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.

Old is Gold

Earlier mode of recruitment of Munsiff

And

Earlier mode of trial & Court proceedings

Some random thoughts solely based on practical experience at the bar

(By P.B. Menon, Advocate, Palakkad)

I got enrolled as an Advocate before the Hon’ble High Court of Madras in 1950 and after nearly 2 years of practice before the High Court under my senior late K.Kuttikrishna Menon, the then Advocate General of Madras High Court, I came away to my native place Palakkad wherein I am practicing before the District and Subordinate Courts in Palakkad and this is my 74th year at the Bar.  I am still practicing in Palakkad Courts.

Regarding recruitment of Munsiff, a minimum of 7 years of experience at the Bar was the qualification for lawyer in earlier days i.e., in the course of 7 years with a senior one who is really interested in the profession can learn a lot of matters from the chambers of his senior as well as from the court, if one regularly attend the courts. Several matters not only concerning one’s own office of senior but from other seniors too, about as to how to behave inside the court and show respect to the court, how to address the Judge, the nature of cross examination which is a real art and discussion of case law etc.  One will be able to imbibe such practical aspects of the matter during this period.  For that one must be in the chamber of his senior as early as possible and in court from 11 A.M to 5 P.M. and not skulk away by lunch hour.  With this experience at the bar and with a little knowledge of law i.e., fundamentals of law which you imbibe from the court hall and senior’s chamber, you will be a fully qualified person to be recruited as a Munsiff.  I honestly believe that such a Munsiff will be an ideal successful Munsiff who will be able to dispose of the cases quickly and avoid docket explosion. To have a practical workable knowledge, experience at a trial court is ideal.  You will realise that the real foundation of a case is laid there in the trial court.  Three aspects are very important and vital in the proceedings of a case 1) pleadings, 2) cross exam, 3) arguments.  In earlier days I used to enjoy the thrill of cross exam and arguments which will be very short and to the points as that was the mode adopted by me.  Even now I continue but without the desired effect.  So when such a qualified person is appointed as Munsiff he will be able to understand the matter even at the stage of evidence recorded by him and after argument he will be fully equipped to dictate judgment. During the framing of issues such a trained qualified Munsiff will be able to understand what is matter involved in the suit i.e., a simple suit,  a suit without any substance or a complicated matter where question of law is involved and he can make some mark in the notes paper, so as to identify to which category such suit belongs to.

Regarding experience, let me refer to the recent judgment of the Apex Court reported in 2023(5) KLT 154 (SC) (Sivanandan v. High Court of Kerala) at page 172 - paragraph 48, which I may usefully quote:

“The Administrative Committee of the High Court apprehended that a candidate who performed well in the written examination, they though even fared badly in the viva voce would get selected to the post of District and Sessions Judge.  The Administrative Committee observed that recruitment of such candidates would be a dis-service to the public at large, because they possessed only “bookish” knowledge and lacked practical wisdom………...”.

Then what about green horns straight from the Law College without any practical knowledge or wisdom being recruited as Munsiff. Even after selection the so called training by the Kerala Judicial Academy is nothing but again lecture classes, I understand on various aspects of law and procedure.  Just like classes in the Law College.  Do they after such training get any experience of the working of the court i.e., practical knowledge, so as to effectually deal with the matter before them from a practical point of view. Can one say that such training course will be a proper substitute to their want of practical experience.  Hence I strongly feel that nothing but practical experience as a lawyer for a minimum period of 7 years under a senior lawyer should alone be the guiding factor in recruiting one as a Munsiff. Intelligence or bookish knowledge is not the criteria but only practical knowledge and experience.

In olden days a Munsiff will be promoted as a Sub Judge and conferred the power of unlimited pecuniary jurisdiction only after attaining the age of 45 years.  And that is based on the theory of maturity of a man or woman and not only intelligence.  In the present day that principle is seen followed only in appointing Family Court Judge who have to deal with family matters, with a human touch at the stage of retirement.

