Dont’ Crush the Life Force of A Prisoner, Don’t Play with His Rights –

Supreme Court Warned Kerala Government

(By G.Shaheed, Former Legal Correspondent and Chief of Bureau of Mathrubhimi in Cochin and also worked in New Delhi as Chief Legal Correspondent covering Supreme Court.)

“Release the petitioner prisoner, with immediate effect in the  interest of justice. It is ordered accordingly”.

The judgment of the Supreme Court sounded like an ultimatum to the Kerala Government indicting the bureaucrats of the Home Ministry for their insidious attacks in trampling upon the rights guaranteed under Article 14 to a prisoner that was fortified by the historic Judgment in Sunil Batra case in 1979₁, the Division Bench  then headed by Justice V.R.KRISHNA IYER. While perusing meticulously the files and jail records of the prisoner in this case submitted by the Government the Court was deeply disturbed  by the calculated and repeated injustice shown to the prisoner even setting at naught the directions given by the Supreme Court on previous occasions in prisoners’ cases which were the law of the land according to the Constitution. Even the premature release that was available to him was thwarted by the evil designs of the bureaucracy. So the Court was compelled to draw an irresistible  conclusion that the  prisoner petitioner shall not be in jail even for a moment and was set at liberty, The order was passed  accordingly.

The judgment was delivered by the Supreme Court Division Bench consisting of Justice S.Ravindra Bhat and Justice Dipankar Datta on 21.9.2023. at 10.30 A.M.₂

The Kerala Government acted swiftly. That day by 7 p.m. though it was an odd time for the Open Jail in Nettukaltheri away from Thiruvananthapuram City, Its huge iron gates were flung open to free Koovely Joseph aged 67 of Angamaly in Ernakulam district who was undergoing life imprisonment since 1998. The police case was that he had committed murder of his sister in law in 1996. The Trial Court Trichur Sessions Court acquitted him for want of evidence for murder but on appeal by the
State the High Court in 1998 reversed the trial court judgment and convicted and sentenced him to life imprisonment. The Supreme Court upheld that judgment, three years later. For the first four years Joseph was in Kannur Central Jail and later was shifted to open jail in Trivandrum. The inmates of the open jail work in the vegetable gardens, cattle farms and rubber tapping units. Some are carpenters and skilled workers. They earn ` 320 per day as wages. While Joseph was in the vegetable garden the warder called him to his office and said. ‘Joseph you have been freed by an order of the Supreme Court today. My superior officer has informed me. When do you want to go home ? Joseph replied. I wish to go today itself.

Joseph got ready. By 7 p.m. the warder handed over `15,000 to Joseph that was due to him as wages. He gratefully accepted it. He met most of the coprisoners and officials of the jail, the jail bade him goodbye. It is for the first time in the history of the open jail since its establishment in 1962, its iron gates were opened at an odd hour of 7 p.m. when all lights at that time are turned off and inmates fall to sleep.

 ‘ 26 Years went like a lightning. It seems all had happened just the other day. ‘JOSEPH told me when I met him at his residence after a few days. He was euphoric for a Malayalee advocate in Supreme Court Mathew Adolf had championed his case with dedication and was fully confident to win, he did a masterful work and the Apex Court was fully convinced of the sad plight of the prisoner. That happened so that the gates of the prison were opened for his exit armed with a historic judgment to protect the rights of the prisoners and treat them more humanely. This judgment imbibes the spirit of Sunil Batra case, that had thundered against the other world in Tihar Jail under the nose of the Union Home Ministry when the warders resorted to primitive methods of torture and a chosen few in the jail had privilege to enjoy women and wine, narcotics and blessed facilities. It was sheer anarchy that prevailed there, so shocking perpetrated by a few warders who were close to centres of power and were fully backed by political patrons. A prisoner named Sunil Batra had sent a complaint to the Apex Court that was treated as a Writ Petition and the Court acted. It sent shock waves as the Court cleaned the Augean stables. That landmark judgment paved the way for prison reforms and alerting those in power. The judgment declared that a prisoner is a human being and not an animal and he does not lose his Fundamental Rights when entering the jail. The court declared that rights guaranteed under the Constitution can be enjoyed by a prisoner and Court fortified Articles 14 and 21 to a great extent and declared he has right to live with dignity. As well he can resort to Article 32 to knock at the door of the ApexCourt when his fundamental rights are violated.

Advocate Mathew Adolf prepared the writ under Article 32 and filed it two years back.
Joseph had no documents with him, he had a brief discussion with the lawyer when he had visited the Open Jail where he had a few clients. All the documents necessary for Joseph’ s writ had to be collected by him after toiling and toiling and do rather a research work perusing hundreds of Judgments the Apex Court had delivered since Sunil Batra case that had revolutionised prison reforms and protected the rights of the prisoners. Many courts around the world had hailed Indian judgments related to penology and reformation of the prisoners. Drawing inspiration from Sunil Batra case and others in the succeeding years many State High Courts followed its spirit. Prison reforms were initiated even in Bihar that had primitive jails and had hit headlines in the media when the notorious Bhagalpur blinding case₃was known to public. Justice P.Subramnonian Poti, Chief Justice of Kerala High Court₄acted when a few prisoners complained. He visited the Kannur Central Jail and heard many of them and took remedial measures, the wages of the working prisoners were increased.The Jail DGP was alerted by the Court and complaint boxes were installed in the prisons. They were opened under the supervision of District Judges and most of them were referred to the High Court for action as well.

WHY JOSEPH WAS NOT RELEASED ?

The Supreme Court while hearing the petition of Joseph in June 2023 was shocked to see the the cruel indifference adopted towards him by the bureaucrats in the Home Ministry. He was fully eligible for remission and premature release as per Section 433 A of the Cr.P.C. Moreover the Jail Advisory Committee had on three occasions unanimously recommended his premature release on 10.1.2017, 26.2.020 and 7.3.2022. The Judges of the Division Bench were so surprised that without assigning any reason those recommendations were rejected as evidenced from the files.

Why it happened ? The Court asked the counsel appearing for the State of Kerala. Then the reply was that the decision whether to grant remission or not to a prisoner is an act exercising discretion which solely fell within the domain of the executive. The prisoner cannot claim a fundamental right to release.

But the Apex Court had to reject it and observed ‘The Government has simply rejected it all three times. It is patently unsustainable and warrants intervention. As per the records produced by the State he has earned eight years of remission thus demonstrating good behaviour in the jail.The discussion in the minutes of the meeting of the Jail Advisory Committee are also positive and showing that he was hardworking, disciplined and a reformed inmate so there is no other way but to release him immediately in the interest of justice, ordered accordingly. The Court felt that the rejection of the recommendations of the Jail Advisory Committee was a colourable exercise of power, wholly illegal that violates the prisoners rights under Article 14. The stand of the petitioner was that many inmates who have completed fourteen years of imprisonment have been released while he was singled out though he was fully eligible for release.Advocate. Mathew Adolf was of the view that due to the timely interference of the court his petition under Article 32 was treated like a habeas corpus petition that ultimately freed the prisoner from incarceration looking like illegal detention.

