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Tiwari, DNA and the law
GROUND ZERO |
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TOUCHSTONES
Remembrance
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Tiwari, DNA and the law This, however, comes in the face of the fact that DNA fingerprinting has no statutory recognition, because of which it does not become conclusive proof on its own. The Delhi High Court in its April 27 judgment in the Tiwari case — yet to be concluded — held that once a matrimonial or civil court exercises its inherent power to order a person to submit to a medical examination or a technical investigation — which may have been resisted by a party — the court is entitled to enforce the direction and not simply take the refusal on record to draw an adverse inference from it. The court also settled the issue that such forced testing would not be violative of the right to life or privacy under Article 21 of the Constitution, though the power to direct a DNA test should be exercised after weighing all “pros and cons” and satisfying the test of “eminent need”. However, this right has been restricted to the civil courts only by holding that the same reasoning cannot be applied in the context of criminal cases. The Supreme Court in the “Selvi versus State of Karnataka (2010)” case has held that narcoanalysis, polygraph (lie-detector) test or BEAP (Brain Electrical Activation Profile) conducted against the will of a person are not permissible under criminal law, in which an accused cannot be compelled to make self-incriminating statements to be a witness against himself. There are, however, several instances in India as well as abroad where DNA testing has helped convict, acquit, arrest or repatriate people in criminal cases too (see box). In view of these, the debate today is how the present value-based system of justice requires to be modified for the purpose of utilising scientific and technological advancements in the justice delivery system.
DNA advantage
The science of DNA profiling is used as a new form of circumstantial evidence, which is placed on a higher pedestal than direct and ocular evidence because of its objectivity, scientific accuracy, infallibility and impartial character. This technology is extensively applied in civil cases in order to determine paternity or maternity disputes, baby-swapping matters, succession disputes, maintenance proceedings, matrimonial disputes, etc. For instance, in case of a disputed paternity or maternity, mere comparison of the DNA obtained from the body fluid or tissue of the child with the father and mother can offer reliable evidence of biological parentage in very little time. As timely medical examination and proper sampling of body fluids followed by forensic examination can offer irrefutable evidence, it helps avoid the need for protracted court proceedings. Yet, despite the foolproof science, the fact remains that the humans who conduct or control the result of this forensic examination may be questionable. There is also the lurking probability of manipulation and tampering of evidence. In instances of organised crime, rioting or public massacre, DNA samples can be fudged by deliberate action.
Amend Evidence Act
Science and law have become increasingly intermingled for ensuring justice. The legal system today has to deal with novel scientific evidence, which has posed new challenges for law. Many of these dilemmas arise from fundamental differences between legal and scientific processes. Scientific evidence has accurate fact-finding results without uncertainties, which accompany legal decision-making. However, if these scientific investigations do not find statutory recognition (according to the written law), the reports may or may not be accepted at the discretion of the court. DNA profiling in criminal cases is one such paradox. The 185th Report of the Law Commission of India dated March 13, 2003, on the review of the Indian Evidence Act, 1872, has recommended that with reference to proof of paternity, Section 112 of the Evidence Act be amended. Three other exceptions — blood group test, DNA investigation, and medical tests to prove impotency — have been recommended to be introduced in addition to the plea of non-access of parties to each other. If this amendment in the Evidence Act is carried out, it would be the first Indian legislation to give statutory acceptance to DNA investigation conducted with the consent of parties. Also, it would eliminate the requirement of proof, where other than non-access of parties, even a DNA test is not considered conclusive proof to rebut legitimacy. As of now, if the DNA result does not match, parentage is not established. But, surprisingly, even if the DNA result matches, it is not conclusive proof of parentage under the Indian Evidence Act. It is only one piece of evidence, albeit a strong one. Amendment in the Act could bring harmony between law and science.