Now coming to trial of cases. I very strongly feel that the 1976 amended CPC was superb in the field and the worst is 2002 amended CPC; want of experience in a trial court is very well reflected therein.

Let us analyse and see whether the 2002 CPC or the old 1976 CPC trial is good and proper in the interest of justice with regard to a litigant.  First of all we have to understand that the court exist for them and not for lawyers and Judges.  It is their matter that is considered by a court of law.  Does a honest litigant get justice from the court is the prime matter to be considered as various courts exist to solve their problem and render justice. I strongly feel that it is not a fair trial that take place in a trial court in the present day but only a farce of a trial as per 2002 amendment of CPC.

Under the old code when the matter comes up for trial, the plaintiff opens his case and briefly summarise the facts and refer to documents on which he relies in support of his case.  Similarly the defendant too explain his case.  After such submissions are over the questions from the Judge, who has understood the matter as to what he has to decide, ask the counsel concerned, as to on what aspect the plaintiff or defendant want to adduce oral evidence if any i.e., matters not covered by the documents or any explanation or interpretation on the words or terms or other matters in the document. When the party or witness is put in the witness box the Judge will be able to curb and control unnecessary matters or questions being put to them. By the time entire evidence is over (trial will go on day to day and not like the present day a party or witness being examined during a period of week or after months) the Judge can dictate the judgment.  Unless there is some complicated facts or law involved in the case. This is the real mode of fair trial.

Justice ODGERS holds AIR 1927 Mad.524 that half of the case is heard when the evidence of the witnesses are recorded in open court.  In the olden days one would say that the Subordinate judiciary is the back bone of the entire judiciary.  It may not be out of place to mention that in olden days several judgments by Munsiff were being upheld by Privy Council after first, second and letters patent appeals are over. 

Now let me come to present day, a case is listed for trial and it comes up for hearing the plaintiff files a proof affidavit, it is nothing but the entire plaint as it is with the difference i.e., instead of plaintiff the wording is ‘I’.  when one such proof affidavit is received and copy served on the defendants an Advocate Commissioner is appointed to record the evidence of the party or witness and after recording, which often takes time, depending upon the convenience of the Commissioner and the counsel for both parties, the deposition and exhibits are submitted to court.

Very often the court is obliged to give direction to complete the recording of evidence within a particular time, this is regarding the evidence of the defendant also. When the entire evidence come to court the matter is posted for arguments. The present amended CPC provide for written arguments and so some Judges prefer oral submission, others written arguments or some both.  So if we analyse the procedure from the date of the plaint to reservation of judgment there is no oral submission by the counsel at any material stage of a case.  The court has only written matters before him to read and decide the matter in issue.  There is vast and vital difference in hearing a counsel regarding submission made by him and reading the recorded statements, like pleadings, deposition etc., nobody can dispute that fact; I believe.  Most probably, it saves time of the court but to what use, from the point of view of affected party, a litigant as we exist, for their sake to solve their problem and do justice to a litigant that, one should not forget.

Here also there is a peculiarity. In olden days whenever the matter is posted for arguments both sides will be there. Some times regarding misstatement of facts the other side intervene or during arguments the Judge will make a query or require an explanation.  All this takes place in the presence of the other counsel who is present in the court. So really it is a sort of all the three i.e., the two counsel and Judge being fully involved in a healthy discussion.  Now each counsel comes and argue at his convenience.When counsel at different dates argue the Judge may take down notes, but the real effect of mutual discussion in the presence of each other and clearing the doubts of the court is lost.  Suppose both parties file written argument after exchange of argument notes no sort of clarification, etc., take place and the concerned Judge who has to determine the matter reads both argument notes as well as the pleading and recorded evidence and give his/her verdict.  Thus is it a fair trial from the point of view of the litigant, who come to court for justice after paying court fee that take place at present.  Am I wrong, if I say that it is nothing but a farce of a trial. What else one can say about such a procedure prescribed for trial by 2002 CPC, want of experience of a trial court work is very much reflected therein under the guise of saving time.

