Artificial Intelligence and Law

(By V. Gokul Pillai, 4th Year EEE Student, Amrita University, Amruthapuri, Kollam)

The approach of this study was to highlight the importance of Convolutional Neural Network (CNN) and Natural Language Processing (NLP) in the legal domain. The proposed technique was of Bag of Words technique i.e., one of the NLP tool to analyze the text of the court proceedings to extract the keywords from the text and CNN to classify each case into its charges (as per judicial law of India), to predict whether it is a bailable or a non-bailable offence and to give an approximate judicial decision. The results showed that this method has an average accuracy of 85% in prediction based on the IPC (Indian Penal Code) which is extracted from the case files, judicial pronouncements and the constitution of India.

Gokul Pillai explains that from the perspective of a developer, Legal data is heavy and generally the requisite information is bundled with irrelevant information. Under such circumstances, the use of a natural language processing toolbox to obtain required data (keywords) is indispensable. The bag of words models used in the experiment will learn vocabulary from all the documents and then models each document by counting the number of times each word appears. By using this Bag of Words algorithm, the required keywords can be obtained from the document at ease, opines Gokul Pillai. In this model, a text is represented as the bag of its words, ignoring grammar and arrangement of the words but keeping multiplicity. The Bag of Words methods are used when the frequency of each word in the context is to be ascertained, and by such the keywords in a case can be identified. It is those keywords so ascertained that will be the features of that case. The next technique in this artificial intelligence model propounded by the authors in this work is called Convolutional Neural Network (CNN) used for the classification purpose. Since the convolutional neural network were originally designed to perform deep learning task, it uses the concept of a “convolution”, a sliding window or “filter” that passes over the array of input, identifying important features and analyzing them one at a time thereby reducing them down to their essential characteristics and repeating the process until the final product is made out.

In this paper the last layer of CNN represents 26 varieties of charges which are taken from the constitution of India. After identifying the charges, the proposed model will be able to separate it as bailable or non-bailable cases. And for each charge, there is a separate verdict that can be mapped to it. Verdict for violation of more than one charge is given by mixing the verdicts of those two charges. Gokul Pillai suggests that this model can be exported and used for making websites so that even a common man with limited legal knowledge can get a brief idea of the judgement before approaching the court. As of now artificial intelligence is not capable of making fool proof decisions, but the authors suggest that the future beholds a scenario where AI will be capable of making unbiased and well-analyzed decisions.

Humans, Please be Kind to Animals

  (By Dr. Kauser Edappagath ¹)

“The greatness of a nation and its progress can be judged by the way its animals are treated”.   -- Mahatma Gandhi

Recently, in a gruesome act, a pet dog was tied to the boot of a car and dragged along a road by a man to be abandoned in the wild, but freed after a passerby confronted him in Ernakulam district, Kerala. Not quite long ago, a pregnant elephant in Kerala’s Silent Valley Forest fell victim to an act of human cruelty after a pineapple filled with powerful crackers offered by a man exploded in her mouth when she chomped on it. The 15-year-old elephant walked for days in pain before dying, standing in a river. The incident near Chennai, in 2016, where two final-year medical students threw a puppy off a tall building and filmed the incident, must count as the height of cruelty that one has come across.²

Animal neglect and violence has now become common practice across the globe. Physical violence, emotional abuse and life-threatening neglect are daily realities for many animals. Cruelty and neglect cross all social and economic boundaries and media reports suggest that animal abuse is common in both rural and urban areas. The shocking number of animal cruelty cases reported every day is just the tip of the iceberg—most cases are never reported. Unlike violent crimes against people, cases of animal abuse are not officially compiled by state, making it difficult to calculate just how common they are.For a country that claims adherence to ahimsa, India’s treatment of its animals betrays a moral failure. Over the past year alone, there have been reports of animals being subjected to sexual abuse, acid attacks, being thrown off rooftops, and being burnt alive.³

Intentional cruelty to animals is strongly correlated with other crimes, including violence against humans. People who abuse animals are cowardly – they take their issues out on the most defenceless victims available – and their cruelty often crosses species lines. Research in psychology and criminology shows that animal abusers tend to repeat their crimes as well as commit similar offenses against members of their own species. A study conducted by Northeastern University and the Massachusetts SPCA in the US found that people who abuse animals are five times more likely to commit violent crimes against humans. Behavioural profiles of criminals by the FBI have consistently shown that many serial murderers and rapists had abused animals in their childhoods.⁴A survey of psychiatric patients who had repeatedly tortured dogs and cats found that all of them had high levels of aggression toward people as well.⁵

Overview of Animal Protection Laws

Protection of animals is enshrined as a fundamental duty in the Indian Constitution and there exist several animal welfare legislations in India such as the Prevention of Cruelty to Animals Act, 1960 and the Wildlife Protection Act, 1972 at the Central level and cattle protection and cow slaughter prohibition legislations at the State levels. The Constitution of India makes it the “duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for all living creatures.”(Article 51-A (g)). This Constitutional duty of animal protection is supplemented by the Directive Principle of State Policy under Article 48A that “the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.” Both the above constitutional provisions were introduced by the 42nd Amendment in 1976. Killing, maiming, poisoning or rendering useless of any animal is punishable by imprisonment for up to two years or with fine or with both, under Section 428 of the Indian Penal Code, 1860. Under Section 429 of the Code, the term is 5 years and is applicable when the cost of the animal is above 50 Rs.

