The Food Safety and Standards Act, 2006 -Turbid Albeit Stringent

By P. Rajan, Advocate, Thalassery

By introducing sweeping changes, ostensibly,repealing the Prevention of Food Adul-teration Act 1954, the above stated Act came in to force some time back. To bring out a single statute, to provide systematic and scientific development of food processing industry, likewise to apply food standards, ensure safe and wholesome food, the Act was introduced. The sections in the Indian Penal Code, i.e., 272 and 273 became redundant by the introduction of PFA Act 1954 relating to adulteration and sale of noxious food items as the later Act gained exclusiveness relating to adulteration and sale of food items so also allied offences. The present statute has repealed expressly the PFA Act and now the Food Safety and Standards Act became applicable for all violations and offences with regard to manufacture, import and sale of edible items.

 

The earlier Act was comprehensive and patently explanatory for proper application to the prosecuting agency, for the Courts as well for trial and disposal of cases.  But the present Act in a way curtails the jurisdiction of criminal courts in certain cases coming under the Act and power is given to executive magistrates for adjudication. It is envisaged even for compounding certain specified offences, but the procedure is not simple and the result also would be discretionary considering the requirements and procedure. Food Safety Appellate Tribunal is defined in the Act to be presided by a person who is or has been a District Judge, but before the Tribunal also the recourse can’t be easier due to mandatory restrictions.  The procedure and power of the Tribunal are also not in accordance with or as contemplated as of a criminal trial under the Code of Criminal Procedure.

 

Another hardship to food vendors is their liability in the event of seizure of adulterated item which is purchased from or supplied by a whole sale dealer or manufacturer. Under the repealed Act Section 19 was a vital safeguard to establish the innocence of the vendor and to make the person who supplied the article also liable for prosecution, eventually for punishment on proof of the mandatory requirements provided under the section. But under the present enactment,the provision identical is Section 78, but the procedure or the burden to be discharged by  a retail vendor  is not similarly stated. As the punishment by way of imprisonment and fine is exorbitant, adjudication on complaint by the Food Safety Officer before the Executive Magistrate often is burdensome to the unwary accused as the matters are being considered similar to the procedure of plea bargaining introduced in the Cr.P.C.

 

“Recently, Kerala High Court had ruled in favour of the accused as the prosecution launched against him by the complainant, (Bhadra Oil Mills v. Food Safety and Standard Authority of India) decided on 25.02.2021 (2021(2) KLT SN 61 (Case No.51 = 2021 KLT OnLine 1041) was without proper awareness of law, flaying the prosecution- observed by the High Court, as the petitioner (accused) remained a victim of bureaucratic obstinacy which prevailed over good sense. In this reported case standard of coconut oil was applied for coconut testa oil by the complainant, accepted by the lower authority though no standard for testa oil was prescribed under the statute”. 

 

Punishment is stated, in Chapter IX of the Act (Sections 48 to 64) and fine amount may go up to five lakhs for violation of the provisions of the statute. Adulteration of food items, sale of substandard articles is no doubt, a grave social menace which must be dealt with deserving seriousness. At the same time, innocence or ignorance of the traders especially petty vendors cannot be lost sight of. Take a case of milk in which no added water is found, but difference in fat content which may occur due to reasons beyond human control or intervention, in such cases also punishment contemplated is grave even for petty traders.  As the enactment is in force for more than 15 years, unless judicial pronouncements by evaluating the implicit hardships due to explanations and definitions favourable to the prosecuting agency the accused persons would be the real sufferers in many cases even, they are not directly or knowingly have committed the act of adulteration. In the judgment reported in Pepsico India Ltd. v. Food Inspector (2010 (4) KLT 706 (SC)), the Supreme Court has held Section 23(1A)(ee) of the earlier Act held to be mandatory and that judgment remains in force even now. The present Act needs a re look by the law makers or else the mercy of the prosecuting agency and indulgence of the forums defined for adjudication would be the only solace to many small vendors. It is not wisdom often, but authority that make laws, proves to be true here also.

 

 

 

 

There is no doubt that labour and employment regulations have far-reaching implications for every business organization. These are crucial for a congenial and harmonious relationship between employers and employees. But the new regulations will require review and revision of all employment contracts, compensation structure, registrations, and compliances otherwise they are not going to work to achieve the desired goal.

Four Labour Codes were being lauded to usher the country to a new era of revolution in the field of industrial relations, but they proved to be damp squib even before coming into operation. It was expected that the employers and employees will be happy since new opportunities for employment be created.  Besides that comfortable and conducive working conditions will be introduced.  The Ministry of Labour & Employment termed the new Codes as Labour Reforms but, they have created more confusions mainly due to and copy-paste work. 

Merely by abolishing the Labour Courts, it could not be construed that there will be lesser disputes for adjudication.  It is also not understandable why an Industrial Tribunal should consist of two members instead of one? Even High Courts assign cases and appeals for disposal by a single judge. The Code says that no person shall be qualified for appointment as the presiding officer of a Tribunal unless-

(a)    he is, or has been, a Judge of a High Court; or

(aa)  he has, for a period of not less than three years, been a District Judge or an Additional District Judge.

(b)   he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State Labour Department, having a degree in law and at least seven years’ experience in the labour department including three years of experience as Conciliation Officer:

        Provided that no such Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may be, before being appointed as the presiding officer; or

(c)    he is an officer of Indian Legal Service in Grade III with three years’ experience in the grade.

Tall claims have been made by the government that the labour reforms will make the ease of doing business. Hence emphasis was laid on the appointment of ‘fixed term employee’ who will not have job security like an employee who happened to be a ‘workman’ under the Industrial Disputes Act, 1947.  There has also been a rider i.e., such employee will not only get the salary and other benefits like his counterpart, but he will get gratuity even when he has worked for one year.  The members for drafting the Codes skipped similar provision in the definition of ‘retrenchment’ excluding a workman from retrenchment whose contract of service was not renewed.  Such worker as engaged for the fixed period will not be entitled to the wages or other perks like that employee who has been working on a similar job.  Only an employer ignorant of law engages ‘fixed-term employee’ as provided under section 2(34) of Code on Social Security, 2020 by bearing additional financial liability which is otherwise avoidable.

On Strikes & Lockouts

Strict restrictions have been imposed on the workers and the unions in the expectation that there will be no strike or lockout.  However, this can only happen when the workers are represented not by enlightened unions because they rarely resort to strike but they advise the workers to adopt ‘go slow’ and ‘work to rule’ tactics which exert much higher pressure upon the employers than that of a strike.  They know that a strike could be prohibited by the Court and also by the labour authorities but not the ‘go slow’ or ‘work to rule’ tactics.  

Employees’ Provident Fund

Two major changes are proposed -

a)   The determination of money payable by an employer could be made for a maximum period of 5 years which could otherwise have been done by an amendment as was done in 2010 in the Employees’ State Insurance Act providing limit of 5 years for the production of records.  

b)   For admission of appeal before the EPF Appellate Tribunal the determined amount was to be deposited up to 75% which have now been reduced to 25% withdrawing the power of the Tribunal to reduce or even waive the condition for pre-deposit when there are justifiable reasons or the impugned orders for which appeal is legally defective.

Employees’ State INsurance

a)   Only change for covering all establishments which could be otherwise done by exercising the powers as vested in the appropriate government as it has been under section 1(5) of the Employees’ State Insurance Act.

b)   Allowing voluntary coverage which could otherwise be implemented without any hassle. 

Gratuity

Allowed for fixed-term employees without any condition for 5 years qualifying service defeats the very objective of gratuity.  In Express Newspapers Pvt. Ltd. vs. UOI, AIR 1958 SC 578: 1959 SCR 12, it has been held that the term ‘gratuity’ imports an idea of gift or a present generally in return for the favour of services.  The Supreme Court has observed that gratuity is regard for good, efficient, and faithful service rendered by an employee for a considerable period.

Gig and Platform Workers

Even now it not been covered and could be separately covered by another enactment. 

Contract Labour (R&A) Act

Registration of the principal employer has been done away but the employer along with the contractor is included in the definition of employer. Merely removing the prefix ‘principal’ does not mean that the employer will not be liable for any violation by the contractor.  Also, the burden of providing welfare measure is shifted upon the employers.  

CONTRACT LABOUR ABOLISHED EXCEPT IN NON-CORE AREAS

“Core activity of an Establishment” has been defined as an activity for which the establish-ment is set up and includes any activity which is essential or necessary to such activity.  Non-core activities have been listed which are as under:

(i)   sanitation works, including sweeping, cleaning, dusting and collection and disposal of all kinds of waste.  Watch and ward services including security services;

(ii) canteen and catering services, loading and unloading operations;

(iii) running of hospitals, educational and training Institutions, guest houses, clubs and the like where they are in the nature of support services of an establishment;

(iv) courier services which are in nature of support services of an establishment;

(v) civil and other constructional works, including maintenance;

(vi) gardening and maintenance of lawns and other like activities;

(vii) housekeeping and laundry services, and other like activities, where these are in nature of support services of an establishment;

(viii) transport services including, ambulance services;

(ix) any activity of intermittent nature even if that constitutes a core activity of an establishment.

The above change means that other than the areas listed above, contract labour cannot be engaged. Even the labour department officials cannot permit an employer to employ contract labour inreas other than those stated above. This has courtailed the scope of contract labour system.  The Contract Labour (R&A) Act never prohibited the engaging contract labour system in core activity it has even encouraged regulation and the title of the Act revealed.

MATERNITY LEAVE

The maternity benefit allowing women a 26-week paid leave after childbirth, which is a landmark reform, but it is turning into a malfunctioning one.  It has been retained in Code on Social Security 2020.  It has been proved beyond doubt that women are more sincere, devoted and laborious to their work than their male counterparts, but less and fewer young women are getting employment because of the increased maternity leave.

The impact of this reform has not been desirable for many companies due to the cost implications. Paying women for 26 weeks of leave is hardly conducive to these companies' businesses.  We feel that the maternity benefit should be heavily subsidised by the government and at the same time adequate creche facilities are made available by the welfare state near factories and the workplaces of the women.