One more aspect in this connection also arises.  After hearing both sides the matter is posted for judgment; the Judge after going through the case records and considering the arguments addressed, may feel that there is yet another aspect of the matter and so usually post the matter for clearing the doubts about the new legal aspect of the matter about which he had some doubts and which is not addressed to by both counsel. But at the present day it is reposted for judgment only for the purpose of getting time to pronounce judgment. In the olden days the date of delivery of judgment will be informed by written notice to each counsel and signature taken. This is for the purpose of calculating appeal time.  Now you have to go by A diary till it was changed to electronic device.

I strongly believe that this shortcut method arrangement in CPC is just to avoid docket explosion and not in the interest of justice.  But I am sure  that it had no desired effect and on the other hand it works great injustice to the litigants.

Regarding appointment of Commissioner in (1) partition work, (2) identity of property or other investigation work connected with that and 3) local inspection , what takes place in the present day in courts, really work hardship in certain matters.

One uniform practice adopted in olden days in appointing a Commissioner is:

(1) Commissioners are chosen from the counsel put in court hall (very often Commissioners are appointed from the panel before the court.  At present in view of the number of lawyers some totally proper criminal courts, but because their names are in the panel they are appointed Commissioner.  The result is, the party or counsel has to go in search of that individual and report him to take the warrant and inspect property if it is an urgent matter.

(2) Are any matter pending with you regarding commission work.

(3) To which office you are attached - this is to avoid the junior attached to the office where their senior appear in that case.

(4) to appoint Commissioners depending upon the nature of work.

True every lawyers office quotes Order XXVI Rule 9 for appointment of a commissioner, whether for local inspection, local investigation or partition work under F.D. Our Code provides for a provision for local inspection - See Order XXXIX Rule 7 and it is only for other matters one has to resort to Order XXVI Rule 8 C.P.C.

For any local inspection any counsel can be appointed with the work for they have to report, as to what they actually saw on the ground inspection and nothing else.

But it is not so for local investigation or partition work.  Service - seniors will be better and ideal for investigation or partition work.

I am sorry to state, that very many matters are pending in courts due to the lethargy of some Commissioners, of course non availability of Village Officer and Surveyor add to that situation.  So unless the Commissioner realises his duty to the court, it will cause unnecessary delay and hardship to litigants.  In this connection, I would like to refer to the observation of Hon’ble Justice B.Sudeendra Kumar in 2020(5) KLT 129 (Thankamani v. Vasanthi) para 16 regarding Kerala Judicial academy, which is really worthy of reading.

I always respect a court and Judges; it must be so I strongly believe.  I never criticize a Judge, but their judgments, I do.  On the basis and evaluation of the evidence and records they give their opinion or finding.  That will naturally be their understanding of the matter according to their standard of knowledge.  As they are equally qualified like a lawyer, one cannot attack the presiding officer for making a finding according to his views.  Hon’ble High Court and Apex Court Judges differ in their opinion .  Who can say who is right or who is wrong.  So as everybody knows, it is the finality of the decision of the Apex Court as on that date given and decide what the law is, on that point/aspect.

So in my humble opinion, we must always respect the court and the Judges of court with liberty to criticize their judgments but never the Judges.

Yet another aspect is about Section 89 CPC, that too does not have the desired effect.  The time consumed usually in the pretext of mediation is considerable.  Even otherwise without mediation or adalath, lawyers used to settle matter formerly.  Anyhow reference u/S.89 is not desirable as regards civil court matter but mediation, adalath etc., are good in motor accident cases etc.  If civil dispute are to be settled by Mediation, Conciliation or Arbitration then what is the necessity for various enactments relating to civil law.  Why should civil court exists.  We can have court of mediation, conciliation and arbitration who will decide all matters without recourse to the law involved in the case.  So if we go deep into the matter discussed above they are not in the interest of the litigant public.  What is really necessary is to curb the duration of civil cases by properly amending CPC.  Each State has power to amend provision of CPC and one who has practical experience of a trial court alone can efficiently deal with proper amendment of the code so as to cut short the life of a civil case.