The Prevention of Cruelty to Animals Act, 1960 is the first legislation made in post-independence India for welfare of animals. The objective of the Act is to prevent the infliction of unnecessary pain or suffering on animals and to amend the laws relating to the prevention of cruelty to animals. Under the Act treating animals cruelly is punishable with a fine of Rs. 10 which may extend to `50 on first conviction. On subsequent conviction within three years of a previous offence, it is punishable with a fine of `25 which may extend to `100 or imprisonment of three months or with both. Performing operations like Phooka or any other operations to improve lactation which is injurious to the health of the animal is punishable with a fine of `1000 or imprisonment up to 2 years or both. In 2017 new four Rules were enacted under the Prevention of Cruelty to Animals Act, 1960 to regulate dog breeders, animal markets, and aquarium and “pet” fish shop owners. The rules are the Prevention of Cruelty to Animals (Dog Breeding and Marketing) Rules, 2017; the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017; the Prevention of Cruelty to Animals (Aquarium and Fish Tank Animals Shop) Rules, 2017; and the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017. According to these new Rules, dog breeders, aquarium and fish “pet” shop owners must register themselves with the state Animal welfare Board of the respective states. No aquarium can keep, house or display any cetaceans, penguins, otters, manatees, sea turtles and marine turtles, artificially coloured fish, any species of fish tank animals listed in the Wildlife (Protection) Act, 1972, or any species listed under the Appendix I of the Convention of International Trade in Endangered Species. The sale of all types of cattle, including buffaloes, and camels for slaughter via animal markets is not allowed. The sale of cattle and camels can be made only to a person who carries valid documents proving he or she is an “agriculturist”. Certain various cruelties that commonly take place at markets including hot branding and cold branding, mutilating animals’ ears, force-feeding animals fluid to make them appear fatter to fetch a better price and more are also not allowed. No animal can be used for the purpose of entertainment except without registering under the Performing Animal Rules,1973. Dissecting and experimenting on animals in schools and colleges is bannedin India, under the Prevention of Cruelty to Animals Act.

Through the Drugs and Cosmetics Rules (Second Amendment), 2014, animal testing for cosmetic products was prohibited all over India. Any person who violates the Act is liable for punishment for a term which may extend from 3 to 10 years or shall be liable to a fine which could be `500 to `10,000, or both. According to Rule 135B of the Drugs and Cosmetic (Fifth Amendment) Rules, 2014, no cosmetic that has been tested on animals shall be imported into the country.  According to Animal Birth Control Rules, 2001, dogs can be sterilized only when they have attained the age of at least four months and not before that. Keeping, or confining any animal chained for long hours with a heavy chain or chord amounts to cruelty on the animal and punishable by a fine or imprisonment of up to 3 months or both. According to section 98 of the Transport of Animals Rules, 1978, animals should be healthy and in good condition while transporting them. Any animal that is diseased, fatigued or unfit for transport should not be transported. Furthermore, pregnant and very young animals should be transported separately.

As compared to these laws, the Wildlife Protection Act,1972 is a better equipped legislation along with appropriate fines and imprisonments and at the same time has a requisite framework to carry out its enshrined purpose.. The Act prohibits the killing, poaching, trapping, poisoning, or harming in any other way, of any wild animal or bird. According to Section 2(37) of the act, wildlife includes any animal, aquatic or land vegetation which forms part of any habitat, thus making the definition a wide and inclusive one. Section 9 of the Act prohibits the hunting of any wild animal (animals specified in Schedule 1, 2, 3 and 4) and punishes the offense with imprisonment for a term which may extend to3 years or with fine which may extend to `25,000/- or with both. The Act allows the Central and State Government to declare any area ‘restricted’ as a wildlife sanctuary, national park etc. Carrying out any industrial activity in these areas is prohibited under the Act. Section 48A of the Act prohibits transportation of any wild animal, bird or plants except with the permission of the Chief Wildlife Warden or any other official authorised by the State Government. Section 49 prohibits the purchase without license of wild animals from dealers. Section 16 (c) of the Wildlife Protection Act, 1972 also makes it unlawful to injure, destroy wild birds or reptiles, damaging their eggs or disturbing their eggs or nests. The person found guilty can be punished with an imprisonment of 3 to 7 years and a fine of Rs. 25,000. Teasing, molesting, injuring, feeding or causing disturbance to any animal by noise or otherwise is prohibited according to the section 38(j) of the Act. Anyone found guilty of this offence may face an imprisonment of up to 3 years or a fine of up to `25,000 or both. The Wildlife Protection Act is applicable to aquatic animals too. Protection of marine species in India is done through creation of Marine Protected Areas (MPA). Birds, too, are protected under the Wildlife Protection Act, 1972 and in Prevention of Cruelty to Animals Act, 1960, alongwith land and aquatic animals. Laws relating to zoo animals are also found in The Wildlife Protection Act, 1972.

Although a lot of elaborate and specific animal protection laws as mentioned above have been in force in India, they are not sufficiently strong or strict enough to truly deter crimes against animals. The penalties prescribed under the Prevention of Cruelty to Animals Act, 1960 for cruelty against animals are meagre ranging from `10- 500 where offences have been committed in violation of Sections 11, 20 or 26. The law is not strictly enforced and contains several provisions which provide leeway through which liability can be escaped. An additional leeway provided by the Act is that under Section 28, nothing contained in the Act shall render it an offence to kill any animal in a manner required by the religion of any community. Considering the diversity of religions and traditions in India, this Section was considered imperative. The general anti-cruelty parts in Section 11 of the Prevention of Cruelty to Animals Act, 1960 can be made a lot more effective by increasing the punishment and fine to some extent. The laws under the sections 428 and 429 of the Indian Penal Code, 1860 do no justice to the animal lives and prescribe meagre fines for killing and maiming of such animals. The provisions for animal protection in the Indian Constitution remain principles instead of concrete law enforceable in courts.

