Evidential Value of Space Data, An Indian Perspectiveⁱ

(By A. Mohamed Mustaqueⁱⁱ, Advocateⁱⁱⁱ, MK Associates, Cochin)

Introduction: In recent article in Reader’s Digest (August 2012), author Jo Carlowe under title “The world is watching” accounts how the satellite images have alerted the world to the growing conflict. He recounts how satellite images are helpful to uncover incidents and events which otherwise would go unaccounted like atrocities against Georgians living in South Ossetia, a disputed area of south of Russia, alert message by painting SOS by civilians in Osh caught up in inter- ethnic violence in Kyrgyzstan in June 2010, forced evictions in Port Harcourt, Nigeria etc,. There are many instances in which satellite images have become handy for investigators or human rights groups to take up the causes or to alert the public or the Government. It has also been found useful for environmental impact studies especially in remote areas where actual monitoring through human agency is not possible. Recent survey by NASA and National Snow and Data Centre shows how Arctic sea ice is depleted. This report was based on satellite measurements for three decades. Whether it is oil spill case, illegal mining or encroachment of forest, satellite data’s role in providing evidence is immense. Utility or usefulness of satellite images in the realm of governance of law and order or for evolving policies by Government or agencies cannot be disputed. However such images or data when placed before the court of law it becomes subject of enquiry to establish “‘existence of fact”. Essentially Evidence Act in India like in any other jurisdiction cast burden on the party to prove existence of such fact when existence of such fact is being denied by the other party. This paper examines admissibility and probative value of satellite images in the courts in the light of Indian Evidence Act and Information Technology Act.

Admissibility  of  Satellite  data  as  evidence  under  the  Indian  Evidence  Act  1872. 

Evidence broadly defined is the means from which an inference may logically be drawn as to the existence of a fact, that which makes evident or plain. Evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on other. In legal acceptance, the term evidence includes all the means by which any alleged matter of fact truth of which is submitted to investigation is established(Vide Corpus Juris Secundem Vol -31 p.505.). Indian Evidence Act essentially distinguishes between primary evidence and secondary evidence. Section 62 of the Act defines primarily evidence as the document itself produced for the inspection of the court, Section 63 illustrates secondary evidence which are effectively authentic copies from original or oral accounts of contents of a document by a person who himself has seen it. Section 65 of the Act lays down conditions on which secondary evidence are admissible in the court. The space data are derivative evidence, it is in the form secondary evidence as same being processed data. “Satellite - derived information is scientific and technical evidence. It has two important evidential aspects in this context: its digital nature, which might make changes difficult to detect; and the need to process it to create intelligible information. It is the processed information that is offered as evidence, not the original data”(Documents ESA-1SPL/EO55 Workshop Report 12 January 2011 at page 5.). Thus in the light of conditions in Section 65 of the Act originally stood, satellite data could not have been admitted as evidence in the courts. However, based on the UNCITRAL(The core legal body of the United Nations system in the field of International Trade Law.) Model Law on E-commerce, India enacted the Information Technology Act 2000 to facilitate e-commerce with a view to facilitate electronic governance. The law of evidence traditionally based upon paper created records and oral testimony. Since electronic e-commerce eliminates paper based transaction, Indian Parliament felt necessary to amend Indian Evidence Act as well as Indian Penal Code and other statutory provisions which hitherto recognize only documents based on paper transactions. Accordingly, Indian Evidence Act was amended by the Information Technology Act 2000 (hereafter IT Act) and various provisions were made to recognize evidence relating to electronic records. Section 65B of amended Indian Evidence Act provides for admissibility of electronic records and recognize data outputs from computer as a deemed document. Section 2(1)(i) of the Information Technology Act defines computer as, “computer” means any electronic, magnetic, optical or other high speed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic and memory functions by manipulations of electronic, or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network”

Section 2(1)(j)of IT Act defines computer network as,

“Computer network” means the inter-connection of one or more computers or computer systems or communication device through-

(i) the use of satellite, microwave, terrestrial line, wire, wireless or other communication media: Section 2(1)(o) of IT Act defines

“data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be processed, is being processed or has been processed in acomputer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;”

Section 2(1)(t) of IT Act defines

“electronic records” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”

Section 3(2) of Evidence Act defines

“Evidence means and includes, all documents including electronic records produced for the inspection of the court”

It is specifically mentioned in Section 2(1)(j) of the Information Technology Act, that the data generated by computer by use of satellite would encompass the meaning of “electronic records”. Thus it is clear by combined reading of definitions accorded to computer, computer network, data, electronic record under Information Technology Act with provisions under Sections 3(2) and 65(b) of the Indian Evidence Act that computer data generated by use of satellite is admissible as evidence in Indian Courts.

