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)

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

Technology -- Law Interface: An Analysis of Blockchains vis-a-vis
the Intellectual Property Right Regime

(By Dr. Raju Narayana Swamy, IAS)

 

Abstract

Blockchain is a part of the ever widening canvass of technological developments which range from Artificial Intelligence and Virtualization to Cloud Computing and Internet of Things.The key features of blockchain technology – decentralization, integrity and anonymity -- make it applicable to security services, wireless network virtualization and other different applications. One area where much leeway has been made is smart contracts-self executing contracts wherein the terms can be set out in computer code. The article  analyzes  the main potentials for the adoption of blockchain in the IP arena. It highlights the fact that the blockchain – IP interface is largely based on the premise that IP management systems could leverage blockchain technology to enforce provable IPRs where verifiable, immutable and secure operations in blockchain could help in the event of disputes. The paper also   dwells upon  the international efforts such as the one adopted by France to regulate securities transaction on block chain systems and    goes into  judicial initiatives such as a Chinese Court (in Hangzhou) recognizing blockchain based evidence for the first time in 2018.The article laments on the fact that no  dedicated law exists in India in this direction.  It concludes with an analysis of various potential hurdles to large scale application of blockchain in the field of IP and draws a roadmap for future efforts.

 

What is a blockchain?

Blockchain also known as distributed ledger technology has been defined to be a decentralized peer-to-peer network based public encrypted and immutable digital federated ledger system. Working like a shared Google document, the ledger is a public database that records transactions in a permanent fashion and distributes copies to all relevant parties without the need for a third party to authorize the transaction. A typical blockchain has three components – distributed  ledger,  smart contracts and distributed applications. The functions of a blockchain can be described in three ways -- technical, business and legal.

 

The first major use of this technology occurred with the creation of Bitcoin, which is a digital crypto-currency introduced in 2009. The seminal paper that introduced this technology to the world was penned by “Satoshi Nakamoto” (a pseudonym used by the author whose identity is still unknown) and was titled “ Bitcoin : A Peer to Peer Electronic Cash System.” Traceability and reliability were the hallmarks set forth by Nakamoto in this innovative method of  executing transfers of value between peers. Trustworthiness and transparency are built into the system by allowing multiple parties to the transaction to verify what will be entered onto a ledger without any single party having the ability to change any ledger entries later on.

 

Transactions are recorded within “blocks” which are stored on each computer in the network. As new blocks are added, they are linked to all preceding transactions. New transactions must be validated by all computers in the network by checking against all earlier transactions. As each computer in the network has its own copy, security of data is improved and vulnerability to cyber attacks is reduced vis-a-vis hitherto used models wherein data is stored in a single central location. It is seen as nearly unhackable because to change any information on it, a cyber attack would have to strike all copies of the ledger simultaneously. Data put into the blockchain cannot be tampered without being noticed. Put it a bit differently, the technology is immutable as it involves storage of information in encrypted blocks made up of codes which are independently time stamped and contain individual transactional data.

Blockchains leverage techniques from a field of computer science known as cryptography to sign every transaction with a unique digital signature belonging to the user who initiated the transaction. These signatures are held privately, but are publicly verifiable. This means that if a user with identity A sends money to identity B, anybody can verify that the money was sent by A, but cannot use A’s signature for their own transactions. This cryptographic system creates accountability while preventing identity fraud. It is worth mentioning here that blockchain network is mainly of two types -- public and private. In thelatter case, only those who have permission can access the information. Private blockchains are largely preferred by regulated entities and pre-screen who are allowed to administer the ledger.

 

Applications of Blockchain Technology

Blockchain is a part of the ever widening canvass of technological developments which range from Artificial Intelligence and Virtualization to Cloud Computing and Internet of Things. As a disruptive technology, it is expected to have a profound impact on the way we live and work. From being the technology behind crypto-currencies such as Ethereum (which is a turing complete blockchain due to its programming language called Solidity), it has begun to make its presence felt in insurance, health care, voting systems, supply chain & logistics, shipping and other sectors too.  For instance, India’s NITI Aayog is seriously deliberating on building a new immunisation infrastructure for the country-unified and enhanced by blockchain. Discussions are also in the pipeline on Super Cert-an antifraud identity intelligence blockchain solution for educational certificates. The key features of blockchain technology – decentralization, integrity and anonymity- make it applicable to security services, smart homes, wireless network virtualization and other different applications. In fact, the Gartner Blockchain Spectrum – proposed by Gartner, the research and advisory firm- talks about 3 phases : blockchain inspired solutions (a phase which began in 2012 and will last through the early 2020s), blockchain complete solutions (expected to gain momentum in the market around 2023) and enhanced blockchain solutions.