Role of Judiciary in protecting Rights of Animals

Eventhough various animal protection laws in force in the country are inept, over the years Indian courts have developed a growing legal jurisprudence in animal law. The apex court has spent precious judicial hours contemplating how to induce humans to treat animals with compassion. In Animal Welfare Board of India v. A. Nagaraja⁶ (popularly known as “Jallikkattu Case”) the Supreme Court historically extended the fundamental right to life to animals. It held that bulls have the fundamental right under Article 21 of the Indian Constitution to live in a healthy and clean atmosphere, not to be beaten, kicked, bitten, tortured, plied with alcohol by humans or made to stand in narrow enclosures amidst bellows and jeers from crowds. The Supreme Court declared that animals have a right to protect their life and dignity from human excesses. Article 21, till then, had been confined to only human life and dignity. In another case dealing with the rights of captive elephants used in Kerala for temple festivals like Thrissur Pooram, the Supreme Court put temple managements and private owners of the elephants on a tight leash, cautioning them with criminal prosecution and “severe consequences” if they were found torturing the animals merely for the sake of the grandeur of the festival. In December 2015, in another case, the Supreme Court asked the Central government to clarify whether it was cruelty to employ elephants for joyrides. A month prior to that, in November 2015, the court had also asked the government to respond on whether exotic pet birds were safer in cages or do they have a fundamental right to fly. This debate was between the right to livelihood of pet shop owners and the right of birds to live freely. Animal lovers want the apex court to ban practices like ringing, tagging and stamping of birds.⁷

In April, during the initial stages of the lockdown, the Kerala High Court directed the district administration to issue vehicle pass to the owner of cats  to ensure that his cats got their favourite biscuits, opening its doors to legal redress for four-legged beings. The court traced the right of the petitioner and, incidentally, of his cats to Article 21 — a facet of the citizen’s right to life, liberty and privacy. It also relied upon the Supreme Court’s landmark judgment in the 2014 Jallikattu case which declared that an animal’s right to humane treatment was part of “life”, defined expansively to include the lives of animals.

The court bolstered its conclusion by invoking Article 51-A[g] — a fundamental duty that obliges citizens to show compassion towards living creatures. Recently Punjab and Haryana High Court has held animals to be legal persons. This is a welcome step in the Indian jurisprudence. While delivering the judgment Justice Rajiv Sharma, in his order said, “All the animals have honour and dignity. Every species[s] has an inherent right to live and is required to be protected by law. The rights and privacy of animals are to be respected and protected from unlawful attacks.”⁸

The animal protection laws in the country should be made more stringent and all-encompassing in order to address the ever growing animal abuse and to ensure animal welfare. In developed countries adjudicating custody arrangements for pets can be as intense as custody battles for children in matrimonial disputes. Pet custody legislations in the US embrace the concept of a ‘companion animal’. Though the primary basis of this arrangement is treating pets as property, the courts have evolved human-like standards in awarding custody reckoning the preferences of pets, ordering “petimony”, visitation rights, etc. In the West pet rights have even been tested, albeit negatively, in inheritance laws. Many American state legislations, however, provide for establishing a trust to care for pets named in the owner’s will.⁹There is a still a long ways to go in truly developing a solid foundation for animal law in India.                                                              

However, mere enactment of stringent laws is not sufficient. What we need today is widespread acceptance of animal protection as a serious social issue. Indian society essentially treats animals as non – sentient objects, and yet they aren’t. They suffer just as we do. Notably, as of November 2019, 32 countries formally recognize non-human animal-sentience, they are: Austria, Australia, Belgium, Bulgaria, Chile, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, New Zealand, the Netherlands, Poland, Portugal, Romania, Spain, Slovakia, Slovenia, Sweden, Switzerland, and the United Kingdom. It has been proposed that the United Nations pass the first resolution recognizing animal rights, the Universal Declaration on Animal Welfare, which acknowledges the importance of the sentience of animals and human responsibilities towards them. Civil society in India should come forward to adopt animals as social companions.

Earth was evolved for all life, not just for human life. Animals should be respected as citizens of the earth. Animal rights should be defined beyond mere existence. It takes nothing from a human to be kind to animals.

Foot Notes:

1.   The Author serves as District & Sessions Judge in the Kerala Higher Judicial Service.

2.   “Medicos in the dock for throwing puppy off building”, The Hindu, Chennai Edition, 6 July 2016.

3.   Maniktala, Parth, “For the welfare of animals”, The Hindu, 18 September 2020.

4.   “Animals are not ours”,http://www.peta.org.uk/issues/animals-not-abuse/cruelty-to-animals (Last accessed on 18 December 2020).

5.    Lan R, Felthous, M.D., “Aggression Against Cats, Dogs, and People,” Child Psychology and Human Development 10 (1980): 169-77.

6.   2014 (2) KLT 717 (SC) = 2014 (7) SCC 547.

7.   Rajagopal, Krishnadas, “Jallikkattu verdict spurred a flood of  animal rights cases in Supreme Court”, The Hindu, 22 January 2017.

8.   R.Nath, Naveen, “Do animals have a legal persona?”, Buisiness Line, 8 Octobar 2020.

9.   Supra

Can Carpenter Carve Out New Canons of Evidence

(By Sreejith Cherote, Advocate, Kozhikode)

1. The law and technology is on a perpetual race, where the law is always chasing technology to be at par with it, so that the society is not affected by the distance. In this race there are always checkpoints where only technology is required to endure an acid test to confirm its competency to survive the essential principles of law. Any new law or a rule of evidence introduced to keep pace with technological development has often been called upon to endorse their allegiance to the rule of fundamental justice. However apt, update and advantageous the novel rule is, it can never be permitted to govern society unless hallmarked by constitutionality. It may sometimes embarrass a layman, the attitude of Apex Court in discarding significant investigative advantage of law enforcing agencies for the sake of historically valued legal concepts and for the sake of constitutional validity. Nevertheless such principles are the eternal safeguards of inviolable human rights.