Probative  value  of  satellite  data  under  Indian  Evidence  Act :  Admissibility of evidence is conditioned by relevant provisions under the Evidence Act. Admissible evidence does not mean facts in issue have been proved. Admissibility only denotes criteria for acceptance of the evidence by the court. Therefore, in order to establish a fact in issue Court has to look into probative value of evidence. Probative evidence is defined by Blacks Dictionary as “that tends to prove or disprove a point in issue”. Evidence derived by use of satellite are circumstantial nature, which either by itself or in connection with other facts prove existence or nonexistence of any right, liability or disability, asserted or denied in any suit or proceedings. Satellite derived data are processed, calibrated and generated through the computer network. A single receiver requires for simultaneous measurements from 4 satellites in order to determine position in three dimensions and time (latitude, longitude, altitude and time). “The satellites in the GPS constellation are arranged into six equally-spaced orbital planes surrounding the Earth, each containing four “slots” occupied by baseline satellites. This 24-slot arrangement ensures there are at least four satellites in view from virtually any point on the planet”(Source from www.gps.gov last visited on 2.9.12). Final data is as a result of observation and assimilation of data collected through the process undertaken by Master Control station in earth(Relied on global positioning system standard position service performance standard 4th Edition 2008 published by Department of Defense. U.S.A. ). Therefore, degree of genuineness can be a subject of controversy and could be challenged in any proceedings in which satellite derived information has been offered as evidence. “A major difference with digital imagery from satellite compared to analogue pictures is that first stage copies will in most instances be just a visual representation of binary data in a computer memory. Even the quality of second and third stage processed versions may be so poor as to be irrelevant or unusable as evidence. It is only after several stages of digital enhancement and manipulation that the court could consider the evidence as useful. As a result of the technological stages a digital image will have to go through, a court will be especially concerned that the digital image that is presented, has not been processed or altered in any manner that could mislead them when reaching a decision” (Richard Macrory and Ray Purdy, Use of satellite images as evidence in environmental actions in Great Britain available at<www.ucl.ac.uk/laws/.../satellites/docs/Rayscan005.%20droit.pd>..last visited on 25.9.2012). Therefore it is necessary to understand probative value of the satellite derived evidence under the Indian Evidence Act.

Section 85(B) of the Indian Evidence Act provides presumption to the electronic records

(1) In any proceedings involving a secure electronic record, the court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

It is relevant to point out that presumption available under Section 85B of the Indian Evidence Act could be available only to electronic records where a security procedure has been applied to an electronic record at a specific time, the record is deemed to be a secured electronic record from such time until the time of verification. In the data generated by the use of satellite computer, it is always possible to challenge in court regarding of authenticity and integrity of such data. No such presumption is available under the Act regarding authenticity. Under Section 79A of Information Technology Act Government of India is empowered to notify examiner who can give expert opinion regarding electronic form of evidence before any court. Thus probative value of the satellite data can thus only be assessed through the opinion of an expert who will have to be appointed by the Government of India under Section 79A of the Information Technology Act.

