A Stroke from Einstein’s Wisdom to Elucidate Reverse
Burden in Cheque Bounce Cases

Ashly Harshad, Advocate, Supreme Court

Einstein had famously said:

If I had an hour to solve a problem, I’d spend 55 minutes thinking about the problem and 5 minutes thinking about solutions”.

Explaining the above-mentioned quote, Justice Aravind Kumar in the judgment Rajesh Jain v. Ajay Singh(2023 (6) KLT 209 (SC)) stated,

“Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one’s ability to identify the problem. A well-defined problem often contains its own solution within it.”

It’s quite intriguing that the Hon’ble Judge has used creative way to emphasize the importance of problem-solving, specifically in the context of framing legal issues and allocating the burden of proof in cheque bounce cases involving Sections 138 and 139 of the Negotiable Instruments Act, 1881.

He explained,-

 “Drawing from Einstein’s quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court.”

 The following paragraphs saw the application of the Einstein’s theory while being critical of the impugned High Court judgment.  

Initial framing of the question is critical

In legal cases, the initial framing of the legal question is critical. If the legal issue is not carefully defined, it can lead to erroneous judgments. This is analogous to the importance of understanding the problem before seeking a solution.

It is quoted as “When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right.”

Incorrect fixation of onus on the complainant and improper understanding of Section 139

It is asserted that there was a fundamental error in the approach of the High Court when it placed the onus on the complainant instead of fixing it on the accused. The High Court failed to understand the nature of presumption in Section 139 when it emphasized that there is want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. High Court seems to have lost sight of the legal principle that once the presumption under Section 139 was activated it has the effect of shifting the evidential burden on the accused. This error led to a flawed judgment.

As an outcome, the impugned High Court judgment was set aside and the complaint under Section 138 of the Negotiable Instruments Act, 1881 preferred by the complainant was allowed. The respondent accused was convicted and fined twice the amount of the bounced cheque.

To summarise, the use of Einstein’s quote served as a powerful metaphor for highlighting the importance of properly defining the legal issue and application of judicial mind in a legal case. It underscores that a well-defined legal issue often contains its own solution within it, and errors in this process can lead to erroneous judicial outcomes.

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.

Justice M. Fathima Beevi:
A Trailblazer Jurist Beyond any Horizons

(By Ashly Harshad, Advocate, Supreme Court)

 “The Administration of Justice, is the highest service one can do for the Country.”
(Justice Fathima Beevi in her speech on her elevation to the High Court of Kerala)

In the tapestry of legal luminaries, Fathima Beevi stands as an indelible thread, weaving history’s fabric as the pioneer woman to grace the hallowed halls of the Supreme Court of India. At the age of 96, she may have embraced the quietude of rest, yet her odyssey through the echelons of Indian Judiciary echoes with the poetic resonance of unparalleled legal brilliance and an unwavering dedication to the administration of justice. Her legacy, an enduring melody, has not merely left an imprint on the sands of time but continues to serenade future generations of female legal minds, beckoning them to dance with destiny within the esteemed corridors of the judiciary.

Early Life of Justice M. Fathima Beevi:

Justice M. Fathima Beevi was born on April 30, 1927, in Pathanamthitta, Kerala, to Mr.Meera Sahib and Khadeeja Beevi. She was the eldest daughter among six sisters and two brothers. Raised in a family that valued education, her father’s determination led to the education of all eight children, defying societal norms. In 1943, she completed her schooling from Catholicate High School in Pathanamthitta. Despite initially being a science student with an interest in chemistry, her father insisted that she join law college, redirecting her path toward a legal career.

Fathima Beevi pursued her college education in Trivandrum from 1943 to 1949, during which she excelled in her studies. Motivated by the presence of trailblazers like Justice Anna Chandi, the first female Judge in India who was raised to the position of  Judge of High Court of Kerala, Fathima Beevi chose to embark on a legal journey. Her father’s commitment to the education of his daughters and the influence of pioneering women in the legal field played a significant role in shaping her early life. 

Following the culmination of her collegiate journey, Fathima Beevi embarked on a year-long apprenticeship under the guidance of a senior lawyer. Subsequently, she triumphed in the challenging Bar Council examination, earning not just a passing grade but a distinguished gold medal for her exceptional performance. In 1950, she enrolled as an advocate, marking the beginning of her illustrious legal career.

Legal Career of Justice M. Fathima Beevi as a lawyer and jurist:

Fathima Beevi’s legal career unfolded as follows:

 1950-1958: Early Legal Practice:After enrolling as an advocate, Fathima Beevi practiced law for nearly seven years in Kollam. During this period, she handled a variety of cases, including prominent ones such as the Chavara riot case and several murder cases.