The Court had reminded the Government that when taking a decision it has to be fair, reasonable and not arbitrary. The court has emphasised it many judgments. The recent judgment was delivered by a Division Bench headed by the Chief Justice in August 2021 when it was observed that decisions on remissions shall be fair or the prisoner can allege that his rights under Article 14 has been violated and the court has to scrutinise that. Usually when prisoners approach the court for release it generally directs the Government to consider the same, on rare occasions only Court passes orders to release when evidences are there to substantiate arbitrary and illegal stand of the Government some unknown hands in the bureaucracy were thwarting the reasonable claims of Joseph for premature release.

So the court in the judgment made a very serious observation’.

‘ The petitioner has already undergone 26 years of imprisonment. We do not redirect the petitioner to undergo yet another consideration before the Jail Advisory Committee. It would be a cruel outcome like being granted only a salve to fight a raging fire in the name of procedure. The grand vision of the rule of law and the idea of fairness is then will be swept away at the altar of procedure, which this Court has repeatedly held to be a handmaiden of justice.

At the time when petition was heard the State Government had a different argument also apart from what was stated in the counter affidavit. The court was informed of an executive order the Government had issued on 4.6.2022. It is by the Home Department. It was held by the Government that persons who committed murder of women and children and persons who committed murder with rape is one of the catogeries of prisoners who are not eligible for premature release in future. That is they are excluded from the purview of remission,

The Apex Court did not approve that. The court said that it is by an executive order such an exclusion is made. That directive or guideline is over and above the Act. Blanket exclusion of certain offences from the scope of grant of remission, especially by way of an executive policy is not only arbitrary but turns the ideals of reformation that runs through the criminal justice system on its head. Numerous judgments of this Court have elaborated on the penological goal of reformation and rehabilitation, being the cornerstone of our criminal justice system rather than retribution.

The impact of applying an executive direction to guide the executive’s discretion would be that any progress made by a long term convict would be rendered naught leaving them feeling hopeless and condemned to an indefinite period of incarceration.

 That executive order was thus declared arbitrary by the Court. The Court made a further clarification that that the Government cannot by way of such an order take such a role for crimes as it deems fit. The Court expressed the view that while the executive order is not directly challenged, in its considered opinion it merits comment and a note of caution. The court naturally went against it. The counsel for the prisoner had opposed the executive order but his arguments for the release of his client was centred on Kerala Jail Rules prevalent at the time of his conviction, when he was sentenced to life imprisonment by the High Court in 1998 that was done reversing the acquittal by the trial court.

The Court observed that the executive order was really inflexible because it is based on a crime committed in the distant past. It can result in the real danger of overlooking the reformative potential of each individual convict,the practical impact of an executive order which bars consideration of a premature release of a prisoner having undergone 20 or 25 years of imprisonment based entirely on the nature of crime committed in the distant past would be to crush the life force out of such individual altogether. Such persons will never see freedom and would die within the prison walls.

 A person who entered the prison long back may not be the same person after a long period of incarceration. The executive order denies the real impact of prison good behaviour and other relevant factors and result in violation of Article 14. Excluding the relief of premature relief to prisoners who have served extremely long periods of incarceration not only crushes their spirit and instills despair but signifies society’s resolve to be harsh and unforgiving.The idea of rewarding a prisoner for good conduct is entirely negated, the Court said.

WHAT WAS THE REMISSION POLICY WHEN JOSEPH WAS CONVICTED?

The argument of the counsel for the prisoner was centred around the remission policy prevalent in Kerala at the time of conviction of the petitioner, in 1998. That was fully considered by the court.

Kerala got Statehood in 1956 only. Before that there was the Travancore Cochin Prison Act that came into force in 1950. The Kerala Prison and Correctional Services Act came into force in 2010. The Kerala Government had enacted Kerala Prison Rules in 1958 But as per the 2010. Act the 1958 rules were to continue till the commencement of the new rules. The new rules were in force only in 2014. The 1958 rules were in force when the petitioner was convicted in 1998.    

The counsel for the petitioner drew the court’s attention to the Rules of 1958 that stipulates the release of a prisoner can be considered after 14 years of imprisonment. and that the inmate shall be released after completion of 20 years of the sentence and the recommendations of the  NHRC which prescribes mandatory release after 25 years of sentence.

The counsel further argued that even in terms of Rule 277 of the Prison Rule of 2014 the prisoner is entitled to be released after 20 years of imprisonment. It was pointed out that the prisoner has undergone 26 years of actual imprisonment at this juncture, and it was manifestly illegal to keep him incarcerated in perpetuity. Moreover the counsel vehemently argued that the Executive order came in 2022 by which time he had already undergone 25 years of imprisonment and the order could not override the statutory provision. The argument of the counsel that the petitioner had a legal right to be considered for remission given the safeguards of a convict under Articles 20 and 21 of the Constitution as well his legal right was guaranteed by the Kerala Prison Act and Rules. It was accepted by the court.

As per reply received from the jail under RTI Act it was pointed out to the Court that from 2000 to 2016 a total of 28 convicts sentenced to life imprisonment in the murder of women had been granted premature release. However, despite being recommended by the Jail Advisory Committee the Government rejected without assigning any reason, this is a ground to set aside the Government order rejecting release, that argument weighed wells with the Court. The court made it clear that the remission policy prevailing on the date of conviction is to be applied in a given case,that was a ground to release the petitioner accepting the arguments of the counsel for the petitioner. The court follows an earlier decision in State of Haryana v. Raj Kumar of 2010₅. That approach was followed by the court inRajo v. State of Bihar in 2023₆The Court clarified that when the petitioner was convicted in 1998 by the High Court, the 1958 Rules were in force in Kerala, that enables to release of the petitioner.

The court observed that the Jail Advisory Committee was headed by the Jail DGP. It had members like District Judge, District Collector, District Police Chief, Probation Officer and three non official members, they had taken a holistic view of the petitioner and recommended release, still Government rejected it, that was the unkindest cut, the court felt and was a ground for immediate release of the petitioner.

Advocate Mathew Adolf is of the view that this landmark judgment will enable many prisoners who have undergone 14 years of imprisonment or more, they can approach the Government citing the dictum laid down as well observations and declaring the 2022 executive order as arbitrary by the Court. The Government is bound to act as it cannot take arbitrary decisions in matters of premature release. As well any prisoner entitled to release can approach the court if the Government declines to act.