Privacy issues and Indian Constitution :In  UNITED  STATES  v.  JONES  (Decided on January 23. 2012 in UNITED STATES. PETITIONER v. ANTOINE JONES, ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.) Supreme Court of United States opined that the attachment of a Global positioning system (GPS) tracking device in individual vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment. However Supreme Court affirmed decision of The United States Court of Appeals for the District of Columbia Circuit, that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment. The Fourth Amendment provides in relevant part that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. In this litigation, the Government has conceded noncompliance with the warrant and has argued only that a warrant was not required. It is relevant to quote observation in the opinion of the court “Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted”. In this context, it is necessary to understand Indian court’s approach on the lines of constitutional guarantee on Liberty. Article 21 of the Indian Constitution provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. The Supreme Court of India in Kharak Singh v. State of Uttarpradesh and Others(Reported in AIR 1963 SC 1295.)in the year 1962 held that Act of surveillance conferred upon police officials under Chapter XX of Uttarpradesh Police Regulations are violative of right guaranteed to the citizens under Article 21. The above Regulations which were under challenge, in fact, conferred power to police officials to keep surveillance on suspects by secretly picketing or approaching to the house of suspect, domiciliary visit at night, reporting absence from the house etc. Majority in the judgment did not go into question regarding right to privacy, held that such intrusion was not permitted by law. Minority view of Justice Subba Rao was that right to privacy is part of right to liberty in Article 21 of Constitution and held that such regulations permitting surveillance not only violated Article 21 of the Constitution but also freedom of movement guaranteed under Article 19 of Constitution. In Govind v. State of Madhya Pradesh (Reported in AIR 1975 SC 1378.) challenge was similar in Kharak Singh’s Case. The Regulations which was challenged in this case permitted surveillance on really dangerous criminals including domiciliary visits. It is held that any right to privacy must encompass and protect personal intimacies of the home, the family, marriage, motherhood, procreating and child rearing. The Supreme Court examined in detail regarding right of privacy, with reference to Article written by Charles Warren and Louis D Grandeis (Harward Law Review 193, and many other similar articles including European Convention of Human Rights). It is further held in the above decision “depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental right must be subject to restriction”. The Supreme Court also examined right to privacy in Rajagopal v. State of Tamilnadu  (AIR 1995 SC 264.) and held that right of privacy was implicit in the right to life and liberty guaranteed to the citizens under Constitution of India. It is also found by Supreme Court in District Registrar and Collector, Hyderabad and Canara Bank  (AIR 2005 SC 186.) that right of privacy deals with persons and not with places. In Amar Singh v. Union of India((2011) 7 SCC 69.) it was held by Supreme Court that interception of telephone conversation is an invasion of privacy which is protected as fundamental right and it can be only resorted only based on genuine authority. In Ramjethmalani & Others v. Union of lndia  ((2011) 8 SCC 1.) it was held that notion of fundamental right -Right to privacy as a part of right to life is not merely that state is enjoined from derogating from them- it includes responsibility of the state to uphold them against actions of others in the society even in the context of exercising fundamental rights by those of others. The Supreme Court in all the above decisions essentially developed right of privacy as a personal liberty guaranteed under Constitution in terms of Article 21 of the Constitution. Therefore unauthorized tracking or tagging a person through satellite device is likely to be held illegal as violative of Article 21 of the Constitution. It is relevant to point out that under Section 6 of the Indian Evidence Act “facts though not in issue, are so connected with fact in issue as it forms part of same transaction, are relevant as they occurred at the same time and place or at different times and places”. Thus in criminal cases an investigation officer based on the crime registered against suspect keeps the surveillance on its movement through satellite devices may be justified under the law on data obtained through surveillance using satellite devices, provided he is authorized under law. Under Criminal Procedure Code the investigation officer can be authorized for search warrant (Section 93) to search any places, Thus it is imminent to conclude, a search even before a crime is committed affecting right of privacy would be illegal and cannot be justified under the Constitution. Therefore surveillance using satellite devices encroaching upon right of privacy, and not authorized under law likely to be held as inadmissible as evidence in the light of development of law from Kharak Singh onwards.

Conclusion: Reliability on satellite data as evidence can be subject of controversy unless law is clearer by reposing trust on management of data and process. “Trust in the digital world is similar to trust in the real world. As in the real world trust, when a person needs to assess a record’s trustworthiness. One first needs to find related background information about the record. This background information is called metadata, which is data about other data”(Relied on Requirements for Evidential Value for the Assessment of the Trustworthiness of Digital Records over Time by Jianqiang May Habtamu Abiey. Torbjorn Skramstad and Mads Nygard_Department of Computer and Information Science Norwegian University of Science and Technology. Trondheim, Norway.).National Information Standard Organization USA explains on Meta data as follows:

Metadata is structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information resource. Metadata is often called data about data or information about information. Most current metadata efforts centred around the discovery of recently created resources. However, there is a growing concern that digital resources will not survive in usable form into the future. Digital information is fragile; it can be corrupted or altered, intentionally or unintentionally. It may become unusable as storage media and hardware and software technologies change. Format migration and perhaps emulation of current hardware and software behaviour in future hardware and software platforms are strategies for overcoming these challenges. Metadata is key to ensuring that resources will survive and continue to be accessible into the future. Archiving and preservation require special elements to track the lineage of a digital object (where it came from and how it has changed over time), to detail its physical characteristics, and to document its behaviour in order to emulate it on future technologies (Understanding Meta Data. Booklet published by National Information Standards Organization (NISO) U.S.A.)”.