2. A decision of United States Supreme Court in Timothy Ivory Carpenter, Petitioner v. United States¹is an example wherein the Supreme Court of United States has discarded the technological evidence collected by the investigation agency as violative of the constitutional rights guaranteed to an American citizen by the Fourth Amendment of the American Constitution. The decision even though pronounced in United States has got some vital aspects of law and technology which can be applied for the Indian legal system as well, concerning the use of cell phone data in proving crimes. The decision assumes importance here for the reason that, in India the investigating agencies are heavily relying on historic cell phone data obtained by third party service providers for the purpose of prosecuting offenders completely disregarding the right of privacy which Supreme Court of India in Puttaswamy & Anr. v. Union of India ²had held to be an integral part and inbuilt in Article 21 of the Constitution of India.

3. To understand the whole scenario properly we should begin by learning some provisions of American Constitution and other law and rules in force in United States of America along with the brief facts of the case. The 4th Amendment³ of the American Constitution read that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to.

4. Stored Communication Act ⁴(hereinafter referred in sort as SCA) enables the US Government to compel third parties including mobile companies to produce historical data records electronically stored communication from third parties if such information is “specific and attributable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an on-going criminal investigation even without a warrant.

5. Third-party Doctrine

United States v. Miller ⁵– In this case decided by the United States Supreme Court in the year 1976 the court held that documents of an individual voluntarily given to a third party is not entitled for any protection under the FOURTH AMENDEMENT of the Constitution and a person cannot claim legitimate expectation of privacy with regards to information voluntarily given to third parties.(For example personal information given to banks). Same position was elaborated and confirmed by the Supreme Court of United States in Smith v. Maryland ⁶(1979) enabling the Government to obtain information without a warrant, data’s voluntarily given to third parties.

6. Carpenter v. United States, No. 16-402, 585 U.S.2018

Brief facts

There were a series of armed robberies using guns in which several robbers participated, subsequently 4 robbers were arrested. One of the arrested robber’s confessed regarding the crime and handed over his phone to the authorities. While reviewing the calls made by the arrested robber, the investigative agencies decided to collect details of 16 different phone numbers for all subscriber information’s, including call records, as well as cell site information for the target telephones at call origination and call termination for incoming and outgoing calls. One of the call details obtained was that of the petitioner, Timothy Carpenter who was later arrested on the basis of phone records. The Government was able to get access easily to these records, without any search warrant, as per the Stored Communication Act, (SCA) which enabled investigative agencies to get access to personal information by making statement that the same was required for an on-going criminal investigation. To obtain these documents by means of a search warrant, the investigative agencies were required to show a “probable cause” for such a search, which was difficult to get even in spite of the confession of one of the accused, because it requires more specific information. From the cell–site record the Government tracked that the petitioner Carpenter’s cell phone communicated with cell towers at the time and that Carpenter was within a two-mile radius of four robberies and on the basis of above information Government arrested and charged Carpenter for robbery and the jury later convicted him on several counts of aiding and abetting robbery and other offences.

7. The Supreme Court of United States by a majority of 5-4 decided that cell site location information details obtained by the investigative agencies without a warrant from the court violates the right to privacy of an individual which is protected under Section 4 of the American Constitution. Court held that simply because a third party is holding the information relating to a person he cannot be deprived of his right to privacy and an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell site location Information (CSLI).

8. Any activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news. CSLI data provides intimate window into the personal life illuminating all information regarding the user including his familial, political, professional, and religious and sexual association. Longer period of monitoring of an individual constitutes a search for which the search has to be authorised by a warrant from the court. CSLI was considered to be a distinct category of information as CSLI reveals personal information regarding the user all the time. Electronic eavesdropping for a long period was considered to be a violation of privacy of individual. Court also observed that every individual has a “reasonable expectation of Privacy”.

9. Prior to Carpenter’s case it was possible for the investigating authorities to obtain the cell site location information CSLI of a person without the warrant as the same has not been treated a search or as an invasion of privacy of an individual as protected by the 4th Amendment of the American Constitution. Later the courts seems to have taken into account the fact that cell phone has become an extension of human anatomy and that when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.

10. Carpenter’scase was a game changer, in the approach of the court regarding the concept of privacy. Court has recognised that the property protected from unauthorised search includes non-tangible information which was held by a third party, even if the owner has no control over them. While adopting new technological changes and the behavioural patterns of individuals in carrying cell phone to almost all places they go and had acknowledged this un-patterned situation to give new meaning to search.

11. If we consider the situation in India CSLI is prevalently taken by the investigating authorities without the permission of the court, behind the back of the user, to book offenders and in many cases investigation is solely depended on CSLI inputs without any qualification regarding the privacy of individuals. Privacy is that realm of an individual, where he is closed to reality and truth were he exposes himself to all vulnerable natural and personal instincts without the fear of being adjudged by the society. The territory of his privacy is that sensitive area of an individual, protection of the same from intrusion from outside is considered to be his natural right now progressed into a legal right.