Prohibition of lawyers’ representation in industrial disputes

Even while revising the labour laws, the lawmakers have overlooked for reversal of section 36(4) of the Industrial Disputes Act, 1947 (enacted 74 years before) by retaining it under section 94 of the Industrial Relations Code.  In I.C.I. India Ltd. vs. Presiding Officer, Labour Court and Another, 1992 LLR 477 the High Court said, “it is well known that Industrial Law is a complicated branch of law, and only persons who have knowledge of labour laws, and also some practical experience can properly represent the parties before the Labour Court / Tribunal”.   The simplification of labour laws still seems to be a far cry, although it is being publicised that amalgamation of 29 existing labour laws into four labour Codes will largely serve this purpose. Although advocates have been kept away even in the new Codes to conduct the disputes in the Tribunals or in the higher Courts, yet at places, the subsumed laws are so obtuse that even they find it difficult to comprehend them properly.

Labour Law is largely a Judge-made law, and hence only a person who has studied this branch of law can properly represent a party before the Labour Court. It has become a highly technical branch, and only trained persons can properly assist the Labour Court/Tribunal in the matter. Hence, to debar lawyers merely because the opposite party objects is wholly unreasonable and arbitrary.

Inspector-cum-Facilitator

Merely by placing a suffix as ‘facilitator’ would never change the role of inspector.  With increase of their powers, they will cause more harassment of employers.  For minor innocent lapse, such officers vested with powers to cause harassment and the condition of the employer is like a pigeon whereupon the hungry cats prowl upon.

Definitions

Hundreds of definitions like ‘wages’, ‘employee’, ‘worker’ etc. would create more problems and the litigations be multiplied.  The labour laws have been settled by now by final interpretations.  There has been a great deal of drill for the exclusion of some and inclusion of a few in the definition of wages which has resulted into good deal of confusion.

Labour laws are essentially meant for the benefit of the laypersons so that those who work and manage the business and industry may not have to face difficulties in getting them executed.

It is a fact that for the proliferation of disputes the fault lied with most of the HR executives and labour law consultants since they did not possess proper knowledge about labour laws either at B-Schools or even in Law Colleges.  Having been interpreted by the High Courts and even by the Supreme Court for several decades, the labour laws have largely become clear as the ambiguities have been removed.  The flaw lied with some of the HR Heads who could not manage people properly and failed to handle when the workers got united and took advantage of the ignorance of the employers or those of the highly ranked and heavily paid executives.  They are allergic and upset when the workers form their union.  They overlook and/or not trained to deal with the trade unions.

The history of industrialism underlines the fact that the trade union is a natural and necessary vehicle for workers to secure protection.  Many employers are surprised at the need for ‘protection’ but the fact simply is that no employer, however, knowledgeable and well-intentioned, can realize the implications or anticipate the consequences of all his decisions for employees and their families.  Consequently, the union is a natural, sometimes the only agency for such protection as well as the apt vehicle for ensuring progress in the workers’ condition of life and work.

An eminent Labour lawyer and Human Resource consultant has aptly described that the new Labour Codes are like the washerman's bundle, where the clothes of all shapes, sizes and types are put together, which are sorted out with efforts. In these Codes, one has to traverse from one Code to another to find out the solution of the myriad of problems, which are not so easy to find out even to an expert lawyer what to say of half-baked but well paid and haughty HR Managers of The Indian Government has been claiming that all four labour codes will completely overhaul the archaic labour regulations to bring them in sync with the 21st-century business landscape and promoting investments, but it does not look that they will achieve the highly ambitious goals. Perhaps this is the reason that they have been put in limbo.

LEGAL STATUS OF FORENSIC PSYCHOLOGICAL TESTS IN THE NATIONAL AND INTERNATIONAL PERSPECTIVE.

Anjana Prasad S., Research scholar, school of Indian Legal Thought, Kottayam

 

ABSTRACT

This Article analyses the present legal status of Forensic Psychological Tests in different countries in the world where the tests are prominent in criminal investigation as well as in trial. The object is to analyse the legal safeguards taken to ensure the rights of the accused, in those countries. The article also peruses the position in India. In order to study the Indian position, an analysis of information obtained under the Right to Information Act, 2005 has been thoroughly gone through. While going through in depth reading of this article, a clear picture of the application of scientific tests and its legal implications in various countries will be thoroughly understood.

 

INTRODUCTION

As stated by S.L. Vaya in her article¹, the beginning of the development of Forensic Psychological Tests in India was made in 1968 with the establishment of Lie Detection Division in Central Forensic Science Laboratory², Central Bureau of Investigation³ , Delhi, by appointing a psychologist. The interest for the use of tests like Polygraph was first shown by the investigating officers in India in 1948 in connection with investigation of murder of Mahatma Gandhi⁴. The test was later used in several cases, but its use was almost suspended till late 1960’s. Because of the publication made by CBI officials in their magazine “CBI Bulletin,” other State Forensic Science Laboratories also began to establish Lie Detection Division in forensic set up. Later following CBI pattern, in Gujarat, State Forensic Science Laboratory, three full time psychologists of different cadres were appointed to start Lie detection unit. Thus, a deviation was made from general trend wherein physicists or chemist or biologist were appointed to handle Polygraph Test in Gujarat Forensic Science Laboratory.

The second step in development of Forensic Psychological Tests in India began, with the establishment of Forensic Psychology Division in Forensic Science Laboratory, Gujarat in 1988 by renaming Lie detection Division in the Laboratory in Gujarat. Necessary amendments were made in Gujarat Police Manual 1975 for conducting the tests. It is pertinent to note that with the emergence of Forensic Psychology Division, clinical psychologists providing services to civil and criminal cases were empowered with administrative authority as a forensic psychologist. The integration of clinical interview with findings of psychological assessments had yielded satisfactory aid to investigating officers.

However, increasing work load and limited man power led to narrow down the focus of investigative psychology with need-based approach to develop new technologies, whenever requisition comes from investigating officers. Thus, it maybe stated that all the Forensic Psychological Tests like Psychological Assessments, Forensic Hypnosis, Forensic Statement Analysis, Polygraph Test or Narco-Analysis Test have developed as per the requirement of the case and the need for the investigation. Procedure Manuals were also prepared as guidelines for crime investigations. As a next step, at the national level, for the growth of the field, aprovision to include “Forensic Psychology” as a discipline in a Forensic Science Laboratory set up was made in National Accreditation Board for Testing and Calibration Laboratories. By 1980’s five states had set up Forensic Psychology Division in their state laboratories. Presently 13 Forensic Science Laboratories and 1Central Forensic Science Laboratory conduct Forensic Psychological Tests. Present Government Policy also seems to be in favour of establishing Forensic Psychology Divisions and developments of Forensic Psychological Tests in the Forensic Science Laboratories in the Country.

 

INDIAN POSITION

Present Status of Forensic Psychological Tests in India: To get information as to present status of Forensic psychological Tests, an application was filed under the Right to Information Act, 2005 to all the FSL’s in India. The list and address of the CFSL’s and State Forensic Science Laboratories were obtained from the website of Directorate of Forensic Science Service. Information sought, included the number of cases the laboratories have examined from the year 2007- 2015. This is to analyse whether cases are coming for these tests after Selvi v. State of Karnataka decision. Whether the request for conducting of these tests are showing increasing/decreasing trend. The other information pertains to nature of the tests conducted in the laboratory, safeguards taken while conducting the tests, ascertaining the reasons for the delay in conducting the tests, the qualification and competency of the examiners and the feedback mechanism. However, it is pertinent to note that Directorate of Forensic Science, Gujarat, though conducts all the tests had refused to give information stating that the Laboratory does not come within the purview of Right to Information Act. Hence relevant information especially as to Layered Voice Analysis could not be obtained.

Procedure and Safeguards Taken While Conducting the Tests: The tests are mainly governed by the guidelines laid down by the Supreme Court in the Selvi’s decision, National Human Rights Commission Guidelines and also as per the Laboratory Procedure Manuals. Apart from these, the provisions of the Constitution of India, The Code of Criminal Procedure, The Indian Evidence Act and the identification of Prisoners Act also govern the administration of the tests.

 

The Forensic Bill proposed by two-member committee on Perspective Plan for Indian Forensics 2010, had provisions relating to forensic psychology as well. However, a Bill namely Forensic Regulatory and Development Authority Bill, 2011, which was introduced, but lapsed, had no provisions relating to the field of forensic psychology or the tests. Thus, presently there exists no comprehensive legislation governing these tests. see, NHRC, “Guidelines Relating to Administration of Polygraph Test (Lie Detector Test) on an Accused, 2000.”

 

Number of Subjects and Cases in Which the Tests are Conducted Between2007 and 2015: Information has been sought from all the FSL’s to analyse whether cases are coming up for Polygraph, BEOS and Narco Analysis Test after Selvi decision and also to analyse the scope of the tests in criminal investigation. State FSL’s of Mumbai, Delhi, Haryana, Nagaland, Odisha, Karnataka , Kerala and CFSL CBI Science Standard’s under the Ministry of Home Affairs. The existing Directorate of Forensic Science Services will be merged with the bureau. The analysis of data of all the laboratories shows that though there was a dip in the number of cases referred for the tests after Selvi decision in 2011/2012,presently more cases are referred for these tests. There is an increase of 13%, 11%, 14%, 15% of cases, comparing the number of cases reported for 2014 and 2015, in the Laboratories of CFSL CBI, SFSL Thiruvananthapuram, SFSL Odisha, FSL NCT Delhi respectively.

 

INTERNATIONAL POSITION

Since the middle of 1990’s in most of the countries, Forensic Psychological Tests Especially Polygraph is used in various settings like civil, criminal and employment settings. Some of the countries like USA, England etc. have their laws touching these tests. However, in some nations, it is the judicial decisions which govern these tests. USA ranks first among the nations regarding the use of these tests, followed by countries in Asia. For the purpose of this study, these tests of those countries where these tests are prominent in criminal investigation and trial are analysed. The countries include both common law and civil law countries.

 

UNITED KINGDOM

As far as Forensic Psychological Tests in UK is concerned, British Psychological Society in two of its reports in 1986 and 2004 had expressed its doubts regarding the accuracy of Polygraph testing’s. However, it may be stated that Polygraph Testing became legalized in UK in probation settings with the passage of Offender Management Act, 2007. This Act allows the use of Polygraph tests in sexual offenders in probation field, even without consent, if it is written as a parole condition. But it forbids the use of any statement, or any physiological test results obtained during the test. The test for this purpose is regulated by Polygraph Rules, 2009. As per these rules, the Secretary of State can require certain offenders released on license to undergo Polygraph Test to monitor the compliance with the term of license and also to improve offender management.