 1958-1983: Judicial Officer: In the year of 1958, she boldly etched her name in history by achieving a milestone: the pioneering woman to be chosen through a Public Service Commission examination for the esteemed role of Munsiff in the Kerala Subordinate Judicial Services. Over the years, she climbed the judicial hierarchy, being promoted to Subordinate Judge in 1968 and later to the position of District and Sessions Judge in 1974. In 1980 she added another feather to her name when she graced the position as the first lady Member of the Income Tax Tribunal.

1983-1989: High Court Judge: Fathima Beevi’s career reached new heights when she was elevated to the position of a Judge in the Kerala High Court on August 4, 1983. She became a permanent Judge on March 14, 1984, and served with distinction. In her elevation speech she vowed, “It shall be my endeavour, my honest and earnest effort to work conscientiously to uphold the tradition, the honour and the dignity of our judiciary. I pledge to work conscientiously in fear of God without fear of men, in the true spirit of the oath which I have now taken before you with the firm conviction that we are all working under the stern supervision of the Great task-master to whom we are accountable for our action. May God bless me”1

The eloquence of Chief Justice V.S.Malimath (as he was then) at the time of her farewell from Kerala High Court vividly captures Justice Fathima Beevi’s impact during her tenure as a High Court Judge. “A Judge who always bears in mind that administration of Justice is the highest service that one can do for the country and that service should be rendered without fear of men but only with fear of God is bound to prove a worthy Judge. That you have strived to live up to that pledge should indeed be a matter of personal satisfaction for you. Though tax law is one branch of your specialisation, you have done work in all the branches of law with equal ease. The large number of reported judgments of yours bear testimony to your calibre and competence as a Judge. You have always evinced great concern for the weak and downtrodden and tried your best to alleviate their suffering.”2

Though her legal acumen is visible in all her judgments, the one that touched upon gender justice in a matrimonial case filed for divorce on the ground of cruelty is still relevant in which Justice Fathima Beevi observed : “Judged by standards of modern civilization in the background of the cultural heritage and traditions of our society, a young educated woman is not expected to endure the harassment in domestic life whether mental or physical, intentional or unintentional. Her sentiments have to be respected, her ambitions and aspirations taken into account, in making adjustments and her basic needs provided, though grievances arising from temperamental disharmony is irrelevant. If she resents unfair on unreasonable demand for dowry and to keep away from the husband on account of the persistent and dubious approach to compel her parents to yield, the wife cannot be found fault with.”3

1989 - 1992: Supreme Court Appointment and her career as SC Judge:  October 6,
1989, witnessed a historic juncture as Justice M. Fathima Beevi carved her name in the annals of history, securing the distinction of being India’s inaugural woman appointed as a Supreme Court Judge. This watershed moment not only marked a ground-breaking achievement for Justice Fathima Beevi but also swung wide the doors of opportunity for women to ascend to elevated roles within the nation’s judicial echelons. In her own words it echoed “I have opened the doors.”4

Fathima Beevi’s tenure in the Supreme Court lasted until 1992, and she retired with a legacy of being a trailblazer for women in the legal profession. Her notable judgments touched upon legal arenas of taxation, family law, criminal law, contract, constitution and the like though an in-depth study of her judgments is still awaited. Fathima Beevi’s journey, from a determined student breaking gender barriers to the pinnacle of India’s judiciary, remains a source of inspiration for generations to come.

 Post retirement endeavours: Following her retirement from Supreme Court in 1992 Justice M.Fathima Beevi, who assumed the role of Tamil Nadu’s Governor from January 25,1997, to July 1, 2001, faced a tumultuous tenure. Notable events included her firm stance
on mercy petitions in Rajiv Gandhi Assassination Case by rejecting them and a controversial decision to appoint J.Jayalalitha as Chief Minister despite legal controversies surrounding her disqualification due to conviction in corruption cases. Fathima Beevi resigned amidst accusations of not fulfilling constitutional duties, leading to the appointment of Dr.C.Rangarajan as the acting Governor of Tamil Nadu. 

Justice M.Fathima Beevi staunchly defended her controversial decisions, particularly the appointment of J.Jayalalitha, asserting, “When Jayalalitha was appointed, she had no conviction, and I consulted Supreme Court Judges before making the decision—all of them agreed.” Emphasizing her careful consideration, she stated, “I had legal opinion for doing these things; I did not do anything spontaneously or randomly. I thought about it, worked on it, and then only took up the decisions. Views may differ.” Justice Beevi highlighted her commitment to judicial integrity, stating, “I didn’t want to continue there when some conflict arises and, therefore, resigned.” Importantly, she underscored the ethical stance Judges should take in post-retirement roles: “There is no harm in Judges taking up other posts after retirement, but they should act conscientiously and correctly. They should not go astray, identify themselves with any interest, but remain independent and impartial.”5

Beyond her responsibilities as Governor, Justice M.Fathima Beevi contributed to the national arena by serving as a member of the National Human Rights Commission in 1993 and later assuming the position of Chairman of the Kerala Commission for Backward Classes in the same year. Recognized for her outstanding contributions, she received honorary degrees, including an Honorary D.Litt., the Mahila Shiromani Award in 1990, and accolades such as the Bharat Jyoti Award and the US-India Business Council (USIBC) Lifetime Achievement Award.