Here to stay
In western countries, DNA profiling is now widely employed. In India, too, a systematic programme and scientific planning ought to be started for this. Orientation programmes, publications and awareness campaigns ought to be carried out for creating awareness regarding DNA testing. All functionaries in the civil and criminal justice delivery system — the police, courts and correctional institutions — must be acquainted with this science. A fusion of knowledge of forensic sciences and the DNA technology will not only lead to quick solving of crimes but also be useful in the prevention and control of crime. Civil disputes, of course, will be quickly resolved. There is a need to recognise the independent body called the DNA Profiling Advisory Committee. It can implement quality control measures regarding DNA profiling, provide recommendations on the use of current and future DNA methods, draft an appropriate legislation concerning DNA profiling, and safeguard the rights of individuals under it. There can also be a “national DNA bank” for aiding the criminal justice system. Immediate amendments are needed in the Code of Criminal Procedure (1973), Indian Penal Code (1860), Indian Evidence Act (1872), Family Courts Act (1984), and other prevalent family law legislations to provide for recognition of DNA tests as authentic proof in matters of civil, criminal and matrimonial disputes. Else, it remains the discretion of courts on a case to case basis. However, the existing value-based criminal justice system cannot be done away with, and a balance will have to be struck between the modern and the existing pattern. It may be unsafe to convict or acquit a person exclusively on the basis of DNA evidence, but the scientific results cannot be ignored in reaching the truth for justice. It is hoped that the proposed Bill for recognising DNA as evidence would see the light of the day at the earliest. It will particularly benefit NRIs in matters of determining paternity in surrogate arrangements and resolving consequential immigration issues. Establishing evidence in international crimes would also become easier for Indian law agencies. The writer is a Chandigarh-based lawyer specialising in family and immigration matters.
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GROUND ZERO In his speech Menon did not reveal the details of the three occasions on which India was threatened. When I called to check, he preferred to direct me to an analysis given in a lecture delivered in 2000 by India’s renowned defence strategist, the late K. Subrahmanyam. In that lecture Subrahmanyam had pointed out that three senior Pakistani strategists had gone on record to state that Pakistan’s threat of a nuclear counter had deterred India from attacking it on three occasions. According to Subrahmanyam, the Pakistan analysts claimed that in 1984, India and Israel planned to combine forces and launch an attack on Pakistan’s Kahuta nuclear installation but abandoned it when Islamabad sent out signals that it would retaliate with a nuclear strike. Then in 1987 they claimed that during the Indian military exercise “Operation Brasstacks”, India had contemplated invading Pakistan but was again deterred when Islamabad flashed its nuclear card. It was the same year that veteran Indian journalist Kuldip Nayar interviewed Pakistan’s top nuclear scientist AQ Khan, who revealed that Islamabad did have the bomb. The third time was in 1990, when Kashmir was on the boil and war clouds loomed over the sub-continent. Pakistan threatened India with a nuclear strike. I can confirm that episode because along with a colleague I interviewed the late former Army Chief Krishnaswami Sundarji in April 1990. Though retired, Sundarji told us that Islamabad would be living “in a fool’s paradise” if they thought that India would not hesitate to use its atomic weapons if Pakistan decided to launch a nuclear attack. The US was so perturbed that it sent one of its envoys, Robert Gates, to Pakistan and India to bring down the temperatures. There was actually a fourth time too that India was threatened with implicit use of nuclear weapons, something Subrahmanyam also pointed out. That was in 1971, towards the end of the Bangladesh war, when the US sent its nuclear armed aircraft carrier USS Enterprise into the Bay of Bengal to warn India against launching a full-scale invasion of Pakistan. Menon also cited the Enterprise incident to me as did Brajesh Mishra, the former National Security Adviser, when I called him up to check on his list of nuclear threats to India. So the logic given by Indian strategic experts is sound: that given the nuclear sabre-rattling being done by our neighbours and the US, there was enough justification for India to develop nuclear weapons as a credible deterrent, though not as an offensive weapon. My own research on the subject, which I published in my book Weapons of Peace (it’s out of print, so this is not a plug!), pointed to India deciding to go nuclear much before these events. If anything, the threats of attack only speeded up the decision-making. Though India’s first Prime Minister Jawaharlal Nehru championed the cause of a nuclear-free world, he did give tacit support to Homi Bhabha, the