpardonable for a crime of this kind.

Indian courts will do justice — if proper judges are appointed and fair procedures are made, if sensitive and sensible laws are enacted and the Executive has the needed independence, alacrity and integrity.

Trust violated

Meanwhile, this socialist democracy continues to be a cause for despair for the common people. This contradiction must end. We have enough human resources to redeem the pledge of the Father of the Nation whose ambition was to wipe every tear from every eye. This trust of Indian sovereignty was ludicrously violated in Bhopal.

Every poor man in hungry despair resisting the British Empire was once called a Congressman. When the Congressman came to power after freedom, every hungry militant was called a Communist. When the Communists came to power in some States and still kept many people starving, these poor men were called naxalites.

Does India have a future? Yes, provided the glorious Constitution and the marvellous cultural tradition, sharing the vision of both Karl Marx and Mahatma Gandhi, are realised. Have we such a sensitive perception? Have the instrumentalities under the Constitution a noble mission and a passion? Have the judges such an ambition? The Bhopal decision shows that India is still in a Victorian imperial-feudal era, distances away from the socialist dream.

One extraordinary feature of the outcome is that the highest officer who was involved in Union Carbide, Warren Anderson, is nowhere in the picture. This is but mockery of justice. If the chief criminal is beyond the party array, the millions who are the victims are being mocked by the trial of lesser offenders. In exempting the powerful from criminal jurisdiction, the law has become lame. Is an American criminal immune to investigation by an Indian court order? Such discrimination makes justice risible.

Over the 26 years it took, what was the Supreme Court, with so many judges who have original jurisdiction to try cases when fundamental rights are violated, doing? The Government of India did not move the court for an early trial? Now the Law Minister says he is not happy with this two years’ rigorous imprisonment that has been granted. During these 26 years, no amendment to Sections 300 to 304 of the Indian Penal Code was moved or enacted, or severe punishment written into the Penal Code. This by itself constitutes dereliction of duty on the part of Parliament and the Executive. The political parties that were in power during these years are also guilty of culpable neglect: they slept over the noxious infliction on Indian humanity.

Fair compensation has not been paid to the victims. A huge hospital financed by Union Carbide was built in Bhopal. But it is not for the poor but the rich. It is over the bodies of the poor that the hospital building was built, and still the have-nots have no access to it. The Supreme Court, seemingly lost in issues relating to its own allowances and perks, did not call up the case from the trial court and decide it at once.

Warren Anderson is a closed chapter for the U.S. The most powerful nuclear nation has its bizarre sense of justice which should give courage for the Indian plural masses to resist dollar colonialism. Americans are above our rule of law. Brown India must be satisfied by White Justice where MNC bosses are indicted.

Washington swears by the Universal Declaration of Human Rights. But it uses a nuclear treaty to leverage things to its own advantage. India has no guts to call this bluff. We have MNCs with cosmic jurisdiction. Anderson is an American, so is Union Carbide. Its ukase is just on Asian fuel in earth. Indian justice is for municipalities and panchayats, not beyond.

Of constitutional ‘due process’

Abhinav Chandrachud IN THE HINDU

Two recent judgments of the Supreme Court of India highlight a paradigm shift in its approach to original constitutional norms.

Two decisions announced by the Supreme Court of India in May strikingly indicated that the American doctrine of “due process” has firmly become a part of Indian constitutional law, despite the Constitution-framers’ contrary intentions. In the first of the two cases, decided on May 5, Selvi v. Karnataka, the court considered the constitutionality of the investigative narco-analysis technique, holding it permissible only when the subject consents to its use. In the second case, decided on May 11, Union of India v. R. Gandhi, a Constitution Bench unanimously held that certain provisions of the Company (Second Amendment) Act, 2002, establishing the National Company Law Tribunal and Appellate Tribunal, suffered from unconstitutional “defects.”

