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.

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.

Question of Condoning Delay in Preferring Claim Petition under Section 166 of M.V. Act in Kerala

(By A.S.Madhusudanan, Advocate, Thalasserry)

The Motor Vehicles Act was amended as per the Motor Vehicles (Amendment Act) 2019 and the amendment to Section 166 of the Motor Vehicles Act in respect of procedure for filing claim petitions came into force with effect from 01.04.2022. The amended
Section 166(3) introduced a period of limitation of six months for an accident victim or in case of his death his legal representatives to file a claim petition under Section 166 of the Motor Vehicles Act.

The amended sub-section (3) of the Section 166 of the Motor Vehicles Act along with Section 166(4) (Section 166(4) was by and large present under the old un-amended Motor Vehicles Act also) presently reads as follows: -

Section 166-xxxxxxx

[(3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident].

[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under
[Section 159] as an application for compensation under this Act].

In Section 166 as it stood before Motor Vehicles Amendment Act, 2019, there was no provision for limitation since the provision providing for limitation, was deleted with effect from 14.11.1994 vide Motor Vehicles (Amendment) Act, 1994. However, after the Motor Vehicles (Amendment Act), 2019, came into force,Section 166(3) has reintroduced a period of limitation of six months for preferring claim petition under Section 166. The sub-section (4)
of Section 166 of the Motor Vehicles Act provides that the detailed accidents report forwarded by the Investigating Officer shall be treated as an application for compensation under the Act.

The question is whether a claim petition can be filed beyond the prescribed period under Section 166(3) of the Motor Vehicles Act.

In M.P. Steel Corporation v..Commissioner of Central Excise (2015 (2) KLT 996 (SC) = (2015) 7 SCC 58), the Apex Court held that -- Limitation Act will not apply to quasi-judicial bodies or Tribunals.

In ICICI Lombard General Insurance Company v. M.D.Davasia @ Jose & Anr.
(2019 (3) KLT 652 (F.B.)), the Division Bench of the Kerala High Court relying onVelunni
v. Vellakutty(1989 (2) KLT 227) and Asmath Khan v. Chandrahasa Bangara & Ors. (2006 (4) KLT 494) held that even though the Motor Accidents Claims Tribunal is not a Court in the strict sense it has the trappings of the Court.

So if the Motor Accidents Claims Tribunal is considered as a Court, the Limitation Act can be made applicable to it and Section 29(2) of the Limitation Act shall apply.

Section 29(2) of the Limitation Act states:-

“29. Savings.—

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.”

Upon perusal of Section 29(2) of the Limitation Act, if a special Act or a Statute prescribes a different period of limitation from the period prescribed under the Schedule appended to the Limitation Act, Section 4 to 24 of the Limitation Act, shall apply to such provision of the special Act or Statute only to the extent to which they are not expressly excluded by such special or local laws.

In Akshay Raj & Ors. v. Ministry of Law and Justice Legislative Department & Ors.
(2023 (1) KLT 700) the learned Single Judge of the Kerala High Court held that -- There cannot be any bar for institution of the claim petition beyond the period of six months and that Section 5 and 29 of the Limitation Act is applicable to the Motor Vehicles Act. Hence when a claim petition is filed beyond six months, the Motor Accidents Claims Tribunal cannot dismiss the said petition in limine without issuing notice to the opposite party and without considering whether the delay is sufficiently explained.

What the Hon’ble High Court of Kerala held vide the above decision is that the delay caused in filing a claim petition under Section 166 of the Motor Vehicles Act can be condoned by the Tribunal for if sufficient cause is shown for the delay caused in filing the claim petition.

A moot point to be considered is that by cursory reading of Section 5 of the Limitation Act it is succinctly clear that the said provision applies only to appeals and applications other than an application for execution under Order XXI of the C.P.C. Hence Section 5 is not applicable to original proceedings and suits. It is highly doubtful that a claim petition can be considered merely as an application to bring it within the ambit of Section 5 of the Limitation Act.

However the said Judgment of the Kerala High Court has been subsequently
stayed by the Apex Court, vide Order dated 17.05.2023 in SLP(C) No.9152 of 2023.

In the light of the Apex Court staying the Judgment of the Honourable High Court of Kerala, it is doubtful whether the Motor Accidents Claims Tribunal can entertain claim petitions under Section 166 of the Motor Vehicles Act beyond six months.

It is worthwhile to peruse the decision of the Apex Court in Gohar Mohammed v. Uttar Pradesh State Road Transport Corporation & Ors. (2022 (6) KLT OnLine 1192 (SC)) upon this aspect. The Apex Court in the above said Judgement has given several directions which can be broadly stated as follows--

●  Upon receiving information about an accident involving the use of a vehicle in a public place the Investigating Officer, investigating the accident must furnish the First Accident Report (FAR) in Form No.I within 48 hours; the Interim Accidents Report (IAR) in Form
No.V, within 50 days; complete the investigation within 60 days and file the Detailed Accidents Report (DAR) in Form No.VII within 90 days.

● Most importantly in paragraph No.40 of the said Judgment the Apex Court has observed that the claimant has three options in respect of claims under the Act. The first recourse is to claim for compensation in respect of no fault liability which is now under Section 164 of the Act. The second recourse is to file a claim petition under Section 166 of the Act which must be preferred within six months of the date of accident. Upon failure to seek the above two recourses, the third recourse is prescribed under Section 149 of the Motor Vehicles Act, wherein, the Detailed Accidents Report filed by the Investigating Officer shall be treated as an application under Section 166 of the Act and proceeded as provided under Section 166(4) of the Motor Vehicles Act.

● It was further held by the Apex Court that on filing the FAR, the Tribunal shall register a Miscellaneous Application and subsequently the IAR and the DAR shall be appended to the said application. The Claims Tribunal shall pass appropriate orders in the said application to carry out the purpose of Section 149 of the M.V. Amendment Act and the Rules. The designated officer of the insurer shall make an offer in respect of the claim.

● The Claim Tribunals have to satisfy themselves with the offer of the Designated Officer of the insurance company with an intent to award just and reasonable compensation. After recording such satisfaction, the settlement be recorded under Section 149(2) of the M.V. Amendment Act, subject to consent by the claimant(s). If the claimant(s) are not ready to accept the same, the date shall be fixed for hearing and affording an opportunity to produce the documents and other evidence seeking enhancement and the petition shall be decided. In the said event, the said enquiry shall be limited only to the extent of the enhancement of compensation, shifting onus on the claimant(s).

● The Apex Court has observed that in the event the victim has not opted to file an
claim petition within six months under Section 166 of the Act or an application under Section 164 of the Act, the option available under Section 149 of the Act is triggered and by treating the DAR as a claim petition under Section 166 of the Act, as provided by the Section 166(4) of the Act. In paragraph No.53 of the said Judgment the Apex Court has further stated that where the claimants have not filed an application under Section 166
of the Act, the miscellaneous application has to be treated as claim petition under
Section 166(4) of the M.V. Amendment Act and the Claims Tribunal is duty bound to decide such claim by following the procedure in accordance with law.

In the light of the directions made by the Apex Court in the said Judgment it is
apparent that in case where the application under Section 166 of the Motor Vehicles Act is not filed within six months the alternative remedy may be to treat the Miscellaneous Application filed in pursuance of the FAR forwarded by the Investigating Officer after registering the FIR as the claim petition and under such an event where such a Miscellaneous Application is pending it is very doubtful whether the application filed beyond the prescribed period of six months can be entertained especially when the third option under Section 149 of the Motor Vehicles Act has been triggered as laid down by the Honourable Supreme Court.

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.