then chairman of the Atomic Energy Commission, to go ahead with developing the technology to build the bomb around 1955. Before the 1962 Chinese invasion, when India had evidence that China was preparing to explode a nuclear weapon, Bhabha apparently told Nehru that India should “take precautionary measures” and optimistically estimated that if given clearance the nation’s atomic scientists could make a bomb in two years. Nehru is said to have brushed aside Bhabha’s offer. It was only after Nehru’s death in 1964 and after China exploded its first nuclear device, that Indian scientists were cleared by the then Indian Prime Minister, Lal Bahadur Shastri, to develop a device for a Peaceful Nuclear Explosion (PNE) in 1965. After Shastri’s death in 1966, India’s nuclear bomb plans were put on hold for a while, till his successor Indira Gandhi gained in confidence and stature. In 1970, Indira Gandhi ordered a reluctant Vikram Sarabhai, the then Atomic Energy Commission chairman, to begin preparations for a PNE. This was almost a year before the Bangladesh war. But the threat by the USS Enterprise did firm up Indira Gandhi’s decision to go ahead with testing a nuclear device. The formal order was given in 1972 and India conducted its first nuclear test in May 1974. I beg to differ with Menon on one point though. In his speech last week the National Security Adviser asserted: “Since we became a declared nuclear weapons state in 1998 we have not faced such threats. So the possession of nuclear weapons has, empirically speaking, deterred others from attempting nuclear coercion or blackmail against India.” My research indicates this statement is not quite correct. During the 1999 Kargil, when Indian threatened to invade Pakistan, Islamabad did send out signals that they may resort to the use of nuclear weapons. Brajesh Mishra confirms that India did keep its nuclear weapons ready during the Kargil War but states that Delhi had no evidence that Pakistan was preparing to carry out a first strike. The US, though, seemed most concerned that the Kargil War would end in a nuclear conflagration. The then Pakistan Prime Minister Nawaz Sharif confirmed this to me in an interview in 2004, when he was in exile in Jeddah, stating that it was the first question Bill Clinton asked him when he met the US President in Washington DC in the midst of the Kargil crisis in 1999. It may not suit the argument put forward by some of India’s strategic analysts, but the danger of India and Pakistan going nuclear in the event of a major war between them does remain. Send your comments to
raj@tribunemail.com
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TOUCHSTONES Dasgupta was one of several talented photographers that India has produced in recent times and it is due to their work that photography is recognised as a creative artistic genre today, with a growing number of practitioners and students. However, while digital cameras have made it a very tempting option to work on computers to add sharpness and lucidity to raw footage, the real artist is one who works with his heart rather than expertise. Personally, I am partial to black and white photography, which is probably why I loved the work of young Sohrab Hura and chased him to do a photo-essay for a journal I edited. I was thrilled when he produced a moving account through photo and word of his mother who has battled depression for a long time. I was similarly drawn to Pablo Bartholomew's work on the Chinese community of Tangra, which dates to the time he spent when working in Calcutta with Satyajit Ray's "Shatranj ke Khilari" many years ago. His father, Richard Bartholomew, better known as an art critic, was another gifted photographer and his portraits of the people and landscape of Delhi in the Sixties became the subject of an exhibition that got rave reviews in London and New York a few years ago. It was while working with Richard's photographs for another photo essay that I became acquainted with Prabuddha's talented graphic designer wife, Tania. Her elegant use of spaces and silences is a talent she shared with Prabuddha. This is probably why she continued to work for him as a graphic designer even after they parted. Today, there are some excellent photo archives in Delhi and two come readily to mind. One was created by Ebrahim Alkazi, the legendary theatre and art critic who has an incredible range of first-rate period work in his collection built lovingly over many decades. Long before photography became an acknowledged art form, he had scoured old photographic studios in hill stations, neglected personal collections and auctions abroad to create a huge collection. He then housed them in temperature-controlled chambers and had them catalogued by researchers using state-of-the-art technology. Many academic scholars have benefitted from this treasure house and one day, I hope to work there on documenting old photographic albums that conceal stories it would be a joy to unearth. Aditya Arya is another collector whose interest in the work of an unknown photographer led him to uncover an extraordinary tale. Some years ago, he inherited boxes of negatives that a fairly unknown photographer Kulwant Roy had given Arya's father. Arya remembers