12. Modern day cell phone has evolved from its primary function of a call connector to an “Aladdin lamp”, wherein a wish fulfilling “Genie” in the form of an “APP” does all function for you, except for some essential biological needs; nevertheless for some people even genetic needs are also taken care by the cell phone in a more satisfying manner. If cell phones have to be considered as “Black box” of parallel personal life of an individual, it is entitled for the same protection as is available for an individual against forceful recovery of information form himself. Protection against violation of privacy has to be extended not only to the person of a person but to his extension in electronic form as well. Now the situation that exists in our country is that a police man can easily take your mobile phone as per his subjective decision as to its importance in investigation without any accountably concerning the protection of the contents therein and regardless the graveness of the injury to which he is exposing the user of the mobile phone. It was reported that United Kingdom that police was widely using a Israel software called CELLIBRITE⁷ as an Universal Forensic Extraction Device (UFED). An UFED software can, in a matter of minutes, retrieve data from thousands of different mobile phone models. This data includes text messages, emails, contacts, photos, videos, and GPS data. WhatsApp, Signal and Telegram encrypted chat history databases, and Facebook messenger are all easily obtainable. There is also wide spread use of street level surveillance device by law enforcement agencies called STINGRAYS⁸ or IMSI catchers. They are cell-site simulators which duplicate as mobile towers by masquerading within a particular area as legitimate cell phone towers, tricking cell phones to connect to their device instead of original towers and copy information. STINGRAYS operate conducting a general search of all cell phones within the device’s radius, in violation of basic constitutional protections. Law enforcement use cell-site simulators to pinpoint the location of phones with greater accuracy than phone companies. Cell-site simulators can also log IMSI numbers (unique identifying numbers) of all of the mobile devices within a given area. Some cell-site simulators may have advanced features allowing law enforcement to intercept communications or even alter the content of communications⁹.

13. A cell phone in the hands of an investigative agency is prone to myriad misuse. They can copy your data in SIM/SD card; your Apps and browser can be opened to access personal communication establishing political, sexual and religious identities , emails, social media accounts picture and videos. Your personal identification information that links your phone with the user can be breached causing grave harm to the user. Cell phone contains not only information which are relevant to the investigation but other sensitive information about the user which needs to be protected from public view

14. Puttaswamy v. Union of India Supreme Court of India recognized that right to privacy is a fundamental right which emanates from Article 21 of the Indian Constitution. Constitutional and legal recognition of right to privacy creates a huge vacuum of law in protecting privacy as there is no positive legislation specifically protecting the same apart from the declaration by the court. Even Though Supreme Court decision has led the Central Government to enact THE PERSONAL DATA PROTECTION BILL 2019¹⁰ which is yet to become law, the same does not completely address the protection of personal data viz., the infringement by investigation authority. In the absence of valid legal restriction, violations of privacy rights continue to be unchallenged and gross violation of law happens in the case of intimate personal data inside the mobile phone is easily intruded by the investigation authorities without any accountability.

15. If cell phone has to be treated as an extension of the personality of the user. Then the provision of law available (161(2) CRIMINAL PROCEDURE CODE) to a person to refuse
to answer any question which tends to implicate him for offence should be extended in case of cell phone and no person can be compelled to state the password of his mobile phone to the investigative authorities. At least the requirement of obtaining a warrant from the court to peruse cell phone information will definitely act as a regulator.

16. The new thought process inspired by technological advances to consider your cell phone as an extension of your anatomy seems justified by the pragmatic reality in vogue. CSLI is a main investigative tool for the law enforcing authorities in the matter of collection of evidence. Intrusion of personal data in cell phone is not confined to the accused in course of investigation, witnesses and all persons coming within the preview of investigation is a potential victim of misuse of cell phone specific legal provisos regarding the extent to which investigating authorities can peep into your personal data in your cell Phone.

17. Cell phone is a place where sensitive information about the user is safely kept .Present-day experience is that cell phone follows the user wherever he goes revealing all information of his travel and his private affairs in the form of CSLI and other applications inside the cell phone. The need to consider these information as sanctified by bringing them within the domain of “Right to privacy” and protecting them from unregulated intrusion seems to be a demand justified with reasonable cause and perfectly in tune with the reality.

18. Your digital belonging does have a legal status of “property”. There is no legal provision as in the case of search and seizure as per Section 91 to Section 105 of the Criminal Procedure Code at least to regulate search of personal data in case of cell phones. When your person or dwelling is protected from unregulated search, there is no justification in not extending the same protection to more intimate information having the status of a property.

19. If the concept of privacy envisaged in Carpenter’s case is adopted by the Indian Judiciary, then the same is going to affect the pattern of contemporary criminal investigation in the country and the investigative agencies will have to acknowledge the doctrine of E-PRIVACY. If right to privacy is s constitutional right then cell phone users has a legitimate expectation that their cell phone information are not meddled with by the law enforcement agencies unscrupulously. The issue is grave while we consider the fact that mobile phones provide a most comprehensive data about a person’s personal and public life and there is an alarming development in the use of mobile phones in India. It is estimated that there will be around 500 million mobile phone users in India by 2023¹¹. The ease at which the investigating authorities can unlock your private life coupled with their coercive powers espouses severely ethical, moral and legal questions. Even when we transcend this ignorant bliss regarding the safety of your personal information, we are given a choice less awareness, whether to crave for a potentially peaceful law and order system, where you are ready to sacrifice your privacy rights to the law enforcement agencies or to religiously stick to your fundamental right of privacy inviting the risk of diffusing the technical advantage of investigative authorities thereby indirectly helping the criminals.

Foot Notes:

1. No.16-402, 585 U.S. ____ (2018)Timothy Ivory Carpenter v. United States. The United States Supreme Court by 5–4 decision authored by Chief Justice Robert that the government violates the Fourth Amendment of American Constitution by accessing historical CSLI records containing the physical locations of cell phones without a search warrant.

2. Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India & Ors. (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1, is a landmark judgment of the Supreme Court of India in which it was held that the right to privacy is protected as a fundamental constitutional right under Article 21 of the Constitution of India.

3. The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the Government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.