Her life and career serve as a testament to the power of determination, competence, and a commitment to justice in overcoming societal barriers. Fathima Beevi’s legacy continues to resonate, reminding us of the importance of diversity and inclusivity in the highest echelons of the judiciary.

Foot Notes

1.  Source: 1983 KLT Journal page 82.

2.  Source: 1989 (1) KLT Journal Page 68.

3.  Rajani v. Subramonian (1989 (1) KLT 234).

4.  Source: https://www.youtube.com/watch?v=sPvztrIfL6E

5. Source: https://www.youtube.com/watch?v=sPvztrIfL6E)

Easement : Indian Law Allows‘Limited Interest’ in Servient Land

(Profit-a-Prendre) in Contrast to English Law

(By Saji Koduvath, Advocate, Kottayam)  

Introspection

Easement is a mere ‘Privilege’ according to English Law.

●    But, Indian Law on Easement confers “limited interest”also in the land of another.

●    It is clear from Explanation to Section 4 (Definition of Easement) of the Indian Easements Act, 1882.  The Explanation lays down that the expression “to do something” in the definition includes removal and appropriation of any part of the soil of the servient heritage, or anything growing or subsisting thereon
(Profit-a-Prendre).

●    They are made definite by the Illustrations to various Sections as shown under:

      *  Illustn.-(d) of Section 4.

                  ●  It speaks as to - Graze cattle,

                  ●   take water and fish out from the tank, 

●   take timber from wood,

                  ●   take fallen leaves for manuring.

      Illustn.- (b) of Section 22.

                  ` ●  It states about cutting  thatching - grass.

      Illustn.- (a) of Section 24.

                  ●  It refers to easement to lay pipes.

What is Easement?

Easement is a right possessed by the owner of a land (dominant land),

●    to use the land of another (servient land),

●    for the beneficial enjoyment of the dominant land.

Easement Does Not Confer Ownership or Possession

By virtue of easement -

●    No Ownership is bestowed in the (servient) land (AIR 2004 All.359; AIR 1925 Bom.335).

●    No Possession is obtained in the (servient) land (2011 (2) KLT 605).

●    No Substantive Interest is created in the (servient) land (2003 (1) KLT 320; AIR 1954 All.393).

Easement is Well Recognised and Circumscribed by Law

Easement is a limited right to ‘use’or ‘enjoy’ another’s land.

●    It is to do, or to prevent to do, some specific thing.

●    It is to be exercised in a way least onerous to the ‘another’s land’.

●    It is not a right to build and enjoy.

●    The right gained cannot be enlarged.

●    Servient owner can use his land in any manner (without disturbing enjoyment of the easement).

According to ‘Katiyar on Easements’:                                                                   

Easement is not a right to land or exclude owner.

●    It is not a right to permanent occupation.

●    It does not confer exclusive right of user/enjoyment.

●    And, it is not a corporeal interest in land.

Easement – Definition under the Indian Easements Act

SECTION 4 of the Indian Easements Act, 1882 defines Easements as under:

●    “An easement is a right

●    which the owner or occupier of certain land possesses,

         as such,

●    for the beneficial enjoyment of that land 

●    to do and continue to do something, or to prevent and continue to prevent something being done,

●    in or upon, or in respect of, certain other land not his own.”

Salient Limitations of Easement under the Indian Easements Act

●    The owner of a land only ‘uses’or ‘enjoys’land of another: (Section 31).

●    It is only ‘enjoyment’ of soil or things ‘subsisting’ (Explanation in: Section 4).

●    It allows limited enjoyment of land and advantages arise from its situation: (Section 7).

●    Right is to be exercised in a way least onerous to ‘another’s land’:(Section 22).

●    Servient owner can secure full enjoyment;but, he should cause as little inconvenience: (Section 24). 

It is Not a right to-

●    tend to total destruction of servient tenement: Section 17 (2003 (1) KLT 320).

●    make additional burden: (Section 23).

●    make constructions in, or cultivate upon: (2003 (1) KLT 320).

●    prevent servient owner to use: Section 27 : (2003 (1) KLT 320).

●    enlarge purpose of, or accustomed, user: (Section 28).