 

In England, no criminal case has been reported which has decided the admissibility of evidence based on Forensic Psychological Tests. But in a civil case, Fennell v. Jerome Property Maintenance Ltd the Narco Analysis evidence was held inadmissible. There is also increased interest in using brain imaging for surveillance and security purposes. Voice analysis is used in banking and insurance sectors for detecting fraud, and in criminal justice settings.

 

UNITED STATES OF AMERICA

When US position is analysed, it can be seen that since the decision in Jenkins v. US, courts began to admit psychological expert evidence in criminal trial. In 2001, forensic psychology was recognized as a specialty by American Psychological Association.

 

Polygraph: In USA, Polygraph Test is mainly conducted by the Department of Justice for various administrative, employment and investigative purposes. Nearly 11 states have enacted laws for conducting Polygraph Tests in certain cases. Presently, admissibility of scientific evidence is governed by Daubert criteria and amended Federal Rules of Evidence, which is applicable in the case of Polygraph evidence also. It is pertinent to note that after Daubert decision, there has been increased willingness to accept evidence of Polygraph Test results by courts. The research and regulation of Polygraph Test and training of experts are much advanced in USA. American Polygraph Association and American Academy of Polygraph Examiners have made much contribution in the field of Polygraph research. The Department of Defence Polygraph Institute conducts training of all Government Polygraph examiners and has also introduced admission requirements for its Polygraph examiners. This has resulted in standardization and quality control in Polygraph examinations. Major regulatory approach adopted, is setting up licensing standards, as the results of the test is mainly based on subjective interpretation of experts. However, there is no legislation governing Polygraph in criminal justice setting. Major criticism against Polygraph Test in this country, is with respect to it suse in employment settings than its use in law enforcement settings. The perusal of various Commission and Committee reports would lead to this conclusion. It seems that recent Government policy is a positive attitude towards Polygraph Tests. Since2013, US federal Government has started to prosecute persons who are involved in teaching counter measures to beat Polygraph. Similarly, though courts of state jurisdictions show different trends as to the admissibility of Polygraph evidence, there is no per se ban of the test in USA. The test is extensively used as an investigative tool and also in post-conviction proceedings. Hence the test is of utility in criminal justice system in USA.

 

Thus, it is found that in USA, Polygraph Test is extensively used in criminal justice settings. It is also found that attempts are also made to bring regulation through legislation and licensing so as to bring more objectiveness and standardization in this regard. The administration, expertise and training of the experts are also given predominance. Thus, it may be stated that, attempts are made in various state jurisdictions to improve the quality of the Polygraph Test results, which will have positive impact on the reliability of the test results.

 

Narco-Analysis: After terrorist attack in World Trade Centre, Narco-Analysis is conducted on suspects of terrorism in USA. But it is not used by law enforcement agencies and is not a popular investigative tool.

 

Neuro Imaging Tests: Presently, Brain Fingerprinting is used by Federal Bureau of Investigation. The technique was developed by Lawrence Farwell. As far as Brain Finger printing and FMRI evidence is concerned, though presently courts are reluctant to admit evidence, judiciary itself has expressed its intention to admit it when the tests attain scientific validity in future. Moreover, US Government is also making huge funding in Neuro Based Lie Detection Projects.

 

LVA and Psychological Stress Evaluator: LVA Test is used by US Ministry of Defence. As early as in 1982, New Mexican Court of Appeals has held that PSE evidence is admissible in trial. The court held that trial court may admit the PSE evidence in its discretion, if the proponent of the test satisfies the conditions of qualifications of the examiner, the reliability and the validity of the test. It is also important to note that recently a federal court has approved the use of CVSA test to monitor sex offenders. It may thus be stated that Forensic Psychological Tests is prevalent in US jurisdictions and is used in criminal investigation. Positive attitude is also shown by courts of various jurisdictions to admit Forensic Psychological Tests results. Different jurisdictions are also taking initiatives in bringing regulation in this regard.

 

AUSTRALIA

In Australia, lie detector test is inadmissible in evidence. As far as Forensic psychological Tests are concerned, in Australia, there exists Lie Detector Act, 1983, the object of which is to prevent the misuse of tests like Polygraph by employers, insurance companies etc. Section 6(1) of the Act, provides that output from Lie Detector Test and any opinion based on that output is inadmissible in evidence. It is also an offence, if any person uses evidence based online detection to determine whether a person is guilty of any crime.

 

Polygraph evidence. : The Federal Polygraph Association of Australia gives training and stipulates standards for certification of Polygraph examiners in Australia and regulates the use of Polygraph Test in the country. Other tests are of not much prevalent in the country.

 

BELGIUM

In Belgium, Polygraph Tests were used for the first time in 1997 in the case of serial murder of children. In that case, the test seemed to be very helpful and this case paved way for further use of Polygraph Tests in criminal investigation.

 

In Belgium, Polygraph Tests is regulated by legislation. Here, the Polygraph Test is used as investigative aid like that of DNA. But the results of the test are not directly used as evidence. In February 2006, the Supreme Court of Belgium held that judicial notice may be taken as to Polygraph Test results if certain requirements that would assure the reliability of the test and protecting the rights of the accused are satisfied. Thus it may be stated that as the tests are properly regulated and on the satisfaction of certain safeguards, the test results may find entry in court room.

 

CANADA

In Canada, scientific tests are used widely for criminal investigation with the guidelines of the court. Canada Ranks second after US, as to the volume of research studies conducted with respect to Polygraph. Since 1950’s, Canada has been using Polygraph test in law enforcement. Till 1978, Polygraph experts were trained in USA. Later Institute of Polygraph of the Department of Defence began to give training to Polygraph experts. Canadian police mainly used Polygraph to narrow down the circle of suspects, to determine whether crime has been committed, to identify the guilty, to decide whether there is concealment of information and also to collect additional information. The tests are also conducted on accused, victims and witnesses. The tests could be conducted only with consent. In R v. Beland, the Supreme Court of Canada had rejected the use of Polygraph results as evidence in courts on the grounds of exclusionary rules of evidence. However even after this decision, Polygraph Test is widely used in criminal investigation.

 

JAPAN

In Japan, scientific tests are widely used and admitted as evidence. In Japan, it can be seen that National Institute of Police Sciences in Tokyo conduct more researches in Forensic Psychological Tests Especially Polygraph than any other countries in the world. Regarding the use of these tests also, Japan is aleading country. In Japan since 1959, Polygraph Test results are admitted as evidence. The Supreme Court of Japan has left it to the discretion of trial judge to decide as to the admissibility of these tests. Thus, in Japan, these tests are used as investigative aid and also used as evidence in court of law.

 

Tsukuba University, has conducted a study on reliability and validity of LVA Test in the detection of mental stress and the study found that LVA is useful in the detection of mental stress. Thus, it may be stated that the country takes more initiative in research in this branch so as to ensure reliability and validity of the tests.

 

Though the legal system in Japan is not comparable with that of India, the analysis of constitutional and legal system in that country shows that both the Code and the Constitution guarantees several fundamental rights to the accused. The state is bound by the international covenants to protect the human rights. The adversary principle is also applied and parties concerned have the initiative for the collection and provision of evidence, though court may also examine evidence. This clearly depicts that regarding predominance given to the human rights of the accused, the position in Japan is similar to that of India. Hence, India could take guidance from the initiatives taken in Japan for ensuring reliability of Forensic Psychological Tests.

 

POLAND

Polygraph Test has gained momentum in Poland in law enforcement, military and counter intelligence etc., after its beneficial utilisation in a murder case in 1963. In late 1970’s and 1980’s research in Polygraph gained momentum in Polish Polygraph Association which was founded with the objective of laying down ethical standards in training and research for Polygraph Examiners in Poland. It has adopted standards of Polygraph examination in criminal cases.

 

In Poland, Polygraph examination is allowed as investigative method of finding evidence and eliminating suspects. The results of Polygraph examination is admitted in evidence if certain conditions are satisfied. The conditions are that the examination must be done with the consent of the subject and the examination must be performed by an expert and the result must take the form of a report complying with the provisions of Article 200 of The Code of Penal Procedure. The expert must possess professional and moral qualifications. Public opinion in Poland is in favour of Polygraph examination. The 2003 Amendment to Code of Penal Procedure has actually tipped in favour of acceptability of Polygraph examination as evidence in court and provides a legal basis for conducting Polygraph examination. The studies conducted by the University of Silesia, has revealed that the introduction of Polygraph examination in criminal investigation has brought a change in attitude in police. Before the introduction of the test, police in Poland were criticised as brutal. As maltreated persons could not be subjected to Polygraph Test, torture and third degree has been reduced. The study also revealed that if the tests are conducted immediately after the commission of crime, conclusive results could be obtained. Though PSE was purchased in Poland in 1990, it is not put in active use. Silesian University has LVA system and they are doing empirical research in estimating the accuracy of the system with respect to population of Poland. There are also more chances for the use of LVA and PSE Tests in Poland in future and research is in progress in the area of Forensic Psychological Tests. It appears that the results of the polygraph test are admissible in Poland due to public opinion favorable to these tests and the assurance of adequate guarantees, the expertise of experts and research in this area which contributes to the reliability of the test.

 

SOUTH AFRICA

In South Africa, Polygraph component is part of scientific analysis unit of Forensic Science Laboratory of South Africa. The members of the unit have undergone intensive international training. When Forensic Psychological Tests are considered, it seems that it was from late 1970’s, Polygraph Test became prominent in Africa and presently the use of the Test in criminal investigation settings is increasing rapidly. South African Polygraph Association regulates the working of the test and the qualification and training of experts. However there is no specific legislation or code of good practice that govern Polygraph Test in South Africa. Most significant case with regard to Forensic Psychological Tests is Mahlangu v. CIL Deltak, wherein the court held that the voice test which was administered by an unregistered psychiatrist is invalid, unscientific, unlawful and unethical. It seems that incompetency of expert has constrained the court to come to that conclusion.

 

Though no direct case law is reported as to Polygraph use in Criminal investigation settings in South Africa, based on case laws on labour matters dealing with these tests the divergent approaches taken by courts may be summarised as follows:

 

In some cases, courts do not consider Polygraph Test results as reliable and admissible. No adverse inference is also taken about the person who refuses to take the test.

In some other cases, courts have held that, Polygraph Test result is not admissible in evidence, if no evidence is given as to the qualification of expert and if he is not called to give evidence in courts.

 

Courts also take the view that, though the test result may be admissible as expert evidence, Polygraph Test result on its own cannot be considered to determine the guilt.

Lastly another view is that, where there is other admissible expert evidence, Polygraph test result may be taken into consideration to determine the guilt.