This judgment is another voice of the Constitution that saved a prisoner. Otherwise by the executive order of 2022, he would have died behind the bars.

Foot Notes

1. 1980 KLT OnLine 1046 (SC) -Sunil Batra v. Delhi Administration.

2. 2023 KLT OnLine 1025 (SC) -- Joseph v. State of Kerala.

3. 1981 KLT OnLine 1025 (SC) -Khatri v. State of Bihar.

4. 1983 KLT 512 - In the Matter of Prison Reforms Enchancement of Wages of Prisoners.

5. 2010 (4) KLT OnLine 1034 (P. & H.)

6. 2023 KLT OnLine 1730 (SC) = 2023 (5) KLT SN 59 (C.No. 34) SC.

Artificial Intelligence in Legal Research & Practice*

(By Dr.Preetha S., Associate Professor & Director,School of Legal Studies,
      Cochin University of Science & Technology, Cochin)

We live in an era of big data where huge amount of data is being generated on a daily basis. The collection, storage, analysis and prediction of future behaviour patterns is a cumbersome task for humans to process. The herculean task of processing data is nowadays undertaken by artificial intelligence. Banking, health care, insurance and entertainment industries are widely employing AI for providing better goods and services to the people.

Academic opinion is divided as to whether the application of artificial intelligence (AI) in legal practice would revolutionise or disrupt the legal industry. AI is being employed for doing a wide variety of tasks in the legal industry. Application of AI helps to enhance legal research capabilities. AI eases the document retrieval and review process in legal research. Law firms use AI for reviewing thousands of documents for the due diligence exercise and for legal drafting.Apart from application of AI in legal research, AI is also been employed to replace lawyers and judges.

There are a lot of ethical and policy issues to be addressed before adopting AI technologies on a large scale. The application of AI in legal practice and research poses unique socio-legal issues. The paper will explore the socio-legal and ethical issues involved in applying AI in the field of legal research and practice. The paper will examine the need for regulatory controls over application of AI in legal research and practice. The paper intends to make some suggestions in developing a legal framework for regulation AI in legal industry.

Artificial Intelligence

The research on AI was started in the 1950’s by a group of mathematicians, scientists and philosophers. The question of whether machines can think was first posed by British Mathematician Alan Turing in 1950 in a paper on computing machinery and intelligence. The term Artificial Intelligence was used for the first time in Dartmouth Summer Research Conference in 1955 by John Mc Carthy, an American computer and cognitive scientist.  Since then, significant advances were made in AI and in the contemporary era AI is being applied in almost every aspect of life starting from healthcare to home delivery of goods. Inventions in electronics, engineering and computer science greatly influenced the development of AI.

Artificial Intelligence (AI) is a science and a set of computational technologies that are inspired by the ways people use their nervous systems and bodies to sense, learn, reason, and take action.¹  Artificial intelligence entails making machines intelligent and intelligence is that quality that enables an entity to function appropriately and with
foresight of its environment. AI refers to ability of computers to perform tasks that require human cognition. Data collection, data processing, data analysis, thinking, perceiving, learning, decision making and problem solving are the various cognitive processes which AI systems are trained to carry out.

The Stanford University study found that AI is not an imminent threat to mankind.  AI is going to create profound positive impact in the society in improving human lives. But AI and its use can create disruptions in the economy in terms of how human labour is going to be employed. This challenge can be met if society approaches the AI technologies with an open mind and restructure our social and economic systems of production of goods and services. 

Significant research on application of AI is going on in domains like transportation, healthcare, education, service robots, public safety and security, workplace and enter-tainment. The developments in AI technology led jurists to think about its application in legal profession. The first conference on AI and Law was held in Boston University in United States in 1987.² This led to the establishment of the International Association of Artificial Intelligence and Law (IAAIL) in 1991 to promote research and application of artificial intelligence in legal field. In the eighties, AI was mainly used in legal research for information retrieval through digital searches. Legal research involves the process of identifying, analysing and applying law to solve a particular legal issue. All legal professionals including judges, lawyers, academicians, arbitrators and legislators engage in legal research. AI supported research systems are developed by creating a digital database. The source material so created is used for identifying applicable law and solving legal issues. Companies such as LexisNexis and Westlaw provided legal firms with databases and search facilities. AI was subsequently employed for document management, document review, drafting legal documents and for fact investigation. Law firms have embraced AI for contract negotiations, due diligence exercise in commercial transactions and for enhanced document retrieval. In 2016, ROSS the first AI lawyer, IBM’s cognitive computer was employed by an American law firm. Smart courts use AI for adjudicating disputes. Generative AI can be used for automation of legal works. Generative AI is a kind of artificial intelligence which can create a wide variety of data such as text, audio, video, patterns, images etc. Generative AI can be used for drafting legal documents like contracts. Generative AI can be used to identify trends from huge data. This would help lawyers in making informed legal decisions.

The Supreme Court of India has an Artificial Intelligence (AI) portal SUPACE (Supreme Court Portal for Assistance in Court Efficiency) designed to make research easier for Judges and to ease their workload.Recently the Supreme Court used AI to transcribe its court proceedings.³  The Supreme Court relies on Natural Language Processing for translation of judicial orders and rulings.⁴ AI can augment efficiency of courts in administration of justice. But there exist ethical and legal issues in application of AI in administration of justice. The question is as to for what purposes AI can be employed and how its use in legal industry can be regulated.

AI in Legal Research: Challenges & Concerns

A study conducted by Thomson Reuters found that majority of lawyers in US, UK and Canada are using ChatGPT for doing the legal work.  But they voiced concerns regarding the accuracy and security of the technology and the privacy and confidentiality aspects of data. Generative AI require large datasets for training. Generative AI may rely on privacy invasive methods for data collection and may access sensitive personal data. The data shared with a Generative AI may be misused or abused without user’s knowledge. Data privacy protection and bias mitigation are major concerns in regulation of AI in legal research. Data security is a concern of regulation as legal data is confidential in most cases. The perspectives of those who develop the AI program may make the system biased. When an AI driven hiring tool was developed to search top talent, it was found to be biased against women.  AI supported judicial decision making may produce biased results if the existing data on which it is trained is biased on basis of race, caste or sex. AI supported judgement outcome prediction system is in the pipeline which is going to be used to predict the outcome of pending cases based on the precedents. These predictions can help law firms to plan their litigation strategy in advance.⁵ The challenge lies in ensuring accuracy of prediction as the factual matrix of cases vary from case to case and any mistake in prediction of judgment outcome may seriously jeopardise the protected rights of accused including the presumption of innocence.

