[This post has been authored by Shivang Tandon, a fourth year student at Faculty of Law, Banaras Hindu University.]
[This post has been authored by Shivang Tandon, a fourth year student at Faculty of Law, Banaras Hindu University.]
[This post has been authored by Sanah Javed, a fourth year student at the School of Law, Christ University.]
Blockchain technology refers to a distributed ledger which helps record the transactions taking place between multiple users over the internet. In a blockchain, there exist multiple blocks of information that rests with the computer base of each user (node), in order for a transaction to be complete. Each node must verify or authenticate the transaction thereby negating the need for a centralised trusted body such as a Bank. Blockchain technology possesses certain key functions such as ‘hash’ and ‘timestamping’ that make it unique. The Hash function helps in validating the integrity of a file. In case of any tampering or difference, the hash will produce an entirely different result hence detecting the tampering. Further, Timestamping provides a chronological record regarding the creation, access and modification of the transaction. These aspects make blockchain an irreversible and incorruptible repository of information, and hence extremely useful form of evidence.
“In the long term, artificial intelligence and automation are going to be taking over so much of what gives humans a feeling of purpose.” – Matt Bellamy
Artificial intelligence is a computer-based system that performs tasks, which typically require human intelligence. In this process, computers use rules to analyze data, study patterns and gather insights from the data. Artificial Intelligence companies persistently find ways of evolving technology that will manage arduous tasks in various sectors for enhanced speed and accuracy. Artificial Intelligence has transformed nearly all the professional sectors including the legal sector. It is finding its way into the legal profession and there is a plethora of software solutions available, which can substitute the humdrum and tedious work done by lawyers. In the legal profession, the changes are diverse where software solutions have outweighed paperwork, documentation and data management.
This blog analyzes the use of AI in the legal industry. It describes various AI tools which are used in the legal sector, and gives an insight into the use of AI in the Indian Judiciary system to reduce pendency of cases. Finally, we discuss the challenges in the implementation of AI in the legal field.
In the legal field, Artificial Intelligence can be applied to find digital counsel in the areas of due diligence, prediction technology, legal analytics, document automation, intellectual property and electronic billing. One such tool, which facilitates the use of artificial intelligence, is Ross Intelligence. This software has natural language search capabilities that enable lawyers to ask questions and receive information such as related case laws, recommended readings and secondary sources. Prediction Technology is a software which speculates a litigation’s probable outcome. In 2004, a group of professors from Washington University examined their algorithm’s accuracy in predicting Supreme Court judgments in 628 cases in 2002. The algorithm’s results were compared to the findings of a team of experts. It proved to be a more accurate predictor by correctly predicting 75 percent of the outcomes compared to the 59 percent of the experts’ accuracy. In 2016, JP Morgan developed an in-house legal technology tool named COIN (Contract Intelligence). It draws out 150 attributes from 12000 commercial credit agreements and contracts within few seconds. According to this organization, this equals to 36,000 hours of legal work by its lawyers.
In an interview with UK’s law Firm Slaughter and May a review of the AI tool, Luminance that is being currently used by them was taken. This tool is designed to assist with contract reviews, especially with regard to due diligence exercises during mergers and acquisitions. It was found out that the AI tool has an impact on the firm’s lawyers, who could spend more time on doing valuable work. It was also found out that the tool fits well into the existing workflows of the firm in relation to M&A due diligence. The documents that the tool helps to review are already stored in a virtual data room; the only additional step the tool needs to take is to introduce documents into the solution itself.
India is also adopting the use of artificial intelligence in the legal field. One of India’s leading law firms Cyril Amarchand Mangaldas is incorporating artificial intelligence in its processes for contract analysis and review, in concurrence with Canadian AI assistant Kira system. This software will analyze and differentiate risky provisions in the contract. It will improve the effectiveness, accuracy and scale up the speed of the firm’s delivery model for legal service and research.
In the Indian judicial system, where a plethora of cases is pending, artificial intelligence can play a significant role to reduce the burden. A deadweight of almost 7.3 lakh cases is left pending per year. A large amount of legal research is required by advocates to argue their case. Use of AI can accelerate the speed of legal research and enhance the judicial process. In this regard, a young advocate named Karan Kalia, developed a comprehensive software program for speedy disposal of trial court cases to the Supreme Court’s E-Committee led by Justice Madan B Lokur. This software offers a trial judge with appropriate case laws instantly, while also identifying their reliability.