 

Smart Contracts

One area where much leeway has been made is smart contracts introduced by Nick Szabo in 1997. These are self executing contracts wherein the terms can be set out in computer code. When the parties to the contract execute their respective obligations, a smart software verifies and enforces the contract. The high potential of smart contracts lies in enabling decentralized micropayments such as paying a very small fee in return to accessing small bits and pieces of a digital content (which may be a song or a news article). Needless to say, the smart contract, its execution and verification are all stored in the blockchain. A classic example is the Ethereum – powered music platform “VOISE”  wherein artists upload their music ( and set their own prices) and users pay them directly for the music via electronic currency. Mention must also be made of the Open Music Initiative (OMI) announced by the Berklee College of Music in Boston, Massachusetts which aims to build a database in the form of a blockchain seeking to solve the problem of proper identification of right holders.

The Blockchain- IP Interface IPRs are currently regulated by third party authenticators. These authenticators are governments  or administrative bodies of the geographical regions where the IP holder wants to secure and enforce rights.  The limiting factor of such a system is its inherent physical limitation.  In fact,  this system is already starting to show cracks.  As the market gets more globalised and digitised, it is becoming imperative to look for a more feasible and reliable alternative.  It needs to be mentioned here that the concerns regarding IPRs are by no means limited to enforcement issues but that streamlined, simplified and proper management of IP assets is also an equally challenging task.  Thus IPRs in tandem with larger contractual obligations needs a fresh look in the current digital landscape.  The blockchain – IP interface is largely based on the premise that IP management systems could leverage blockchain technology to enforce provable IPRs where verifiable, immutable and secure operations in blockchain could help in the event of disputes. In particular, digital assets such as patents have multiple versions during their life time and blockchains can be used to link all versions of their digital assets and potentially use it for end-to-end life cycle maintenance.  Blockchains could serve as defensive publication platforms where each file is given a unique fingerprint and duplications are removed.  No wonder why blockchains are being seriously considered as possible successors to the classic -- physical model.  Ensuring faster search results  and tamperproof record management, the technology can aid in proper prosecution and enforcement of IP rights. The main potentials for the adoption of blockchain are:

 

(a) Development of a fully automated IPR registration process: However,  it must be admittedthat it is unlikely that such implementation will be finalized within the next 5-10 years even in countries like USA, China, Germany and Japan that are pioneers of blockchain technology.

 

(b) Registration without middle man: Today IP systems in all jurisdictions are highly dependent on IP offices. The costs of maintaining and updating such systems are considerable. Along with these costs, a patent registration application for example often needs the presence of a counsel and requires sophisticated “earlier use” research.  If the costs associated with these activities are lowered by implementing a simpler registration process, the goal of fostering innovation through IP laws could be realised much more effectively. This is exactly what blockchain technology attempts to accomplish. Through this method, the functions performed by large institutions could be carried out by simple smartphone apps and IP right holders can register their patents and trademarks in different countries via easy-to-use mobile or web apps .

 

(c) Synchronising search database and ensuring tamper proof data verification.

 

(d) Copyright registration and copyright management by right holders themselves:Blockchain can be used to show evidence of not only registered but also unregistered IP rights. In particular, using blockchain offers a more effective means of copyright registration. It is worth mentioning here that under the terms of the Berne Convention for the Protection of Literary & Artistic Works, copyright is not a registrable IP right. Similar is the case of unregistered design rights. In such cases, registration information recorded on the chain with an immutable time stamp forms a powerful proof of rights. If a user were to log into the registration website using blockchain technology, registration is possible at any time and in any place making it a more efficient registration process than the agency in charge of copyright registration can provide. This should be read with the fact that though registration is not mandatory, the registration certificate is a prima facie evidence in a court of law and hence puts the holder in a position of considerable advantage. Given the anticipated surge in copyright registration requirements in the years to come, blockchain technology could turn to be a big helping hand due to its decentralized nature.  On the international front, special mention needs to be made of the Anne Copyright Blockchain – a third party platform that provides Digital Copyright Identifier registration services. Anne’s mobile application, it should be mentioned here, operates 24x 7.