●    substantially increase an easement: (Section 29).

●    prevent servient owner from obstructing excessive ‘user’ of servient land – as ‘enjoyment of easement’: (Section 31).

●    increase burden by making permanent change in do. tent: (Section 43).

●    capable of forming grant – No easement, if not capable of forming grant (without document or registration): (1987 (2) KLT 1037).

No easement if -

●    right claimed is incidents of ownership.

●    servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj. 265. It must also be with proper animus as to easement: (AIR 1973 Mad.173).

“Which the owner or occupier of certain land possesses”

Section 12 states that an easement is acquired by the owner of an immovable property. Sec. 21 lays down that an easement must not be used for any purpose not connected with enjoyment of the dominant heritage. It cannot be severed from dominant heritage.

‘Enjoyment’ of ‘Land’

Easements are limited to ‘enjoyment of’ Servient ‘land’ (and things ‘subsisting’, for land includes things permanently attached to earth).

“As Such”

‘As such’ is used for emphasis to convey that easement is essentially connected to the dominant land, and it is inherently for the beneficial enjoyment of annexed/appertained (dominant) land; and not a right ‘in gross’(for the benefit of individuals).

“For the Beneficial Enjoyment of that Land.”

Easements are primarily for the beneficial enjoyment of dominant heritage. Easement stands as part and parcel of dominant land. The definition says that an easement is a ‘right which the owner or occupier of certain land possesses, as such’. 

“To do and continue to do something, or to prevent and continue to prevent something being done”

Under English Law, an easement is a privilege alone; and profit-a-prendre (right to take) is not an easement. The Indian Easements Act purposefully used “to do something in or upon”, decisively avoiding, ‘to use’ or ‘to enjoy’; because, Indian Law allows ‘profit-a-prendre’ [fishing, pasturing, grass-cutting for thatching, etc.]. It is allowed on Indian situations – but, without conferring substantial interest in the servient land. ‘Profit a prendre’ is not appurtenant to any dominant land; and it is a right ‘in gross’ (for the benefit of individuals).

Easement is acquired; not arise out of ‘Express Permission’

Section 12, Easements Act states that an easement is acquired  (under grant, partition or prescription) by the owner of an immovable property. Section 12, Indian Easements Act, 1882 reads as under:

●    “12. Who may acquire easements - An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.

●    One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.

●    No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.”

It is observed by the Apex Court in Bachhaj Nahar v. Nilima Mandal (2009 (1) KLT Suppl. 430 (SC),that the claimant of easement (prescription) should plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. 

Methods of Acquisition of Easements

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish (2011 (4) KLT Suppl.83 (SC) to be the following:

1.   easements by grant: express grant by the owner of the servient heritage

2.   easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions

3.   easements by prescription: it is presumed that it is acquired by peaceable and open enjoyment, without interruption for twenty years and

4.   customary easements: it is inferred that it is acquired by virtue of a local custom.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

Basis of Every Right of Easement Is Theoretically a Grant

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user. It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma (2010 (1) KLT Suppl.71 (SC)), as under:

●    “Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant

circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Extent of Easement – If used for several purposes, inferred for all purposes

Under the provisions of the Easements Act, the dominant owner cannot –

●    enlarge purpose of, or accustomed, user (Section 28) and

●    substantially increase an easement (Section 29).

In Cowling v Higginson (1838) 4 M. & W. 245, it was held as under:

“     ● If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes.”

The courts in India took the stand that easement for one purpose can be changed to another, provided there is no additional burden (agricultural purposes might be used for the purpose of a factory provided no additional burden). See:

●    Jesang v. Whittle (1899) ILR 23 Bom.595))

●    Manchersha Sorabji v. Virjivallabhdas (1926) ILR 50 Bom.635,

●    Mahammad Beari v. Badava Beari (1931) 61 Mad LJ 58.

Profit-a-prendre – Indian Law Varies from English Law

Explanation to Section 4 of the Indian Easements Act, 1882 reads as under:

● “Explanation - In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.”

From the above Explanation it is clear that easement includes‘removal and appro-priation’ of the soil of the servient heritage, or anything growing or subsisting thereon; that is, ‘removal and appropriation’ of certain tangible material things or natural resources (Profit-a-Prendre). They are further made clear by the Illustrations to various sections. E.g.

 Illustration (d) of Section 4. It speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.

   Illustration (b) of Section  22. It states aboutcutting  thatching-grass. 

   Illustration (a) of Section 24. It refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’; but, it includes:

●    limited (legally-recognised) enjoyment/user/interest in serviant heritage, and a right for (expressly-recognised) profit.