AI enables lawyers to get nonpareil insight into the legal realm and get legal research done within few seconds. AI can balance the expenditure required for legal research by bringing about uniformity in the quality of research. AI tools help to review only those documents which are relevant to the case, rather than requiring humans to review every document. AI can analyze data through which it can make quality predictions about the outcome of legal proceedings in a competent manner, and in certain cases, better than humans. Lawyers and law firms can swing their attention to the clients rather than spending time on legal research, making the optimum use of the constrained human resources. They can present arguments and evidence digitally, get them processed and submit them faster.
Although AI is prone to some challenges, these can be subdued with time. The major concern circumscribing AI is data protection. AI is used without any legal structure that generates the risk of information assurance and security measures. A stringent framework is needed to regulate AI to safeguard an individual’s private data and provide safety standards. A few technical barriers will limit the implementation of AI technologies. It is difficult to construct algorithms that capture the law in a useful way. Lack of digitalization of data is also a technical constraint. Complexity of legal reasoning acts as a potential barrier to implementing effective legal technologies. However, this will be eventually rectified with continuous usage and time.
The introduction of AI in the legal sector will not substitute lawyers. In reality, technology will increase the efficiency and productivity of lawyers and not replace them. Instead, the roles of lawyers will shift, rather than decline, and become more interactive with technological applications in their field. None of the AI tools aims to replace a lawyer but they increase the authenticity and accuracy of research and enable to give a more result-oriented suggestion to the clients. As Mcafee and Bryjolfsson have pointed out, “Even in those areas where digital machines have far outstripped humans, people still have vital roles to play.”
The use of AI will manifest a new broom that sweeps clean, i.e., it will bring about far- reaching changes in the legal field. Over the next decade, the use of AI-based software is likely to increase manifold. This will lead to advancement and development in functionality present lawyering technologies such as decision engines, collaboration and communication tools, document automation, e-discovery and research tools and legal expert system the aforementioned. Trending industry concepts like big data and unstructured database will allow vendors to provide more robust performance. There will also be an influx of non-lawyer service providers who will enter the legal industry, some of whom will be wholly consumer-based, some lawyer focused and others will sell their wares to both consumers and lawyers. The future for manual labor in law looks bleak, for the legal world is gearing up to function in tandem with AI.
In the previous part, I dealt with the certain privacy concerns that may arise with respect to voice sampling and how various jurisdictions have approached the same. In this part, I will be critiquing the manner in which the Supreme Court in Ritesh Sinha has imparted legislative power onto itself, is by the terming the absence of legislative authorization for voice sampling of accused persons as a procedural anomaly, and extending its power in filling such assumed voids by invoking not only the principle of ejusdem generis, but also citing the “principle of imminent necessity”.
This strangely arises since reference is made to Ram Babu Misra, where it had earlier looked into Section 73 of the Indian Evidence Act, 1872 and whether the same afforded the Magistrate the power to direct the accused to give her specimen writing even during the course of investigation. In absence of such a provision, such powers were denied. Subsequently, section 311A (vide Code of Criminal Procedure (Amendment) Act, 2005 later afforded the Magistrate the power to direct any person to submit specimen signatures or handwriting. In this regard, the Supreme Court in Sukh Ram, held that the powers provided by the Amendment were prospective and not retrospective in nature and therefore such direction was impermissible since they were not provided for.
In the present case, the Supreme Court notes that “procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation”. This is prima facie problematic given the relevance of the maxim in civil matters in resolving dilemmas by by-passing procedure in the interest of justice. In criminal matters, the State holds an instrument of enquiry against the accused, with the balance of powers weighing heavily against the individual. The jurisprudential trend of privileging crime control interests and merely opposing oppression or coercion in cases which would affect the reliability of the evidence, has thus continued. It would be relevant to look at the right against self-incrimination, explored by Abhinav Sekhri in his article ‘The right against self-incrimination in India: the compelling case of Kathi Kalu Oghad’, to be one that had originally arisen as a protection against the State by placing procedural safeguards and substantive remedies.
In this case, the Court refers to Puttaswamy, to hold that the right to privacy must “bow down to compelling public interest”. However, in Puttaswamy, Justice Chandrachud had cited A K Roy vs Union of India whereby, the Constitution Bench of the Supreme Court recognised that “…[p]rocedural safeguards are the handmaids of equal justice and …, [that] the power of the government is colossal as compared with the power of an individual…”, (emphasis mine) that preventive detention finds its basis in law, and thus is permissible under the Constitution.