4. The Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701–2712) is a law that addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (ISPs). It was enacted as Title II of the Electronic Communications Privacy Act of 1986 (ECPA).

5. United States v. Miller,425 U.S. 435 (1976), decided by United States Supreme Court which held that bank records are not subject to protection under the Fourth Amendment.

6. Smith v. Maryland, 442 U.S.735 (1979), was a Supreme Court case, holding that the installation and use of a pen register was not a “search” within the meaning of the Fourth Amendment to the United States Constitution, and hence no warrant was required.

7.Cellebrite is an Israeli Digital Intelligence company that provides tools that allow organizations to better access analyze and manage digital data. The company is a subsidiary of Japan’s Sun Corporation.

8. The Sting Ray is an IMSI-catcher, a cellular phone surveillance device, manufactured by Harris Corporation. Initially developed for the military and intelligence community, the Sting Ray and similar Harris devices are in widespread use by local and state law enforcement agencies across Canada, the United States, and in the United Kingdom. Sting Ray has also become a generic name to describe these kinds of devices.

9. https://www.eff.org Electronic Frontier Foundation.

10. The Personal Data Protection Bill 2019 (PDP Bill 2019) was tabled in the Indian Parliament by the Ministry of Electronics and Information Technology on 11 December 2019 the Bill is being analyzed by a Joint Parliamentary Committee (JPC) in consultation with experts and stakeholders. JPC has sought more time to study the Bill and consult stakeholders.

11.  www.statista.com Statista is a German company specializing in market and consumer data. 

A Tribute to Sri. J. Jose Vakil

(By Justice V. K.Mohanan, Former Judge, High Court of Kerala)

“Those we love never truly leave us. There are things that death cannot touch.”                                                   --Jack Thorne

Adv. J. Jose, fondly known to us as Jose Vakil - my mentor! A perfect gentleman has been lost forever. Except a formal expression of condolences, in Advocate groups and social media, no tributary words were written for him.

Since 5th December, 2020, the day he left us, I’m being haunted by his fondly memories. Even if I go to bed on time as usual, I find it hard to fall asleep thinking of him.

I wake up in the middle of night and find it difficult to resume sleeping again. I must say that he has been a vital part of my life. Thus, I feel it inevitable and better for myself, to share my experiences with him.

Though I enrolled as an Advocate in 1983 and joined the office of Late Sri. M.K.Damodaran, Advocate, Ernakulam, I started to concentrate in my actual practice only in 1984 as I had to complete some social activities that I had been part of. Mr.Jose was one of the juniors in the office. I believe that I must also mention the advocates who were in the office along with me and Mr.Jose, under the efficient leadership of Sri.M.K.Damodaran, to make the tribute complete in its true sense.

Shri. M.K.Abdul Khader (Rtd. Judge, Vigilance & Anti-corruption, Tribunal) Father of Justice A.M.Shaffique (sitting High Court Judge), Retd.Chief Judicial MagistrateShri.John L. Akkara, and Adv. V.K. Raveendran, were attending the office as guest juniors and they are no more. 

Besides them, the actual juniors were Shri. P.V.Mohanan, Shri.Johny K.Sebastian, Shri.N.N.Ravindran, Shri.C.T.Ravi Kumar (sitting High Court Judge), Smt.Saira Ravi Kumar, Shri.Salil Narayanan, Shri.Vincent, Shri.Alexander Thomas (sitting High Court Judge), Shri.Anil Kumar, Smt.Beena Anil Kumar, Shri.P.K.Vijaya Mohanan, Shri.P.Sanjay, Shri. O.V.Mani Prasad, Shri.Alan Pappaly, Shri.Sabu Edathil, Shri.Tharian Joseph, Shri. P.O.Joseph, Shri.V.Amaranath, Shri.M.Sasindran, Shri.P.C.Sasidharan, Shri.Mohan Raj, Sri.Gigi  Poothecot, Sri.Manoharan, Late. Sri.T.S.Rajan, and Late Sri.M.Prabhanandan who was the son of the elder brother of Sri.M.K.Damodaran.Sri.K.V.Cherian and Sri. K. A.Rajuwere the clerks.

Adv.Jose had started his practice in a Mofussil Court at Ponkunnam along with his relative and senior advocate, Sri.P.D.Joseph. Thereafter, he shifted his practice to Ernakulam and joined the office of the veteran Civil Lawyer Adv.M.C.Sen.

Adv.Shri.Vadakoottu Narayana Menon, the then leading criminal lawyer at
Ernakulam was a frequent visitor of Adv.M.C.Sen and eventually he came into contact with Adv.Jose as he sensed the intellectual capability and depth of knowledge in law of Adv.Jose. Thereafter, Adv.Jose was invited by Shri.Vadakoottu Narayana Menon to join his office. Our Jose Vakil accepted the offer and joined the office and began assisting him in leading criminal cases. I must remind you that Adv.Shri.Vadakoottu Narayana Menon was a Special Public Prosecutor in the famous Muvattupuzha Antharjenam Murder Case. Thus, Adv. Jose gained rich experience in Criminal Law.

Though the main works in the office of Late Shri. M.K.Damodaran were related to High Court matters, Adv.Jose was keen to take up trial court matters! I would say that his presence in Damodaran Sir’s office was a great relief to the heavy work load during that time. Also, his presence substantially increased the cases at the office relating to Trial Courts. Famous Soman case, Manimallyath Case, Nedumkandam Murder case, Sandal Oil case at Thalassery and election cases with respect to Shri.O.Bharathan and Shri. T.M. Mohammad are few cases in which Shri. M. K. Damodaran had obtained efficient assistance from Adv. Jose.