I strongly feel that if we have a regular set of efficient trial court Judges, who have practical experience of a trial court and who has a little knowledge of fundamentals of law too, to a great extent the docket explosion could be successfully solved.

It is true that the present presiding officers of a court are over burdened with large number of cases before them every day. Calling alone consume considerable time till 12 or 12.30 P.M.  Then where is the time for trial work. Probably one working method will be to post only necessary few cases in the roster per day, so that trial could began by 11.30 A.M.  Of course in such a case, posting date will be far away after months of each case.  So best method will be more courts at each centre in the State of Kerala presided by experienced Judges.  Hon’ble High Court control the entire judiciary in the State and naturally necessary useful workable solutions have to be undertaken and adopted for efficient working of the subordinate courts, so that the litigant public will get justice.  At the filing stage itself if suits could be weeded out of course after giving an opportunity to the party a chance of hearing in support of his case in the interest of natural justice, it will considerably help docket explosion.

One who reads this article may accept, reject or differ according to his views on this subject, as what is presented herein is only my views based on personal experience.

Ouster and Dispossession in Adverse Possession

(By Saji Koduvath, Advocate, Kottayam)

Abstract

●    When a claim of ‘Adverse Possession’ is raised in a suit, there lies difference
between (old) Limitation Act of 1908 and (new) Limitation Act of 1963, as regards (i) burden of proof and (ii) dispossession of true owner.

●    Under the 1963 Limitation Act –

      ● 1. The burden to prove Adverse Possession is upon the person who claims it.

      ● 2.“Dispossession of true owner“ is an important factor to attract Adverse Possession.

      ● 3. ‘Dispossession’ implies ouster itself. However, (i) the quality of evidence expected as to ‘dispossession’ in cases of adverse possession against a
co-owner, or in case of a permissive-possession, stands on a ‘higher footing’; and (ii) this is particularly discerned as ‘ouster’.

●    Under the old Limitation Act of 1908 –

    ●   1. The true owner lost the right to recover property if he did not come-forward   with a suit for recovery within 12 years (of losing possession).

    ●   2. Therefore, the burden to prove ‘possession within 12 years’ was upon the true owner.

   ●  3. “Dispossession” of true owner was not an essential element of Adverse Possession. However, the requirement of ouster, for attracting Adverse Possession,insisted in cases of permissive or joint possession.

The ‘Ingredients’ of Adverse Possession

The authoritative decisions of our Apex Court made it clear that the following are the basic elements (1963 Limitation Act) to attract Adverse Possession –

●    The claimant has been in ‘hostile and open, continuous uninterrupted as of right‘ possession of the land,

●    in denial of the title of the rightful owner,

●    adverselyto the interest of the owner of the land,

●    started with wrongful dispossession of the rightful owner,

●    exercising absolute rights of ownership in respect of the land, and

●    on and from.. . .. (date).

And, it is appropriate to plead ‘hostile and open’ possession as under:

●    Claimant’s acts werehostile enough to make the true owner aware of the adverse possession;

●    or, the claimant made the true owner knew as to his hostile acts or adverse possession (from the inception).

The celebrated decisions that analysed the ‘ingredients’ of Adverse Possession are –

●    Government of Kerala v. Joseph (2023 (5) KLT 74 (SC)).

●    Ravinder Kaur Grewal v. Manjit Kaur(2019 (3) KLT 865 (SC)).

●    P.T. Munichikkanna Reddy v. Revamma (2007 (2) KLT OnLine 1115 (SC)).

●    T. Anjanappa v. Somalingappa (2006 (3) KLT OnLine 1101 (SC)) and

●    Karnataka Board of Wakaf v. Government of India (2004 (1) KLT OnLine 1254 (SC)).