Indeed, Maneka’s reference to R.C. Cooper in understanding permissible restrictions of personal liberty is of assistance, noting that abrogation of the rights of individuals must fulfil the tests of reasonableness. Irrespective of whether the demand of an individual’s voice sample is a permissible violation vide the individual’s right to privacy guaranteed under the Constitution, the order itself must find a basis in law. Alas, the same cannot be said for the present matter.
As this is a policy decision, entrusted to the State, it is curious to see how Courts have time and again found justification in intruding the halls of the Legislature. The same was also recognised in the Puttaswamy judgment where deference to the wisdom of law enacting or law enforcing bodies was sought. Silence postulates a realm of privacy, wrote Justice Chandrachud. While the same is not an absolute right, it is for the Courts to protect the individual from the State’s powers, to adjudge whether the laws and actions consist of legitimate aims of the State, and not for the Courts to provide power became an arm of the State itself. The part of the Kharak Singh judgment which was upheld, had recognised the importance of the existence of a “law” to term something as either constitutional or unconstitutional, and thus termed the relevant regulation as unconstitutional.
Presently, it is the Court which has taken on such a burden to create the law encroaching on the accused’s rights. This is even after alluding to the Legislature’s possible choice to be “oblivious and despite express reminders chooses not to include voice sample”, and only provide for a few tests (though in Selvi, the Court recognised the impropriety and impracticality to look into Legislative intent given the lack of “access to all the materials which would have been considered by the Parliament”).
Curiously, in affording the Judicial Magistrate the power to order voice sampling for “the purpose of investigation into a crime”, there is ambiguity at what stage this power can be invoked, the manner in which it can be invoked, and who can invoke the same. Ordinarily, medical examinations under 53/53A/54 of the Cr PC have been read to be done at the instance of “the investigating officer or even the arrested person himself…[or] at the direction of the jurisdictional court.” We may also look at Section 53 of the Cr PC, as per which medical examination can occur only when there is sufficient material on record to justify the same, and is impermissible otherwise.
Finally, the Court has not only failed to illustrate the existence of an imminent necessity, to make such an alteration or confer such a power, it has failed to explain in what context can Courts invoke such a maxim and has not developed the same in detail. One might note, that the principle of necessity is one generally afforded to individuals in cases of private defence or in cases of emergencies, excusing individuals from acts that would ordinarily make them liable of certain crimes. Curiously, there is no mention of an affidavit from the side of the police administration, no studies have been cited. Mere legislative delay as a justification for imminent necessity in light of certain advancements does not seem sound.
In light of the same, given Navtej, NALSA, and Puttaswamy, and the failure of the Legislature to amend at least the Special Marriage Act to recognize the rights of LGBTQI individuals to marry, and be with their individual of choice, should not the same have also provided for? Can the same be taken as a justification to abrogate digital privacy rights in the world of evolving technologies, by mandating backdoors? At what stage does Legislature’s refusal also amount to Legislature’s lax? Does this apply only for social developments or technological developments? If the Legislature was in fact, aware of voice exemplars (as has been observed), and chose not to incorporate the same into the relevant sections and clauses, can the same be read as legislative delay or refusal? Whether this aspect of the judgment, invoking “imminent necessity”, will be read into to provide justification for some other transformation is yet to be seen.
The Court had a path available to it through Selvi and indeed Justice Desai, had charted through the same invoking precedents which permitted such a reading. However, the Court in this reference judgment seems to have (unnecessarily) gone the extra mile by mention of this principle of imminent necessity. Whereas the former is a matter of difference in opinion, the latter is a clear bypass of the Legislature’s powers at the Court’s own pleasure. We may take heed to Justice H.R. Khanna’s dissent, in the ADM Jabalpur case, that when the means don’t matter, when procedure is no longer insisted upon, the ends can only lead us to arbitrariness, a place devoid of personal liberty.
I conclude by noting Lord Camden’s dictum in Entick vs Carrington (which we would now find through our Article 21 protection: “No person shall be deprived of his life or personal liberty except according to procedure established by law” (emphasis mine) (also read into the right against self-incrimination through Selvi):
If it is law, it will be found in our books. If it is not to be found there, it is not law.