Meanwhile, myself and Adv. Jose became very close and he treated me like his own brother, particularly when he realised about my social background and financial conditions.

Though Adv. Jose had vast experience in Trial Courts and Criminal Law, he was not having independent brief, while we were together at the office of Shri.M.K.Damodaran. But, Damodaran Sir never objected his juniors from taking independent briefs and conducting cases thereon, as long as it didn’t affect the office works. I have obtained the help of Adv. Jose as I could not conduct cases independently when I was a beginner. He has always extended help to me with pleasure!

When I think of my memories with him, I would like to share one of the criminal cases in which he gave me instructions and assistance. One such case was where the accused killed his own ten days old infant and wife and surrendered before the police station with blood stained chopper which was used to commit the murders. The prosecution had mainly relied upon the F. I. Statement given by the accused, admitting his guilt. Adv. Jose advised me throughout the trial and he was the person who instructed me to go through the important criminal law judgments of the year 1962. Although the trial court convicted him, the High Court acquitted him. The case was argued in the High Court by Adv.Late. Sri. M.Prabhanandan, junior to Adv. M.K.Damodaran. The appeal preferred by the State was also dismissed by the Hon’ble Supreme Court.

A valuable advice has been given to me by my dear Adv. Jose. In a criminal case, the defence lawyer must have shaped the defences in advance on the basis of available materials and the settled legal propositions applicable in the particular circumstances. The cross examination must aim to extract evidence purportedly to reinforce such defence and to shape the arguments.

It is pertinent to note that Adv. Jose was least interested in publicity. But, he was undoubtedly a very popular criminal lawyer among the legal fraternity. Clients always preferred him in criminal matters due to his ability and experience. Accused in serious and grave offenses, blue collar and white collar crimes particularly corruption cases,always preferred him to defend them. He had maintained his professional morale while giving legal opinions based on the merits of the case. He used to accept the briefs only if the clients were ready to accept his terms and conditions. But, he never ever misled the clients to obtain briefs. At the same time, he used to be selective while accepting briefs.  In deserving cases, money/fees was not at all a matter for him and he was generous in extending his help and skill to poor clients.

He always ensured to pacify and comfort his clients whenever they were anxious and tense during trials. Even when he was not a religious person, he used to advise his clients who were theists to pray and stay calm. That was his way of consolation! He was not a keen believer of religious rites. It was because of his instruction and wish that his body was cremated on a public crematorium. He was never interested in conducting his funeral as per custom.

We do know that an advocate joins the office as a junior with an aim to gain practical experience and exposure. However, learning actually depends on active and voluntary involvement in the office works during client counseling, discussions and arguments. Generally, Senior Advocates never find enough time to teach the juniors. But, Adv. Jose has been an exception. He was kind enough to enlighten me and others with his knowledge.

Apart from my official relationship with Adv. Jose, we also shared deep family bond. We always used to ride on his old Yezdi Motor Bike to go and inspect the crime scenes. Adv.Jose and his wife, Smt.Sophy Teacher were very close with my family. They had attended my wedding too. Kunoor, a famous hill station was one of his favorite places. We used to go there with family members. He always stood as support during personal crises of mine. When my daughter Chandni Mohan joined M.B.B.S., Adv. Jose was very happy like us and he talked to her a lot before her classes started. He motivated her to do her best with his kind and inspirational words.

He had also obtained a Master’s Degree from Pune University and Smt. Sophy was his campus mate of the same University. She got appointed as a Lecturer in French Language at St.Teresa’s College, Ernakulam. She retired as a Professor and thereafter they settled at Kudayathur near Thodupuzha. Their daughter Ruby got married and now she’s settled in Canada along with her husband Abraham and their daughter Nicky.

His thoughts and perspectives are commendable and are different from the common mass. He used to complain sarcastically that he stayed busy in his profession when he was supposed to enjoy sufficient time with his family. But, he led a very happy and peaceful life. He always felt that and also has told me that he cannot imagine himself lying in bed due to sickness. He never wanted to be a burden to anyone. I must say, his wish actually came true. His dream of healthy life and peaceful death has now become materialized. But, it still remains a great shock to me.

I console myself in the belief that my Jose Vakil shall always remain alive in our hearts and his memories would never die. Dear Jose Vakil, in life we loved you dearly, in death, we love you still. In our hearts, you hold a place, no one else will ever fill.

Federalism in Our Constitution

(By O.V.Radhakrishnan, Senior Advocate, High Court of Kerala)

Presidential address by Senior Advocate O.V.Radhakrishnan at the meeting of Indian Lawyers’ Association on November, 26, 2020,-- the Constitution Day.

The Constitution of India was finally adopted, enacted and given to ourselves in our Constituent Assembly elected according to the Cabinet Mission Plan 71 years ago on the 26th of November, 1949. This function organised by Indian Lawyers’ Association at this difficult time of COVID 19 on the Constitution Day to deliberate upon the topic ‘Federalism in our Constitution’ which is one of the plural range of governmental concerns in the present day political scenario is well-timed.

The Constitution of India is predominantly federal in practice.  The conditions existed in India necessitated the adoption of federal solutions for a Sovereign Democratic Republic and eventually embodied federalism in the Constitution.  

The basic principle of ‘federalism’ is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. It was the patriotic resolve with vision and passion of the Founding Fathers of our Constitution to adopt the federal principle into our Constitution and the federal system of Government is incorporated in our Constitution.

The modern jurists define ‘federalism’ as a form of Government in which there is division of powers between the Centre and the States, each within its sphere interdependent and coordinate with each other. Federalism is a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Thus, the essence of federalism is the existence of the Union and the States and the distribution of powers between them. ‘Federalism’ essentially implies demarcation of powers in a federal compact and is beyond the limits of ordinary lexical definition.

