Relevancy of Accomplice Evidence in Criminal Trial

(By M.E. Aliyar, C.J.M. Court, Ernakulam)

The word “accomplice”is not defined in the Indian Evidence Act, or in the Indian Penal Code. An accomplice is a conscious participant of a crime, which is the subject matter of a criminal trial. An accomplice involves himself to be criminal who had been concerned in the commission of a crime. The dictionary meaning¹, the word “accomplice” means a partner in crime, an associate in guilt. An accomplice hence is a person who along with another or others has taken some part, large or small, in the commission of the crime. It signifies a guilty associate in Crime.²The best test for finding whether a person is an accomplice is to see whether the person concerned is directly or indirectly concerned in or privy to the offence for which the main accused is charged. He must be proved to have done some act to assist the felon personally. The mere fact that one had knowledge that a crime had been committed and that he concealed or failed to disclose such knowledge does not render him an accomplice.“To render a person an accomplice, his participation in the crime must be criminally corrupt” (Beaumont. C.J.)

The term accomplice has a definite meaning in the English Criminal Jurisprudence. The word accomplice includes four categories of persons: -

1. Principal of First Degree.

2. Principal of Second Degree.

3. Accessory before the fact and

4. Accessoryafter the fact.

According to Prof.Marcus³, accomplice is a bastard who betrayed his comrade in order to save his neck from the clutches of law. So, an accomplice is a “Participies Criminies” and who had betrayed his associates and has apparently sought pardon for saving his own neck. He is therefore, presumed not to be a man of high character or a fair witness.

There is no formal legal definition of the term “accomplice” in England’s Law of Evidence too. But the House of Lords has recognized the following being as accomplices:

■   a person who takes part in the offence or who aids, abets, counsel or procures its commission.

■   a handler at the trial of the actual thief

■   parties to crimes, identical in type to the offence charge, evidence of which has been admitted as proving system and intent and negativing accident.

In England, as a general rule, subject to the sufficiency of Evidence and the public interest stages of the Code Test, accomplices should be prosecuted. It is contemplated in Sections 71 to 74 of the Serious Organized Crime and Police (SOCPA)⁴; an accomplice can be used as a prosecution witness rather than prosecuting him, if there may be circumstances where public interest warrants. In England the evidence of the accomplice may be used in the following situations:

•    to corroborate other witnesses on minor or peripheral issues.

•    to provide direct evidence on a point in respect of which the other available evidence is circumstantial.

•    to corroborate other evidence which in law requires corroboration or where a corroboration warning would be given?

•    where the absence of a witness may cause comment.

History of Criminal Law knows this type of men who in order to save their neck may give evidence against his associates. The fate of an accomplice in a criminal trial of ancient time in England was lucidly narrated by Sri. S.H. Ursekarin his book “Principles and Digest of Law of Evidence”.If the accomplice had given true version regarding the occurrence in which his comrade is to be convicted, he had to leave the country with his life. On the other hand, if it is proved that he gave false version regarding the occurrence and suppressed material facts he would be hanged. This condition rather prevented people concerned in crime to give evidence as accomplice evidence.

But now this approach has been changed and practice of pardoning the accomplice started. The pardon tendered to an accomplice is provisional and on condition that the accomplice gives or rather makes a full disclosure of actual facts in the case, in question. In the event of his giving a false version he would be prosecuted along with the other accused for the same offences. In other words, he will be transferred from the “Witness Box” to the ‘Criminal’s Dock’. The accomplice evidence is based on the principle that “a rogue only knows the way of a rogue”.⁵

In India also this practice is understood and followed. S.306 of the Code of Criminal Procedure empowers the Chief Judicial Magistrate or a Chief Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trail of the offence may tender pardon to an accused and to allow him to become a witness against his co-accused on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other persons concerned, whether as principal or abettor, in the commission thereof. He can then be called an approver.

Competency of an Accomplice to be a Witness

According to S.118 of the Indian Evidence Act, every person is competent to be a witness, if he can give rational answers to the questions put to him. The general rule laid down in S.133 of the Indian Evidence Act, is that an accomplice shall be a competent witness against an accused person. The section reads :-

“An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

The practice in England would be that only Jury can give credit to the testimony of an accomplice. According to Mr.Taylor, “the degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of Jury”. An accomplice is a competent witness and there is no absolute rule of law, which enacts that the conviction on the evidence of an accomplice is bad in law. It has been held in the case of “Mathu Murugan Swami Pillai v. Emperor⁶, that the statement of an accomplice is admissible in evidence.