The law makers often resort to have stamp of presumption to rely on such process which generates evidence. Thus in the above back drop creation of management for space data and to have trust in the management is most important to generate probative value of evidence. In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The types of presumption include, discretionary presumption, rebuttable presumption, irrebuttable or conclusive presumption. This is correspondingly called “may presume”, “shall presume” and “conclusive proof” under Section 4 of Indian Evidence Act. In India such kind of presumption is statutorily created under different legislations. Government of India established National Spatial Data infrastructure (“NSDI”) for the purposes of acquiring, processing, storing, distributing and improving utilization of spatial data which would be a gateway of spatial data being generated by various agencies of the Government of India. Vision for creating NSDI is to create infrastructure for the availability and access to organized spatial data. It functions as apex national authority for formulation and implementing appropriate policies, strategies and programmes for the establishment, operation, management of the NSDI and utilization and any other activities related to spatial data in the country. Thus inorder to thrust for creating probative value of space data, it is necessary to lay down institutional framework for management at initiative of the Government, and also to make appropriate amendment in IT Act by giving credence to probative value of space data through presumption by relying on certificate issued by agencies like NSDI.

i.  Abridged version of paper presented at 55th I1SL COLLOQUIUM ON THE LAW OF OUTER SPACE, 63rd
    International Astronautical Congress, (IAC2012) NAPLES, ITALY.

ii.  Mushiamm@gmail.com for any comments on this Article.

iii. Practicing Lawyer, at High Court of Kerala.

Mediation Casts Mighty Moral Duty on Mediators 

 (By N. Dharmadan, Senior Advocate, High Court of Kerala)

Introduction

Legal profession is probably the world’s  most ‘entrenched monopoly’. Legal  proceedings are now most costly and time consuming.  They are circumscribed  by hopelessly  complex  and indeterminable  procedures.  Legal practitioners,   working in  a service oriented  honourable profession, forget their duty to the public and the courts.  They are now more concerned with personal gain and winning  cases by hook or crook.  They are not interested in finding out the truth  nor are they keen in the purity and perfection of  administration of justice.  Its  object of  “Satyameva Jayathe” is defeated  even though it is proclaimed and displayed in every judicial forum  with the portrait of Mahatma Gandhi, who  while practising  in the legal profession  said that –

“I had learnt to find out the better side of human nature and to enter man’s hearts.  I realized that the true  function of a lawyer was   to unite parties riven as under”.

Ill-effects  of  adversarial  system:  

If this position in adversarial system of administration of justice continues  legal process  would pave way  for the  increase of  conflict between the parties who come to the court to have their differences resolved particularly when the adversarial process is characterized by complex  rules of form and procedure.  It is essentially  cast in a victor vanquished mode having multiple appeal. It provides plenty of room for technical objections, manoeuvres,  diversions, obstructions  and  delays.  Every step is hotly contested by parties.   The system  now operates in  such a way that virtually everything is in conflict;  every attempt will be made by the parties with the help of professionally trained people  to expand the area of the fight  and widen the cleavage  so that the claims get inflated  both in nature and quantity.

Mediation  is  best  alternation  for  adversarial  system:

The above  adverse features of the adversarial  system  give us sufficient reason for searching other better methods and seek  alternatives for easy settlement of disputes rendering justice to litigants  with less expense in shortest possible time.  In litigation, parties always take extreme positions in most forceful way with the object of aggravating  the dispute.  This  is to be avoided for the said attitude invariably damages or even destroys relationships.   Hence in order to avoid all these negative  characters  of the adversarial  system we need alternatives.   The scope of  mediation  if examined under these background  taking into account the drawbacks pointed out above we are sure that it is one of the best  attractive  method among the  “Alternative  Dispute Resolutions” recognized by law. 

What  is  Mediation:

Mediation is a voluntary private dispute resolution with the assistance of an independently neutral  trained person called  ‘Mediator’.  It is truly voluntary.  A mediator has no authority to make a binding  determination.  His role is only that of a catalyst for settlement.  He is neutral person  having no association with either of the contesting parties nor any interest in the outcome.   He only assists the parties in their negotiation to come to an  amicable settlement.  The parties themselves have to work towards a consensual resolution of the dispute.  They alone are responsible for their decision.  The most important aspect of mediation is that the mediator cannot impose a decision on the parties as in the case of a judge or arbitrator.   The mediator  only controls the process and effectively helps them to take their decision.  So the final decision and the outcome will always rest in the hands of the parties.  In a mediation process   mediator opens negotiation,  encourages parities to participate, identifies facts and real issues,  invites their  concentrate attention to their long term interests, requires  them to be realistic  about the case and its prospects as also various consequences,  compels  them to come up with options for settlement,  helps them to arrive at a final settlement and execute a legal and valid agreement  when they settle all the issues by themselves thro’ negotiation.  