‘Dispossession‘ implies ouster

It is clear from the above decisions that ‘dispossession’ (of the true owner) implies ouster itself. However, (i) the quality of evidence expected as to ‘dispossession’, in cases of adverse possession against a co-owner, or in case of a permissive-possession, stands on a ‘higher footing’; and (ii) this is particularly discerned as ‘ouster’. (See: Vidya Devi @ Vidya Vati  v. Prem Prakash (1995 (1) KLT OnLine 985 (SC).

What is ouster?

“Black’s Law Dictionary” explains ‘ouster’ as under:

●    “A putting out; dispossession; a motion of possession. A species of injuries to things real, by which the wrong-doer gains actual occupation of the land, and compels the rightful owner to seek his legal remedy in order to gain possession.

●    An ‘ouster’ is a wrongful dispossession or exclusion of a party from real property and involves a question of intent.

●    Notorious and unequivocal act by which one cotenant deprives another of right to common and equal possession and enjoyment of property.” 

Webster’s New World Law Dictionary expounds ‘ouster’ as under:

●    “Ouster: n. 1. The wrongful exclusion of a person from property or dispossession of same 2. The removing from office of a public or corporate official.”

In P.Ramanatha Aiyar’s “The Law Lexicon” with Legal Maxims, Latin Terms and Words & Phrases, (Second Edition 1997) it is laid down-

●    “Dispossession” implies ouster, and the essence of ouster lies in that the person ousting is in actual possession.

●    Dispossession implies some active element in the mind of a person in ousting or dislodging or depriving a person against his will or counsel and there must be some sort of action on his part.” (Quoted in: U.P. Gandhi Smarak Nidhi v. Aziz Mian (2013-3 ADJ 321, 2013-4 All LJ 149).

In “Mitra’s Legal and Commercial Dictionary” 5th Edition (1990) by A.N.Saha,‘Dis-possession’ is explained as under:

●    “The term ‘dispossession’ applies when a person comes in and drives out others from possession.It importsouster; a driving out of possession against the will of the person in actual possession.” (Quoted in:U.P.Gandhi Smarak Nidhi v. Aziz Mian (2013-3 ADJ 321, 2013-4 All LJ 149).

Legal Ramifications of ‘Ouster’ in Adverse Possession

The simple word meaning of the term ‘ouster‘ is dispossession, removal, eviction, deprivation etc. It is definite that “dispossession” is an important element in the 1963 Limitation Act to attract Adverse Possession.

Legal ramifications of ‘ouster‘ is examined inVidya Devi @ VidyaVati v. Prem Prakash (1995 (1) KLT OnLine 985 (SC)) It is held as under:

●    ”‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however,not be complete unless it is coupled with all other ingredients required to constituteadverse possession. Broadly speaking, three elements are necessary for establishing theplea of ouster in the case of co-owner. They are –

      ●  (i) declaration of hostile animus

      ●  (ii) long and uninterrupted possession of the person pleading ouster and

      ●  (iii)exercise of right of exclusive ownership openly and to the knowledge of other co-owner.

 ● Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

From Vidya Devi @ VidyaVati v. Prem Prakash it is clear that, in our law, ‘ouster‘ is a compendium of all ingredients to attract Adverse Possession.

Permissive Possession will not bring-forth Adverse Possession

When the old Limitation Act of 1908 reigned, our Apex Court, in P. Lakshmi Reddy v. L.Lakshmi Reddy (1957 KLT OnLine 1401 (SC) following Debendra Lal Khan case
(1933-34) 61 IA 78 : AIR 1934 PC 23], observed as under :

● “4. … But it is well-settled that in order to establish adverse possession of one
co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ousterof the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse,should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. … the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.” (Quoted in: Hemaji Waghaji Jat v. Bhikabhai Khengarbhai Harijan(2008 (4) KLT 357 (SC).