Under Illustration(b) to Section 114 of the Indian Evidence Act, the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. It means that the credibility and trust worthiness of an accomplice to be a witness is under suspicion. It has been said by the Bombay High Court⁷,in Queen Empress v. Mangalal & Mangalal,that the testimony of an accomplice as a witness against his comrade is unworthy of credit unless it is corroborated in material particulars and it has become a rule of practice of almost universal application.

The combined effect of the S.133 and S.114 illustration(b) is to be taken into consideration. It may be noted that⁸ (Digest of the Law of Evidence in Criminal Cases) Section 133 of the Indian Evidence Act, is a legal declaration regarding the status of an accomplice and the legal validity of his evidence. It is a Rule of Law whereas the suspicion or doubt casts upon an accomplice in illustration(b) of S.144, is not a Rule of Law, but a Rule of Practice.

Even then we may reach the conclusion that it is not safe to rely on the uncorroborated testimony of an accomplice. The nature and extent of corroboration varies with the circumstances of each case and no hard or fast rule can be laid down. The court has to first to see whether the evidence of an accomplice is reliable and secondly even if it is so, whether it is corroborated in material particulars by other independent evidences, direct or circumstantial. The Apex Court of India, in Sitaram Saho v. State of Jharkhand ⁹, had observed that “the statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice’. Thus the law is that the evidence of an accomplice deserves outright rejection, if there is no corroboration in material particulars.

Justice Fazal Ali¹⁰ in Chanapara Chellappan v. State of Kerala observed that “the law is well settled that the court looks with some amount of suspicion on the evidence of an accomplice witness which is a tainted evidence “. The courts faced with apparently two inconsistent provisions in the Indian Evidence Act and have purported to harmonize the same by following the rule that “an accomplice will be a competent witness no doubt in the eye of law, but his evidence must receive sufficient corroborations. Corroboration may be by way of some circumstances that supplies sufficient confirmation of the truth of evidence of the accomplice in weighing accomplice evidence, the Judge should not overlook the position in which the accomplice may stand, and the motive, which he may have for stating what, is false. S.133 of the Indian Evidence Act can be availed of when no clouds of doubt upon the testifying accomplice are found.

In short accomplice’s evidence is an abject necessity where no other evidence is available. So the law tendered pardon to one of them so that the facts of the case may be made known. The prospect of freedom from punishment and liberty held out by the pardon naturally tempts the accomplice to testify against his associates. So it has been said that an accomplice is a man of doubtful veracity. We have to consider the circumstances under which an accused allowed to be a witness against his co-accused: it is allowed when the prosecution and police miserably failed to locate the evidence against the criminals. It may be dangerous rather than helpful because the policemen with the help of the accomplice may fabricate artificial or false evidence against the other accused. This kind of trap really amounts to the creation of an artificial crime either by the police authorities or their tools, where such a method is employed practically, which might make conviction illegal. Prudence requires that the courts should demand the prosecution to adduce some corroborative evidence. But this scenario will not justify always, particularly cases where crimes are committed by use of sophisticated weapons and tools by terrorist groups and people holding power and influence where police cannot safely dig into.

“To set a thief to catch a thief was presumed to be the idea that influenced the makers of the Indian Evidence Act to construct S.133, which is more or less significant in cases relating to terrorism and white-collar crimes of politicians and big industrialists where the prosecution tools and gadgets are considered to be inferior, not up to dated. Since the law breakers may have most modern weapons and tools in commission of offences, it is abject necessary to ignore the principles of rule of prudence of corroboration and Judges may be convinced to punish the wrongdoers of these kinds by invoking the provision cast upon S.133 of the Indian Evidence. So in my opinion, even though, S.114 illustration(b) of the Indian Evidence Act is there, S.133 of the Indian Evidence Act should be strictly construed.

Foot Note:-

1.   In the Oxford Dictionary-2013 Edition.

2.   Gopal S.Chaturvedi, Field’s Commentary on Law of Evidence, (Delhi Law House, New Delhi, Vol.5.)

3.   Prof. M. Marcus -He was formerly Reader in Law at Lal Bahadur Sastri National Academy of Administration, Missouri and formerly Member of Law Commission. He was formerly the Professor of Law, Govt. Law College, Ernakulam.

4.   W.M.Best, A Treatise on the Principles of Evidence, (H Sweet, London, 4^th Edn.1866).

5.   Prof. M.Marcus,Major Facets of Law in Indian Evidence Act, 2011 Edition.

6.   ILR 35, Mad.379.

7.   (Queen Empress v. Mangalal and Mangalal - ILR 14, Bom-115)

8.   Sarkar & Ejaz, Law of Evidence, (Eastern Book Company, Lucknow, 6th Edn, 2006) & Digest of Law of Evidence in Criminal Cases.