Nearly threescore ago, in Kathi Kalu Oghad, the eleven judge-bench of the Supreme Court of India decided on the question of the extent of constitutional protections against self-incrimination (vide Article 20(3)). The Supreme Court therein deviated from the notion of self-incrimination being one inclusive of “every positive volitional act which furnishes evidence” laid down in M.P. Sharma, and recognised a distinction between “to be a witness” and “to furnish evidence”. The present judgment arose on a difference in opinion in the division bench of the Supreme Court in Ritesh Sinha, regarding the permissibility of ordering an accused to provide their voice sample. In this part, I will talk about voice sampling and its interactions with privacy, and look at how different jurisdictions have looked at voice spectography – whether the same would be violative of the individual’s right to privacy and their right against self-incrimination. Finally, I will make a short point on technological developments and their interaction with criminal law. In the next part I will be dealing with the Court’s failure to simply rely upon Selvi to expand the definition, and instead how it created the doctrine of “imminent necessity” (a principle generally present in criminal law for private defence!) to justify the Court’s intervention into the halls of the Legislature in light of “contemporaneous realities/existing realities on the ground”.
The Investigating Authority seized the mobile phone from Dhoom Singh, allegedly in association with the accused-appellant Ritesh Sinha, and wanted to verify whether the recorded conversation was between both the individuals and thus needed the voice sample of the appellant to verify the same. Accordingly, summons was issued, and the present appellant was ordered to give his voice sample. This was subsequently challenged before the Delhi High Court who negatived his challenge. Aggrieved by the same, an appeal was filed before the Supreme Court, as a result of split verdict, the same was referred to a larger bench. The opinions by Justice Desai and Justice Aslam in the division bench have been sufficiently explored earlier by Gautam Bhatia and Abhinav Sekhri. Therein, both Justices were of one mind on voice sampling not being violative of the right against self-incrimination, with differences on the permissibility of voice sampling, considering an absence of an explicit provision permitting the same.
In this reference judgment, Chief Justice Ranjan Gogoi traces the history of rights against self-incrimination by referencing (then) Chief Justice B.P. Sinha’s observations that documents which by themselves do not incriminate but are “only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable” and would not be violative of Article 20(3).
Recognising the limitation under section 53 and section 53A of the Code of Criminal Procedure, 1973, reference is made to the 87th Law Commission Report which suggested that an amendment to the Identification of Prisoners Act, 1920 to specifically empower a Judicial Magistrate to compel an accused person to give a voice print. No such action has been taken in that regard.
In Selvi, ‘personal liberty’ in the context of self-incrimination, was understood as being one whereby involuntariness is avoided, summing up this right to three points: (1) preventing custodial violence, and other third-degree methods to protect the dignity and bodily integrity of the person being examined, to serve as “a check on police behaviour during the course of investigation”. (2) To put the onus of proof on the prosecution, and (3) to ensure reliability of evidence, that involuntary statements could result in misleading “the judge and the prosecutor… resulting in a miscarriage of justice …[with] false statements …likely to cause delays and obstructions in the investigation efforts”. The third point is consistent with the majority view in Kathi Kalu Oghad, which found “specimen handwriting or signature or finger impressions by themselves…[to not be testimony since they are] wholly innocuous because they are unchangeable…[that they] are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable.” While there was a hesitation to read everything under the sun as “such other tests” in Selvi, it was recognised that that through an invocation of ejusdem generis, the same could be extended to other physical examinations, but not other examinations which involve testimonial acts. In this regard, we may consider Gautam Bhatia’s analysis of Selvi which digs deep into this issue. As an aside, beyond the question of the content of either the “said” or the “statement” itself, it would be of assistance to also look at the nature of police systems, whereby even in a post-Miranda setting in the US, the reality and nature of voluntariness is suspect.
The position of viewing exemplars by themselves to not be statements is consistent with various courts. That is, handwriting, signature, etc., existing within, or from the individual, the individual is not considered to have been made to give that which cannot otherwise be seen since the evidence is not altered irrespective of compulsion to give the same.
In Levack, the Supreme Court of Appeal in South Africa held that sound (and consequently voice exemplars), firstly, could be considered as a ‘distinguishing feature’ under Section 37(1)(c) of the Criminal Procedure Act of 1977. Secondly, that voice exemplars being ‘autoptic evidence’, derived from the accused’s own bodily features could be distinguished as not being testimonial or communicative in nature.