 

 (e) Searching Pirated Content Online : Monitoring of smart contracts using block chain can allow the author to save the work on the chain and assign a time stamp to the work.  This type of contract can search for pirated content online.  Once such pirated content is found, online copy right protection mechanisms can be triggered.  Thus through a wide adoption of block chains in IP sector, copy right infringements can be contained in coming years. 

 The importance of searching pirated content online lies in the grim reality that from  peer-to-peer file sharing services such as Napster and Grokster to photographs on the web, copy rights have never been respected.  However unauthorised file sharing and use of copyrighted content can to some extent be curtailed using blockchain technology.  Considering that a file is duplicated thousands of times across the net work, this network is designed to regularly update and reconcile all the copies so that all records are consistent.  The property of no central storage location makes it near to impossible to manipulate or corrupt.  Therefore whenever a copyrighted file is used illegally, a digital ledger holding the owner’s information and detailed transaction history is public and easily verifiable.  For example,  “Binded” touts itself as the world’s first copy right platform for blockchain creating a unique finger print for each copyright record.  By tracking copyright records, “Binded” facilitates copyright protection by enabling access to the circulation path of copyright knowledge through blockchain. With a digital fingerprint at its fingertips, owners can police online sites which use them.  Other service providers like “Copytrack” are also blockchain-based copyright platforms.

 

(f) Trade mark securing blockchains: Reports are galore that companies like
Kbyun.com are working in this direction.  In fact, on the trade mark front, the most significant application of blockchain is in recording prior use  (viz) proving that the mark in question was used by the claimant at a certain date. All that is needed is that the right holder uploads evidence into the blockchain and creates an “information chain” with time stamp of first use of the mark.

 

(g) Encrypting trade secrets: Blockchain technology uses a hash algorithm (i.e.,) it transfers each piece of information on the chain into a unique number sequence.  As the recorded information is not in the form of trade secret but in the form of hash value, the specific content of the trade secret is not exposed at the same time ensuring that evidence can be put forth that the file existed at a certain point of time.

 

(h) Tracking theft of trade secrets: Trade secrets are usually stolen by employees who thereafter join a competitor or start their own business.  Proving that the trade secret had indeed been stolen often poses an  insurmountable task for the plaintiff. But if blockchain is used, trace of downloaded information is left behind allowing the owner of the trade secret to locate the source of theft. This serves as an evidence in the ensuing legal proceedings.

 

(i) Getting patent protection for blockchain invention: Given that the core of blockchain is technological in nature (defining specific data structures, algorithms  and network configurations) it is likely that these core innovations will be eligible for patent protection in many countries. However, whether a particular block chain invention is eligible for patenting in a given jurisdiction will depend on the particular nature of the invention.  For example, applying generic blockchain technology to known financial practices will be hard to protect.  But innovations that apply  the technology in a novel way to change current financial practices are in all likelihood patent eligible .  In fact,  many of the initial patent filings  were  made by banks and financial institutions, but  with  blockchain becoming increasingly mainstream, applications are being filed across a broad spectrum of industries. Most related patent applications claim methods of enhancing or using the original blockchain as disclosed by Satoshi Nakamoto.  There has been a steady growth in the number of entities hoping to secure patents over technology using block chain as a base.  According to  WIPO  databases, there were 406 applications for blockchain patents in 2017.Tech giants like Qualcomm, IBM, Mastercard and Microsoft are among the top applicants.  It is also worth mentioning here that blockchain has attracted patent trolls. 

 

(j) Establishing evidence of first inventorship in patents and using distributed ledger technology for defensive publication as prior art to prevent others from obtaining a patent: This is an area wherein blockchain has immense potential. This can also lead to minimisation of litigations. A single consolidated platform can be provided for patent literature.

 

(k) Enforcing IP agreements using smart contracts: Smart contracts could be used to establish and enforce IP agreements such as licenses.  In IP,  transactions such as buying a patent involve many steps like checking the assignment and validity of the patent, negotiating the sale agreement, executing and paying the transaction etc.  All these steps can be simplified using smart contracts.  For instance,  companies such as UJO which is an open platform  that uses block chain technology to create a transparent and decentralised database of rights and right owners and automates royalty payments using smart contracts have already began to emerge.  Evidence that these ideas are fast catching up can be seen from Kodak’s launch of a blockchain-based image  rights management platform and its own cryptocurrency. 