Profit-A-Prendre is Included in the Definition of “Easement”

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right.  And, it does not allow maintaining a substantial interest over the servient land.  No profit-a-prendre in gross also, i.e., for the benefit of individuals. On a close look, it can be seen that it is substantially related to ‘user’ of servient land.

In State of Bihar v. Subodh Gopal Bose (AIR 1968 SC 281), our Apex Court held as under:

“By the Explanation to Section 4 the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.
A profit-a- prendre is therefore included in the definition of “easement” in Section 4 of the Indian Easements Act. But an easement being a right which is super-added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute.”

“In or upon, or in respect of, certain other land not his own”

Easement is a right to do something in or upon land of another. Even if the easement involves ‘construction’, it should be of another; because, Section 4: Explanation reads: “land” includes also things permanently attached to earth.

If the subsisting-construction is made by, or it belongs to, dominant owner, no doubt, there will be no easement [1987 (2) KLT 1037 (Bund); AIR 1915 PC 131 (Jetty); AIR1971 SC 1878].

Easement Not Allows to ‘Enjoy’ After Making a Construction or Cultivation

Easement is a Right for ‘enjoyment’ of things ‘subsisting’.  It is a Right for limited enjoyment, and advantages arising from its situation; and it does not allow to build-and-enjoy. It is clear from Section 7 which indicates that easement is only a right for limited enjoyment of (a) land and (b) advantages arising from its situation. It is also clear from the Scheme of the Act as shown under:

●    Section 4: An easement is a ‘right which the owner or occupier of certain land possesses’ “as such”

●    Section 4: Illustn. (d):  Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.

●    Section 7: Only a right for limited enjoyment of (a) land & (b) advantages arising from its situation. (It is stated:  Easements are restrictions of (a) Exclusive right (of owner) to enjoy immovable property, (b) Rights to advantages arising from its situation).

●    Section 12:  An easement is acquired by owner an immovable property.

●    Section 17: Not a right – to tend to total destruction of the servient tenement. (2003 (1) KLT 320).

●    Section 21: An easement must not be used for any purpose not connected with enjoyment of the dominant heritage.

●    Section 22: Exercise easement – least onerous to servient tenement (Illustn.- b: can cut thatching- grass, not to destroy plants)

●    Section 23: Not to make additional burden (Illus.- b: not to advance eaves; Illus.- d:not another pollution)

●    Section 24: Secure full enjoyment, but cause as little inconvenience. Illus.(a) easement to lay pipes

●    Section 27: Servient owner is entitled to use – consistent with  easement.

●    Section 28: Easements of  necessity, Right of way, Other prescriptive rights not to enlarge purpose, accustomed user etc.

●    Section 29: Dominant owner cannot substantially increase an easement.

●    Section 31: If excessive user – servient owner may obstruct the user.

●    Section 43: Permanent change in the dominant heritage and the burden
increased – easement is extinguished.

Technology - Law Interface : Issues & Challenges

(By Dr.Raju Narayana Swamy, IAS)

The interface between law and technology has been summarized in the golden words of Daniel J.Gifford, “ Law and technology interact when legal rules foster or  retard the development of technology. They also interact when society decides that technology produces undesirable results and employs legal rules to contain or modify those results”.

Law, as we are aware, is a set of pre-set rules meant for the purpose of keeping peace and security in society.  It is a social engineering which means a balance between the competing   interests in society.   Technology, on the other hand means the use of scientific knowledge for practical purposes or applications, whether in industry or in our everyday lives. 

Industry 4.0 (viz) the digital industry employs a wide range of technologies which include:

a.    Robotics

b.    Mobile devices and 5 G

c.    Internet of Things (IoT) platforms

d.    Location detection technologies

e.    Advanced human – machine interfaces

f.     Authentication and fraud detection

g.    3 D printing

h.    Smart sensors 

i.     Big analytics and advanced processes

j.     Multilevel customer interaction and customer profiling

k.    Augmented reality/wearables

l.     On-demand availability of computer resources (Cloud)

m.   Data visualization and triggered “live” training.

      However the major components thereof can be classified under the following heads:

I)     Cyber physical systems, Cloud computing

II)    IoT

III)   AI & ML

IV)   Big Data

Needless to say, the interface of each of these technologies with the legal framework is complex.  The internet infrastructure itself raises myriad legal concerns- ICANN jurisdiction, competition law and policy, network neutrality, infrastructure-sharing and interoperability being the major ones. Similarly AI – powered devices come with a range of challenges, particularly on the fault front. The real dilemma associated with autonomous cars is – who is liable for damages resulting from accidents – maker or machine. Of course, suggestions have been put forth as to how liability of robots can be determined. These range from strict-liability approach (no fault required) to risk management approach (liability of a person who was able to minimize the risks). The legal community is also largely unanimous that liability of robots should be proportionate to the actual level of instructions given to the robot and its degree of autonomy. However, the crux of the issue with A1–powered devices is that as increasingly the decisions that they take become more and more removed from any direct programming and are in turn based more on machine learning principles, it becomes harder to attribute the question of fault.