This echoes the view taken by the Supreme Court of the United States (SCOTUS) in the case of Dionisio, recognizing that voice samples (exemplars), for the purposes of identification, as not being violative of the individual’s rights against self-incrimination enshrined under the Fourth and Fifth Amendments. Since they are were mere physical characteristics, being attained as mere identifiers and not for their testimonial or communicative content (See also Gilbert and Wade). Further, relying on Katz, where it held that Fourth Amendment protections would not be offered “for what ‘a person knowingly exposes to the public…’”. Therefore, “[n]o person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.”.
In Jalloh vs. Germany, the Strasbourg Court observed that the right against self-incrimination guaranteed under Article 6(1) would not extend to material obtained through the use of compulsory powers from the accused person which have an “existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing”. (emphasis mine).
The failure of legal systems to consider technological changes which may assist in collection of evidence or other crime control uses is termed as a ‘pacing problem’, and is comprised of two dimensions – Firstly, the basis of existing legal frameworks on a static rather than dynamic view of society and technology. Secondly, the slowing down of legal institutions with respect to their capacity to adjust to changing technologies.
The Legislature’s failure to provide for handwriting samples for two decades even after the Supreme Court and Law Commission’s mention of the same has been noted by Abhinav Sekhri. Admittedly, the benefits of voice sampling for identification are evident, and have even been used before. However, this judgment fails to clarify under which section such power has been conferred. If the same were to exist under the Identification of Prisoners Act, there may be some semblance of relief through section 7, which mandates destruction or handing over of such measurements and photographs to individuals in certain cases.
The DNA Bill, as introduced in the Lok Sabha allows for removal of DNA collected on certain conditions (vide Section 31(2)-(3), however, even then, it is one that occurs only on police report, order of the court or a written request (method varying on the basis of the incident), contrary to other jurisdictions or even section 7 of the Identification of Prisoners Act, the status quo is thus of retainment, and not automatic removal.
In trying to keep up with technological advancements, the Court has thus failed to recognise the importance of procedure in criminal matters and instead produced procedural uncertainty; it is even more curious to note that Selvi which would have been sufficient justification was not invoked even once in this case.
Recently, in the Indian state of Gujarat, several Police Commissioners have issued orders restricting use of the popular game of Player Unknown’s Battleground (“PUBG”) under Section 144 of Code of Criminal Procedure, 1973 (“Cr.P.C.”). In pursuance of the same, 10 youngsters were reportedly arrested for disregarding these orders under Section 188 of Indian Penal Code, 1860 (“IPC). Subsequently, a PIL was filed in the Gujarat High Court by the Internet Freedom Foundation challenging the ban orders & arrests made by Gujarat Police. However, it was dismissed on the ground that the scope of the said petition does not fall under the ambit of “public interest litigation”.
In contrast, another PIL was filed in Bombay High Court by an 11-year old through his father, praying for initiation of PUBG ban, on the grounds that it promotes immoral conduct such as violence, aggression, gaming addiction, cyber-bullying etc. Following this, a Bench of the court directed the Secretary of IT Ministry to review the game and take actions if any ‘objectionable content’ is found in it. The matter is presently pending before the court.
The questions that arise here whether the orders of the Gujarat Police to ban PUBG are arbitrary or not; and whether the arrests made by the police in this regard are illegal or not. The present post shall first address and answer the above questions. This shall be followed by the analysis on the interplay between the judicial and executive process of banning the game. Subsequently, the post will put forth recommendations based on the overall discussion.
Why the Orders on PUBG Are Arbitrary & Unreasonable?
It is S. 37(3) of Gujarat Police Act, 1951 (“GP Act”) and S. 144 of Cr.P.C. that provides power to the Police to issue orders in urgent cases of nuisance or apprehended danger. The English translation of concerned orders states:
“…it comes to our knowledge that due to games like PUBG GAME/MOMO CHALLENGE violent traits are shown to be increased in youth and children. Due to these games, the education of children and youth are being affected and it affects the behaviour, manners, speech and development…”
A perusal of the order shows that the police had issued it without any substantive evidence to prove PUBG provoking violent traits. In fact, the order was issued based on mere knowledge and perception of threat without adequate evidentiary substantiation. This is in complete violation of the Ramlila Maidan Incident, In Re [(2012) 5 SCC 1] case, where the Supreme Court of India held that Section 144 cannot be invoked in case of mere apprehension, without any material facts to indicate that the apprehension is imminent or genuine.