Advantages   of  Mediation:

Mediation is now getting more and more attention of judges,  lawyers,  public, critics and policy makers.  It is the fastest growing  branch which requires encouragement and  wide publicity for its fast development and instantaneous growth.   It is completely free from all the negative characteristics as pointed out in the case of adversarial  system. It demonstrates a high success rate in resolving disputes in speedy and inexpensive manner. An amicable settlement of disputes gives full satisfaction to both parties in  litigation for the parties themselves are discussing and arriving at their own  conclusions and decisions suitable for  them  according to their convenience.  So mediation is one of best alternate which is fast developing with emphasis on international legal instruments and bodies, but  in India  it is in a  rudimentary  stage.  But there are sufficient precedents created by courts, national  and international statutes,  model agreements, useful test books,  websites  etc.

Divergent  views  about   Mediator’s  role:

There are two views  with regard to the duties and role of the mediators.  According to  the ‘facilitative school’  mediator plays only the limited role of being  communicator between the contesting parties.  Suggestions and opinions for settlement will have to come from the parties  themselves.   The mediator only tries to get clarity on their stand by explaining the various aspects  of the issues and nothing more.  But on the other hand  ‘evaluative  school’   of mediation envisages significantly greater role for the mediator.  He will persuade and push the parties to see the real issue and draw their concentrated attention to the problems awaiting them if they do not   settle the matter. In other words  a mediator according to the  ‘evaluative school’  makes all  earnest efforts to effect an amicable  settlement of a dispute using his good office and persuasion. 

Ground  Rules  for  Mediators:

The Mediators shall follow strictly  the following  ‘ground rule’ while  discharging  the  duties as  accredited and trained mediators.

 “ The mediator shall set the ball rolling with an opening statement which explains what mediation is all about.  It  will indicate the procedure and educates the parties about the process of mediation.  It  clarifies that the mediator is not a decision  making authority, but only a neutral  facilitator who paves the ways for an amicable settlement. It reassures  the parties that it poses no threat to them; instead it offers them unrivalled opportunity to participate in the mediation and end the dispute with a mutually acceptable solution.  The freedom of the parties to withdraw at  any moment cannot be curtailed  by the mediator.  It also stresses that mediation is voluntary process conducted  in  utmost congenial atmosphere  for taking final decision  by the parties themselves which will be enforced by the court of law.

2. Before proceeding with the mediation it is the duty of the mediator to check whether the subject matter is inherently incapable of settlement by mediation.  Cases involving criminal offences, interpretation of statutes, authoritative pronouncement by court based on binding precedent, cases   requiring urgent interim orders etc.  would fall in this  category.  It is also the duty of the mediator at the outset to ensure that there is no conflict of interest.  If any such  conflict exists or emerges  during the mediation, the mediator must disclose the same and withdraw.   He/She may continue only if both  the parties request him/her to do so and he/she  is of opinion that his/her connection or relationship with the party or subject matter is negligible and does not constitute a conflict.

3. The first and foremost duty of the mediator is good  listening.   It is to fully grasp  what the speaker is saying, not just the facts but their meaning and beyond that, the emotional contents of the communication. Give the speaker your full attention, ensure that there are no exterior disturbances such as noice or others intruding in the mediation. 

4. The mediator must insist that parties must try to listen  to the other without interruption.  It is important that each party is allowed to put forth the case without impediment and to extend the same courtesy  to the other.

5. The mediator shall conduct proceedings to bring the parties to a settlement in such a way that there should not be any apprehension about the separate meetings mediator may hold with each party out of necessity when the mediation enters a stage where the parties will not want to reveal anything more in the joint session.

6. The mediator should make a realistic  approach to the core issue in the course of negotiation between the parties, notwithstanding the rights and liability  which are relevant in a trial, and impress upon them the efficacy of BATNA(Best Alternative to a Negotiated Agreement) and how to improve on it to the extent possible and  explain the disadvantages of WATNA(Worst Alternative to a Negotiated Agreement) which may consume time including cost and interest.