Herein lies the importance of AI governance – the goal of which is to minimize potential risks from bias and maximize intended benefits. In particular, the legal framework must ensure that AI is 

       a. fair and impartial  

       b. transparent and explainable

       c. responsible and accountable

       d. safe and secure

       e. compliant with data and privacy regulations as well as 

       f.  robust  and reliable. 

In the Indian context, the focus must be on attuning the legal system to the pillars of AI governance (viz ) AI IP and innovation, AI compute and systems, Skilling in AI, Data for AI and AI ethics. One must be all the more careful about generative AI which can introduce falsehoods into the copy it produces and bias into the text it generates. Needless to say, deep fakes form a big source of concern.  They are the manipulations of facial appearance through deep generative methods.  As they leverage powerful techniques from machine learning & AI to manipulate or generate  visual and audio content that can easily deceive, dealing with the legal challenges posed by them is easier said than done.

Internet and robotics are not the only innovations where growth of technology brings forth legal puzzles. Another oft quoted example is 3D printing. First, it has serious security repercussions as it enables individuals - including terrorists - to manufacture any weapon comfortably.  In fact, 3D printed guns have already been manufactured in US, Japan and Australia.  Second, it has significant tax implications.  Since product sold (CAD) is in the form of a digital   file, it will not be subject to customs duties imposed on physical products.  Third, 3D printing may increase the incidence of patent infringement.  Consumer will merely need to procure digital file containing instructions for the 3D printer (CAD) and can make infringing copies at home.  Fourth, issues of standards and interoperability will come into play here as well.

IoT also raises legal as well as ethical challenges. The first major issue is data security.  As smart devices are always connected to the internet for information and system updates, there is a possibility of the devices being hacked.  Second, continuous connection to the internet increases the risk of a spontaneous  machine malfunction which in case of machines such as household heating can cause physical danger to the user.  Third, without sufficient data protection measures, consumer privacy is vulnerable to  violation.  The devices have access to sensitive information such as present location, preferences and personal information of the user through the connected mobile devices.  In the case of some manufacturers, data processing for the equipment is not conducted directly by the manufacturer or a subsidiary.  It is in fact outsourced to a third party who may not adhere to the privacy policy sworn by the manufacturer.  This leads to the risk of third party infiltration.  Fourth, IoT suffers from standardization issues.  At present IoT developers are using varied standards. Lack of standards contributes to data insecurity and privacy susceptibility.  Fifth, spectrum policy of various countries and ITU will have to accommodate IoT.

Even an innovation like telemedicine raises myriad legal questions.  This is all the more relevant, given the fact that medical platforms have witnessed a massive rise since the beginning of the COVID-19 pandemic.  The Telemedicine Practice Guidelines were brought forth to bring clarity and certainty in the field.  Though these guidelines delineate the liability of platforms with respect to obligations like privacy and due diligence with precision, one major avenue left out is negligence of doctors on a particular platform.  Doctors can face individual sanctions from Medical Councils, but whether there can exist an additional liability on the platform is unclear.  This lack of clarity is to be viewed in the backdrop of tort law where Courts have modified the standard test of employer-employee relationship for vicarious liability and hold commercial hospitals vicariously liable for all negligence of their doctors.  At the other end of the spectrum is intermediary liability wherein plain application of law results in no liability for any medical platform.  All of this is further exacerbated by the sheer variations in business models.  While certain platforms like Cure Mantra only provide online appointments and some such as Just Doc and Medimetry provide only online consultations, the majority of platforms (such as M Fine, Zoylo, Img and Practo) provide both online consultation and doorstep medicine delivery.  There are also comprehensive care platforms like Bajaj Finsery Health that provide packages to users.  Aside from these standard business models, there are creative ones too – a classic example being Lybrate that also provides a forum where doctors can answer user queries.  Needless to say, such platforms represent  trickier questions when addressing their liability.

In fact, all sharing economies (viz) peer-to-peer based activities of obtaining, giving or sharing access to goods and services pose legal challenges.  Fixing of liability in such cases is complicated by their multiparty model. For example, ride-hailing service Uber claims no accountability for behaviour of drivers as it is merely an aggregator of taxis.  This applies not only to tort but also to criminal liability cases. Again, sharing economies are forcing regulators to re look at licensing and business regulations. This is to be viewed in the light of Airbnb and Uber being able to bypass regulations – ranging from safety restrictions and zoning requirements to tax laws – due to their asset- light business models. 