 

(m) Block chain as a tool to strengthen IP regime: In the current scheme of things, IP records are being maintained at various IP offices in silos with every possibility of the data therein being inconsistent. In such a scenario where ensuring correctness of data and continuous updation thereof pose challenges, use of blockchain technology in maintaining these IP registers can come in as a saviour.  Instead of opting for registering a traditional database, a decentralized blockchain can be employed. This technology could be used to record the full cycle of IP rights and could be useful for audits, assignments, mergers and acquisitions as well as claims for non-use revocation. For instance, in the context of trademarks, this could mean when a mark was first applied for, registered, first used in trade and when it was  licensed/assigned. This could simplify due diligence exercises that are needed for IP transactions.  Moreover, collecting information on the use of the mark in trade/commerce on a blockchain based official mark register would allow the relevant IP office to be notified virtually immediately. This would result in reliable time-stamped evidence of actual use and frequency of use of a mark in trade both of which are relevant in proving acquired distinctiveness/secondary meaning or goodwill in a trademark.

 

(m) Blockchain for enabling IP marketplace: Blockchain can be used as a potential platform where inventors can place their inventions/digital works in the form of ledgers with short descriptions thereby acting as an IP marketplace.

 

(n) Remote access to IP information across various multinational offices and
collaboration between IP offices and WIPO: Maintaining data using blockchain technology can prove to be a boon while working as International Searching Authority (ISA)/International Preliminary Examining Authority (IPEA) and Receiving Office (RO). It can also come in handy while collaborating with other IP offices during prosecution of IP applications in the backdrop of schemes such as Patent Prosecution Highway. The immutability and traceability of blockchains can come in to be useful in such situations. Put it a bit differently, blockchain can solve the problem of unifying patent system across countries.

 

(o) Anti-Counterfeiting:Coupled with scanable blockchain-connected tags or imprints to goods providing the ability to trace goods on an immutable blockchain, ledgers showing relative ownership or authorized licensees would enable all persons in the supply chain to distinguish genuine products from counterfeit goods. If a brand owner informs customs authorities about the security features that genuine products should have, then the absence of such features is an easy way for border officials to check whether a product is counterfeit. The technology could also be used in connection with certification marks like Woolmark. Through blockchain, transactions via e-contracts can be recorded at each stage of the chain which would be useful for detecting counterfeit goods by customs authorities thereby preventing their entry in domestic market. Blockchain may also be used in detection and/or retrieval of stolen and parallel-imported goods.

 

(p) Applications in tandem with AI : In conjunction with AI, particularly domain specific AI, blockchain technology can work wonders. In the realm of certain IP assessments such as likelihood of confusion evaluation in trademark cases or the existence of an inventive step assessment in patent applications, AI-based software can  come in handy. As yet another example consider the use of CAD (Computer Aided Design). Taking a photograph of a design from three different angles is sufficient to create a CAD. Such a CAD could be uploaded to a block chain based app that could search the entire database (comprising all designs registered in the history of the IP regime) for similar designs and the right could be granted or denied using an AI based assessment tool.

International efforts

Internationally, France is the first country to regulate securities transaction on block chain systems. In April 2016, the French Government ordered  to legislate rules regarding mini-bonds. The order for the first time defined blockchain as “a shared electronic storage device” or “a shared electronic recording system allowing for authentication”

In 2016, Vermont passed legislation declaring that block chain receipts accompanied by written declaration of a person attesting to the details of the transaction are admissible. Under 12 VSA paragraph 1913, block chain receipts are also presumed to be authentic pursuant to Vermont Rules of Evidence. In 2017 Delaware General Corporation Law was amended to allow organizations to maintain business records using “distributed electronic networks or databases”.  Arizona amended the Electronic Transactions Act to include blockchain records which “may not be denied legal effect, validity or enforceability”. Ohio passed similar Legislation in 2018.

 

In 2018, a Chinese Court (in Hangzhou) recognized blockchain based evidence for the first time. In 2019, the Apex Court of China affirmed the use of evidences stored and verified on blockchain platforms EUIPO has launched a blockchain hackathon , EU Commission has plans for a blockchain observatory and US Congress has created a Congressional Blockchain Caucus. In fact as per the current EU law (Regulation No. 910/2014) a block chain record would be considered as an electronic signature and the timestamp contained in a blockchain record may be deemed as an “electronic time stamp”.