These decisions have been analysed and re-analysed for their immediate policy implications. However, the philosophy underlying these decisions, namely, constitutional “due process,” highlights the paradigm shift in the court’s approach to original constitutional norms, and deserves analysis.

The American doctrine of “due process” had been rejected by the framers of the Indian Constitution at the time of its enactment. The fifth and fourteenth amendments to the American Constitution provide that life, liberty and property cannot be deprived without “due process of law.” This seemingly innocuous phrase, borrowed, oddly, from per legem terre in the Magna Carta, acquired a nuanced meaning in the American constitutional context, consequent to years of judicial exposition.

Over time, the phrase acquired “substantive” and “procedural” meanings, each of which enhanced the powers of the judiciary. For example, in exercise of powers conferred by the “due process” clause of the Constitution, American courts would create “new” or unenumerated rights. Most notably, these were the rights to abortion, marriage, homosexuality, the use of contraceptives, child-rearing, and so on. The “due process” clause mandated harmonious constitutional interpretation, and enabled American courts to apply federal constitutional standards against the States on principles of “fairness” or “ordered liberty.” Interestingly, in the Magna Carta the phrase “due process of law” was meant to curb the powers of the royal judiciary in favour of the feudal baronage, quite contrary to the spirit of judicial activism that is now attributed to the clause.

One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, travelled to the United States, where he met Justice Felix Frankfurter, a Judge on the Supreme Court. At the time, Justice Frankfurter was involved in a judicial tussle with Justice Black over the meaning of the phrase “due process of law.” Justice Black hoped that it would be interpreted to strictly incorporate rights traditionally available against the federal government, and made available against the States. By contrast, Justice Frankfurter advocated a less stringent approach, arguing that the due process clause merely required the courts to apply the principles of “fairness” or “ordered liberty” against the States. Justice Frankfurter advised B.N. Rau to avoid the due process clause in the Indian Constitution because it imposed an “undue burden” on the judiciary. Consequently, in 1949, the phrase “due process of law” was dropped from the text of what was to become Article 21 of the Indian Constitution, despite what appeared to be strong support for the clause on the sub-committee on fundamental rights.

However, despite the express textual choices of the framers of India’s Constitution, the “due process” clause found a backdoor entry into Indian constitutional analysis in the late 1970s through the right to equality, which has ever since become a conduit for activist constitutional interpretation. In Justice P.N. Bhagwati’s classic opinion in the Maneka Gandhi case, it was held that the Constitution mandates “fair” procedure when rights are deprived. Although the court would repeatedly hold in subsequent cases that the American standard of “due process” did not apply to the Indian Constitution, in reality the court would apply nothing less than due process standards to administrative and legislative authorities in its emphasis on “fair, just and reasonable” procedure.

The two latest decisions of the Supreme Court are striking for their express rejection of the framers’ textual value choices. While previous Supreme Court opinions would at least theoretically reject American “due process,” in the narco-analysis case Chief Justice K.G. Balakrishnan held that “substantive due process” is now a “guarantee” under the Constitution. This declaration is a remarkable rejection of the framers’ decision to delete the due process clause. In its narco-analysis opinion, the court upheld a right to mental privacy, recognising an “unenumerated” right as American courts would in exercise of the due process clause.

The right to privacy has been around in Indian constitutional law for decades, and the court’s opinion in Selvi merely adds to the existing body of law on constitutional privacy. However, in expressly articulating the “guarantee” of due process, the court has on one of only a few occasions in its history recognised that India follows the due process doctrine, expressly rejecting the framers’ intentions.

In R. Gandhi, decided on May 11, the court held that certain provisions of the law regarding the appointment and qualifications of the members of the National Company Law Tribunal, suffered from unconstitutional defects. However, the Indian Constitution does not strictly or textually permit courts to strike down a piece of legislation merely because its provisions are “unfair” or “arbitrary,” in the absence of a violation of one of its enumerated provisions. To overcome this difficulty, the court in this case held that principles such as “independence of the judiciary” are part of the “essence” of the right to equality, and consequently must be enforced. Formerly, principles such as “independence of the judiciary,” “rule of law” and “separation of powers” would usually be applied using the basic structure theory only to constitutional amendments. In its R. Gandhi opinion, the court has remarkably applied loose constitutional principles rooted in its understanding of “fairness” or constitutional “basic structure” to ordinary law, much in the same way as Justice Frankfurter would have done in the American due process cases.