Amimus and Adverse Possession

●    InL.N.Aswathama v. P.Prakash (2009 (3) KLT Suppl.713 (SC) it is held – permissivepossessionor possession in the absence of Animus possidendi would not constitute the claim of adverse possession.

In Thakur Kishan Singh v. Arvind Kumar (1995 (1) KLT OnLine 902 (SC)  it is held – possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must showhostile animusand possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting thepermissive possession into adverse possession.

1908 Limitation Act – ‘Ouster’ Needed against co-owner (for adverse possession)

Under 1908 Limitation Act, the the true owner lost the right to recover property if he did not come-forward with a suit for recovery within 12 years.

●    ^{Note: (i) Under 1908 Limitation Act, ‘dispossession’ of true owner was not a necessary requirement to attract Adverse Possession. (ii) But, under 1963 Limitation Act, ‘dispossession’ of true owner is a decisive requisite to attract Adverse Possession.}

Permissive possession will not bring-in Adverse Possession. Therefore, under 1908 Limitation Act, plea and proof of ouster were insisted when one pleaded adverse possession against aco-owner; that is, positive and specific overt acts, ousting co-owner from possession, were imperative; and merehostile acts of adverse possession were not enough (See:Velliyottummel Sooppi v. Nadukandy Moossa (1969 KLT 121).

Privy Council in Coera v. Appuhamy(AIR 1914 PC 243) held as under:

●    “Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors.

●    The principle recognised by Wood, V.C. in Thomas v. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: ‘Possession is never considered adverse if it can be referred to a lawful title’…..

●    His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent toouster could bring about that result.” (Quoted in: Vidya Devi @ Vidya Vati v. Prem Prakash (1995 (1) KLT OnLine 985 (SC).See also: Kshithish Chandra Bose v. Commissioner of Ranchi (1981 KLT OnLine 1002 (SC).

Article 142 of the (Repealed) Limitation Act, 1908

Article 142 of the (repealed) Limitation Act, 1908, which dealt with Adverse Possession, did not put down the term ‘adverse’.

Article 142 of the Limitation Act, 1908 reads as under:

Article 142 of the Limitation Act, 1908 provided that the true owner would lose his right to recover the property from a trespasser if he failed to file a suit within the period of 12 years.

Article 65 of Limitation. Act, 1963

Article 65 of the Limitation Act, 1963 brought-in completechange insofar as the onus of proof is concerned:

When these Provisions Attracted

●    Plaintiff must have been dispossessed by the defendant.

●    Both Acts deal with limitation for suits for recovery of possession.

Old Act of 1908 – Backdrop

●    Under the old Act of 1908, the true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).

●    In other words, under the old Act, the true owner would lose his right to recover the property if he failed to file a suit within the period of 12 years.

●    Under the 1908 Act, it was immaterial – whether the trespasser ‘acquired’ right of adverse possession against the true owner, knowing him and bringing his attention to the ‘trespass’ (as required in 1963 Act).

●    The requirement of ouster, for attracting Adverse Possession, needed only in case of permissive or joint possession, including that of aco-owner or of a licensee or of an agent.

New 1963 Act – Backdrop

●    Under the new Limitation Act, 1963 (Article 65), the true owner will lose title only if the trespasser proves ‘adverse’ possession for 12 years. Therefore the true owner has no burden to show possession within 12 years (as required under the old Act).

●    The new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing him and bringing his attention to the ‘trespass’).

●    Under the 1963 Act, adverse possession arises,only if dispossessionof true owner and only by the positive and hostile actsof the trespasser; and, mere possession is not sufficient (but, it must be ‘adverse’ to the true owner).