In India however there is no dedicated law that governs the use and operation of blockchains. However, Section 65B (admissibility of electronic records) of the Evidence Act may be of vital importance.

 

Challenges

The application  of  blockchain to IP faces serious challenges from at least  four aspects namely technical, marketing/business, behavioural/educational and  legal/regulatory. A generalized  concern is the negative publicity surrounding existing blockchains ie. cryptocurrrencies.

 

A major obstacle to the widespread use of blockchains is the incredibly high energy consumption. Powering all nodes and simultaneously providing for adequate cooling facilitiesfor a continuous operation becomes an extensively high energy consuming process, making blockchain one of the most expensive databases. Moreover due to the nature of the underlying technology, the rules  of  a  blockchain are always predefined. For example,  the rules of Bitcoin specify that there will be only 21 million bitcoins even mined. These types of limiting rules make the timing of moving such transactions from a traditional database to the block chain a very tricky matter. These shifts cannot be implemented too quickly as blockchain technology is still besieged by a number of unsolved problems.

 

Another challenge to be addressed is throughput and band width in the blockchain network.  Compared to traditional transaction platforms such as VISA or PayPal, blockchain is significantly slower at this time. For example if we examine the transaction processing capacity of the Bitcoin blockchain, we observe that it can handle 2-5 TPS (transactions per second) as opposed to VISA which can handle 56000 TPS. True,  numerous alternatives  have been  introduced to overcome this challenge through second  layer technologies (such as Segwit update to Bitcoin) but we have miles to go. In particular, the question that arises is : Is existing network bandwidth enough for block chain transactions to do real-time updates in the systems.

 

Questions of latency/delay in the blockchain network  and apprehensions of chocking of blockchain enabled systems in case of huge number of transactions within a fraction of a second also arise. How often should the ledger be updated? What is the least tolerable updating delay that is acceptable? And last but not least, how can we effectively address an attack wherein an adversary disallows a  miner’s block from reaching all other miners for a long time?

 

To summarise,  even a decade after its invention, blockchain is still in its early stages of development and there are various potential hurdles to large scale application of blockchain in the field of IP. These also include  questions of governing laws and jurisdiction, apprehensions of enforceability of smart rights, data security and privacy concerns not to mention of reliable rules and definitions for smart contracts.  Despite this in the context of IP-heavy industries, blockchain technology offers possibilities for IP protection & registration and as evidence, either at the registry stage or in Court.

 

But the crucial question will revolve around collaborations by industry participants and blockchain developers across the globe towards developing standards and interoperability  protocols. True, some work has already started under the aegis of the ISO (International Organization for Standardization) which is reported to be working on the ICO/TC307 standards for blockchain and distributed  ledger technologies. But that is only a humble beginning. Only when the rules of standardization are firmly established and are available for use by developers can regulators step in to task of bestowing blockchain with legal status.

 

On the legal side, it should be mentioned here that the law already enables individuals to present blockchain records as time-stamped evidence in some jurisdictions such as EU. Hence the next step will be to commence accepting block chain records as evidence vis-a–vis prior art claims. Once this process gets the approval of courts, right holders would get the incentive to start using this technology in creating  and  preserving evidence for their IP claims. Thereafter a legislative change that would allow block chain registrations to be deemed registrations should be brought in. Challenges will accrue thereafter too-for instance vis-a-vis laws regulating internet that have been drafted without considering the next layers of future technologies. Though problems will arise on blank spots, these are easier tackled than areas which are already regulated. To address these problems, efforts are needed to map the potential effects of blockchain, determine if they fall under existing laws and if  so,  how they are so covered. Till these  efforts bear  fruit, the ambition of block chain technology permeating  IP law  and practice will at best  remain to be a paper tiger.

Jaleel v. Muhammed Shafi (2021 (3) KLT 167)
Marvelous Manifestation of Justice

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

Kerala High Court considered Jaleel’s case, when there was public protest and political tension leading to explosive situation. This situation was prevailing for some time on account of the fact that the Minister refused to resign his office taking into account the moral responsibility, in the light of admitted facts and figures that the Minister has patently violated his oath of office solemnly taken by him at the time of assumption of office. The judgment in Jaleel’s case resolved all the issues so as to restore peaceful atmosphere for maintaining quietus. It is not only marvelous but also a master-piece of justice rendered by the Kerala High Court worthy enough to be emulated.