The theory of “original intent,” whose most vociferous proponent, Justice Antonin Scalia, now sits on the American Supreme Court, demands that courts interpret constitutional provisions according to the intention of the framers of the Constitution. In Indian constitutional law, the theory was followed strictly by the court until after its decision in the habeas corpus case, where the Supreme Court followed the framers’ intentions and permitted civil liberties to be suspended during the Emergency. The illegitimacy of the court’s opinion in the habeas corpus case subsequently offered a sufficient moral basis for the rejection of the theory of original intent. The Supreme Court’s latest opinions strike a lethal blow to the theory of original intent, and firmly recognise that constitutional “due process” is here to stay.

(The writer, a graduate of the Harvard Law School, is an associate attorney with a law firm in the United States.)

A Bill designed to fail

Tarunabh Khaitan IN THE HINDU

The Prevention of Torture Bill fails to meet the minimum standards laid down in international law and betrays a contemptuous attitude towards Indian citizens.

Unless torture is inflicted for the purpose of extracting some information, the proposed law will refuse to take notice

A court can entertain a complaint under the proposed law only if it is made within six months of the date of the offence

The right against torture, quite uniquely, admits to no exceptions whatsoever under international and comparative law. In practice, however, it remains one of the most frequently violated rights. The Minister of State for Home recently introduced the Prevention of Torture Bill in Lok Sabha, in order “to provide punishment for torture inflicted by public servants”. The main intention behind the Bill is to enable India to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. With 146 ratifications in place, India’s continued failure to do so is a source of deep embarrassment and raises doubts over her claims to be a liberal democracy. Indeed, the chief motivation behind the Bill is to polish India’s international image rather than to protect her citizens from torture.

Clause 3 of the Bill defines “torture” as an intentional act which causes “grievous hurt” or “danger to life, limb or health”. Grievous hurt is defined under Section 320 of the Indian Penal Code to include extremely serious injuries such as permanent loss of eye or ear, emasculation, bone fractures, or hurt which causes severe and debilitating pain for twenty days or more. In other words, a very high threshold has been set for an act to qualify as “torture”.

Even the “danger to (mental or physical) health” provision is not very helpful. The term “danger” implies a certain level of seriousness, while mental and physical “health” has frequently been interpreted by courts in civil cases to only include medically recognised illnesses. Given the general rule that criminal laws are interpreted strictly, courts are likely to err on the side of the accused and demand a high threshold for “danger to health”. The “danger to health” standard must also be contrasted with the definition of “hurt” in the Indian Penal Code, which simply includes “bodily pain”. Similarly, Article 1(1) of the U.N. Convention defines “torture” as the intentional infliction of “severe pain or suffering, whether physical or mental”.

Most reasonable people would agree with the Convention that torture must be understood primarily in terms of the pain that it inflicts, rather than any long-term impact. But, the Bill is likely to be interpreted so that acts that cause severe pain without causing any lasting damage to a person’s health may not amount to torture. Thus, many cases of water-boarding, sexual assault, deprivation of food, water or sleep, whipping, rubbing chillies on sensitive body parts and other such barbaric acts readily condemned by most reasonable people may not amount to “torture” under the proposed Bill. As if this definitional ambiguity was not bad enough, the Bill is cynically silent on “other cruel, inhuman or degrading treatment or punishment”, whose prohibition is an essential requirement under the U.N. Convention.