 

It thus seems that, if the test is applied by a competent expert and if other independent corroborative evidence is there, Polygraph Test result is admitted in evidence. Thus, it may be stated that the trend in South Africa is to admit the tests as corroborative evidence. South African police service uses LVA test also.

 

It may be true that South Africa follows mixed legal system of Roman and Dutch Civil Law, English common law and also customary law. The analysis of the constitutional provisions reveals that, South African Constitution guarantees several rights to the accused. South African criminal trial operates on the basis of an adversarial system. Hence it may be stated that legal system in South Africa has benevolent approach towards the accused, and hence India may take lessons from this country as to ensure the reliability of the tests by giving proper in-service training to the experts and also by proper regulation of the working of the tests.

 

CONCLUSION

Since late Twentieth Century, a positive attitude towards Forensic Psychological Test by countries in the world is evident. It is noticed that in those countries where the tests are prominent in criminal investigation and also where the test results are admitted in evidence, the regulation, the administration, expertise and training of the experts are far more advanced than in India. They also provide adequate safeguards to the subjects who take the tests. For instance, in USA, the expertise and efficiency are ensured by legislation and also by providing for proficiency testing and licensing standards of the experts in this field. This means that, proper regulation of the administration of the tests and provisions for adequate safeguards to the subjects are required, for the investigative and evidentiary use of the tests in criminal justice settings. It is also found that in some countries, especially in common law countries, judiciary also try to regulate the use of the tests in the absence of proper legal safeguards, by disallowing this evidence on different grounds like unreliability, inaccuracy and incompetency of the examiners, subjective interpretation and bias of examiners, lack of validation studies and violation of human rights norms. Thus, there is no uniformity among judiciary in different nations as to the reasons for inadmissibility of forensic psychology evidence. However, it is found that there is no judicial scepticism as to the use of these tests as investigative aid in most of the countries.

 

In India, Forensic Psychological Tests are conducted only based on court order. The tests are conducted only with consent of the subject as per Selvi guidelines and Laboratory Procedure Manual for the respective Tests. Only procedural defect noticed is regarding the absence of lawyer during the administration of the tests. It is found that some laboratories even video graph the whole procedure of Polygraph, over and above Selvi guidelines. It is also found that delay and pendency of cases is not an issue as far as these tests are concerned. The study also revealed that the examiners who conduct these tests are qualified and competent. It is found that there is no system of feedback mechanism in Forensic science service as such. The study revealed that there is absence of proper administration of forensic Science Service in India. The Directorate of Forensic Science Service has control only over CFSL’s. State Forensic Science Laboratories are mainly under their respective home ministries. The regulation of forensic psychology practice is also in a dormant state. Only two laboratories have NABL accreditation and there is no proficiency testing or licensing standards for the Practitioners of the profession. Moreover, there is also no legislation governing Forensic Psychological Tests and Forensic science as such.

 

At the same time, it is also found that in India, out of 38 Laboratories, 14laboratories have forensic psychology division. It is also found that number of cases and the subjects on whom Forensic psychological Tests are conducted is showing an increasing trend. Government policy is also for establishing more Forensic Psychology divisions and more use of these tests. The study also revealed the requirement for more research and validation studies as to these tests. Apart from the existing tests, many new tests like Suspect Detection System, Thermal Imaging, etc., are also developed in order to be used in criminal investigation. Government funding is provided in many countries like USA in Neuro projects and research in Forensic psychological Tests is emerging in most of the countries in the world particularly after attack on World Trade Centre, New York. At the same time right against self-incrimination and right to fair trial of the accused which is of paramount importance shall not be overlooked.

 

Foot Notes

 

1.Dr. S.L. Vaya, “Forensic Psychology in India,” Vol.1 (1), International Journal on Police Science, July 2015, pp.29-34 at p.29. The detailed discussion on the evolution of Forensic psychology and the tests are made in this article.

2. Herein after referred as CFSL.

3. Herein after referred as CBI.

4. L. V. Omelchuk and A. V. Linnik, “Use of a Polygraph in Criminal Legal Proceedings ofForeign Countries: Historical and Legal Aspect,” Vol. 1(2), International Legal Bulletin,Collection of Scientific Papers of the National University of the State Tax Service of Ukraine,2015, pp.158-164 at p.162, available at muvnudp_2015_1_27%20(4).pdf (accessed on31/08/2017).

5. The provision states that in important cases, where no direct evidence is available and if it issuspected that witnesses or suspects are suppressing the truth, the investigating officer could avail the facility of scientific techniques of interrogation of such persons through lie detection,hypnosis etc. At the Forensic Science Laboratory in their Forensic Psychology Division and other scientific means available with them. Gujarat Manual Vol. 3 chapter 5, R 170(6). See ibid.

6.Herein after referred as FSL.

7.Herein after referred as RTI. As per the information obtained by the researcher by filingapplication under The Right to Information Act, 2005.

8.Sandip Dighe, “City’s Forensic Dreams to Come True,” Pune Mirror, March 18, 2015, available at http://punemirror.indiatimes.com/pune/civic//articleshow/46600474.cms (accessed on 04/10/2017). It was reported that Central Government has approved a plan which proposes to establish Forensic Psychology Division in all CFSL‟s in the country having Brain Finger Printing facility.

9. Directorate of Forensic Science Service (DFSS) formulates plans, policies and legislations to regulate and promote quality, capacity and capability building for forensic services in the country. DFSS is under the direct charge of Ministry of Home Affairs, Union of India. All the CFSL‟s and Government Examiner of questioned documents are under are direct control of the Directorate. The State FSL‟s is under the control of their respective home ministries. DFSS provide technical support to these laboratories. See Charter of Duties of DFSS, Ministry of Home Affairs, Government of India, Extract from Gazette of India, Part 1-Section 1, December18, 2010, available at http://dfs.nic.in/pdfs/MHA%20resolution% 20for%20 DFSS.pdf.

10. Selviv. State of Karnataka, (2010) 7 S.C.C. 263.

11. Herein after referred to as LVA.

12. Layered Voice Analysis Test, is conducted in Directorate of Forensic Science, Gujarat. As per the information provided their website and National Resource Centre Report, and also by virtue of personal visit to the laboratory by the researcher, it can be stated that Gujarat laboratory conducts, Polygraph, Brain Electrical Oscillation Signature Profiling, Narco-Analysis and Layered Voice Analysis Tests. See also, Parth Shastri, “Directorate of Forensic Sciences to Offer Agricultural Rural Forensics,” The Times of India, January 8, 2013, available at https://timesofindia.indiatimes.com/city/ahmedabad/Directorate-of-Forensic-Sciences-to-offeragricultural–ruralforensics/articleshow/17932283.cms

13. Hereinafter referred as NHRC. NHRC Guidelines on Administration of Polygraph/Lie Detector Test, 2000 were issued by NHRC while disposing the petition filed by Sri. Inder P.Choudhrie who alleged that he had been subjected to Lie Detector Test without consent. Selvi guidelines are actually NHRC guidelines. NHRC guidelines were confined to Polygraph Test. The court extended these guidelines to Narco-Analysis and BEOS Test also.

14.The Laboratory Procedure Manual of Forensic Narco- Analysis published by the Ministry of Home Affairs, Government of India, New Delhi, 2007 provides that Narco-Analysis test is to be conducted in a suit that has facilities akin to an operation theatre. Clause 4 of the Manual provides for constitution of the team of experts as follows: Accordingly, the team of experts to conduct Narco-Analysis must comprise of an:

(i) Anaesthesiologist, who has APG degree/diploma (MD/DA) from recognized medical college and experience of handling individuals for Narco-Analysis is considered as desirable,

(ii) a Clinical/Forensic Psychologist/Psychiatrist with M.Phil or Ph.D in either clinical or forensic psychology or MD/DPM in psychological medicine from a recognized university/institution and experience in handling individuals for various aspects of clinical/forensic psychology is considered as desirable,

(iii) Supporting Nursing staff in O.T, if needed,

(iv) Interpretator, if needed and

(v) a General Physician, if needed. Clause 6 provides for preparation of the subject for Narco-Analysis. It states as follows.

Clause (6) Preparation of the subject for Narco-Analysis.

(i) Medical examination for fitness which includes routine laboratory investigations and special investigations, if necessary.

(ii) Instruction to the subject to submit himself in an empty stomach for Narco-Analysis.

(iii). Mental status examination for mental fitness by clinical psychologists/forensic psychologist/psychiatrist." Apart from the above, The Directorate of Forensic Science, Ministry of Home Affairs, Government. Of India, has setup Work Norms for all the Central and State Forensic Science Laboratories in the county. Accordingly for Forensic Psychology Division, No. Of cases/exhibits to be examined per year (200 working days.) Is200 subjects/ exhibits. The detailed procedure and safeguards followed in conducting various Forensic psychological Tests including Polygraph, BEOS and Narco-Analysis is discussed in S.L. Vaya, Project Report Submitted to the Chief Forensic Scientist, Directorate of Forensic Science, Ministry Home Affairs, New Delhi, National Resource Centre for Forensic Psychology, Gujarat, (2nd ed., 2013).

15. In the wake of judicial confusion created in the light of Ritesh Sinha v. State of UP, (2013) 2 S.C.C.357, it is debatable, whether the tests could conduct under Chapter XII of the Code of Criminal Procedure. In fact, even with respect to forensic science there is no legislation.

16.Dr.Gopal Ji Misra, supra n.12.The Forensic Bill proposed has its objective to constitute Forensic Council of India, whose function is to regulate practice of various disciplines of forensics including Forensic Psychology. The Forensic Council also has its function to lay down standards of education and training for practice and for registration of Forensic Psychologists as well.

17. http://iafmonline.in/data/circular-notifications/FDRA-Bill-2011.pdf.

18.As per the information provided, Bangalore Laboratory has discontinued the division from 2010.

19.Vol.1(1), European polygraph, p5, 2007, available at https://repozytorium.ka.edu.pl/bitstream/ handle/11315/799/European_Polygraph_nr1_2007.pdf?Sequence=1-.

20.When position in common law countries like USA, Canada etc. Are analysed, it could be found that the admissibility criteria as applicable in the case of scientific evidence like Daubert test, Mohan’s criteria etc. Is applicable to Forensic Psychological Evidence. Legal system in these countries is in a comparable position with that of India. Human rights of the accused in these countries are ensured by their respective Constitutions, Criminal Procedural Laws and Evidence Acts. These aspects are analysed in subsequent chapters.