9.   AIR 2008 SC 391.

10. In Chanapara Chellappan v. State of Kerala(1979 - Crl.L.J.-1335).

Arbitration and Conciliation Act
Whether the Amendment under Section 12 Fulfils the Need of the Time

(By Jasla Kabeer, Advocate, Kollam)

 Arbitration and Conciliation Act has been enacted intending to be the feasible short cut to obtain relief which otherwise is tiresome and expensive. In the changed scenario of commerce and industry it mainly applied and started to operate in the field of hire purchase, and all the financiers started to invoke the remedy under the Arbitration and Conciliation Act. At the time of the purchase of the vehicle or of any such item of movable property of value, the buyer is always a person in need, and the financier stands in a higher position. The purchaser has in his pocket only an amount coming around 15% to 20% and the financier extends the loan facility for the whole remaining. Since the financial burden of the buyer at the time of purchase is meager, and the dealings of the financier is such that the buyer is able to get the delivery of the vehicle or the other property instantaneously or in speedy, the buyer has no reluctance or unreliability in the following of the direction being given by the financier. After the share of amount being parted with by the purchaser, the next phase is the signing of agreement with the financier. Since his amount is already paid, and the delivery of the article depends on the release of money by the financier the buyer becomes constrained to act as per the directions of the financier. In most of the cases the buyers are hailing from ordinary class, not well versed or even familiar with the technicalities of such transactions, they know only that they should sign the papers as shown by the financier. Even the raising of any doubts or putting any question regarding the contents of the papers where he is directed to sign, the financier becomes harsh, and may cause to deny the loan facility to the purchaser, hence the buyer silently signs in the printed agreement at the spots wherever pointed out by the financier. The transaction between the financier and the purchaser completes hardly within half an hour, and the knot to tighten goes to the exclusive custody of the financier. The agreement pointed to be signed runs to several pages and numerous clauses which in the ordinary course is impossible and discernible for an ordinary man who comes with a smaller amount intending the purchase without undergoing any burdensome proceedings. The agreement which contains numerous clauses in printed form and in a font not easily legible in English language is strange to such a purchaser, and moreover columns are there left blank capable of being filled at any time according to the convenience of the financier. The most important clause in the agreement is as to the resolving of dispute arising if any related to the transaction when the repayment is defaulted by the purchaser. It is always provided by the appointment of the arbitrator. The agreement always provide for the appointment of only a sole arbitrator column remaining unfilled thereby with liberty to the financier to fill in the name of his own choice. At the time of issue of notice for the reference, name of the arbitrator is being filled in by the financier in the column left, and the purchaser may not have any option or say in the matter. Thus the purchaser is forced and constrained to go to a person to decide his matter appointed by the opposite side. The present amendment u/S.12 of the Act to some extent interferes with the earlier position, and makes available certain grounds for the purchaser to raise questions as to the impartiality of the arbitrator. But these grounds provided are limited and not capable of being stretched or extended to the relationship between the arbitrators which might be clandastaneous and behind the curtain. The sole arbitrator can at any time be subject of partiality and influence, as the person appointed has no accountability or not committed to impartiality, and cannot be made liable in any manner of his delinquency, to the sufferer or cannot be subjected to any disciplinary action. Similarly, the venue of arbitration is also decided by the financier which might have already put in illegible font as one of the clause as if looking no much importance, but it goes to the crux. The venue of arbitration in most of the cases is a far away place beyond the reach of the purchaser, and resultantly the matter becomes ex parte, a remediless imposition on the purchaser. When the award is proceeded in execution, and the purchaser is put in the clutches of coercive steps of enforcement, the purchaser understands that he has no remedy against it except to surrender and to wait at the door steps of the financier for his mercy; but it is seldom shown. 

