Tuesday, June 2, 2009

Indian Judiciary And The Contemporary Scientific Developments

MJ Antony

The judiciary is wary of using new technology to improve its procedures

The judiciary is perceived as a conservative institution. It does not easily accept innovation in procedures and interpretation of law. However, it has begun to admit, reluctantly, the recent advances in science and technology. A decade ago, it introduced computerisation in courts. One can file cases in the Supreme Court online, check the status of the case on the web and even read judgements of the past decades. The high courts are lagging behind in this, and there is no coordination between the Supreme Court and other courts. Many tribunals have neglected their sites after the inauguration.

However, some institutions have gone far ahead in the use of technology. The other day, the Central Information Commission used video conferencing for hearing and disposing of a petition seeking information about an application for relief from the PM’s Relief Fund. The petitioner was in Begusarai, Bihar, the commissioner and the defendants were at two separate locations in Delhi. The National Informatics Centre is said to be networking over 400 districts for such facilities.

The Calcutta High Court tried a matrimonial case in which both the husband and wife were abroad. In the case between Alcatel India and Koshika Telecom, a court allowed a sick witness to give evidence via video conferencing. In a child abuse case, the Delhi High Court did the same in view of the age of the victim. Though the Criminal Procedure Code demands the ‘presence’ of witness (Section 273), the court has now ruled that physical presence is not essential. In bail cases of hardened criminals who have a tendency to escape on way to the court, video facilities are being used in several places in Bihar. In contrast, bringing Kasab to the special court in Mumbai by ingenious methods costs crores of rupees.

There is no law in India regulating the use of video conferencing in trials, though the US, UK, Singapore and some other countries have such legislation. The Supreme Court has accepted the value of video conferencing and has laid down certain procedures in its judgement in State of Maharashtra vs Praful Desai (2003). The Evidence Act recognises electronic evidence and the IT Act deals with cyber crimes, but technology is making quantum jumps over snail-paced legislation.

Some computer savvy judges have utilised web facilities in writing judgements. The Madras High Court used a blog by a law student of IIT Kharagpur in its recent judgement in the TVS Motor-Bajaj Auto row over the patent for ‘Flame’ bike. The Supreme Court recently referred to Wikipedia in two of its judgements. While one bench felt that it could not be relied upon, another bench felt that it could be used to check definitions of telecommunication devices.

In criminal law, the use of powder and potions of the Sherlock Holmes era has given way to DNA fingerprinting. Parenthood in matrimonial and succession cases and identities in crimes can be ascertained fairly accurately now. According to the ancient Evidence Act, “maternity was certainty; paternity was presumption.” Now paternity can be established by DNA and the one who refuses to undergo the examination is suspect.

Invocation of the fundamental right to privacy against DNA and other scientific tests has not always been successful. According to Article 20(3) of the Constitution, no one can be compelled to be witness against oneself. However, the Supreme Court has held that giving thumb or finger impression and other forensic practices did not violate this right. The only caveat was that such tests should not be prescribed as a matter of routine, but only in deserving cases (Banarsi Dass vs Teeku Dutta).

However, the courts proceed with great caution in accepting scientific evidence. Criminal courts demand evidence ‘beyond reasonable doubt’ to convict an accused person (he is presumed to be innocent). The courts have to depend upon experts when science and medicine are involved. But experts are not always reliable and they are often called ‘hired guns’.

The quality of the forensic tests, the competence of the lab and other vital factors cloud the value of scientific evidence. This was illustrated in a sensational murder case (Priyadarshini Mattoo) in Delhi last year when the court found the DNA report suspect because of the circumstances surrounding it. Jurists also think that there is a lot of ‘junk science’, raising the question of the admissibility and value of scientific evidence.

The latest Law Commission report has cast a shadow on the value of narco analysis, polygraph and brain fingerprinting, methods considered infallible by some investigators. About the lie detector, it said: “The dirty little secret behind the test is it depends on trickery, not science. Perversely, the test is inherently biased against the truthful.” In this situation, the trial judges are the gatekeepers of scientific evidence. They have to check the evidence for their relevance and reliability and apply the tests of fairness, truth and justice.


Cyber Crime Police Station In Mumbai: Will It Be Effective?

The Mumbai Police’ specialised Cyber Crime police station is finally up and running. This new dedicated police station, the first-of-its-kind in the state, was launched on May 30. An existing Cyber Crime Investigation Cell of the Mumbai Police Crime Branch investigates cyber offences, but the FIRs in these cases are registered in different local police stations depending on the scene of the offence.

This was a much needed action required on the part of Mumbai police. With a specialised police station cyber crimes and contraventions can now be tackled effectively. Although the first step has been taken in the right direction, yet there is a dire need of training of police personnel that is presently missing all over India, including Mumbai. Cyber crimes require good techno-legal knowledge that is presently missing. We have to do much more than mere “declarations of sufficiency”.

For instance, cyber law awareness is missing not only among the general public but also among the police force and media personnel. The biggest challenge before the police is to get itself acquainted with the basic cyber law of India. It is senseless to claim themselves trained in cyber law when they are not even aware what the India cyber law is all about. Even the Department of Information Technology (DIT) and Government of India (GOI) are “responsible” for “deliberately misleading” the people, media and police force.

Firstly, the Mumbai police registered a case of “cyber terrorism” when a threat email was sent to the BSE and NSE. It is proudly claimed to be the first in the State since an amendment to the Information Technology Act has been proposed.

Secondly, in the present case, the police had initially planned that as many as four Assistant Commissioners of Police (ACPs) would be posted at the new Cyber Crime police station, since only officers of the rank of ACP and above were allowed to register and investigate offences under the IT Act, 2000. However, the decision to have only one ACP heading the police station was taken after a recent amendment to the IT Act allowing officers of the rank of Police Inspectors to register and investigate cyber offences.

The bigger question is how can police consider, muchless utlilse, the provisions of a law that hasnot come into force yet”? Till the Information Technology Amendment Act, 2008 isnotifiedby the Central Government under section 1(2) of the proposed amendments, the amendments cannot come into force. And till the amendments cannot come into force, we cannot apply the provisions contained in it. Then how come the Mumbai police is booking accused under the amended law is a big mystery?

Perhaps they are “too much trained” for cyber law and cyber crimes and hence applying their own laws and notions to cases that does not attract these stringent provisions at all. It seems the Mumbai police and its partner NASSCOM needs at, least 5 more years to acquaint themselves with the basics of cyber law of India. As far as techno-legal expertise is concerned, that may remain a dream forever.