The most important feature of our Constitution is the distribution of legislative power between the Centre and the States. Articles 245 to 255 relate to distribution of Legislative Relations.Our Constitution adopted the device of exhaustively enumerating every conceivablesubject of legislative power and putting it in List I, List II the and List III of the Seventh Schedule. List I includes subjects over which the Union shall have exclusive power of legislation. List II or the State List comprises items or entries over which the State Legislature shall have exclusive power of legislation. List III gives Concurrent powers to the Union and the State Legislatures.

Legislative power is specifically reposed in Parliament under Articles 2, 3, 11, 247, 262, 343 and 348 of the Constitution. In such cases, the distribution of power based on the Lists is not applicable and the power exclusively vest in the Parliament. In case of repugnancy between a law of a State and a law of the Union in the Concurrent List, the latter will prevail by force of Article 254(1) of the Constitution. The State Legislation may, however, prevail notwithstanding such repugnancy, if the State law is reserved for the President and received his assent under Article 254(2) of the Constitution.

Distribution of executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws provided that the executive power shall not extend in any State to matters with respect to which the Legislature of the State has also power to make laws.  

Under Article 3 of the Constitution, Parliament can alter or change the areas, boundaries or names of existing States.  As a matter of law, empowering Parliament to re-draw the map of India is a serious departure from the federal principle.

Part XI Chapter I of the Constitution relate to Legislative Relations.  Articles 245 to 255 deal with distribution of Legislative Powers. Articles 256 to 258-A provide for the Administrative Relations between the Union and the States and are the counterparts of the legislative divisions.  Distribution of Revenues between the Union and the States is provided in Articles 268 to 290 of the Constitution and the allocation of taxes between the Union and the States is mutually exclusive.  The taxing power between the Union and State Legislatures is subject to the limitations imposed by particular provisions of our Constitution such as the State Legislature or any authority within the State cannot tax the property of the Union and the Union cannot tax the property and income of a State.  The power of the State to levy tax on sale or purchase of goods is subject to Article 286 of the Constitution.  Save in so far as Parliament may, by law, otherwise provide, a State shall not tax the consumption or sale of electricity in the cases specified in Article 287 of the Constitution.

Articles 352 to 360 of the Constitution relate to emergency provisions. Article 352 empowers the President if on satisfaction that a grave emergency exists whereby the security of India or of any part of the territory thereof, is threatended, whether by war or external aggression or armed rebellion to make a Proclamation of emergency in respect of whole of India or of such part of the territory thereof.

Article 250 of the Constitution confers power on the Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. Article 353 of the Constitution carves out an exception to other provisions in the Constitution laying down that the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised and that the power of Parliament shall extend to make laws in respect of any matter specified therein notwithstanding that it is one which is not enumerated in the Union List.

Where failure of Constitutional machinery occurs, Article 355 of the Constitution imposes on the Union the duty to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. A proclamation of failure of Constitutional machinery enables the Union to establish a stable Government in the State in accordance with the Constitution. There is a Constitutional duty enjoined in the Union of India to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.  

Article 356 of the Constitution gives power to the President to issue Proclamation to assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; to declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament and to make such incidental and consequential provisions for giving effect to the objects of the Proclamation on his satisfaction that there is failure of Constitutional machinery in the State. 

Article 365 provides that where any State has failed to comply with or to give effect to any directions given in exercise of the executive power of the Union, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of Constitution. This provision gives power to enforce the directions issued by the Union of India under Articles 256 and 257 of the Constitution.

The Union and the State Governments should always work in harmony avoiding constitutional discord. The concept of collaborative federalism is negotiation and coordination to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. In collaborative federalism, the Union and the State Governments should strive to achieve the common objective and work together for achieving it. The Constituent Assembly while devising the federal character of our Constitution apparently would not have thought of the possibility of the Union Government and the State Governments going off at a tangent or taking up unaccommodating principle inviting anarchism.  To achieve the ultimate aim to have a holistic structure, coordination amongst the Union and the State Governments is necessitous. Pragmatic Federalism can evolve innovative solutions to problems that emerge in a federal set-up of any kind.  The Union and the State Government should always practice Collaborative and Pragmatic Federalism to bring off the golden goals of justice, liberty, equality and fraternity.

A study of the aforementioned provisions of the Constitution finds a broad manifestation of deviations from the federal character in certain principal areas indicating ‘quasi-federal’ nature inherent in our Constitution. The federal principle has preponderant role inspite of the presence of quasi-federal features which is perceivable if one has run the gamut of our Constitution.

Signally, ‘Federal balance’ is yet another complementary concept. Though the Indian Constitution prescribes a federal structure providing for division of powers between the Centre and the States with a slight tilt towards the Centre and the quasi-federal structure is inherent therein, the Constitution has provided for a federal balance between the powers of the Centre and the States so as to avoid unwarranted or uncalled for interference by the Centre. The principle of Federal balance is entrenched in our Constitution. A dispute between the Union of India and a State involving a question, whether of law or fact, on which the existence or extent of a legal right depends is comprehended within Article 131 of the Constitution and the legal rights of the States can be asserted before the Supreme Court under Article 131 of the Constitution. The obligation to maintain the Federal balance to prevent any usurpation of power either by the Centre or the States is thus exclusively vested in the Supreme Court. However, the dispute must involve a question relating to a legal right as distinguished it from ‘political’ right over which the Courts have no jurisdiction. The role of the Court to act as the interpreter of the scheme of distribution of power in a Federal system of Government is beyond mutation by the plenary power of Parliament and is immunised.  It is a basic feature of the Constitution. Above all, the Court is final arbiter and defender of the Constitution.