 When an Act is being promulgated, State is bound to protect the interest of its subjects, and cannot leave him at the mercy of the powerful. When the State wants to protect the financial interest of the businessmen who conducts the business of lending money on interest, at the same time the State should ensure that the borrower should not be exploited by the creditor. An arbitrator is only a temporary arrangement for a particular case and the arbitrator being in such position is naturally more interested inclined to protect his own interest by favouring the powerful and the rich. This cannot be put to an end unless the amendment extends to cover this field to curb any chances of being partial. First of all, the dealings between the financier and the purchaser should have all its transparency from the initial stage of entering in the agreement. The printed form of agreement being used by the financier should be made available in advance to the purchasers by affixing it in the office of the financier or by publishing it in the website of the financier. It should be printed in a font of legible size both in English and in the regional language. No column should be left capable of being filled subsequent to the signing; and to ensure this the copy of the agreement signed by both should be supplied to the purchaser instantaneously of its signing. The venue of arbitration should be confined to the place of suing as provided under the Code of Civil Procedure, and not a place being opted by the financier at his convenience. If the financier can take the shelter of law to execute the decree at a place where the purchaser resides, it is only justifiable that for the arbitration proceedings also the same can be fixed. Further there should be an option to file petition to set aside the ex parteaward with a provision for appeal from such an order if the same is dismissed by the arbitrator. Lastly and more importantly, at any cost and under no occasion the agreement should not provide column for the filling the name of the arbitrator, but it should be a computer print out with names included with options of preference. The sole arbitrator system should be done away with at least in the cases when the amount is above Rs. one lakh. The provisions should be made for the appointment of one arbitrator by the financiers, the other by the purchaser, and the third unanimaously by both parties or if not possible by both the arbitrators. A provision should be made for the setting aside of the award on the ground of perversity of fact or apparent unreasonableness in the matters involving substantial amounts. Over and above, the newly added proviso as S.34(2A) exempting erroneous application of law in passing the award as the ground for setting aside the award is against the need of the time. This incorporation instead of being a proviso should have been a ground for setting aside the award which only will fulfill the need of the time especially in the cases where award is passed by the sole arbitrator, or the award is ex parte. It is not at all prudent or desirable for a welfare State to make a law providing that an executable award should not be set aside on the ground of erroneous application of law. This makes a general impression that erroneous application of law should prevail and such an award should sustain. This might give possibilities of the arbitrator tend to be partial and subject to influence and favouritim. The nature of relationship described in the newly added schedules tending to have the scope of favouritism cannot become exhaustive. Any sort of relationship can deteriorate the character of total impartiality, and even a mere acquaintance can create inclinations in the human conduct, and such cases may affect the merit of output of the arbitration, and will stand incurable. A better supervision and scrutiny by judiciary alone will solve this problem. 

It is shocking and disgraceful to our legal system that the powerful is pointing to a person before whom the person standing in lower position should attend, and all matters will be decided in his chamber where the influential and the powerful has all access including to dictate, and the result of such proceeding becomes a decree and being made enforceable strictly by the mighty arms of a court of law. This is an outdated law in the matter of loan transaction between the powerful financier and starving borrower. The printed form stereotypes agreements unless published in advance are only to be treated as the one signed by the debtor without proper understanding, and such contentions by the debtor are to be appreciated and benefits to be extended in favour of the debtor while passing decisions. The arms of court should not be stretched to the poor by all its vigour at the instance of the powerful on an award passed by his own person, but the law should be changed to free the poor from all such chance of exploitations and oppressions.

A Socialist Lawyer with Social Commitment -- A Tribute to MKD

(By Adv. Parvathi Sanjay, High Court of Kerala)

A banyan tree has got uprooted......a tree with its vast expanse, grand presence, evergreen and drought resistant feature that provided security for years for the entire society especially the legal fraternity of this State has succumbed to the law of nature. Senior counsel Mr.M.K.Damodaran is no more. Not until the vaccum of disbelief was filled with the horror of comprehension did any of us realise how much we identified ourselves with this loss, even apart from personal friendship/relationship. He was a pillar of strength and a source of reassurance for all who approached him for help, advise, guidance, donations and solutions irrespective of their caste, religion, creed, race, economic background or political affiliation.

Damodaran Sir fondly known as ‘Damuettan’ alias ‘MKD’ hailed from an aristocratic family in Malabar and plunged into politics during his student days. He soon became a well reckoned leader and even underwent imprisonment during the period of Emergency in the country. His public relations were amazing and he was successful in maintaining it the right way. His commonsense approach and grasp of the basic facts of a case coupled with his intelligent, prudent interpretation of statute and law helped him rise to be one of the most successful lawyers of this State. His charming countenance and unperturbed disposition were text book features of advocacy. Shrewd examination skills and refusal to get provoked in the court room were his hall marks. Its a much talked incident that a Division Bench of the Honourable High Court of Kerala hearing criminal cases in the early eighties had provoked Damodaran Sir while he was arguing a murder appeal before them. They countered each and every point raised by Sir and expressed irritation and disagreement at every argument by Sir.Damodaran Sir is heard to have withstood the ‘attitude’ pleasantly and handled the court pleasingly. Later after pronouncement of the judgment, one of the Judges of the said Division Bench apparently told Sir that he had a bet with his brother Judge whether Sir would remain calm and cool inspite of severe provocation from the Court.