Another concern identified in application of AI in legal research concerns the authenticity of data generated in the research process. The flip side of application of AI in legal research is that AI may generate false claims and fabricate primary sources to back up their claims.⁶   AI chatbots have a tendency to hallucinate and may give false answers and facts.⁷ An AI tool came up with fake cases that never existed and some lawyers who relied on ChatGPT for their legal research had to face disciplinary action for citing false cases before the court.⁸  This leads us to the question of how responsibility can be fixed for the spread of misinformation.

Guiding Principles for AI Research & Development

The Stanford University study reported that attempts to regulate AI in general are misguided as the risks and consideration are different in different domains.⁹  Sector specific approach is the need of the hour and customised regulatory system is required to address challenges posed by AI innovations in various fields. AI is a transformative technology with great potential for enhancing the efficiency of legal industry.But the choice of the direction of AI technology is crucial to ensure that it is in sync with democratic principles and human values. We cannot blindly accept the results generated by AI in legal research as accurate. We need oversight mechanisms to determine accuracy of the information generated.  A robust legal framework is required to address the safety and security concerns in AI supported legal research. Poorly informed regulation can stifle innovation. Hence, we need to develop a legal system balancing the need for innovation and protection of rights of users.

Though we don’t have international and national guidelines governing AI, we have a lot of voluntary initiatives to establish ethical principles for the adoption of socially beneficial AI.  The prominent initiatives include the Asilomar AI Principles developed under the auspices of the Future of Life Institute in 2017, the Montreal Declaration for Responsible AI, 2017 developed under the auspices of the University of Montreal, the AI principles developed by Artificial Intelligence Committee’s Report, UK,2018 and the Beijing Principles adopted in 2019 by the Beijing Academy of Artificial Intelligence (BAAI).There is a convergence in the set of principles advanced to regulate AI.  Among these initiatives, the Asilomar principles and Beijing principles are broadest in scope offering various principles covering research issues, ethical issues and long-term issues.

Asilomar Principles

The core principles identified in the Asilomar principles, 2017 are similar to the main principles of bioethics which include beneficence, non-maleficence, autonomy and justice.  The Asilomar principle on research requires that the goal of AI research should be to create beneficial intelligence and not undirected intelligence. The principles on ethics and values require transparency in case of system failures.  The transparency principle requires that it should be possible to ascertain the reason if an AI system causes harm. Judicial transparency principle requires that any involvement by an autonomous system in judicial decision-making should provide a satisfactory explanation for the decision auditable by a competent human authority. The principle of responsibility mandate that the designers and builders of advanced AI systems shall have the responsibility for its use, misuse, and actions. The value alignment principle requires that autonomous AI systems should be designed in such a way that their goals and behaviours are aligned with human values throughout their operation. AI systems should be designed and operated so as to be compatible with ideals of human dignity, rights, freedoms, and cultural diversity. AI systems should protect personal privacy and liberty.  People should have the right to access, manage and control the data they generate, given AI systems’ power to analyze and utilize that data. The application of AI to personal data must not unreasonably curtail people’s real or perceived liberty. The shared benefit principle mandates that AI technologies should benefit and empower as many people as possible. The principle of shared prosperity requires that the economic prosperity created by AI should be shared broadly, to benefit all of humanity.

The Asilomar principle concerning long term issues is dealt under the recursive self-improvement principle which requires that AI systems designed to recursively self-improve or self- replicate in a manner that could lead to rapidly increasing quality or quantity must be subject to strict safety and control measures. Further, the common good principle requires that superintelligence should only be developed in the service of widely shared ethical ideals, and for the benefit of all humanity rather than one state or organization.

The Beijing AI Principles, 2019 was developed to guide research and development of AI, the governance of AI, use and implementation of AI systems. The first principle on research and development (R&D) of AI referred as the do-good principle require R&D in AI to promote the progress of society and human civilization, to promote the sustainable development of nature and society, to benefit all humankind and the environment. The do-good principle mandates that AI should be designed and developed and to enhance the well-being of society and ecology.The second principle requires that R&D of AI should serve humanity and conform to human values as well as the overall interests of humankind.Human privacy, dignity, freedom, autonomy, and rights should be sufficiently respected. The third principle require researchers and developers of AI to consider the potential ethical, legal, and socialimpacts and risks brought in by their products and take concrete actions to reduce and avoid them. This calls for responsibility and accountability mechanisms to address harms caused by AI. The fourth principle dealing with the risk management requires continuous efforts to be made to improve the robustness, reliability, and controllability of AI systems and the safety & security for the AI system. The fifth principle concern the ethical design approaches to make the system trustworthy. The system should be designed to act fairly, reducing possible discrimination and biases, improving its transparency, predictability, and making the system more traceable,auditable and accountable.Beijing principles on use of AI require users of AI to make wise and proper use of AI systems and to have sufficient understanding of the potential impacts to avoid misuse and abuse of AI systems. Informed consent shall be taken from stakeholders and users rights are to be protected from infringement. The Beijing principles on governance of AI systems require a cautious attitude to be taken towards the promotion of AI applications that may have huge impacts on human employment.

Regulation of AI in Legal Research

Not many countries have enacted a law governing AI.The existing national legislations on AI does not address the sector specific concerns in application of AI. The National Artificial Intelligence Act, 2020 (US) requires the Federal Government to play an important role advancing research in Artificial Intelligence. The Act acknowledges the fact that Government lacks clear understanding of the capabilities of artificial intelligence and its potential to affect various social and economic sectors, including ethical concerns, national security implications, and workforce impacts. The Act requires the National Institute of Standards to develop best practices and voluntary standards for trustworthy artificial intelligence systems. The Act mandates incorporation of ethical, social, safety, and security considerations into the research design to mitigate potential harms before they happen. Rather than laying broad guidelines, the US Act does not address the privacy, security or accountability concerns in AI research.

India does not have any specific law regulating AI. The Ministry of Information and Communication Technology is the executive authority overseeing AI research and strategies. As per the National Strategy on Artificial Intelligence (NSAI) released by NITI AYOG in 2018, AI is to be employed in five public sectors namely health care, agriculture, education, smart cities, and smart mobility & transportation. In 2021,NITI AYOG developed a set of seven responsible AI principles, which include safety and dependability, equality, inclusivity and non-discrimination, privacy and security, transparency, accountability, and the protection and reinforcement of positive human values.

The Beijing Principles and the Asilomar Principles can be used for developing a robust legal framework in India.The Asilomar principle on judicial transparency requires that any AI supported judicial decision-making should provide a satisfactory explanation auditable by a competent human authority. This is the only guideline available with respect to application of AI in the legal field. Hence it is essential to develop sui generis principles for governing application of AI in legal research.The justice element should not be missed when AI start thinking like a lawyer and giving legal advice to the clients.  The legal framework should ensure that human values are not ignored in the process of AI driven justice administration.