To make matters worse, Clause 4 of the Bill lays down that even if an act qualifies as “torture”, it will be punishable only if it was committed “for the purpose of extorting … any confession or any information which may lead to the detection of an offence…; and on the ground of [a person’s] religion, race, place of birth, residence, language, caste or community or any other ground…”. So, if a police officer breaks a few bones in order to intimidate a person, to extort money, to “teach her a lesson”, or for no reason whatsoever, he cannot be punished under this bizarre Bill. Unless torture is inflicted for the purpose of extracting some information, the proposed law will refuse to take notice.

But even if this was indeed the case, there is yet another condition to satisfy — the victim must, in addition, show that the torture was based on some form of discrimination. It is true that many people are routinely tortured in India merely for being Dalit, Muslim, tribal or hijra. But the correct response is the formula in the U.N. Convention, which prohibits torture “for any reason based on discrimination of any kind” as an independent, rather than an additional, ingredient of torture. Thus, the Bill only punishes those acts of torture which result in a very serious injury, were motivated by a desire to extract a confession or information, and were discriminatory. Nothing less would suffice.

The next hurdle in this obstacle race is Clause 5, which requires that a court can entertain a complaint only if it is made within six months of the date of the offence. Victims of torture tend to be vulnerable people, who often need a lot of time to overcome the physical and psychological trauma, find support, organise resources and gather courage to make the complaint. As a general rule, criminal laws tend to prescribe no time limits whatsoever, let alone one as short as six months.

Finally, Clause 6 prohibits a court from taking cognisance of a complaint without the ever-elusive prior sanction to prosecute from the government. The Bill might as well be headed “Impunity for Torturers Bill”, for it is not meant to bring any torturer to book. It is designed to save our government from criticism in the international community and preserve the facade of a rights-respecting liberal democracy. In reality, it fails to meet the minimum standards laid down in international law and betrays a contemptuous attitude towards Indian citizens. Rudyard Kipling said that the colonial government gave its subjects:

A time to squabble in court …

Jails — and Police to fight,

Justice — at length of days,

And Right — and Might in the Right.

This may well be true of democratic India.

(The writer is a Fellow in Law, Christ Church, Oxford.)


Legislation to Avoid Custodial deaths

Legislation to avoid Custodial deaths

17:33 IST
The number of custodial deaths reported to the National Human Rights Commission during the last three years are as follows:

Year                            Custodial deaths

2007-2008                               2267

2008-2009                               1943

2009-2010                               1794

The State-wise details are as under :-

2007-08 2008-09 2009-10
2. ANDHRA PRADESH 143 149 116
4. ASSAM 31 38 21
5. BIHAR 231 142 142
7. CHHATISGARH 48 42 44
9. DELHI 63 44 43
10. GOA 0 2 1
11. GUJARAT 71 97 68
12. HARYANA 69 60 45
14. JAMMU & KASHMIR 8 1 4
15. JHARKHAND 81 63 80
16. KARNATAKA 82 77 35
17. KERALA 62 45 50
18. MADHYA PRADESH 108 93 96
19. MAHARASHTRA 384 270 223
20. MEGHALAYA 3 4 3
21. NAGALAND 2 3 2
22. ORISSA 57 58 48
24. PUNJAB 112 78 112
25. RAJASTHAN 59 64 84
26. SIKKIM 2 0 2
27. TAMIL NADU 111 80 77
28. TRIPURA 5 8 2
29. UTTAR PRADESH 356 330 364
30. UTTARAKHAND 20 14 16
31. WEST BENGAL 149 162 104


2267 1943 1794

A Bill titled “The Prevention of Torture Bill, 2010” has been introduced in Lok Sabha on 26/4/2010. The Bill, inter alia, provides for  punishment to those involved in the incident of torture and specifies the time limit for taking cognizance of the offence of torture. The bill would act as a deterrent for Public Servants from indulging in custodial deaths and abuse of power by police authorities.   This was stated  by the Minister of State in the Ministry of Home Affairs, Shri Ajay Maken in written reply to a question  in the Rajya Sabha  today.