21. The countries like Japan, Belgium, and Poland etc., follow Civil Law System. The criminal justice systems in these countries are also based on Human Rights Principles. In these countries the Test results are admitted as evidence in trial.

22.The British Psychology Society Working Party, Final Report onA Review of the Current Scientific Status and Fields of Application of Polygraphic Deception Detection, The BritishPsychology Society, October 6, 2004, p.10, criticized these tests for lack of certainty fromevidential point of view for the use in courts. For details see, Johnston, “Brain Scanning and Lie Detectors: The Implications for Fundamental Defence Rights,” Vol.22 (2), EuropeanJournal of Current Legal Issues, 2016, available at http://eprints.uwe.ac.uk/28569.

23.The Offender Management Act 2007, Part 3. The Polygraph Rules, 2009 governs the conduct of Polygraph testing of certain sex offenders who have been released from prison on license. A study on sex offenders between the period of April 2009 and October 2011 in the East and West Midlands probation regions had concluded that the test is of utility for the rehabilitation of sexual offenders. See, Gannon.T“An evaluation of Mandatory Polygraph Testing for Sexual Offenders in the United Kingdom Sexual Abuse,” Vol. 26(2), Sexual Abuse: A Journal on sage publications. Https://doi.org/10.1177%2F1079063213486836.

24.http://www.legislation.gov.uk/uksi/2009/619/contents/made.

25.ibid.

26.Fennell v. Jerome Property Maintenance Ltd, The Times, (26 November 1986), Queen’s Bench Division.

27.Report on Scientific Basis of Deception Detection Technology, Detecting Deception, Parliamentary Office ofScienceand Technology,House of parliament, May 2011,p.2, available at http://www.parliament.uk/documents/post/postpn375detecting_deception.pdf.

28.ibid.

29. Jenkins v. US, 307 F.2d 637 (1962).

30.  U.S. Dept. Of Justice, Office of the Inspector General, Evaluation and Inspections Division, OIG Special Report on Use of Polygraph Examinations in the Department of Justice I-2006-008,Washington D.C., September 2006, pp,i-iv, available at https://oig.justice.gov/reports/plus/e0608/final.pdf.

31.  Satyendra. K. Kaul and Mbohd.H. Zaidi, Narco Analysis, Brain Mapping, Hypnosis and Lie Detector Tests in Interrogation of Suspect, Alia Law Agency, Allahabad, (2009), p.608.

32. Daubert Criteria and Federal Rules of Evidence, 1975, are discussed in subsequent chapters.

33.  Polygraph training is mainly provided by Polygraph schools which are accredited by American Polygraph Association. The National Centre for Credibility Assessment also provides for one semester course and they provide training to law enforcement officers. See, for discussion, William G Iacono and Christopher J Patrick, “Employing Polygraph Assessment”, in Irving B. Weiner Randy K. Otto,The Handbook of Forensic Psychology, John Wiley & Sons, Inc., Hoboken, New Jersey (4th edn., 2013), pp.613-658, available at https://archive. Org/stream/1118348419Psychol/1118348419_Psychol_djvu.txt.

34. Regarding regulation on the use of Polygraph examination, various attempts to bring in regulation on the use of Polygraph had been made in local, state and federal level since 1952. See, William. S. Moorhead, The Use of Polygraph and Similar Devices by Federal Agencies, Hearings Before a Subcommittee of the Committee on Government Operations House of Representatives, Ninety Third Congress, Second Session, June 1974, available at http://archive.org/stream/useofpolygraphss00unit/useofpolygraphss00unit_djvu.txt.

35. But in employment settings, Employees Polygraph Protection Act, 1988 regulates Polygraph use. The Act does not prohibit Government or state authorities from using Polygraph test. It is pertinent to note that National Defence Authorization Act, 2000, requires the scientists at the nuclear weapons laboratory to submit to Polygraph Test to maintain security clearance.

36.Various commissions had been appointed to study about the validity of Polygraph Test. For instance, US Congress Office of Technology Assessment in 1983 had studied about Polygraph and had stated that though evidence seems to indicate Polygraph Test detects deceptive subjects better than chance, significant error rates are also possible apart from examiner -examinee differences and use of counter measures. National Research Committee Report in 2003 stated that regarding specific incident investigation Polygraph accuracy is high.

37.Marisa Taylor and Cleve R. Wootson Jr., “Seeing Threats, Feds Target Instructors of Polygraph- Beating Methods,”mcclatchyWashington DC Bureau, August 16, 2013, available at http://www.mcclatchydc.com/news/special-reports/insider-, 2013 threats/article 24752116. Html#. Uiieon9fusp. In 2010, US, National Security Agency, have also produced a video explaining Polygraph process and the video is supporting the use of Polygraph. Anti-Polygraph Organisation has brought a counter video against this. Gautam Nagesh, “NSA Video Tries to Dispel Fear About Polygraph Use During Job Interviews,” The Hill, June 14, 2010, available at http://thehill.com/policy /technology/102963-nsa-video comesclean- on-Polygraph-use.

38.Courts in state jurisdictions exhibit mainly three trends as to Polygraph admissibility viz., per se inadmissibility, admissibility on stipulation and discretion of trial judge. This aspect is discussed in detail in chapter VI.

39.J. Lee Adamich, “The Selected Cases of Myron the Bright: 30 Years of His Jurisprudence,” 83 Minn.L. Rev. 239 as cited in Arvindeka Chaudhary, “Admissibility of Scientific Evidence Under Indian Evidence Act 1872,” (phdThesis, Department of Laws, Gurunanak Dev University, 2014), p.86, available at http://shodhganga.inflibnet.ac.in/handle/10603/102549.

40.Herein after referred to as FMRI. At least two companies in US are providing FMRI lie detection tests to be used in legal cases. They are Cephos Ltd and No Lie MRI. See http://noliemri.com/index.htm and http://www.cephoscorp.com/, for details on both. It is stated that US Supreme Court became interested in FMRI evidence after the decision of the court in Roper v. Simmons, 543 U.S. 551 (2005), in which execution of minors were held as unconstitutional. See, ReyhanHarmanci, “Complex Brain Imaging is Making Waves in Court,” S.F. Chronicle, October 17, 2008, available at www.sfgate.com/.../Complex-brainimaging- is-making-waves-in-court-3 (accessed on 30/11/2015).

41.The reason mostly stated is non satisfaction of Daubert criteria. This aspect is analysed in detail in next chapters.

42.Jonathan H. Marks, “Interrogational Neuro Imaging in Counter Terrorism: A “No-Brainer” ora Human Rights Hazard?” Vol.33(2&3), American Journal of Law and Medicine, August2007, pp.483-500 at p.490.

43.TACK Africa, “Layered Voice Analysis (LVA) Technology,” available at http:// www.tackafrica. Com/downloads/LVA.pdf.

44.Simon Neustadt Family Center, Inc. V. Bludworth, 641 P.2d 531 (Ct. App. 1982).

45.  “Federal Judge Approves Non-Polygraph Technology to Monitor Sex Offenders: US District Court Decision Validates CVSA Technology for Federal Agency Use,” PR Newswire, March 11, 2014, available at http://www.prnewswire.com/news-releases/federal-judge-approves-non- Polygraph-technology-to-monitor-sex-offenders-249424721.html.

46. UgurNedim, “Should Lie Detectors be Used in Australia,” Sydney Criminal Lawyers, December 18, 2015, available at http://www.sydneycriminallawyers.com.au/blog/should-liedetectors- be-used-in-australia/. See, The Lie Detector Act 1983, s.4. This section defines prohibited purpose to include establishing whether or not a person is guilty of an act or omission that is punishable by fine or imprisonment.

47.Raymond George Murray, 1982 7 A Crim R 48. The District Court of New South Walesrejected Polygraph evidence. This decision was made one year prior to the passing of LieDetector Act, 1983. See also Ben Clarke, “Trial by Ordeal, Polygraph Testing in Australia,”Vol.7(1), Murdoch University Electronic Journal of Law, March 2000, available athttp://www.murdoch.edu.au/elaw/issues/v7n1/clarke71_text.html;Mallard v.The Queen, [2003] WASCA 296 3 December 2003. The Supreme Court of WesternAustralia, Court of Criminal Appeal, rejected polygraph evidence. The High Court of Australiahas not yet considered Polygraph’s admissibility.

48.Find Law Australia, “Can Evidence Gained from a Lie Detector Test be Admissible asEvidence Under Australian Law?” 2017, available at http://www.findlaw.com.Au/articles/4452/can-evidence-gained-from-a-lie-detector-test-be-ad.aspx.

49.Graham Pidco, “Lie Detectors: Infallible Technology or Junk Science?” Available atwww.psych.toronto.edu/users/furedy/Papers/ld/detectors.doc.

50.When considering the position in Belgium, it could be seen that Belgium follows civil law system. But the law in Belgium continues to be modified in consonance with the legislative norms mandated by European Union. The Courts exercise judicial review of legislative acts. European Convention of Human rights have direct application in Belgium criminal justice system. Belgium has directly assimilated ECHR rights without domestic legislation by judicial interpretation. The citizens can invoke those rights in the Convention directly before the national courts. Though, in pretrial stage, the country basically follows inquisitorial procedure held in secret led by Public prosecutor or impartial judge, during trial phase it is predominantly adversarial in nature and prosecution and defence stand on same footing, though judge is very active. Rights of the accused like personal freedom, privacy, legal aid, fair trial and right against non-discrimination, self-incrimination, torture etc are guaranteed by Belgium Constitution, Criminal Procedure Code and International Human Rights Conventions. There is presumption of innocence of the accused, the burden is on the prosecution and the trial judge must be absolutely convinced of the guilt of the accused. Regarding expert evidence, it is the trial judge who is to decide about the appointment of expert. The defence has the right to make remarks about the expert. See, Alec Stone Sweet and Helen Keller, "Assessing the Impact of the ECHR on National Legal Systems," Faculty Scholarship Series, Paper 88, Oxford University Press, USA 2008, available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi? Article=1087& context= fss_papers.

51.Frederic Dehon,“Polygraph in Belgium: An Overview of History and Current Developments,” Vol.36(2), Polygraph, 2007, pp.109-111 at p.109, available at http://www.polygraph.org/assets/docs/APA Journal. Articles/Vol.36.2007/polygraph%202007%20362.pdf.

52.Ewout H. Meijer and Bruno Verschuere, “The Polygraph and the Detection of Deception,” Vol. 10(4), Journal of Forensic Psychological Practice, 2010, pp.325-328 at p.325.