Secondly, orders can be issued under Section 144 if there exists an urgent situation which could result in grave consequences as held in the case of Madhu Limaye v. SDM Monghyr [(1971) AIR SC 2486]. Certainly, playing PUBG does not constitute any urgent or grave consequences and is merely a game for the purpose of entertainment. Moreover, the allegation on PUBG having violent traits to cause grave consequences, was recently rejected by the Nepal Supreme Court on April’19, who stayed the PUBG ban imposed by Nepal’s government.
Lastly, the Police orders have imposed restriction on the right of free speech & expression under Article 19 of our Constitution by banning PUBG, and has thereby disregarded the ‘test of proportionality’, as applied by A.K.Sikri J. in K.S. Puttaswamy v. Union of India [(2019) 1 SCC 1, p. 132]. As per this test, the state can impinge a right (i) if there exists a law for it; (ii) such that the restriction must have a legitimate state aim; (iii) and should not have any disproportionate impacts on the right’s holder. In relation to (i), it is true that the Cr.P.C. contemplates statutory provisions to restrict such rights. However, in the present case, the Police officials have not properly adhered to it while imposing the ban, as has been discussed above. As for (ii), a ‘legitimate’ aim for the state entails making a lawful approach to maintain players’ health and tranquillity. Apparently, the police’s order does not constitute a legitimate aim as it was based on the rationale of controlling moral panic (and not health), and is bad in law. The aim pf “moral panic” is subjective and discretionary as what is moral for one, may not be moral for other. Moreover, in relation to (iii), the arrests of students made by the virtue of the said orders will have disproportionate impacts on them as they were arrested for merely playing a game. These arrests will in harm the students’ reputation at school, college and office, having a deeply negative impact on them. A proportionate approach would be psychological counselling & social support and not criminal prosecution or imprisonment initiated by the ban. Hence, the orders of the Police Commissioners are arbitrary and unreasonable.
Why the Arrests Made by Police are Illegal?
Statutorily, an arrest can be made under Section 188 of IPC for violating Section 144 of Cr.P.C. A person could be arrested only if he disobeys the order duly promulgated by a public servant, and if such disobedience causes, tends to cause, or risks obstruction, annoyance or injury, to any person lawfully employed. However, a mere disobedience of Section 144, without the aforesaid elements, is not a ground for arrest under Section 188 and the same was observed by the court in the case of Ramlila Maidan. Interestingly, Mumbai police used PUBG to promote helmet necessity for riders by sharing an image of a character of the game wearing helmet on their Twitter handle. Such promotion of game by public servants reflects that even the state’s own machinery does not apprehend any ‘obstruction, annoyance or injury’ being caused by playing PUBG. Certainly, the arrest made are illegal as it was done beyond the scope of the concerned provision.
Moreover, in the case of Gulam Abbas v. State of Uttar Pradesh [AIR 1981 SC 2198], the Supreme Court held that the purpose of Section 144 is to provide adequate, reasonable and temporary remedy to ‘emergency cases’ of nuisance or apprehended danger. Similarly, in Acharya Jagdishwarand Avadhuta v. Police Commissioner, Calcutta [AIR 1984 SC 512], the Supreme Court held that the nature of the order under Section 144, Cr.P.C. is intended to meet ‘emergent’ situation. In the present case, the Police orders gave reasons that the education of children are being affected through PUBG. This effect on their studies does not constitute any ‘emergent’ situation under which there exist any risk of apprehended danger.
Thus, the ban orders as well as the arrests made by the Gujarat Police are unreasonable, arbitrary, illegal and are exercised beyond the permissible limits of the statutory provisions. If at all, a PUBG ban is found to be required, there is a proper procedure that has been statutorily stipulated to initiate it, as has been explained below:
How to Initiate A Ban On PUBG?
The Information & Technology Act, 2000 (“IT Act”) has set out the complete process of blocking Apps or online games under the Procedure and Safeguards for Blocking for Access of Information by Public Rules, 2009 (‘Rules’). Such blocking can be done either by the officers defined under the IT Act [I] or by any order issued by the court of law [II].