It is suggested that a certifying authority to check AI programmes in legal industry would be helpful to address the ethical concerns in application of AI in legal research. This authority shall have representatives from the technical field and legal field. Such an authority may be able to identify the purposes for which AI may be used in legal industry. For eg: the tendency to hallucinate and give false answers has to be deactivated in AI systems used for legal research. Such a feature may be beneficial for literature studies or for creating poems but not in legal research where accuracy of information generated is of utmost importance. AI tools used in legal industry should have inbuilt systems to ensure information integrity and content integrity. Information integrity feature should ensure that the source being accessed is authentic and that the information was published by the person it claims to be published by. The content integrity feature should ensure that the content is not tampered with.

Again, a feature preventing use of sensitive personal data fed into the system for purposes other than for that particular case may also be necessary for AI systems used in legal research. For eg., the sensitive data fed into the AI system like bank account details or the PAN number should not be accessed for purposes other than that particular case file.

Conclusion

AI is so pervasive that even legal industry cannot shut its eyes to AI. AI is widely applied in legal research. But AI has huge possibilities to interfere with human rights in innumerable ways. Hence, we cannot let loose AI as an unruly horse, even though State regulations may stifle innovation. Innovation without respect for human values would be a disaster. The legal system needs to develop norms for protecting the people from dangerous applications of AI.  The main challenges involved in application of AI in legal industry pertain to accuracy and security of data, confidentiality of data, transparency, accountability and respect for human values. Hence, we need to develop a framework addressing these issues in application of AI in legal domain. AI applications with undesirable outcome should be discarded. The ultimate control of AI should be in human hands. All persons involved in the development of the AI system should be held accountable when harm is caused to the end users.Core principles of respect for human dignity and autonomy, non-discrimination, prevention of harm and transparency should govern the design and development of AI systems.

Foot Notes

* This is a modified version of the paper presented for the National Conference on“Emerging Contours of Law and Justice in the Contemporary Era” jointly organized by PG Department of Law,Gauhati University & Droit Pinale Group, August 2023.

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Whether Right of Minority Institutions to Appoint Head of the
Institution of their Choice under Article 30(1) of the
Constitution of India is Absolute?

(By S.Muhammad Haneef, Advocate, Supreme Court of India and High Court of Kerala)

1]. A recent decision of a Learned Single Judge of the Hon’ble High Court of Kerala in Xavier v. State of Keralareported in (2023 (2) KLT 615) held that, “simply because a senior teacher kept mum when management appointed his junior as Head Master, that appointment cannot be approved unless a written consent is obtained from the senior claimant renouncing his claim permanently in terms of the provisions contained in Kerala Education Rules, even though the Educational Institution is an institution having minority status and having protection under Article 30(1) of the Constitution of India”. The Learned Judge analyzed judgment dt.31.01.2017 inIvy C.da.Conceicao v. State of Goa & Ors. (2017 (1) KLT OnLine 2065 (SC) (2 Judge Bench decision of the Hon’ble Supreme Court) and quoted Para 14 of the judgment which reads “the above decision clearly show that autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process.  Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational.” Therefore it was held that the right of minority institution has to be looked into in the light of the above principle laid down by the Apex Court.

2]. It is worthwhile to note that, a yet another 2 Judge Bench of the Hon’ble Supreme Court vide its judgment dt.11.07.2017 inCorporate Education Agency v. James Mathew reported in (2017 (3) KLT 713 (SC)) relying on  Catholic College v. T.Jose (2007 (1) KLT 22 (SC)) after referring to almost all leading cases of the Apex Court governing the field held as follows; “the emerging position is that once the management of a minority education institution makes a choice of a qualified person from the minority community to lead the institution either as the HM or Principal  the court cannot go into the merits of the choice or rationality or propriety of the process of choice in that regard the right under Article 30(1) is absolute. ”  In view of the conflicting decisions of co-ordinate Benches of the Apex Court,the former is relied on and followed by the Learned Single Judge in Xavier’s case (supra). Let us analyze the exact position of law based on binding precedents.

3]. The head of any institution plays an integral part in running the institution. This has been explained by the Hon’ble Supreme Court in Ammad v. Emjay High School
(1998 (2) KLT 828 (SC) in the following words:-

     “17. Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. Headmaster is the key post in the running of the school. He is the hub in which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster, can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years”.

Thus, in order to exercise the right conferred under Article 30(1) of the Constitution of India, minority institutions must be conferred with the right to overlook seniority to choose a person as its Headmaster or Principal, as the case may be, whom it believes would anchor the institution to heights. However, under the guise of exercising the rights conferred under Art.30(1) of the Constitution of India, can the management of the minority institution disregard qualified and suitable persons who also belong to the very same minority community or category overlooking seniority? Can such person seek judicial review of the same? In this backdrop, let us analyze these issues on the basis of law declared by the Apex Court as well as the Hon’ble High Court of Kerala.

4].  A Full Bench of the Hon’ble High Court of Kerala, in Kurian Lizy v. State of Kerala (2006 (4) KLT 264 (F.B.)) bestowed to adjudicate as to whether the right of the management of a religious minority educational institution to choose a qualified person as Headmaster of the School would come within the protective cover of Article 30(1) of the Constitution of India and if so, can it be regulated through a legislative act or an executive rule, considered the issue after referring to an 11 Judge bench decision of the Apex Court in T.M.A.Pai Foundation v. State of Karnataka (2003 (1) KLT OnLine 1104 (SC) and held as follows;

“We, thus, hold that the management of a minority educational institution would have freedom to appoint Headmaster or Principal. Rule 44(1) of the Rules of 1959 [Kerala Education Rules] would have no control over the powers conferred under Article 30(1) of the Constitution, although such institution has necessarily to evolve a rationale procedure for selection of the Headmaster or Principal, this context, we feel that some directions should be issued to the Managements of minority educational institutions, to evolve a procedure for selection to the post of Headmaster, in the light of the observations in the answer to question 5(c) in T.M.A.Pai Foundation’s case (supra) quoted above. We notice that in many cases senior teachers belonging to the minority community, which runs the institution are superseded without assigning any reason. Article 30(1) of the Constitution of India is an armour to protect the minority against the legislative and executive actions of the State, which is normally controlled by the majority. The said armour cannot be used as a weapon against other members of the same minority community. The protection under Article 30(1) is to the minority community and for the minority community. The Manager may supersede the members of other communities and also members of the minority community, who are found unsuitable for promotion to the post of Headmaster. But there may be teachers, who are, in every respect, qualified and suitable to head a minority educational institution. The management may select the best among them. The selection procedure should be fair, reasonable and transparent. The eligible members of the minority community may not have a feeling that they have been superseded without any valid grounds. So, all minority educational institutions, which propose to select the best person to the post of
Headmaster/Principal of a School or College, as the case may be, ignoring seniority in the feeder category or ignoring the available teachers, should frame and publish regulations or bye-laws, containing a transparent procedure, governing such selection. The publication can be made in the Notice Board of the educational institution concerned and a copy of it should be available in school/college library for reference. When superseding a senior qualified member of the minority community the reasons thereof should be clear from the records.”