Online entertainment services (Over the top (OTT) Video Streaming services) too come with their bag of legal challenges.  The first and foremost in this regard is net neutrality.  OTT video streaming is sensitive to the distance from the subscriber as seamless delivery of videos requires higher bandwidth.  Therefore such service providers enter into agreements with the ISPs for dedicated channel for their content. This induces ISPs to discriminate between various types of contents delivered by them violating the net neutrality principle.  Second, data security and privacy are inextricably involved with these services due to large amount of data collected by the service providers. Third, OTT service providers are not subject to regulatory regimes that apply to operators like Idea, Airtel and Vodafone. 

E - payment systems also bring forth challenges in the legal arena. Since e-payment involves exchange of sensitive information (debit/credit card numbers, banking details, passwords etc.), data security is very crucial for protection of consumer privacy and prevention of theft or fraud.  Second authentication is a major concern.  Third, determining the relevant law that parties will be governed by in respect of electronic transactions may create problems, especially when the laws in Country A (where the company is registered) permit e-payment contracts whereas those in Country B (where the consumer is located) do not support such contracts.  Fourth, legal recognition of digital currencies is a matter of concern given the fact that cryptocurrencies like bitcoin are not recognized in most jurisdictions. Though efforts have been made by the RBI to solve these risks – the recent push for card – on – file tokenisation vide the circular dated January 8, 2019 and the issuance of the Guidelines on Regulation of Payment Aggregators and Payment Gateways on March 17, 2020 being classic examples – they offer only suboptimal  methods to solve such risks and do not meaningfully engage with the privacy related dimensions of  financial data protection.

Cloud computing is another technological development that raises legal concerns.  First, it entails storing of large amounts of data and therefore is automatically subject to data privacy and security concerns. Second, data ownership is a significant question.  In the absence of a clear contract, the host can claim ownership over data even after termination of service.  Third, extent of liability of the host for any data misuse or breach is a contentious topic. In cases where the client does not have bargaining power or the contract is not negotiable, the host can escape liability completely.  Fourth, compliance of regulations related to tax, data protection, damages under contract etc., can be difficult due to absence of onshore facility. These concerns are over and above legal concerns resulting from the current data economy – which range from data protection and data localization to taxation of data flows and jurisdiction applicable to them.

All these legal complexities point out the need for law to ensure level playing field – not only for infrastructure development for the internet and its use, but also for the operation of e-commerce components.   Appropriate laws are needed to ensure that the big players (Google, Apple, Facebook, Amazon, Uber, Twitter, Alibaba etc.) do not abuse their market position and that entry barriers for new and small entrants are minimized.
A word of caution is however needed here: while some issues need exclusive legal intention, others are better resolved through alternate approaches. So far globally three types of regulatory approaches can be observed – complete freedom (like US), no freedom (like Russia & China) and limited freedom (like EU) for digital business. Which approach must be embarked depends on the current economic and technological structure , nay its rapidly changing nature. 

But the other side of the fence is also equally important.  Technology can be transformed into an instrument to assist the enforcement of law.

With the advent of big data analytics, machine learning and artificial intelligence (AI), the fundamental questions of law enforcement and justice are being reconsidered across the globe. Law is based on two important aspects – predictability and precedence and many are of the opinion that AI can greatly help align these processes. While disagreements are galore as to whether these technologies represent a panacea or whether they will further exacerbate social divisions and endanger fundamental liberties, the two camps agree that the new technologies usher in important consequences. In fact, there are three main ways in which technology is already reshaping the judicial system. First and at the most basic level, technology is assisting to inform, support and advise people involved in the justice system (supportive technology). Second, technology can replace functions and activities that were previously carried out by humans (replacement technology) – the concept of online courts being a classic example. Finally, at a third level, technology can change the way that Judges work and provide for very different forms of justice (disruptive technology), particularly where processes change significantly and predictive analytics may reshape the adjudicative role. It is at these second and third levels that issues emerge in terms of the impact of technology on the role and function of a judge. Questions raised in this context include

      ●    Can AI enabled programmes extract the accurate position of law from a mass of precedents?

      ●    Can robots decide questions of law?

      ●    Who should be accountable for semi-automated decisions?

      ●    How should responsibility be allocated within the chain of actors when the final decision is facilitated by the use of AI?

      ●    Is the “due process of law” denied to the accused when AI systems are used at some stage of the criminal procedure?

      ●   Can judgements be replaced by data?

These questions are all the more relevant now that AI has made a lot of inroads within justice systems – in Estonia for adjudicating small claims (robot judges), in China, Russia and Mexico for giving legal advice/approving pensions, in Malaysia towards supporting sentencing decisions, in Austria for sophisticated document management, in Colombia and Argentina for identifying urgent cases within minutes, in Abu Dhabi for predicting probability of settlement and in Singapore for transcribing court hearings in real time -- to name a few.