The methodical manner in which his office functioned helped his junior lawyers to be self sufficient, efficient and confident when they became independent. He was an administrator par excellence which he proved during his 5 year stint as the Advocate General of this State. His criteria while choosing/deciding his team of lawyers to work with him (when he was Advocate General) were purely their academic bent, integrity and commitment. Even when he remained a tough taskmaster, he would always own up his juniors or his team and would never let them down before the clients and beaurocrats for their omissions or faults. He maintained the dignity and decorum of the office of the Advocate General and was very particular that his team of Government Pleaders functioned meticulously with their heads high. He refused to be a puppet in the hands of politicians and beaurocrats while he was the Advocate General and always kept them at their place. The Government received all privileges of a client. All the same he made it clear through his conduct and deeds that the Advocate General and the Government Pleaders were not their subordinates. He was always ready to respect and accept the individuality in a person even if it was in conflict with his concepts and principles. There were never false hopes or promises from him and anyone who approached him for any kind of help would be told at the outset the possible outcome of it. His refusal to accept one’s suggestions would be plain and on his face. He was frank but never hurtingly blunt. He was stern but never rude. He used to face controversies and issues with matured grace. His client dealing was a treat to watch and learn. His mediation skills bore fruit in many tough issues-political, legal and social. He has had to face setbacks from many whom he had helped. He would then smile away his hurt by stating that it merely reflected their culture. He had seasoned his mind to think and act above prejudices and pettiness. He had tremendous respect for women and the old and is never heard to have used abusive or uncivic language.

MKD’s office was once like the land where the sun never set. His juniors (three of them have adorned the Bench of this Honourable Court) are heard to say that they have had to work overnight many days and while leaving office during the early hours would be reminded by Sir to report early in the morning which was just 2-3 hours away. MKD effectively blended his legal and political background and has been the cause for many mile stone events in the social history of this State. It was at his instance that a Human Rights forum with a national banner comprising of retired Judges of various High Courts outside this State visited Koothuparambu following the mob firing incident in 1994 and conducted an informal inquiry into it. The inquiry sittings by this Forum proved to be a platform for the family and associates of the victims of the firing to vent out their emotions freely and receive first aid reliefs by way of words and deeds. The report of this informal inquiry was placed before the then concerned authorities which received the right acknowledgement it deserved. He had a unique strategy to solve problems. He hardly preoccupied himself on the symptoms but used to probe into the root cause of the issue and he saw to it that the issue was eradicated once and for all without a chance for relapse. Inspite of his sterling quality of being approachable, he was discrete in his attitude and meted out respect and affection only to those who deserved it. He never let others take him for granted. He was witty and had remarkable sense of humour.

MKD’s contributions to the overall welfare of the lawyer community include his effective tenure as Bar Council (Kerala State) Chairman (ex-officio), his efforts to build the Chamber complex for the lawyers, his timely and strong intervention in issues relating to the lawyers’ welfare fund and the High Court building construction.

MKD era has ended. I am sure the loss on his death is just not for his family, his relatives, clients, friends and the bar. His office at Kacheripady was a one stop destination for a common man as well as a politician or a beaurocrat where he was assured solace to his anxiety and a solution to his issues. That is lost for ever.

It is hard to eulogize any man that is, to capture in words not just the facts and the dates that make his life, but the essential truth of a person and his unique qualities that illuminate his soul. Albert Einstein is heard to have said, “The value of a man should be seen in what he gives and not in what he is able to receive”. MKD always gave...gave much to his work, to his comrades, to his colleagues, to his friends, family and relatives and to the society in whole. He was every lawyer’s pride and a common man’s guide.

Sir, we knew that we would have to lose you at some point of time in the journey of life but we confess, our loss is unimaginable, irreparable and irreplaceable. You will always be remembered by this God’s own country as a great socialist lawyer with immense social values and commitment, a father figure, a guardian and a Guru in toto..... Our Pranams to you.

Privacy as a Public Value

(By Thulasi K. Raj, Advocate, High Court of Kerala)

Nine Judges of the Supreme Court of India are deliberating on the status of the constitutional right to privacy and its link with the Aadharscheme. The arguments made and the questions raised will have significant ramifications on our democracy. The Supreme Court proceedings have posed certain academic suspicions, even among legal scholars. For instance, Prashant Reddy seriously argues that the Supreme Court has “divorced” the privacy issue from “the Aadhar challenge.” (Prashant Reddy, The Wire, 20.07.2017). Another surfacing argument is that the Court is embarking on a theoretical debate without assessing the Aadhar scheme with its nitty-gritties. I think both the apprehensions are premature. This is because a conceptual debate on the meaning and nature of the right to privacy is exactly what was lacking in Indian jurisprudence. Moreover, the conventional approach that rights can be violated only by the State or the State organs and not by private individuals also needs to be debunked.