5].  Consequent to the Full Bench judgment in Kurian Lizy (supra), the Hon’ble Supreme Court in Malankara Syrian Catholic College v. T.Jose (2007 (1) KLT 22 (SC)) was posed with a question to decide whether the provisions of Section 57(3) of the Kerala University Act apply to minority educational institutions and overrides the right of the management to make its own choice to make appointments to the post of Principal.The Hon’ble Apex Court answered the said question in the negative. The relevant portion of the judgment is as follows;

“27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by T.M.A.Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid will make no difference.

28. The appellant contends that the protection extended by Article 30(1) cannot be used against a member of the teaching staff who belong to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person’s outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions.

29. Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1).
Section 57(3) of the Act cannot therefore apply to minority-run educational institutions even if they are aided.”

6]. Whether the Full Bench judgment of the Hon’ble High Court of Kerala in Kurian Lizy (supra) was impliedly overruled by the Hon’ble Apex Court in Malankara Syrian Catholic College (supra) or not, was the issue considered by yet another Full Bench of the Hon’ble High Court of Kerala in Belsi M. v. Corporate Management of Latin Catholic Schools, Diocese of Neyyattinkara (2010 (2) KLT 134 (F.B.). The Full Bench held that, the decision in Kurian Lizy has not been overruled in Malankara Syrian Catholic College (supra) and that the procedure prescribed in Kurian Lizy (supra) has to be followed while appointing the head of the institution overlooking seniority. The relevant portion of the judgment is as follows;

“…So, we find it difficult to accept the view canvassed by the counsel for the management that the direction to follow a fair procedure in the matter of selection of teachers for appointment to the post of Headmaster, will have the effect of diluting the right of the minorities to administer their institutions, guaranteed by Article 30(1) of the Constitution of India. The Manager is a statutory authority under the Kerala Education Act. He is conferred with certain powers, rights and duties. Every power conferred on a statutory authority has to be exercised fairly and reasonably. It is an implied limitation on the power of every statutory functionary. The Manager has the power to take disciplinary action against an erring teacher, but he cannot take action against a teacher for being red-haired. Likewise the Manager of a minority educational institution cannot say that he will select the Headmaster by holding a test of 100 metres race and person who comes out first in the said race will be appointed as Headmaster. If such a procedure is followed, the same will be condemned as ultra vires, being arbitrary and irrational. The power to administer does not include the power to maladminister. The power to make selection does not take in its fold the power to follow an unfair procedure in making the selection. In this context, we refer to the decision of the House of Lords in Roberts v. Hopwood 1925 AC 578.
It was a case where the Poplar Borough Council substantially increased the wages of its employees, on the ground that the Council was authorised to grant wages it thought fit. The auditors objected. The matter finally reached the House of Lords. The House of Lords held that the power to grant such wages the Borough Council thinks fit, is subject to the implied limitation that it can pay only reasonable wages, even though the word “reasonable” is not present in the enabling statute. What is stated by the House of Lords is a well-settled principle of Administrative Law. This decision has been referred to with approval by the Hon’ble Supreme Court in Delhi Science Forum v. Union of India (1996 (2) KLT SN 5 (C.No. 5).
So, the Full Court in Kurian Lizy (supra) only reminded the duty of a statutory functionary that while he overlooks the rights of seniors, he may follow a fair procedure. We have no doubt in our mind that the said direction can definitely stand with the decision in Malankara Syrian Catholic College (supra). The said decision does not impliedly overrule the decision in Kurian Lizy (supra). So, the observation of the Division Bench in Lijin (supra) that Kurian lizy (supra) cannot stand with Malankara Syrian Catholic College (supra) is not tenable.”

Therefore, the Manager while making appointments to the post of Head Master or Principal in minority institutions will have to follow a fair and transparent selection process and follow the procedure and the procedure prescribed in Kurian Lizy (supra) has to be followed.

7). The law being so, as mentioned in the 2^nd paragraph of  the article, a two Judge Bench of the Hon’ble Supreme Court in Corporate Educational Agency v. James Mathew (supra)held as follows;

“29. *** The emerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute”.

Thus when the management makes a conscious choice, the rationality or propriety of the same cannot be questioned. However, going by the Judgment of the Hon’ble Supreme Court in Mrs.Ivy C.da.Conceicao v. State of Goa & Ors. (2017 (1) KLT OnLine 2065 (SC)  rendered by a co-ordinate Bench of the Supreme Court, which has been followed by the Learned Single of the Hon’ble High Court of Kerala in Xavier’s case (supra), even though Minority Institutions can choose the head of their institution without following seniority, the method of selection must be fair and transparent and the same can be interfered by Constitutional Court as well. The observations and the law declared by the Hon’ble Supreme Court are as follows:

“9.We have given our anxious consideration to the rival submissions. There is no dispute with the proposition laid down in the case of T.Jose (supra), that right to choose a principal is a part of a right of minority institution under Article 30(1) of the Constitution and the said right is not affected merely because aid is extended by the State to a minority institution. In T.Jose (supra), this Court held that Section 57(3) of the Kerala University Act, 1974 which required appointment of senior most lecturer as Principal did not apply to a minority institution. However, the decision of this Court cannot be read as laying down a principle that a minority institution could act arbitrarily or unfairly in dealing with the selection out of the eligible candidates. The minority institution may not be compelled to go by seniority alone but it must follow a criteria which is rational.                                                *****                                                                                                     
     14. The above decisions clearly show that autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process.Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational.

15. We, thus, hold that while under the constitutional scheme, a “minority institution” is free to select and appoint a principal, without being bound by the principle of seniority alone, whether the appointment has been made fairly and reasonably and whether there is violation of right of an individual eligible candidate by the minority institution by not adopting fair procedure, is liable to be tested in exercise of power of judicial review under Article 226 of the Constitution. *****”

The Hon’ble Apex Court in Mrs.Ivy C.da.Conceicao(supra) followed the decision of the Constitutional Bench in T.M.A.Pai Foundation & Ors. v. State of Karnataka & Ors.
(2003 (1) KLT OnLine 1104 (SC) wherein it has been specifically held that (1) “a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the manager itself”, and that (2) “it would be appropriate if adverse decisions of the management are tested on grounds of breach of the principles of natural justice and fair play or any Regulation made in that respect”.