Roy as a slightly barmy man who lost several boxes of his work in transit and became a little demented in his old age. A bachelor, he lived with Arya's family and when he died, left behind his remaining boxes with the Arya family. They lay unopened until Aditya opened them one day to discover a treasure. Today, no one who is researching the history of the 1940s and '50s can afford to be unaware of Kulwant Roy's work. His photographs of Jinnah and the Muslim League alone are worth a book. Aditya Arya now has a museum-cum-archive in Gurgaon that students of photography visit with awe. You need an appointment to visit it because Arya personally walks you through the museum and it is a place worth visiting for that guided tour. His collection of cameras alone is enough to merit several visits. Homai Vyarawalla, who died last year at a ripe old age of ninety-something, was another icon I admired for her black and white work. In her last years, she lived alone in Baroda and generously allowed the use of her work to anyone who asked her. All she wanted was that the fee for the use be given to a Parsi charity she supported. I still have her letter granting me permission, which she had written on the back of a recycled envelope in her spidery hand. A true Gandhian, she believed in not wasting paper. Who can ever forget the pictures of Nehru taken by her? Sunil Janah, who also died recently, was another artist of the black and white photograph. His work on the Bengal famine brings tears to one's eyes even today. Ram Rahman, himself a talented photographer, has documented and curated Janah's work and brought it to city audiences through many outstanding exhibitions. Rahman's own work on Delhi in black and white is among the finest I have seen. In this abbreviated list of iconic photographers, Raghu Rai stands in a place all by himself. His cityscapes, portraits and books on eminent persons (such as his book on Indira Gandhi called "A Life in the Day of Indira Gandhi") are unforgettable. And as for his moving and deeply meditative portraits of Mother Teresa, they are like prayers to a beloved god.
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Remembrance
Although
I did not share her faith, nor did our views always coincide (as on the subject of family planning), my relationship with Mother Teresa, over a 23-year-long period, grew into a guru-shishya relationship. For me she represented the epitome of goodness, faith and compassion. She in turn, I believe, grew to trust me, and this trust and confidence grew over the years and remained till her end. Her oldest surviving companion, Sister Gertrude, still refers to me as ‘Mother’s son’. For me, there can be no higher accolade. The first time I encountered Mother Teresa was in 1975. She had invited the Lt-Governor of Delhi to inaugurate a small shelter for destitute women. I had accompanied him that morning. I was immediately struck by her smallness, her twisted feet, gnarled hands and even then a slightly bent back. I noticed her white sari with the traditional blue stripes was neatly darned in many places. She smiled and said ‘Thank God’ a lot, as in “It’s a fine day, thank God”, “I am happy you are here, thank God”, or “I am glad that your government will buy up all the bandages we roll, thank God”. I was mesmerised. This was not a Rolls Royce guru, for she appeared as poor as those she served. I was soon to discover that each Sister owned but one plate, one glass, one fork and spoon, one mattress, and three saris — one to wear, one to wash and one for ‘special occasions’. Theirs was a poverty out of choice, and in spite of the clearly arduous work they were joyful. “God loves a cheerful giver,” Mother explained, “We can’t go to our poor with long faces”. It was indicative of her success that she understood that in an overwhelmingly non-Christian India, her path had to be unique. While she never deviated from her faith, she reached out to millions of her special constituency: the poorest of the poor, the leprosy sufferers, abandoned children or the hungry and dying, recognising their faces as the face of God. Their religious persuasion hardly concerned her. In her ability to have found the middle path in an environment that could have easily become hostile, lay her genius. I once asked the legendary Chief Minster of West Bengal, Jyoti Basu, what he, an atheist and a Communist, could possibly have in common with a Catholic nun for whom God was everything. With a smile, he replied: “We share a love for the poor.” India revered her and gave her abundantly of its honours, including the Bharat Ratna. In the same spirit, many years later and a year prior to her birth centenary, Shri N. Ram (then Editor-in-Chief of The Hindu), and I requested Prime Minister Manmohan Singh that India should commemorate her birth centenary with a coin in her memory. The Prime Minister did not hesitate for a second. Nor did the then Finance Minister, and now President, Mr Pranab Mukherjee. As a matter of fact, two coins commemorated that special event, one a limited edition, and the other a Rs-5 coin that went into general circulation. Over the years I witnessed many incidents that I called “co-incidences” and which others might well call “miracles”. One day in the 1980s, at Motherhouse in Kolkata, a rare medicine was needed to save the life of a child. In those days it was not manufactured in India. When hope was almost lost, and as the Sisters prayed, a carton of assorted leftover medicines was donated by an unknown benefactor. Right on top was the very drug that was needed. The child’s life was saved. On another occasion, Mother Teresa arrived in Delhi from overseas. I was at the airport to receive her. Her flight was late. As she got off, anxiety was writ large over her face. “You must get me on the flight to Calcutta. There is a dying child here; I am carrying a new medicine.” I told Mother that was impossible. Her incoming flight had been late, and the last Calcutta-bound Indian Airlines flight was boarding. Mother Teresa’s own luggage was also yet to arrive. But as word spread at the airport, the seemingly impossible happened. The first few items of luggage on the conveyer belt happened to be her cardboard cartons (she never owned a suitcase!). Someone informed air traffic control of Mother Teresa’s crisis. The pilot happened to be a Calcutta man. Suddenly I was asked if I could drive Mother Teresa in my car to the tarmac — and somehow she caught the flight. I rang her the next morning. The child had been administered the medicine, and was now out of danger. “It is a first-class miracle,” said Mother Teresa. For one not believing in miracles, I am now in little doubt that Mother Teresa’s life itself was a miracle. Witness this: as a child of 14 in her native Albania, her imagination was stirred by the stories she heard from the Jesuit Fathers of their work in distant Bengal; at 18, her mind was made up. She took leave of her own beloved mother and joined the Loreto Order of teaching nuns, her only means in the year 1928 of reaching India. It was an age when missionaries seldom returned home, and she was embarking on a life in a world of which she knew nothing. She was sent to Darjeeling for training. She learned to speak English and Bengali. After almost 20 happy years as a teaching nun, she audaciously sought (and finally received) permission from the Vatican to become the first nun in the history of the Church to step outside convent walls, not as a lay person, but as a nun with her vows intact, to start a mission of her own. She had no helper, no companion, and no money to speak of. Imagine the Calcutta of 1948, overflowing with refugees after Partition, homelessness, poverty and disease everywhere. She wore no recognisable nun’s habit; instead a sari, akin to that worn by municipal sweepresses, that cost Re 1. This is where she started her life’s arduous mission. By the time she passed away in 1997, she had created her presence in 123 countries. She ran a multinational run by 5,000 nuns of her Order, without the help of government grants or Church assistance. She had been awarded every conceivable prize of distinction. She was as warmly received in palaces and chancelleries as she was in the slums and streets of the world’s cities. A former British Prime Minister told me not long ago that when Mother Teresa visited him at Downing Street she always managed to get his aides overruled, and got everything she wanted — because it was always for ‘my people’. In any event, by now it was difficult for Prime Ministers to say ‘no’ to her, for she was recognised as the conscience-keeper of her age. For Mother Teresa, to love one’s neighbour was to love God. This was what was essential to her, not the size of her mission or the power others perceived in her. “We are called upon not to be successful, but to be faithful,” she explained. Mother Teresa exemplified that faith — in prayer, in love, in service, and in peace. The writer is a former Chief Election Commissioner of India and biographer of Mother Teresa
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A
Deoxyribonucleic acid (DNA) is a nucleic acid (biological molecules) containing the genetic instructions used in the development and functioning of all living organisms. The DNA segments carrying this genetic information are called genes.
WHY did India, a nation born on the principle of non-violence, decide to build and equip itself with the atom bomb, the world’s most destructive weapon? Shivshankar Menon, the erudite National Security Adviser, speaking at a global nuclear conference in New Delhi last week, gave two reasons: The first “is the contribution that it makes to our (India’s) security in an uncertain and anarchic world.” And the second, he said, was that “on at least three occasions before 1998 other powers used the explicit or implicit threat of nuclear weapons to try and change India’s behaviour.”
THE world of photography mourned the untimely death of an exceptionally talented photographer when recently Prabuddha Dasgupta suddenly died of a heart attack in Mumbai. An iconic artist who preferred to work in black and white, Dasgupta's work stands in stark contrast to the pretty, romantic calendar art that is often passed off as artistic photography. His work on the body of women celebrated nudity in a way that brought it the acclaim it deserved. In recent years, he was based in Goa and some of his Goa work is worth a separate article.