●   If no adverse possession, mere possession, of trespasser, however long, will not lose the right of the true owner (on the ground of limitation) to recover property on the basis of his title. (See: Government of Kerala v. Joseph (2023 (5) KLT 74 (SC); Gaya Prasad Dikshit v. Dr.Nirmal Chander & Anr. (two-Judge Bench) (1984 KLT OnLine 1302 (SC), Thakur Kishan Singh v. Arvind Kumar (1995 (1) KLT OnLine 902 (SC),Mallikarjunaiah v. Nanjaiah (2019 (2) KLT online 3108 (SC).

Article 64 and 65 Analysed

Article 64 and 65 of the Limitation Act, 1963 read as under:

General

●    Plaintiff must have been dispossessed by the defendant (to attract both Articles).

●    Both articles deal with limitation for suits for recovery of possession.

●    Both are independent and apply two different situations.

●    In both cases the defendant can rely on his title or “perfection” of title by ‘adverse possession’ (without a counter claim – Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT  865 (SC).

Article 64

●    Article 64 is based on previous possession of plaintiff (unlike Article 65 which speaks about Title).

●    Article 64 is not based on title of plaintiff (But, it can be possessory title).

●    Article 64 applies only if the plaintiff lost possession within 12 years (in other words, he must have been in possession of the property within twelve years prior to suit. (Tribeni v. Soaroop (AIR 1911 Raj.232).  

●    Under Article 64, it is unnecessary to inquire – whether the defendant’s possession was ‘adverse’. (Muhammad Amanullah v. Badan Singh (1889) ILR l7 Cal.137 (PC).

●    Under Article 64 the nature of the plaintiffs possession is not material. Article 65 specifically refers to “immovable property or any interest therein” whereas Article 64
mentions only “immovable property”. So the interest in immovable properly stands outside the scope of that article.

Article 65

●    Article 65 deals with recovery based on title.

●    Under Article 65 previous possession of plaintiff (within twelve years) need not be proved. It is immaterial. (Ramiah v. N.Narayana Reddy (2004 (2) KLT OnLine 1219 (SC), Jagannath Garnaik v. Sankar Samal (AIR 1990 Ori.124); State of Orissa v. Jhtnjhuntallo (1986 CLT 55).

●    Under Article 65, if plaintiff could prove his title, it would fail only if the defendant proves adverse possession over twelve years. (Bhushan Lal v. Suresh Kumar (AIR 1987 All.25), Manikyala Rao v. Narasimhaswrami (AIR 1996 SC 470).

●    Under Article 65, if plaintiff could not prove his title, he will fail (and in such a case, whether the defendant proves title or adverse possession is immaterial). (Ranjit Kumar Bhowmik v. Subodh Kumar Roy (2004) I WBLR 228 = (2004) 2 CHN 180).

●    Under Article 65, if only title of plaintiff is proved, then only adverse possession of defendant becomes a material point.

Burden/Onus of Proof – Complete change by Limitation Act, 1963

In the recent decision, Government of Kerala v. Joseph (2023 (5) KLT 74 (SC) our Apex Court observed that burden of proof rests on the person claiming adverse possession. The Court followed P.T. Munichikkanna Reddy v. Revamma (2007 (2) KLT OnLine 1115 (SC)  which observed as under:

● “34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”

Claim of Adverse Possession on Govt. Land – be Considered “More Seriously”

In the recent decision (August 9, 2023), Government of Kerala v. Joseph (2023 (5) KLT 74 (SC) our Apex Court has emphasised, that the Courts have to consider the question of adverse possession “more seriously” when it is claimed on a land that belongs to the Government. In this case, the judgment of the first appellate court which observed that ‘the title of the Government on land cannot be lost by placing reliance on “casual advertence” or on the basis of “scanty material” ’ was restored by the Apex Court. The Apex Court held –

●“When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”

Zo]mhen HmÀ½Ifn Hcp ]tcX³

(F³.APnXv, AUzt¡äv, ssltImÀ«v Hm^v tIcf, FdWmIpfw)

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

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, Supreme Court 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 simplified,-

“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.

Short Edits by Ashly Harshad
Advocate, Supreme Court