Justice delivery is not the only domain wherein technology is ushering in transformation in the legal arena.   Examples in this regard are galore from the spectrum of cyber law- a classic one being end-to-end encrypted (E2 EE) messaging.  This form of cryptography allows messages only to be read by senders and their intended recipients. Content shared by users over E2EE channels is inaccessible even to service providers.  The main advantage of E2EE is that it can provide individuals with a zone of privacy.  But technology comes in here in the context of traceability – in the Indian context in the backdrop of Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules 2021.  The said rule mandates popular messaging services to facilitate identification of the ‘first originator’ of any message that is sent through their platforms in response to a court or government order.  Implementation of this rule brings forth technological challenges as to how the ‘traceability’ mandate can be implemented without serious costs to usability, security and privacy. 

One among the suggested solutions is storing ‘hashes’ of all messages. Hashing, it must be mentioned here, is a mathematical operation that converts any piece of information into a unique string of characters.  It is computationally infeasible to retrieve the original piece of information from its hash.  Service providers will retain the hash of each transmitted message on their servers.  In the event of a lawful request to find the originator of a particular message, service providers can compute the hash of that message and compare it to all preciously recorded hashes.  This will help them identify the originators of the message. 

Another suggested method involves attaching originator information to messages.  A submission by Dr.Kamakoti to the Madras High Court described  a proposal that service providers could modify their application to attach an additional piece of metadata to messages in the form of information about the originator of a message.  Originator information refers to any identifier that can help track down an individual, such as a phone number or device identifier such as IMEI number assigned to cellular phones. This information will travel along with the message as it is forwarded and can subsequently be used to identify the originator. 

Technology – law interface comes in when  weighing the viability and ease of circum-vention of these alternatives vis-à-vis their limitations which may range from weak attribution and weak identification to geo fencing limitations.

 No discussion on law – technology interface will be complete without a reference to copy  right law which has exhibited a rather ambivalent attitude and which shares a dialectic relation with technology. In fact, technology challenges copyright law and law tends to react initially by fighting and subsequently  by encompassing new ways of exploiting copyrighted works developed by the new technologies, when necessary through reform of law. It triggers a cycle   whereby technology enables new practices which are not encompassed within the law but are not excluded by law.  On the other hand, law shapes technology by influencing emergence of certain new technologies as well as their design and architecture.

A classic trigger in the recent context is when internet morphed into the World Wide Web 2.0, by reason of availability of broadband connection (mostly wireless) and   software programs that enable creation and editing of digital content.  But the challenge started much earlier – first with the invention of reprographic technology (photocopier etc.) and later with the arrival of video recorder which was accused of heralding the end of US film industry.  In the 1980s, the Hollywood majors united in a campaign against Sony, the corporation that produced and commercialized Betamax technology – which enabled viewers at their own leisure to record onto videotape TV programmes. The challenge was that this permitted copyright infringement.  This led to the Sony – Betamax decision in 1984 which set criteria to assess innovative technology in relation  to copyright law.  Beyond the introduction of the fair use of time – shifting and the reaffirmation of the private copy,  the importance of this decision lies in the fact that it is one of a long series of battles between copyright law  and technology.  It demonstrates how a technology that initially seemed threatening may be transformed into an economic resource for right holders.  It spells out that exclusive rights are not granted to block social progress but to promote development of society. 

When digital technology met the internet, however, this mechanism became jammed. It generated first, a line of cases that turned the Sony - Betamax principle upside down (from Napster to Grokster), second the adoption of legal provisions (well known legislative responses to  the challenges that internet posed to copyright law) and third the spread of DRM systems.

The  need of the hour is  to understand the state of technology today, its  linkage  with law and challenges posed by law – technology interface.  What is needed is an analysis in the backdrop of the fact that inherent natures of legal systems and present technology-driven businesses, nay society, are diametrically opposite. To be more specific, laws and regulations are tailored to be stable whereas current technologically driven global environment is in a constant flux.  Addressing  this dichotomy that has added to the uncertainty wrought by technological revolution is  easier said than done. 

To put in simple terms, the road ahead will be a  three-fold approach:

      a.  Creating a legal system which accounts for continually mutating technology.

      b.  Establishing an equitable ecosystem and ensuring a level playing field.

      c.  Identifying issues that need extensive legal intervention and sieving out those that are better resolved through alternate approaches. 

 Only then can a set of frameworks, policies and best practices which ensure that frontier technologies are used in an ethical and responsible way evolve, giving mankind the much needed respite from their evil effects, at the same time yielding the best possible benefits therefrom in a timely fashion. The option before the comity of nations and its denizens, nay netizens is amply clear.