7. The mediator should avoid giving legal advice to what a party should or should not do.  He/She can however give them his/her assessment of the legal position after making it clear that he/she is neither a judge nor arbitrator or conciliator. 

8. The mediator has the duty to keep confidential all information gathered from the parties in the course of mediation.  Confidentiality  is an integral part of mediation process. The mediator should strictly abide by such conditions imposed by the parties even if he/she feels that its disclosure would ensure a good result favourable for an amicable settlement of the dispute.  The only exception to this is where the parties give permission for such disclosure or where it is required by law or when the court requests the disclosure in the interest of justice. 

9. At the end  of mediation when a settlement is arrived at in the task  of putting the agreement into writing by the parties and their lawyers, the mediator can assist them in drafting the agreement in simple and straight forward language without any ambiguity.

10. The  mediators are accountable to the referring courts.  The proceedings shall be conducted by the mediators in a manner strictly consistent with these guide lines regarding ethics and code of conduct, all statutes, rules, orders of other regulations issued by the courts in this behalf and that the mediators should be aware  that they are fully responsive to the court concerning the qualifications, conduct and all other administrative matters pertaining to the case dealt with by the mediator”. 

Ethics  of  Mediators:

It needs no mention that the mediation depends on the trust that the parties repose  in the mediator.  So  the mediators are obliged and  bound to maintain scrupulously  and earnestly certain ethical standards and moral principles which  are enumerated below:

1.  A  mediator must maintain impeccable integrity and honesty in all the dealings.

2. A member while working as mediator must discharge his/her duties conscientiously and impartially regardless of any private, political or partisan influence.

3. A mediator must not allow his/her private or personal interest to interfere with his/her prompt and proper performance of the duties as a mediator. 

4. A  mediator should not use his/her position  for the purpose of advancing his/her private gain or personal ambitions or for increasing his popularity.

5. A mediator should work sincerely regardless of public praise in the best interest of the settlement of the dispute and maintain quitous  to the satisfaction of the contesting parties. 

6.  A mediator should work with all devotion bearing in mind that he/she is a member of an honourable service oriented profession and his/her action should not in any way malign the good name and welfare of the profession. 

7.  A mediator shall not receive any gift or other favours from any party who may have appeared before the mediator in his/her official capacity as such.   He/she shall not appear on behalf of the above parties in the court after mediation.

8. A mediator should bear in mind that impartiality, fairness and objectivity have been regarded as the quintessence of all the works attached to his/her office while working as mediator. 

9. A mediator should only mediate in matters he can be impartial, neutral and even handed,  for impartiality  is not only a matter of being unbiased and uninterested but it is also  giving the appearance of being so for the favourate phrase  with the lawyers and judges is “justice must not only be done, but must also be seen to be done”.  So mediator should  take scrupulous care in his/her speech, deportment, behaviour and other actions.

10.  A mediator should only facilitate consensual agreement between parties.  He shall not substitute his/her decision for the decision of the parties, compel or persuade a party to arrive at a settlement  or to take a decision based on erroneous or misrepresented facts or in any other way interfere or impair with the right or freedom of the parties to take their own decision.

Conclusion:

Mediation creates  congenial  atmosphere for the parties to meet  face to face and discuss all issues frankly which may culminate in final solution that is practical, sustainable and acceptable to all of them.   It is largely a risk free process and consensual  method of settlement.  It has  significant salient features which are  advantages over the adversarial  system  of settlement of disputes.  The  litigants and public at large  have virtually accepted  mediation as an effective alternative dispute  resolution  process and in fact the Indian Courts have made impressive strides in accepting consensual resolutions over the last fifteen years.  Mediation is now an accepted part of court procedure throughout  India as a dispute resolution mechanism.    In the light of  the judgment of the Apex Court in Afcons case  (2010 (3) KLT SN 75 (C.No. 83) (SC) =  (2010)  8 SCC 24),  giving impetus  to the provisions of C.P.C.,  particularly  Section 89 of the C.P.C. (introduced by Section 7 of the C.P.C.(Amendment) Act 1999 based on the report of the Justice Malimath Committee,  which endorsed the recommendations made in 124th and 129th reports  of the Law Commission)  the Judges  will have to evaluate each  case for  its suitability of reference to mediation.  They should also  accept mediation settlement arrived  at in a court annexed mediation and pass a decree on the terms thereof keeping in mind the principles of  Order XXIII Rule 3 of C.P.C.  since the  Supreme  Court has  given mediation the deemed status of Lok Adalath.  So a mediation settlement can be clubbed  together  with a settlement coming under Sec.74 of the Arbitration and Conciliation Act  1996 or under Sec.21 of the Legal Service Authorities Act 1987.