For instance, when you walk down the street and part of your face suffered a bad burn. Do you have a right to privacy that the other people on the street do not see your face? Obviously not. This is because people on the street cannot be reasonably expected to anticipate this and not look at a stranger’s face. Imagine you wear a face veil to conceal the injury. A man walking past, lifts your face veil out of sheer curiosity. The intuitive response is that there has been a violation of the right to privacy.

A good theory of privacy must not conceive this right as merely private without any societal bearing. Privacy has a significant communitarian value that the morally autonomous individuals engage in greater social interaction. Privacy, establishes collective societal development (Regan P., ‘Legislating Privacy’, 1995) and an empowered and inspired society. It seems plausible to argue that without a reasonable promise of privacy, meaningful social relationships and interactions tend to diminish. Privacy is, therefore, also a public value.

Two questions

This brings us to at least two complex questions- questions that will tilt the balance in the Aadhar case in interesting ways - Firstly, is privacy a free standing right, separable from other related rights? And secondly, what does the right to privacy entail? It will be interesting to observe which approach and which conception of the right to privacy will the Supreme Court subscribe. In fact, the court’s adjudication on the Aadhar will and ideally should, depend upon a convincing theory of privacy.

Derivative or Distinctive ?

The content of privacy has been interpreted in varied ways. The strong contenders in this area are the reductionist and distinctiveness views. The former argues that the right to privacy protects no special interest and other rights such as the right to property are sufficient to capture privacy interests. The latter views privacy as protecting distinctive rights and does warrant separate recognition.

The reductionists argue that there is no free standing right to privacy. A strong privacy sceptic, J.J.Thomson argues that privacy is a derivative right and part of cluster of other rights, and “it is possible to explain in the case of each right in the cluster how come we have it without ever once mentioning the right to privacy.”(J.J.Thomson,‘ The Right to Privacy’, 1975) She examines the example of a man who owns a pornographic picture who does not want anyone else to know that he has the picture. She says that if we train our X-ray device on the wall-safe and look in, we would violate his privacy. But she contends that what is violated is his right to property which includes a negative right that others shall not look at it. Hence, she argues that every seemingly privacy violation is in reality a violation of some other right, in this case, a right to property.

But surely this account must be false. The problem with her argument is that a claim to privacy is not dependent upon other rights. Ownership could often be useful, but not absolutely material in making a privacy claim. Ann, a robber certainly has the right against another person installing a camera to glimpse at the stolen articles collected in her house. This right remains irrespective of whether she owns the articles in question or not.  Her right to privacy is therefore, not derivative of her (non-existing) right to property.

Another example could be this: In a public place, be it the street, or the restaurant, I whisper to my friend a secret that could not wait. Another person who uses a listening device to access the information is certainly invading my privacy. But this violation is not caused by factors like ownership or even possession. The intruder has violated my personal space, which is momentarily and spontaneously created. Thomas Scanlonseems to be very persuasive as he contends, “ownership is relevant in determining the boundaries of our zone of privacy, but its relevance is determined by norms whose basis lies in our interest in privacy, not in the notion of ownership.” (Thomas Scanlon, ‘Thomson on Privacy ’, 1975).

One would hope that the Court adopts a non-derivative approach to the right to privacy. If so, the Court will not require the petitioners to show the violation of any other right, such as the right to property. If the derivative line is chosen, the Court will require that something more, in addition to the so-called right to privacy be shown.

Conceptions of privacy

Privacy has been conceived by some as the ‘access account’, the  right to access to an individual. This account states that if you can determine as to who has access to you, then your privacy stays intact. In connection, privacy is viewed as non-interference and the absence of unwarranted intrusion or the “right to be let alone”(Warren and Brandeis, ‘The Right to Privacy’, 1890).

This idea of privacy has been quite easily challenged by what is commonly called the ‘control account’ of privacy. Control theorists demonstrate it through a contemporary example.  Imagine that an unknown individual collects your personal information. Imagine further that she stores this information, but chooses not to use it for the time being. Even though she does not use it, your privacy is violated by the mere fact that you know that somebody possesses your information without your consent, even with the possibility of use at a later point of time.