No compromise on human rights



The criminal justice system is founded on a slew of jurisprudential principles that protect the rights of suspects and accused. These include the right against self-incrimination, the right to remain silent, and the right against providing information under physical or mental pressure. Despite this, invasive procedures such as narcoanalysis, brain-mapping, and polygraph tests have been routinely used by the police — and, shockingly, with the approval of the courts. In holding that the forcible use of these tests is unconstitutional, the Supreme Court of India has drawn attention to the inherent violence in such investigative procedures, which constitute a gross abuse of human rights. The landmark 251-page judgment arrives at two broad legal conclusions. First, such coercive testing violates Article 20 (3) of the Constitution, which stipulates “no person accused of an offence shall stand witness against himself.” Secondly, it is an infringement of the right to personal liberty as understood in the context of Article 21, in particular the right to privacy, the right to a free trial, and the right against cruel, inhuman or degrading treatment.

The court has made it clear that nobody can be compelled to undergo narcoanalysis, brain mapping, or lie detector tests and that any statements made during those procedures are not admissible as evidence. Such tests are permissible only when taken voluntarily. But even in such cases, they must be conducted in strict compliance with the National Human Rights Commission’s Guidelines for the Administration of the Polygraph Test — which includes safeguards such as the mandatory recording of consent before a magistrate and the conduct of all tests by an independent agency. Proponents of the three tests, including those who concede that they sometimes produce false results, advance pragmatic arguments for their retention. They claim that the tests are a softer alternative to third degree methods of interrogation, which might become further entrenched in their absence. They also argue that these tests can serve the public interest in extraordinary situations: they can help uncover terror plots and prevent devastating attacks. Interestingly, the Supreme Court has not dismissed such arguments out of hand. Instead, it has taken the high ground to hold that as a court of law, it can only seek to preserve the balance between the competing interests of personal liberty and public safety, as they are reflected in the Constitution. The judgment must be acclaimed as a major blow for democratic and human rights in the face of invasive procedures that violate the mind.

Truth to power


The Supreme Court has declared that narco-analysis, brain-mapping, and polygraph tests — the whole gamut of “truth technologies” intended to loosen the tongue and get suspects to spill during interrogation — are illegal without the subject’s explicit consent. Unless a person voluntarily submits to them, these methods violate the right against self-incrimination provided in Article 20(3) and the right to privacy.

The narco-analysis test is conducted by injecting three grams of sodium pentothal dissolved in water, designed to push the suspect towards a hypnotic twilight state where they are questioned several times over to tease out ambiguities. Brain-mapping and lie-detection also measure physiological responses to stimuli as indication of psychological states. Lie detectors have been around in various versions since the ’20s, when they were called “the soul machines” or “machines for the cure of liars”. Meanwhile, “truth serums”, used on World War II spy suspects in the US, had been struck down as unconstitutional, as far back as 1963.

Either way, confessions sweated out through these methods are not admissible as evidence in court. But they were often used to find and chase up on leads — they have been notably administered on Ajmal Kasab and in the Nithari murder case. Now, those options are less easily available to investigating agencies — which might detract from their efficiency somewhat, but is undoubtedly a reminder that no matter how exigent the circumstances, dodgy science should not be put to the service of an elusive justice. Many studies have shown that persons who have been administered these chemicals can often repeat the interrogators’ words and cues or freely fantasise.

Like drunken unburdenings — which also involve a loss of inhibition, but may not necessarily lay out the truth — these revelations are too addled for any straight reading. As Lindsey vs United States, a 1956 federal appeals court decision, found: “The intravenous injection of a drug by a physician in a hospital may appear more scientific than the drinking of large amounts of bourbon in a tavern, but the end result displayed in the subject’s speech may be no more reliable.” No matter how much more sophisticated the technology used now, it is still a coercive and manipulable investigation tactic, and one that has been rightly regulated by our courts.