53.Matte Polygraph Service Inc, “Legal Admissibility of Polygraph Test Results,” available at http://www.mattepolygraph.com/legal_admissibility.html.

54.Hastie, T., R. Tibshirani, and J. Friedman 2001 The Elements of Statistical Learning: Data Mining, Inference and Prediction. New York: Springer-Verlag.

55.R. V. Beland, [1987] 2 S.C.R. 398.

56.Akemi Osuga, “Daily Application of the Concealed Information test: Japan,” in Memory Detection: Theory and Application of the Concealed Information Test, Cambridge UniversityPress, Cambridge, at p.253 as cited in Jeremy Tiger, “Guilty Minds: The Science, Law, and Admissibility of the Concealed Information Test in the Canadian Context,” July 27, 2017,pp.1-16 at pp.11, 16, available at http://www.ottawamenscentre.com/news/ 20160727_Guilty_ Minds_by_Jeremy_Tiger.pdf.

57.“Does the Layered Voice Analysis Enable us to Evaluate Depression and Anxiety Symptom?” Available at http://www.nemesysco.com/partners/FILES/Tsukuba%20Univ.%20Presentation%20at%20the%20Japanese%20Society%20of%20Mood%20D.pdf.

58.Supreme Court of Japan, “History of Criminal Justice in Japan,” 2016, pp. 7, 12-19, 25-34, available at http://www.courts.go.jp/english/vcms_lf/Outline_of_Criminal_Justice_in_Japan_2016.pdf. The defendant is presumed to be innocent and burden of proof is on the prosecution to prove the case beyond reasonable doubt. The Japanese Constitution provides that apprehension, search, seizure etc. Can be done only as per judicial warrant. Suspect also has right to counsel, and right to remain silent, right against torture, right against ex post facto laws, double jeopardy, right to legal counsel, etc.

59.Jan Widacki, “Polygraph Examinations in Poland,” Vol.1 (1), European Polygraph, 2007, pp. 25-34 at p.27.

60.The Code of Penal Procedure, Arts 171 (5) (2); 192 199. Art 199a of the Code also states that the test could be done only with the consent of the parties.

62.Dominika Słapczyńska& Piotr Herbowski, “The Significance of Polygraph Methods in Polish Investigations,” No.14, Security Dimensions International and National Studies,2015, pp.68-76 at p.72, available at https://www.researchgate.net/profile/Piotr_Herbowski/publication/.The author states that Polygraph Test can be used especially in criminal cases where the police do not have traditional forensic evidence.

62.Code of Penal Procedure, Arts 193, 195 and 196(10).

63.ibid. The 2003 Amendment to the Code of Penal Procedures, has added Articles 192a (2) & 199a.

64.Marek Leśniak.

65.South Arica, though not a developed country, is one of the wealthiest in Africa and is the one with a stable functioning of democracy. For discussion on legal status of Forensic Science Service in the country, see, Andrew Faull, “Forensic Science and the Future of Policing in South Africa,” Institute for Security Studies, February 21, 2011, available at https://issafrica.org/iss-today/forensic-science-and-the-future-of-policing-in-south-africa.

66.ibid.

67.Raymond Charles Martin, “The Application of the Polygraph in the Criminal Justice System,”(Dissertation, Master of Arts in Criminology, University of South Africa, 2001), p.174,available at http://uir.unisa.ac.za/bitstream/handle/10500/18136/dissertation_martin_rc.pdf? Sequence=1.The author states that the increased use of Polygraphis due to escalating crime rate, delay in investigation and judicial process, establishment ofPolygraph unit by South African Police Service and realisation of increased benefit ofPolygraph in investigation.

68.However, the Polygraph Association of South Africa have less strict admission requirements.As a general guideline, the association strongly recommends that the following criteria shouldapply as a minimum:

Be over the age of twenty-five;

Qualifications: A Bachelordegree;

Strong moral character;

A stable personal life; and

Investigative experience.Daniel Francisco Calaca,“The Use of Polygraph Tests and Related Evidentiary Aspects inLabour Disputes,”(Research Dissertation, LL.M degree, Department of Mercantile Law,University of Pretoria, May 2010), p.16, available at http://repository.up. Ac.za/xmlui/bitstream/handle/2263/28333/dissertation.pdf?Sequence=1&isallowed=y.

69.1986 (7) ILJ 346 (IC). See also, Sosibo& others v. Ceramic Tile Market, heard by an Industrialcourt. 2009 (30) ILJ 677 (LC).

70.Ibid. The divergent views are summarised in Sosibo& others.

71. Mainly Polygraph Test.

72.supra n.63.

73. Constitution of Republic of South Africa 1996, s. 12 deals with right to freedom and security of person, right to privacy, (s.14), right to remain silent, right to have legal representation, right to communicate to spouse, doctor etc, speedy trial, right to present evidence etc. And right to judicial remedy in case of violation of any of these rights. See Ss. 35 and 38.

74. There is also no jury system in South Africa as in India. Independent Project Trust, The Criminal Justice System and You: A Guide to the South African Criminal Justice System for Refugees and Migrants, Independent Project Trust, South Africa, (February 18, 2016), p.9, available at http://www.ipt.co.za/pdf/criminal_justice_book.pdf.

75.It is found that both common law and Civil Law countries make investigative use of the tests and admit theirresults. The legal system in the common law countries like Canada and USA are comparable to that of India. Butlegal system in Japan, Belgium and Poland are not comparable to that of India. However, the analysis of Japanese,Belgium and Polish legal system reveals that presently these countries give predominance to the rights of theaccused. See, Chrisje Brants and Stijn Franken, “The Protection of Fundamental Human Rights in CriminalProcess,” Vol.5(2), Utrecht Law Review, October 31,2009, pp.7-65 at p.42,available athttps://www.utrechtlawreview.org/articles/10.18352/ulr.102/ (accessed on 01/09/2017).The author states that, itis found that most of the countries irrespective of the legal system they follow, are parties to most of theinternational human rights conventions and hence bound by the human rights standards provided therein which isapplicable with respect to criminal justice process. Thus, it may be stated that minimum guarantees as to fair trialis ensured in the criminal justice’s system of all the countries irrespective of whether they follow accusatorial orinquisitorial system.

76. OneisDirectorateofForensicScience; Gujarat and the other is CFSL CBI(Delhi). See, http://cbi.nic.in/cfsl/about.htm.

E-BANKING FRAUD: A LEGAL PERSPECTIVE

ABSTRACT

Information technology and artificial intelligence are now present in every aspect of our life. The banking sector updated its system and included the use of technology in providing fast and easy facilities to their customers. In the current scenario, India has seen the expansion of E-Banking markets. However, the problem here is that the awareness and safety protocol of using the same has not hit the market with the same rush as technology has.

 

But the use of technology brought with it its issues. Over the years there is an alarming rate of cyber crimes in financial institutions. This has led the government and banking industry to inculcate cyber security systems in their sector. India however, is still at the back foot in providing a safer platform to the customers because of the lack of legal framework dealing with data protection laws. If the situation sustains, many underprivileged citizens of the country will be losing their life savings and their belongingness to the depth of illiteracy of the E-Banking mechanism of India. The article attempts to understand the meaning of E-banking fraud and what it entails. It also makes a comparative understanding of the meaning of Electronic Bank Fraud referring to the laws of the USA. The article deciphers the role and contribution of RBI and its bodies to curb E-banking Fraud and empathizes the need for strict cyber security laws and easy cyber complaint procedures for the victims.

 

INTRODUCTION

Albert Einstein once said that "It has become appallingly obvious that our technology has exceeded our humanity." The Industrial Revolution was criticized majorly for replacing humans with machinery; but never did the human race imagine that technology and artificial intelligence would slip into the personal spaces of people. Technology is excessively used in every aspect of our life and the dependence on it is increasing with every generation that goes by. The banking sector was no exception.

 

The banking sector was always overloaded with a lot of heavy data to handle and technology came in as a lifeboat. The use of artificial intelligence has created a single global platform for all banking companies and made the process easier and handier. E-banking has enabled everyone to access their accounts and handle their transactions sitting in the comforts of their homes using their mobile phones. However, India has recently joined the race of converting its banking system into an E-banking system but it is trying hard to stand at par with its global competitors¹ .

 

The bank is a financial institution and like every financial institution, it is prone to criminal activities, and with the E-Banking system, the banks are more susceptible to such activities. Section 420 of the Indian Penal Code (hereinafter IPC) mentions Fraud and any fraudulent activity that has occurred in a bank can be understood as Banking fraud. These kinds of frauds can either be in the form of embezzlement, forgery, theft, cheating, or breach of trust and can be done by employees, customers, or by the bank itself. With the use of cyberspace in the banking system the banks have become an easy target for criminals. The lack of a proper legal framework dealing separately with e-banking frauds has left this area in darkness. The cyber security system is still in its developing stages whereas the cybercriminals are getting suaver at their job

 

MEANING AND ESSENCE

The drastic shift towards digitalization and the use of technology in every sector of the country has rendered citizens and governments to imbibe themselves with the proper usage of them. E-Banking has made the banking system more accessible and convenient to every citizen of the country. The Banking sector is a huge sector dealing heavily with finances all around the globe and providing financial assistance to various business establishments. Online Banking, Virtual Banking, or Electronic Banking includes different banking activities that can be conducted from any place using one single click.  This has empowered citizens who can now access their accounts and transactions without the hassle of the physical banking system. The report of the “technical committee on e-banking” by the Central Bank of India (CBN) explains e-banking, "a means whereby banking business is transacted using automated processes and electronic devices such as personal computers, telephones, internet, card payments, and electronic channels". Some banks use information and Communication Technology only to give information to the customers while some banks provide transaction facilities and some provide a mix of all the services of the bank².  But it is often said that anything when used in excess, has its shortcomings also. Similarly, technology came with its own sets of problems.

 

Law cannot survive in a vacuum and remain static, it needs to adapt to the changing demands of society. Similarly, crime also keeps changing its course and criminals update their criminal activities according to society. The excess dependence on technology has also made criminals mastermind in cybercrimes. The cyber-world is a strange place as it creates a domino effect in the involvement of criminals at different stages. The world-creating global network platform and the constant sharing of information on these platforms have created a lot of instances of leaking of private information in the public domain.