I. By the Executive
Rule 4 states that a “Nodal Officer” should be compulsorily be appointed by the organisation (mainly the state-government) to whom a citizen can submit his/her request for blocking any electronic information. After examining the request, the Nodal Officer transfers the application of request to the “Examination Committee” headed by the “Designated Officer”. As per the Rules, the Designated Officer is appointed by the Central government along with other representatives of Ministry of I&B, Law & Justice and Home Affairs, who are not below the rank of a Joint Secretary. This Committee checks whether the application is in accordance with Section 69A of IT Act or not and in turn submits a recommendation to the Secretary, Dept. of IT though the Designated Officer.
The direction of blocking the information is passed after the approval of the recommendation by the Secretary. This direction should also provide the reasons for blocking the game. A Review Committee, set up by the Central government, further validates this direction by setting up meetings after every 2 months and may set aside the blocking orders (if direction is not in conformity with Section 69A of the IT Act), as prescribed under Rule 14.
II. By the Court
The Rule 10 authorizes the court to block any electronic information and bounds the Designated Officer to implement the same as soon as he receives the copy of that order. Section 79(3)(b) of the IT Act holds intermediaries liable for non-compliance of the court’s order. For example, the Court in 2017 took suo moto cognizance to ban the Blue Whale Game and directed the government & intermediaries like Google Play, Apple Store etc to remove the said game from their domains.
Further, as mentioned above, any such ban must be in conformity with Section 69A of the IT Act, which provides a list of grounds based on which any electronic information may be blocked. This list includes reasons such as security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence. The potentially suitable ground in the PUBG case, namely ‘preventing incitement to the commission of any cognizable offence’ has itself been interpreted as cognizable offence by the Indian courts. Therefore, the court can initiate a ban on the PUBG only after it is proved by the authorities that such game contains content which can led to the commission of any cognizable offence. Similarly, the concerned authorities defined under the Rules, 2009 can impose a ban only if they find the working of the App in contradiction to the Section 69A of the IT Act, 2000. Although Bombay High Court has made an effort to adhere to rules set out under IT Act, 2000 by approaching the Secretary of IT Ministry, yet both Gujarat Police and Gujarat HC have miserably failed to acknowledge the banning procedures under IT Act, 2000. Moreover, the Gujarat Police have processed ban which do not met the requirements of Section 69A of IT Act, 2000.
In view of the above discussion and analysis, the author would like to propose following recommendations:
The sudden influx of computers brought about major changes in the legal framework for regulating technology in India. The Information Technology Act 2000 (hereinafter the ‘IT Act’) was one such change that impacted various fields, including Criminal Law and Law of Evidence. The Indian Evidence Act, 1872 was one of the many Acts that was amended by the IT Act, and it introduced the concept of digital evidence to Indian Courts by adding Sections 65A and 65B, which describe the procedure to produce electronic evidence in courts during criminal trials and the admissibility of the same. These sections minimise the risk of falsification of digital evidence through various stipulations.
Section 65B (4) in particular, requires a certificate which has to mention the electronic record containing the section, the manner of production of the record, the particulars of the device used in producing the record and be signed by a person occupying a responsible position in relation to the device to be produced along with the evidence when it is submitted. This requirement has come under scrutiny over the years, with various judgements giving opposing views of the section which has resulted in a very unsettled position of law. The law on the issue is still unclear.
The jurisprudence on Section 65B of the Indian Evidence Act is mainly encapsulated in four landmark cases. The section was first relaxed by State v Navjot Sandhu, before being made strict by Anvar P.V v P.K Basheer & Ors. Later, it was relaxed a bit again Sonu v State of Haryana and Shafhi Mohammad v State of Himachal Pradesh.
This post aims to trace this jurisprudence and analyse each case, while finally commenting on the unsettled position of the current law and the need for a speedy decision by the Supreme Court.
State v. Navjot Sandhu
This was the first case that differed with the statute and set up a new jurisprudence. The judgement held that it was not necessary for evidence to comply with Section 65B (4). It revolves around the attack by a terrorist group on the Parliament in 2001. The call records were part of the evidence against the accused and were brought under question during the appeal in the Supreme Court for not complying with the requirement of producing a certificate under Section 65B (4) was contended.
The Court held that submission of secondary digital evidence was not exclusively governed by Section 65B and that Sections 63 and 65 would continue to be valid and that the same evidence may be filed under either of these.