 

In fact the judgment has not only rendered justice to the contesting parties but also manifestly seen done full justice to the public for restoring peaceful life in the State. The Minister tendered his resignation pending consideration of the case, even before passing the final judgment, upholding the final opinion formulated by the Lok Ayukta. In these circumstances a “Re-visitation” of the judgment on technicalities is unwarranted and a farfetched plea based on “logical reasoning” is out of place for they would not prevail over overall justice.

 

It is true that the Chief Minister and Council of Ministers hold office during the pleasure of the Governor. But they are constitutional functionaries and they cannot abdicate their constitutional obligations, responsibilities and duties nor do they freely violate the oath of office, which cannot be treated as an idle formality to be ignored conveniently according to the whims and fancies of concerned persons. The court would be persuaded or catalyzed to step in to exercise its extraordinary discretionary jurisdiction under Art.226 of the Constitution of India whenever its finds violation of oath of office and dereliction of duties, responsibilities and obligation under the Constitution which when shock the conscience of the court.

 

Considering the facts of this case the Division Bench decision cannot be attacked on any ground much less a “logical reasoning” or other arguments based on fundamental principles or basic structure. In para 46 of the report of the Lok Ayukta the facts are stated. There is no denial of any of the basic facts nor is there any material produced in the case to disbelieve the allegation or averments. When a judgment is attacked generally importance is given to a careful verification and examination of the facts of that case and the circumstance thereof. Any criticism of the judgment without a careful and scrupulous verification of facts is otiose and it does not deserve any answer.

 

The undisputed facts in Jaleel’s case, considered by the Division Bench, in a nut shell, can be examined in this connection. The petitioner, Sri.Jaleel, is admittedly an elected member of the Kerala Legislative Assembly and a member of Council of Minister of the State. The 5th respondent is his close relative. He was given an appointment. This is the root cause or the basis of the complaint. The main complaint against him is that the petitioner has violated the oath of office by abusing his position as a Minister. He indulged in favoritism and nepotism in appointing the 5th respondent, who is closely related to the Minister, as a General Manager of the Kerala State Minorities Development Finance Corporation. As stated above there is absolutely no dispute about the basic fact even though the petitioner filed a very lengthy petition running more than forty pages.

 

There are only limited prayers in the complaint. The main prayer is to conduct an impartial investigation into the matter and submit a report to the competent authority with its recommendations as provided for under Section 12(3) of the Lok Ayukta Act 1999 and declare under Section 14 of the Act that the Minister is not entitled to continue as a Minister.

Though the Division Bench has written a fairly long judgment, discussing various contentions and arguments of the learned counsels, who appeared before the court, the court confined the crux of the issue and core point in paras 21 and 22. The court quoted Section 12(3) and Section 14 and examined the correlations and application of the statutory provisions on the facts with special reference as to whether there was any error of facts or nexus to the object sought to be achieved in this behalf viz. decision making process and came to the conclusion that the final opinion has been formed by the Lok Ayukta based squarely on the facts stated in para 46 of the report submitted by the Lok Ayukta after considering all the relevant aspects carefully in proper perspective.

 

In Jaleel’s case the Division Bench dismissed the Writ Petition “in limine” taking the view that the petitioner has not made out any ground for interference in the final opinion taken by the Lok Ayukta particularly when the High Court was only examining the matter in exercise of power of judicial review. It is pertinent to note the parties have not raised any technical plea or complicated constitutional issue. The judgment rendered in exercise of the power of judicial review is unassailable. The court held: “The power or judicial review is therefore not directed against the decision, but is confined to the decision making process. It is not an appeal from a decision, but a review of the manner in which the decision is made and the court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision. It is now settled that in exercise of the said power, the court would confine itself to the questions namely, whether the decision making authority exceeded its power, committed an error of law, committed breach of the rules of natural justice, reached an unreasonable decision or abused its powers (See Bhubaneswar Development Authority v. Adikanda Biswal (2012 (2) KLT Suppl. 92 (SC))”

 

The court did not overstep or deviate from its plenary powers and judicial discretion while examining the facts and the decision making process as to whether there is any error of facts touching the merit of the decision and as to whether it has any direct nexus to the decision making process. It is also to be remembered that the Division Bench decided the matter urgency at the outset ‘in limine’ without issuing notice to anybody. In this background the Division Bench decision in Jaleel’s case deserve appreciation and approbation from all quarters including the Apex Court.