 

In parallel, the digitalization of the banking sector has put the information of customers and banks in common cyberspace. Fraud Hackers have now begun to manipulate the data of the banks and mess with the transactions of the customers. RBI does not define fraud per se. “The Report of RBI Working Group on Information Security, Electronic Banking, Technology Risk Management, and Cyber defined Frauds as, a deliberate act of omission or commission by any person, carried out in the course of a banking transaction or the books of accounts maintained manually or under computer system in banks, resulting into wrongful gain to any person for a temporary period or otherwise, with or without any monetary loss to the bank³" . The Indian Contract Act, 1872, in Section 17 describes fraud as which includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

 

•     A fact which is not true or seems to be true;

•     Hiding a relevant fact or intending to hiding a fact;

•     Any promise did, not to fulfill;

•     an act intended to cheat or deceive;

•     any fraudulent act⁴

 

This has led the banks to ensure that their and the data of the customers are protected using strong firewalls. Any type of activities related to electronic devices or data handling in which victims reluctantly endure or have go through injuries or damage or in which the person responsible profits, is called "Computer Crime”. Cybercriminals are involved in using more sophisticated tools like Mobile SIM morphing, Anonymizers, Phishing mail, Nigerian Fund Transfer fraud, etc. Some websites provide hacking software which makes it easy for criminals to conduct and plan their heinous activities. Cybercriminals are taking advantage of people having less awareness about Spam messages, Phishing mails from where they can steal the required information. The increase in the rate of cyber frauds, worm and virus attacks on the banking software has led to the leaking of the login information of the customers leading to cyber fraud. These heinous activities have made the banking sector paralyzed and hindering them in proving their services⁵.

 

THE ADVENT OF E-BANKING IN INDIA

The banking sector was always considered to be a tricky business as it indulges in heavy financial dealings on an hourly basis. Up until the 1990s, the Indian banking sector followed the traditional form of structure but the age of computers and technology pushed this sector to its knees. Since 1993, the banks accepted computerization as a manual working system and were not able to cope with the increase in workload. The Indian banks association of employees made an agreement with the management of the bank regarding the bringing of computerized applications. This brought the use of computer technology to banks and created a platform of communication networks. Former RBI governor, Dr. C Rangarajan headed two committees that submitted their conclusion on the need, to use computer technology in banks at various levels to ease the pressure load and better data handling.

 

W.S. Saraf, head a committee created by RBI in 1994 which suggested the introduction of Electronic Fund Transfer, electronic clearing services, and extension of Magnetic Ink Character Recognition (MICR) beyond metropolitan cities and branches. Finally, in 1996, “the Industrial Credit and Investment Corporation of India was the first to use Electronic banking in India by introducing online banking services in branches. Its initiatives were followed by HDFC Bank, IndusInd Bank, and Citibank, who started provided online banking facilities in 1999”. The RBI and government of India have been taking diverse schemes for smooth conversion of the banking system to technology-driven banks. The introduction of debit cards, ATMs and in 2016 the government policy of BHIM is a mobile application created by the National Payments Corporation of India, based on the Unified Payment Interface (UPI)⁶ . In 2020, under the flagship of the Digital India initiative, the government introduced its vision to transform India into a faceless, paperless and cashless economy, in turn promoting digital payments.

 

RBI was monitoring the increasing number of instances of frauds for quite some time. In 2005, the reporting of fraud cases expanded to urban cooperative banks and deposit-taking NBFCs registered with RBI. In March 2012, “NBFC-ND-SIs (systemically important, non-deposit taking NBFCs) having an asset base of Rs. 100cr. and above were also brought under the reporting requirements. While online reporting and monitoring of fraud cases by the banks has been in place since May 2004, the reporting by UCBs and NBFCs is still in the manual format⁷”.

 

VARIETY OF THREATS AND AWARENESS AMONG CUSTOMERS

India has witnessed a massive surge in the rate of cyber crimes and cyber frauds. The banking sector is worst hit by this. There are different techniques through which banking frauds are taking place:

•     Site Cloning: Cybercriminals often create a fake website that the customers click and their information is put in the public domain.

•     Hacking: The criminals are getting more sauver in their techniques of hacking. They are hacking debit cards, websites, and ATMs.

•     SIM Swap: The replacing of the previous SIM with a fresh one, due to theft or misplaced, or damage. If a fraudster manages such a swap, he can carry out numerous fraudulent transactions using the number of the victim. The client has no admission to their account and receives no warning. The user with the other handset, on knowing the PIN, can execute in the account.

•     Computer Spy Virus: These are computer programs that are circulated through email or other means. Once a customer opens a malicious email a program is automatically installed on his/her computer. These programs collect login id or other financial information which is used to conduct a range of criminal activities such as credit card cloning or unauthorized funds transfer⁸.

The Central Bureau of Investigation has registered around 190 cases of bank fraud in the year 2020, involving alleged misappropriation of close to ₹60,000 crores. In about a dozen cases, the companies and their top functionaries were accused of cheating the banks of more than `1,000 crores.  The state of Maharashtra in 2019 had the maximum number of scams related to e-banking, with roughly 552 cases registered⁹.  In fraud related to debit cards, credit cards, and internet banking, Rs 129cr has been lost in just three months to December 2019. A total number of 21,041 such cases were registered in these three months¹⁰.

 

LEGAL FRAMEWORK

In India, various legislations deal with banking institutions. The changing dimension of the banking sector involving technological advances has led the legislations to draft new and updated laws and regulations.

 

Reserve Bank of India Act, 1934

The Reserve Bank of India (RBI) taking assistance from a consultant drafted new legislation dealing with the electronic fund's Transfer System and proposing an amendment to the said Act. Every bank in India is to take the prior permission of RBI before shifting towards e-banking services. Again RBI plays a chief function in the e-payment system by obligating the financial institutions to the direction of their high-value dealings through Real Time Gross Settlement (RTGS) and even by introducing NEFT and National Electronic Clearing Services. This is how RBI promotes the digital payment system in India.

 

Information Technology Act, 2000

IT Act, 2000 was passed by the government of India to secure digital signatures, electronic records, e-contracts and prevent cyber criminal activities and protect personal data. Some of the provisions of the Act are:

 

•     Section 43A of the said Act provides that any, body corporate or financial institutions (which includes banks) who did not provide the rational safety procedures must pay compensation to such person to cover the losses. If the bank fails to prove that the security system was intact then the adjudicating officer who has the power and authority of civil court may order the bank to bear the losses.

•     Section 72A provides for imprisonment for a term not exceeding three years and a fine extending to Rs 5,00,000 for disclosure of information.

•     Section 10 A deals with the validity of e-contract. In Online banking customers and banks involve themselves in a contract made on an electronic platform.

•     Some of the provisions related to the offenses and penalties via electronic medium like “dishonestly receiving the stolen computer resources and communication device (section 66B), Identity Theft (section 66C), Cheating by impersonation ( section 66 D), violation of Privacy (section 66E), offenses by companies( section 85)” where companies include any corporate body including banks.

 

In Umashankar V ICICI Bank¹¹ , the Adjudicating Officer under the IT Act presiding in Chennai, asked the ICICI Bank to pay Rs 12,00,000 to the complainant who alleged that his account was wrongfully debited on the negligence of the bank. The Adjudicating officer found the bank to be violative of Section 85 of the IT Act,2000.

The NCDRC in H.D.F.C. Bank V Jessa Jones¹²  held that if the account holder is not at fault in cases of online bank fraud then the bank will be held responsible for the losses borne by the account holder.

 

Similarly in the D.A.V school case of 2019 the Supreme Court bench presided by J. D.Y. Chandrachud and J. H. Roy held that the bank lacked efficiency in handling the complaint of the customer therefore the apex court awarded a compensation of Rs. 25 lakhs.

 

The Indian Penal Code (IPC),1860.

Criminal ahs o go through a lot of amendments because of the use of technology and the increase in technology-driven crimes.

•     Section 463 deals with the forgery of a document or an electronic document with the intent to cause injury or harm to any person. The word 'electronic document was added with the 2008 amendment.

•     Section 464 of the Code deals with the provision for making a false document. In this section also electronic signature is added by the Information Technology (Amendment) Act, 2008.  “A person is said to make a false document or false electronic record if he fraudulently or dishonestly makes or transmits electronic record or part of any electronic record or if he fraudulently affixes an electronic signature”. Also if he dishonestly signs, seal or execute, alter e-document or record and get a digital signature by taking advantage of his insanity or intoxication; then he is said to make false documents. This provision is related to the e-banking procedures.

•     Section 403, 404, and 405of IPC, 1860 related to banking frauds. Section 403 is related to the false embezzlement of property, Section 404 is related to the dishonest embezzlement of goods of a dead person. Again Section 405 related to the criminal infringe of trust. Section 489A makes provision for forging money or bank notes they are related to banking frauds¹³.

 

The Prevention of Money Laundering Act, 2000

Laundering money is an illegal process of concealment of the original identity of the actual money holder which is obtained illegally. To prevent money laundering through the medium of e-banking the RBI has taken a major step by introducing a specific guideline in 2012. RBI in the year 2012 released a master circular relating to KYC and anti-money laundering status of banks under the Money Laundering Act, 2002. The Customer Acceptance Policy is required to make certain that clear guiding principles are in place on the subsequent aspect of client association in the bank¹⁴.

With the development of technologies, the banks adopted the internet banking system which increases the money laundering threats. The banks should have to reimburse unique consideration to the terrorization related to money laundering which may arise for the adoption of internet banking which might sustain obscurity, and take actions, if required, to restrict their use in money laundering.  Where banks issued e-cards, consumers utilize them in buying goods and services, withdrawing and depositing money, etc. while issuing the cards banks should have ensured full conformity with KYC/CFT procedure. Before issuing the cards to the customer’s banks should ensure that proper KYC procedures are fulfilled.

Though this Act, nowhere deals with the E-banking frauds but still can be understood as the same. Section 4 of the said Act provides punishment for three to 7 years for money laundering. The Rules provided by RBI for mitigating E-banking frauds are:

•     Benami Accounts:  Bankers are under legal obligations not to keep any anonymous account or any account with a false name in their banks.

•     Threshold Limit: The banks need to keep a strict eye on large transaction amounts in their banks. Accounts of jewelers, businesses need to be under the vigilance of the bank authority. Periodical Suspicious Transactions Reports (STR’s) has to be submitted to Financial Intelligence Unit-India (FIN-IND).

•     Risk perception Parameters:  The banks need to maintain a record of customers who are more prone to fraud and based on their business activity and the location of the customers.