 Further, in Mrs.Ivy C.da.Conceicao (supra) the Hon’ble Apex Court has confirmed the Full Bench judgments of the Hon’ble High Court of Kerala in Belsi M. (supra) as well as in Kurian Lizy (supra) wherein it has been held that the autonomy under Article 30 was not in conflict with the requirement of fair procedure in selecting Head Master/Principal by minority managements in aided school/colleges.

8). Therefore, the above conspectus of cases reveals that, the law laid down in Corporate Educational Agency v. James Mathew (2017 (3) KLT 713 (SC)) can be understood and followed in the light of other judgments of Larger Benches of Apex Court, as well as coordinate benches including Mrs.Ivy C.da.Conceicao v. State of Goa & Ors. (2017 (1) KLT OnLine 2065 (SC), that the management of minority institutions can make conscious choice regarding appointment of Principle/Head Master of their institutions, however, the said conscious choice has to be made in a transparent way on the basis of the selection conducted as prescribed in Kurian Lizy’s case. Exercise of right of choice has to be fair, non-discriminatory rational and transparent. If a selection is conducted as prescribed in Kurian Lizy’s case and the management appoints qualified person of their choice, the said decision cannot be interfered with. However, if no selection is conducted, or the selection is not fair and transparent, the same is bad in law and can be interfered by the Hon’ble High Court in exercise of powers conferred under Article 226 of the Constitution of India.

2023 (6) KLT 96 -Babu v. State of Kerala - Resounds – Proper Amendment to Section 27 of Evidence Act is Warranted

(By Saji Koduvath, Advocate, Kottayam)

The Supreme Court of India, in Geejaganda Somaiah v. State of Karnataka
(2007 (2) KLT SN 83 (C.No.109) SC) emphatically cautioned, as regards the application of  Section 27 of the Indian Evidence Act, as under:

●     “As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application.  The court must ensure the credibility of evidence by police; because, this provision is vulnerable to abuse.”

This portion of judgment was later quoted in –

●     1. Jafarudheen v. State of Kerala (2022(3) KLT SN 29 (C.No.19 SC =   2022 (2) KLT Online 1025 (SC).

●     2. Mukesh v. State of Delhi (Nirbhaya case) (2017 (2) KLT SN 81 (C No.114) SC).

●     3.Kusal Toppo  v. State of Jharkhand (2018 (3) KLT Online 3150 (SC).

Section 27 is a Malady

The Law Commission of India has described Section 27 as a ‘malady’. The fundamental view taken by the Law Commission was a total repealing of Section 27.  It further suggested that a modification, at least, is warranted to Section 27.  Law Commission in its Report No.152, dated 26.8.1994, On Custodial Crimes, had observed as follows:

● “If information spoken of in Section 27 is not forthcoming voluntarily, the police may have recourse to procuring the same by other means. This is not to say that the very existence of the Section (in the form in which it appears at present in the Act) creates an impression or an urge to resort to means not desirable or legitimate so that the Section is pressed into service in situations never intended by the Legislature.  We are convinced that the Section needs an amendment, if not repeal, in order to completely ward off the tendency mentioned above.”

K.Babu v. State of Kerala -A Well-Reasoned Judicial Edict

The Kerala High Court has recently made a well-reasoned and a pragmatic judicial pronouncement (K.Babu v. State of Kerala (2023 (6) KLT 96) specifically pointing out an improper application of Section 27 of the Evidence Act.   This judgment realizes us as to the ground-reality of misusing the well-intended Section 27, Evidence Act.  

Facts of the case

Gruesome murder of an elderly couple was taken place on 5.12.2006.It was investigated by local police initially; later by CBCID; and finally by CBI.   

The case of the prosecution was that the accused committed the double-murder between 6.45 and 7.00 p.m. at their residence.  The prosecution also alleged that the accused cut and removed two gold bangles of the deceased lady; and also took a gun, and cash of `550/-.  The accused sprinkled kerosene and coconut oil on the bed-sheet and pillows; and also sprinkled Pepsi, pesticide Entrine and Phenol all over the area, with a view to destroy the evidence.  

CBI commenced investigation on 20.11.2007. The Investigating Officer of CBI visited the scene on 13.12.2007.  The accused was arrested, two years later, on 12.5.2009.   

It is seen that the circumstances relied on by the prosecution against the accused were the following:-

●     1. MO-11, the billhook (vettukathi), was recovered from a nearby shed of the residential house of the accused, on 15.5.2009, on the basis of the confession statement.

●     2. PW4 saw the accused near the scene in the fateful evening.

●     3. The accused was identified, in a TI Parade, by a salesman of a Jewellery at Tirupur, to whom the accused sold two gold-bangles which were in a ‘cut and removed’ state.

●     4. The accused left to Tirupur on the next day morning (6.12.2016). 

While the Investigating Officers of the local police and CBCID were examined, they submitted that there was no strong evidence to implicate the accused.  

Though the accused left to Tirupur on the next day morning, the High Court did not find much importance to this matter for the reason that Tirupur was a place where the accused had business interest; and he returned on the next day.  The accused faced interrogation on 16.12.2006, also. 

The High Court did not accept the evidence of the Salesman of the Jewellery, for two reasons; first, the bangles were not recovered (but only gold coins were recovered); second, no Section 161 (Cr.P.C.) statement of this Salesman was produced.  Further, the High Court did not accept the identification of the accused after a period more than two years; and the salesman was not a person having prior acquaintance with the accused.

The High Court did not give much weight to the presence of the accused near to the house of the deceased couple; because, the accused was quite close to them.

Thus, the most incriminating circumstance that stood against the accused was recovery of the billhook, under Section 27 of the Evidence Act.

The High Court did not accept the recovery of the billhook under Section 27, for the following reasons-

●     1. The FSL Report did not link the traces of blood contained in the billhook to the crime; for, it was not detected as human blood.

●     2. It was improbable to conceal the billhook used for the crime for almost 3 years at a shed near to the house of the perpetrator of the crime; especially when a gun that was taken from the house of the deceased had been thrown into a well behind their house.

●     3. In any case, the recovery of the billhook is only one link in the chain of proof.  There were no other links to corroborate the suggested use of the billhook to commit the murder. Though the prosecution had a case that the billhook was used to cause the prying mark seen on the Almirah of the house of the deceased, it was also not corroborated. (The High Court pointed out that nothing had been stated as to the prying mark on the Almirah, in the Mahazar prepared by the local police.)