In the novel 1984, George Orwell creates a fictional society where the thoughts of individuals are monitored by the ‘thought police’ of the State. He says that there was no way of knowing if , at a given point of time, you are monitored by the State or not.  This is why it has been rightly argued by some of the petitioners before the court that mere surveillance or storage of information itself can create a chilling effect on your actions. It will disturb your private space in dangerous ways.

A   balanced access-control theory, which captivates both information and access, does seem appropriate to absorb major privacy infractions. Adam Mooreprovides a satisfactory definition. According to him, “a right to privacy is a right to control access to and uses of —places, bodies, and personal information.”(Adam Moore, ‘Defining Privacy’, 2008).
This seems to address both - collection of information and use of information.

Implications

Aadhar is said to be probably the largest database system in the world of storing biometric information.  The 12-digit Aadhar number creates and facilitates one’s digital identity. According to the government, more than 99% of Indian adults have enrolled in Aadhar. (The Hindu, 27.01.2017). This is crucial while examining the allegations of Aadhar data leakage and the privacy implications associated with it.

Whatever the Supreme Court might decide on the issue, the present case invariably has far reaching implications on India’s constitutional law and politics for the years to come. The court seems to be siding towards a liberal – as opposed to a rigid-approach to constitutional interpretation. For those who are skeptical about this methodology can probably find solace in the words of Ronald Dworkin, an influential legal philosopher of the twentieth century. In the introduction to his book ‘Freedom’s law: The Moral Reading of the American Constitution,’ he says that the “moral reading” is the  ideal way of “reading and enforcing a political constitution.…So when some novel or controversial constitutional issue arises….people who form an opinion must decide how an abstract moral principle is best understood...The moral reading therefore brings political morality into the heart of constitutional law.”

(This article originally appeared inBar & Bench on 31 July 2017).

Kerala Advocates Welfare Fund-Anomalies Should Be Cured

(By R. Rajendran, Advocate, National Secretary, Bharatheeya Abhibhashaka Parishad)

The legal profession in India is the only profession which is mentioned in the Constitution of India (See Article 22 of The Indian Constitution). The known Indian leaders like Mahatma Gandhi, Dr. B.R. Ambedkar, Dr. Rajendra Prasad and Sardar Vallabai Patel were lawyers and the present lawyer community can alone enjoy such a legacy compared to any other profession. There are more than 25 lakhs lawyers in India. The lawyers are governed by The Advocates Act, 1961. Bar Council of India and respective Bar Councils of States are the statutory bodies which formulate rules and regulations for the smooth functioning of the profession.

Earlier days, legal profession was a ‘status symbol’ but now a days it became a source of livelihood like any other profession. Today this profession is not at all attractive and the dropouts are very high. Less than 15% of new entrants continue in the profession. Though there are brilliant law degree holders, most of them are not interested in the traditional practice and are more interested in joining multinational Companies or other institutions like Banks or Government departments. The struggle for existence in the field is discouraging the youths from entering the profession. Though the term ‘Officer of the Court’ is existing, the majority of lawyers are struggling for their daily bread.

The importance of a very good welfare fund scheme is warranted in the above circumstances. The Kerala Advocates Welfare Fund Act was implemented with such a motto. The Act was introduced in the year 1980, but even now we can’t sincerely call it a ‘welfare Act’; because there is no actual welfare which each and every member wish. The Act was amended by Kerala Government on 8-11-2016, and after receiving the assent of the Honourable Governor, now the amended Act is in force. The Advocates Welfare Fund Bill 2016 is not unique as claimed by the supporters of Kerala Government. There are so many anomalies in the present Act and in that sense it does not contain any welfare.

Before the present amendment, the maximum benefit available to the member in the fund was ` 5,00,000/-. As per Section 16(1) of the old Act, a member who continuously completes 15 years membership in the fund shall be eligible for an amount of `14,285/- for each completed year and was eligible for a maximum amount of ` 5,00,000/- (14,285x35=4,98,925) which means he has to complete 35 years of membership in the Welfare Fund without any break. If a member retires before completion of 35 years he will not be eligible for five lakhs and he will be eligible for the said ` 14,285/- multiplied by his total years of membership. And as per S.16(2) if a member dies his nominee will be eligible for a minimum of `3,00,000/- and maximum of ` 5,00,000/-. Now this provision has been amended and as per Section 16, the maximum benefit is enhanced as `10,00,000/- but the eligibility period is extended from 35 years to 40 years. A member is eligible for `25,000/- for each completed year and is eligible for a maximum amount of `10,00,000/-(25,000 x 40=10,00,000/-). As per Section 16(2) the minimum amount is enhanced to `5,00,000/-