Controversy on "Proved" "Disproved" and "Not Proved"

(By P.S. Navas, Advocate, Kottayam)

The Indian Evidence Act 1872 (for short the Act) is one of the most wonderful legislations in Indian Judicial system. Sir, James Stephen, the eminent jurist in the Nineteenth century drafted the Act with utmost care and caution anticipating all contingencies, probable conduct and behaviour of human being. Human behaviour and conduct are different from person to person, time to time and place to place. But each and every Section of the Act drafted with arithmetical accuracy and mathematical precision. Section 3 of the Indian Evidence Act is considered as heart and soul of the Act. The expressions “PROVED” “DISPROVED” AND “NOT PROVED” are defined under Section 3 of the Act. The fate of every trial, whether civil or criminal rests on the principles of “Proved” “Disproved” and “Not Proved” enumerated under Section 3 of the Act. The court has to decide whether the facts in issue/principle fact or factum probandum are “Proved” “Disproved” or “Not Proved” from the available evidence of the case. All judicial evidence is either direct or circumstantial. In a well planned crime the direct evidences are seldom available and cannot be proved by direct evidence. Then the Court has to rely upon the circumstantial evidence of the offence and can make the conclusion relying on the unbreakable chain of circumstances. For a conviction what is needed is excluding all other hypothesis except the proved guilt of the accused. All the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. The conclusion so established should be consistent only with the hypothesis of the guilt of the accused. It should exclude every other hypothesis but the one proposed to be proved.

The expressions “Proved” “Disproved” and “Not Proved” as defined under Section 3 of the Act is very well discussed in Jose v. State of Kerala reported in 2010 (2) KLT 163. The diagrammatic representation of level of satisfaction enumerated in the said decision has logic and rationality. Thereafter two articles were published in 2010 (3) KLT written by Honourable Justice (Rtd) U.L. Bhat and made detailed discussions about Section 3 of the Act in the said context. In Jose v. State of Kerala held that Section 3 theoretically offers two levels of satisfaction. But the law strictly demands that there must be proof beyond doubt in criminal trial and preponderance of probability in civil trial. But of course there is identical use of expression “proved” in Section 3 of the Act for both civil and criminal trial. The real controversy over the of the expression proved under Section 3 of the Act began after the decision reported in 2012 (2) KLT 769 in Krishna v. State. The controversy is the manner in which circumstances have to be established when a criminal case resting entirely on circumstantial evidence. In Krishna v. State the court held that all circumstances have to be proved beyond doubt. Higher degree of proof and satisfaction is needed. Honourable Justice (Rtd) U.L. Bhatt again vehemently criticized and wrote another article in 2012 (2) KLT against Krishna v. State of Kerala and he stated that the law laid down in Krishna is erroneous. The real controversy he mooted in the said Article is that whether basic, primary or circumstantial facts are required to be proved beyond doubt when there is no direct evidence and the case rests entirely on circumstantial evidence. The circumstances relied must be fully established. While appreciating the evidence it is necessary to distinguish between the facts which may be called as primary or basis facts. The controversy is with regard to the proof of basic or primary facts and whether there is any scope for the application of doctrine of benefit of doubt. In the said article the Honourable Justice (Rtd) U.L. Bhatt reiterated that in M.G. Agarwal v. State of Maharashtra (AIR 1963 SC 200) the Honourable Supreme Court held that there is no scope for the application of doctrine of benefit of doubt in the application evidence in respect of proof of basic or primary facts. If that be the legal position the same is law of the land and has to be followed by all courts in India. Hence a combined reading and analysis of the decision in Krishna with Articles of Honourable Justice (Rtd) U.L. Bhatt have created doubts and confusion in the minds of lawyers and functionaries of criminal justice system. As stated above, the fate of every trial whether civil or criminal rests on the principles of “Proved” “Disproved” and “Not Proved”- enumerated under Section 3 of the Act. If there is any confusion and doubts in the mind of courts to decide whether fact in issue is proved, the same will affect the administration of justice. The said confusions and doubts are to be cleared, since the same will affect the very basis of administration of justice.