The High Court had deprecated production of the entire confession statement,‘selectivelyhighlighting the admissible portions within brackets’, in evidence. The High Court pointed out that it defeated the very purpose and object of Sections 25 & 26 of the Evidence Act.   

The High Court further pointed out that the disclosure statement of the accused contained the purchase of Pepsi and the pesticide Entrine though there was no evidence to connect the accused with the same; and that because of the admission of the entire confession statement, it so happened that the trial court referred to Pepsy and Entrine in its judgment so as to connect it with the accused. 

‘TRUTH’ is Left to the Subjective Satisfaction of the Court

It is evident from Section 3 of the Indian Evidence Act that TRUTH (or otherwise) of a disputed matter is left to the Subjective Satisfaction of the court.

The definition of ‘proved’ in Section 3 of the Evidence Act says that ‘a fact is said to be proved when (after considering the matter before it) the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. 

Further, Section 114 of the Evidence Act allows the court to presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, etc. 

Objective Methods are also Laid Down to Determine Truth

The Evidence Act itself lays down the objective methods, including adequate restrictions, to arrive at the subjective satisfaction to determine the truth. The definition of ‘proved’ itself provides for ‘consideration of the matters before it’. The provision in Section 27 which bars the use of statement, given to police while an accused is in custody, is an important restriction in that line.   

It is a Very Difficult Mental Process to See Only the Bracketed Portion

As shown in K.Babu v. State of Kerala (supra), in Karunakaran v. State (1960 KLT 959) it is observed as under

●     “The practice of attestation of confessional statement by witnesses is an objectionable one. It prejudices the accused to safeguard whose interest the Legislature has enacted Sections 24 fo 26 of the Evidence Act. It has no legal sanction behind it. There is no harm in recording the accused’s statement in the first person at any great length in the case diary when the accused is arrested and questioned and in the preamble to the recovery mahazar reference to the reasons leading to the recovery may be made.

●     The whole thing appears to be an “intentional whittling down” of the wholesome provisions of Sections 25 and 26 of the Evidence Act. It is very easily said that the incriminating portion of a lengthy confessional “statement should be excluded. But it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketed portion and remain uninfluenced by the confession of the accused. This feat is possible ofperformance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has not the support of law or procedure.” (Quoted in: Mohammed v. State of Kerala (1962 KLT 120).

‘Omnia Vincit Veritas’: Truth Conquers All

The function of court is to save truth from falsehood (Bhagwan Tana Patil v. State of Maharashtra (1973 KLT OnLine 1197 (SC)).  There is a legal duty for the courts to find the truth (Mohanlal Shamji Sony  v. Union of India (1991 (2) KLT SN 14 (C.No. 21) SC).

To conclude, the application of law and appreciation of evidence in K. Babu v. State of Kerala (2023(6) KLT 96), are promising and optimistic.

Restore Back Reading

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

Even during the time of Charles Dickens who said “let us kill all lawyers”, legal profession was looked upon as learned and honorable. Lawyers in England started addressing their fellow lawyers as learned friends and Judges their compeers as learned brothers. This, is inherited in India.

The dictionary meaning of the word ‘learned’ is having knowledge, erudite. Some dictionaries also record it as deeply read. Knowledge is acquired only by reading. Reading therefore is an inevitable part of the life of a worthy lawyer.

During the freedom movement, we had very prominent lawyers who were not only knowledgeable in law but proficient in literature, history, philosophy etc. Mahatma Gandhi wrote in inimitable style and Impressive English. So did Jawaharlal Nehru. Shri Rajgopalachari had written wonderful books about our epics in racy and refulgent language. He rightly said that English is a gift of Goddess Sarswathi to us. Shri K.M. Munshi, a top lawyer and the founder of Bharatiya Vidya Bhavan was also the Editor of Bhavans’ journal which he enriched with his scintillating articles. Dr.Katju a prominent lawyer of Allahabad and a former Chief Minister and Defence Minister was a prolific writer.
Sir Ashutosh Mukherjee, the famous lawyer from Calcutta High Court was appointed Vice Chancellor of a prestigious University in recognition of his profound learning. The flowery judgments rendered by the great Krishna Iyer are still green in the memory of lawyers.
Late Shri Justice Mathew was a voracious reader and it is not for nothing that he journeyed from a tiny Kottayam Court to the top court of the country earning the accolade as an eminent jurist.

Knowledge and reading are therefore an inseparable part of the life of a lawyer. There is nothing under the sun that a lawyer shall not know. Necessarily therefore, he has to acquire command of the language used in court which still is English. Impeccable English should be one of the proud possession of any lawyer worth the name.

Unfortunately, these days the practice of learning, reading and acquiring knowledge have all vanished. Law reports remain unwrapped in many legal offices. The younger generation is now attracted to google, internet etc., which while no doubt is welcome, is a distraction from the requisite reading habit for any lawyer. A young entrant in the bar should inculcate the use of legal language through judgments from eminent Judges and pleadings drawn by efficient lawyers commanding good word power. These practices are slowly vanishing from the legal profession. Expressions like ‘recordical evidence’ and ‘thefted property’ have started regularly appearing in judgments of Magistrates. The merciless and murderous assault on the language of the court has become daily event. Even reported judgements contain expressions like “not entitled to be disqualified”. Sooner or later one need not be surprised if typically, colloquial expressions like ‘head going affair’ and ‘elephant matter’ also start appearing in judgments. This is indeed a sorry state of affairs.

Language and good command over it are intrinsically part of a lawyer’s job. He is not expected to use incorrect language as long as the language thrust upon us by Macauley remains the language of the court. Though literary flavour like in the past cannot be expected, at least the use of correct and appropriate language without grammatical errors is a must in the life of a lawyer.

This can be achieved only by the regular reading of law journals, legal literature and books of eminent lawyers. The habit of reading is practically waning and even disappearing from the lives of lawyers. Not even the Criminal Manual or the Code of Civil Procedure are visibly present in our subordinate courts these days. 

We will have no right to call ourselves learned, noble etc., (about which the litigants are already skeptical), if we do not enrich our knowledge by reading and reading.

Seniors in the bar by quality should take a lead in shaping the reading habit of green horns and shall insist that a trainee under him reads all important judgements and inculcate the habit of writing good English.

The entry of bright and brilliant boys and girls from institutions like NUALS by choice and not chance had raised a ray of hope of rejuvenating the profession and refurbish its sagging and sinking image. Alas, most of them after a short stint in the bar, unable to cope up with practices unimaginable to them, are opting for desk jobs being hooked by multi nationals, with attractive pay packets.

I am aware I will have no takers now. Still, an old timer’s habits die hard.