The present amendment is not beneficial to the members. There were strong demands from various lawyers organizations for enhancing the welfare fund amount to the tune of ` 25,00,000/-. The main objection raised by the authority against enhancing the amount was lack of funds. Prior to this amendment the source to the fund was yearly contribution from the part of welfare fund members, welfare fund stamp fee and a small income from legal benefit fund. Unlike other welfare fund schemes there is no employer contribution or Government contribution to Advocates Welfare Fund. So there was strong demand from Bar Council of Kerala and lawyers organisations for allotting certain percentage from the court fee levied by Government to the fund. Now the Government has amended The Kerala Court Fees and Suits Valuation Act and as per Section 76(1) of the Act, 1% additional court fee will be levied in the cases of suits or petitions which can be valued, and ` 100/- in other cases, towards legal benefit fund fee and from the said fund 50% amount will be given to Advocates Welfare Fund. So the question of source to the fund is somehow settled and it is learned that at least 50 crores of rupees will come under this head. More over yearly contribution is enhanced and Welfare Fund stamp fees is also enhanced. But since the amendment has no retrospective effect, nobody will get the full benefit. The annual amount of ` 25,000/- is calculated only from 8-11-2016 onwards. If a present member who had completed 35 years of membership in the fund thinks that after the completion of next five years of membership, he will be eligible for ` 10,00,000/- is only a dream and this is the major drawback in the amendment. Since there is enough fund in the “WELFARE FUND”, nothing should prevent the authorities from disbursing the said `10,00,000/- with retrospective effect to the members.

Another defect is that, after the completion of 40 years also a member should pay yearly subscription as prescribed by the Act as long as he continues in the profession, but his benefit is limited to `10,00,000/-

By this new amendment a fatal provision is incorporated in the Act by this Government. As per Section 9(gh) a new provision in the name of “Provide assistance to the Advocates Academy” is incorporated. This is a provision for diverting fund from Advocate’s Welfare Fund against the interest of the members of the Fund. Earlier there was no provision for diverting any amount from the “fund” other than disbursement of welfare amount to the members. By this amendment there are every chance for diversion of huge amount from the Fund in the name of Advocates Academy and there is no provision to check or ascertain the day to day affairs of Advocates Academy since both are separately administered by different committees. The members are afraid of miss-utilization or possibility of corruption under the cover of this provision.

Another objectionable amendment is carried out in Section 15(1A). (Section 15 is regarding grant of membership in the fund). Earlier as per Section 15(1A) “An advocate who is eligible for or availed of any kind of retirement benefits for the service under the Central or State Government or any public or private sector undertaking, shall not be admitted as member of the Fund or permitted to resume membership in the fund”. But the new provision incorporated is ‘provided that this sub-section shall not be applicable to a person who was in employment for a period not exceeding five years or if the pension does not exceed five thousand rupees per month’. By this new provision double benefit will be availed by such members. This provision will defeat the real intention of welfare fund. Persons who are availing pension to the tune of ` 50,000/- were also admitted in the Fund through the misinterpretation of this section. By incorporating Section 15(1E), an Advocate who has not joined the fund can join now. But this section is not beneficial to the Lawyers as claimed by the supporters of Government. Those persons can join the fund on payment of annual subscription payable corresponding to the period of practice at the time of such admission multiplied by his actual years of practice together with a fine of Rs.2000/- for every completed year of actual practice. But he will be eligible to claim only up to ten years of his previous actual practice. This provision is no-way beneficial or attractive to the present members or those who intend to make use of this provision.

Regarding treatment expenses, a member will get only an amount `1,00,000/- once in three years for major diseases like cancer or for major surgeries.

The apparent anomaly in the parent Act which is pointed out by lawyers and Abibhashaka Parishad from the very institution of the Act is that if a member of the fund is forced to receive the eligible Welfare Fund amount due to unforeseen reasons before he completes the stipulated period, thereafter he cannot continue as a lawyer. He has to surrender his ‘Sannathu’ for getting the amount and after that he cannot practice as a lawyer. This provision is against the provisions of The Advocates Act 1961, which is a Central Act. As per Advocates Act 1961 a lawyer can continue as a lawyer unless he is disqualified by the reasons stated in the Act. We should allow a member of the FUND who is forced to receive the amount from the fund due to unforeseen reasons to continue as a lawyer without giving any further benefit from the Fund.

The Lawyer community should unite for a comprehensive, unique and beneficial welfare fund scheme.