•     KYC Adherence: The internal audit system of the banks should be well versed with the KYC details of their customers and link their accounts with their mobiles and PAN card details.

•     Extraordinary consideration to menaces of money laundering: The banks need to be extra careful with matters associated with threats.

•     FIN-IND: The bank if suspects a suspicious activity the bank is under an obligation to submit the report to the financial intelligence unit of India.

 

CONCLUSION AND SUGGESTIONS

The use of technology in our life has do not make our life easy and convenient but it has also brought forwards new issues and challenges that the Indian legal system and the citizens are not yet aware of. The frauds are large because of “lack of supervision of top management, faulty incentive mechanism for employees; tussle between the staff, corporate borrowers and third-party agencies; weak regulatory system; lack of appropriate tools and technologies in place to detect early warning signals of a fraud; lack of awareness of bank employees and customers; and lack of coordination among different banks across India and abroad¹⁵”.  The long-drawn legal procedures to report and a variety of ambiguities in the system should be measured as some of the foremost causes of scams. Some of the challenges faced by the legal agencies, organizations, and citizens are:

•     Lack of knowledge of cyber forensic: Cyber forensic is a new and developing field in India. There is a lack of experts in this field.

•     Difficult to establish the chain of events: The major problem in cyber crimes is that there is no one source point of the crime. The crime is done at various stages on different; levels using different servers which make it extremely difficult to pin down the culprit.

•       Lack of Awareness among citizens: In India, the major problem of lack of awareness in every sector of society is an existing problem. The major section of the society lacks education which in turn results in people sharing their bank information with others.

•     Lack of Cyber security: it is one of the most important factors in ensuring a safe e-banking facility. A weak cyber security system puts the banks and its fund at high risk of being manipulated.

These challenges could be tackled by:

Promoting technological tools: The investigating authorities need to specialize in cyber threats and keep themselves update with the technological crimes that are occurring, so, they could be handled side by side.

Automated Analysis Tool: The banking system needs to establish a technological know-how team that can deal in analyzing transactions that are shady using new technological advances.

Awareness Programs: The banks and government agencies should conduct awareness programs and workshops so that people are made aware of threats and how they can shield themselves.

CCTV Camera Installation: The banks and ATMs need to install their building with CCTV cameras so that the crime threats can be controlled.

Networking and Routine Checkups: The banks need to do routine checkups of the transactions using technology would ensure more security.

Relevant Laws and Single body dealing with Bank Cyber Crimes: The increase in the rate of cybercrimes on daily basis should push the government towards creating separate bodies that deal with Cybercrimes in financial institutions. The Laws also need to be regulated and stricter in their approach.

 

Foot Notes

1.Katta Ashok Kumar, E-Banking in India (International Journal of Administration and Governance, Volume 1 Issue 1, ISSN:2077-4486).

2. Dr. Seema Thakur, Electronic Banking Fraud in India: Effects and Controls, Volume 8 Issue 10 International Journal of Science and Research 823(2019) (Apr 11,2021,1:22 A.M.), https://www.ijsr.net/archive/v8i10/ART20201560.pdf.

3.Dr. K.C. Chakrabarty, "Frauds in the Banking Sector: Causes, Concerns, and Cures", Speeches Reserve Bank of India(April 11, 2021, 1:38 P.M.), https://rbi.org.in/scripts/BS_SpeechesView.aspx?Id=826.

4. Indian Contract Act 1872 Section 17.

5. Dr. SeemaThakur,Supra note 2 at 824.

6. D. Suhas and Dr. H.N. Ramesh, E-Banking and its growth in India- A synoptic View, 5(4) Journal of Management, Research and Analysis 376(2018).

7. Dr K.C. Chakrbarty, Supra Note 3.

8.Dr. Kundan Basavaraj and Sarala. M S, E-Banking and RBI Guidelines (Research paper presented National Conference on Emerging Trends and Scope in Digital Banking, Cashless Economy & Innovations in Commerce and Modern Management & International Seminar on Global Economy: Opportunities and Challenges" Organized by Inspira Research Association (IRA), Jaipur & Shri Bhawani Niketan Girls P.G. College, Jaipur, Rajasthan, India. 29-30 September 2018).

9.Statista,(Aprl 11,2021, 8:50 P.M.), https://www.statista.com/statistics/1097957/india-number-of-online-banking-frauds-by-leading-state/.

10.Samrat Sharma, Hundreds of crores of rupees lost in card payment, internet banking frauds in just 3 months, Financial Express, (Apr 11,2021,8:59P.M.),  https://www.financialexpress.com/industry/banking-finance/hundreds-of-crores-of-rupees-lost-in-card-payment-internet-banking-frauds-in-just-3-months/1886386/.

11. Civil Jurisdiction Petition No 2462 of 2008.

12. Revision Petition No. 3333 of 2013.

13. Dr.K.I Vibhute, Criminal Law, 11^th edition, (Lexis Nexis, Nagpur).

14. Master Circular – Know Your Customer (KYC) norms / Anti-Money Laundering (AML) standards/Combating of Financing of Terrorism (CFT)/Obligation of banks under PMLA, 2002,

DBOD.AML.BC.No.11/14.01.001/2012, RESERVE BANK OF INDIA, (Apr 11,6:22P.M.), https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=7361&Mode=0#cust

15. Charan Singh, Frauds in the Indian banking Industry, (Apr 11, 9:54 P.M.), https://www.iimb.ac.in/sites/default/files/2018-07/WP_No._505.pdf

DOCTRINE OF PRECEDENT

P. Sunil alias Sunil Prakash, Advocate, Madras High Court

e-mail: sunilprakashlaw@gmail.com

 

With the advancement of law, the doctrine of precedent has become an integral part of the judicial discipline. The doctrine of precedent is a cardinal principle of the hierarchical nature of the judicial system. When a decision is rendered by a forum of superior or concurrent jurisdiction while adjudicating the rights of the parties to a lis embodying a declaration of law, it operates till such time that it is unsettled as a binding principle for future cases, such feature leads to the development of jurisprudence. A judgment as precedent carries the weight of what it actually decides and not matters on the periphery.

 

A precedent is a judicial decision containing principle, which forms an authoritative element termed as ratio decidendi. The Court should restraint in dissenting or overruling for the sake of stability and uniformity but rigidity beyond reasonable limits becomes inimical to the growth of law. Article 141 of the Constitution of India stipulates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The doctrine of precedent is a principle of following previous decisions of the Court within its well-defined limits, it significantly declares that cases must be decided in same way when the material facts are the same as it becomes “ratio decidendi”, in contra distinction to a binding precedent, the Court has to be careful about the “obiter dictum” made by the Court in the judgment as certain obiter dictum have persuasive value but they do not have any binding force. "Obiter dictum" is a mere saying by the way, a chance remark, which is not binding on the future Courts, though it may be respected according to the reputation of the Judge, the eminence of the Court and the circumstances in which it came to be pronounced. The reason for not regarding an "obiter dictum" as binding as it was probably made without a full consideration of all the consequences that may follow; or the Court might not have expressed a concluded opinion.

 

An interim order does not finally and conclusively decide an issue, such order cannot be a precedent. The reasons normally assigned in support of such non-final interim order may only contain prima facie findings, are only tentative. The interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. Thus the interim order passed by a Court is not a precedent for other cases.

 

The following words of Lord Denning in the matter of applying precedents have become locus classicus "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

 

Different Courts sometimes pass different interim orders as the Courts deem fit. It is a matter of common knowledge that the interim orders passed by particular Courts on certain considerations are not precedents for other cases which may be on similar facts.ⁱ A decision is only an authority for what it actually decides. The essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence, here and there from a judgment and to build upon it.ⁱⁱ

 

In the matters of interlocutory orders, principle of binding precedent will not apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach.ⁱⁱⁱ

 

It is necessary to follow the law declared by the Supreme Court and a judgment of the Court has to be read in context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a "ratio decidendi" is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have an effect of a binding precedent but it cannot be denied that it is of considerable weight.^iv The High Courts have no power, like the power available to the Supreme Court under Article 142 of the Constitution of India, and merely because the Supreme Court granted certain reliefs in exercise of its power under Article 142 of the Constitution of India, similar orders could not be issued by the High Courts.^v

 

Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.^vi

 

The judgments of the High Court would bind the trial courts. If an unnecessary reference to a judicial precedent or erroneous submission in law is made, the judge considering the matter would reject the reliance thereon or the submission made. However, certainly reference to a judicial precedent cannot be termed a contumacious act.^vii Exposition of law and ratio decidenti, to be accepted as a binding precedent, should be based on issues raised and argued by both sides. A mere observation without reasons is distinguishable, from a ratio decidendi.^viii Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.^ix

 

In my humble view it’s always crucial to read the judgment in entirety to understand the principle of law and ratio decidendi that has been laid down, considering the questions that arose for consideration in the case. Observations made in one paragraph of the judgment cannot be considered as law laid down in the judgment when no reasons given in other paragraphs for the same. The ratio of a judgment has a precedential value and it becomes obligatory on the part of the Court to cogitate on the judgment to the facts exposited therein and the context in which the questions had arisen and the law has been declared. The judgments of the Court are not to be read as statutory instruments and its ratio has to be culled out, keeping in view the facts and circumstances involved in a particular case.

 

With utmost respect if the Court has arrived at a conclusion without application of mind or preceded without any reason, then it cannot be deemed to be declaration of law to be binding as a precedent. It also becomes duty of the Court to consider the effect of the precedent in question to form its own opinion instead of wholly relying upon the gloss placed from other decisions.

 

Foot Notes:

i Empire Industries Ltd. vs. Union of India (AIR 1986 SC 662)

ii State of Orissa vs. Sudhansu Sekhar Misra (AIR 1968 SC 647)

iii Vishnu Traders vs. State of Haryana and other (1995 SCC (Sup1) 461)

iv Director of Settlements, A.P. and others vs. M.R. Apparao and another (2002 (3) SCC 638)

v State of Punjab and others vs. Surinder Kumar and others, (1991 SCR (Suppl 3) 553) (FB)

vi Union of India and another vs. Major Bahadur Singh (2006(1) SCC 368)

vii Court On Its Own Motion vs. Dsp Jayant Kashmiri and others (2017(238) DLT 523 : 2017(162) DRJ 635)

viii Union of India Bharat Sanchar Nigam Ltd. v. P. Shyamala and anr. (2017 (2) WritLR 1 (DB)

ix State of Haryana and others vs. M/s. AGM Management Services Ltd (2006(5) SCC 520)