The effect of such a judgement is that it negated the existence of Section 65B and widened the scope of secondary digital evidence, practically removing the question of the necessity of certificate when filing digital evidence. Its admissibility could no longer be challenged on the grounds under Section 65B alone as the Sections 63 and 65 would also apply.
This could be said to be going against the spirit of the law as strict regulations were placed to ensure that digital evidence presented to the Court was not tampered with. The requirement of the certificate and verification by an authority in the field are safeguards to prevent false evidence and the broadening of the law takes away these safeguards.
This case, by interpreting the law such that digital evidence was not bound solely by Section 65B, opened the floodgates for all digital evidence and made the amended provisions basically redundant. This position was challenged and changed in the subsequent case of Anvar P.V v P.K Basheer & Ors.
Anvar P. V. v. P. K. Basheer & Ors.
In this case, the issue was the appeal made by a contestant in an election to the Kerala Legislative Council. Among the evidence provided to the Court were electronic records whose admissibility came to be questioned. These electronic devices were not the original CDs but recordings of the same. Thus, not being primary evidence, their admissibility under Section 65B was contended.
The Court here held that all the requirements of Section 65B have to be strictly complied with when submitting digital evidence. The case of State v Navjot Sandhu was overruled on this point and it was made mandatory for all digital evidence to carry a certificate with it at the time of submission. The Court also held that, only if the electronic record was in consonance with the requirements of Section 65B, the question as to its genuineness could arise. If the evidence did not comply with the same, it could not be considered in Court. The Court refused to accept the evidence given by the appellant, that is, the recording of the CD, as the secondary evidence.
In this case, the jurisprudence that had held sway for over nine years was changed and Section 65B became relevant again. The Court considered Section 65A and 65B as a self-sufficient code to govern the admissibility of digital evidence. By using the principle wherein the special legislation prevails over the general and by calling the amended Sections as special legislation, they held that it prevails over the general law of submitting secondary evidence.
This case changed the jurisprudence back to the pre-Navjot Sandhu days by strictly applying the law again. It should be noted that this judgement was pronounced by a three-judge bench of the Supreme Court and that all future judgements that disagreed with this are division benches. Therefore, this judgement has not been overruled till date.
Sonu v. State of Haryana
This case and the one following it both disagreed with Anvar and refused to be bound by it. By going against a bench of higher strength and questioning its validity, they created a new facet to the issue.
The facts in the case involve the abduction and murder of one Ramesh Jain. In the investigation, six people were accused and convicted in the Trial Court. A crucial convicting factor of one of the accused was that of CDRs (Call Detail Records) which were procured from phone companies, but they were not submitted with the certificate required under Section 65B of the Indian Evidence Act. The same was challenged in the Supreme Court. The Court placed great relevance on the case of RVE Venkatachala Gounder and held that the admissibility of the evidence could not be challenged at the appellate stage and if there was a discrepancy, it should have been brought up when the evidence was submitted in the trial court itself.
The Court refused to be completely bound by Anvar and went on to create differences between substantial acceptance and procedural acceptance. It did not say that the requirements of Section 65B need not be fulfilled but held that the noncompliance cannot be brought up in the appellate stage. The Court expounded on the power to waive a piece of evidence in a criminal trial and held that if the evidence was not contested when it was first submitted, it could not be disputed in the appellate stage.
The Court also spoke about the doctrine of ‘prospective ruling’, which is borrowed from American jurisprudence. It holds that the decision of the Court in a particular case does not apply retrospectively and only applies to future cases. There also exists another doctrine, namely, stare decisis, which states that a decision of Court will be binding on Courts or simply, the doctrine of precedent. This was the doctrine that held sway in India till the A.K. Gopalan case.
The Court decided that it was not wise to apply this case retrospectively as it may lead to the re-opening of many decided cases but also felt that it could not decide on the prospective ruling and therefore left it to be decided by another bench of greater strength. The effect of this case is that Anvar has been brought into question and its binding value on future cases is not certain. Further, by laying down that the admissibility of evidence could not be questioned in the appellate stage, the Court barred relief in all cases wherein the admissibility was not contested at trial.
Shafhi Mohammad v. State of Himachal Pradesh
In this case, the Court disagreed with the Anvar case on the point that the Sections 65A and 65B were a complete code on the matter of digital evidence. It held that the requirements of Section 65B were merely procedural in nature and that they may be relaxed or foregone in the interest of justice, and if the Court was satisfied with the authenticity of the evidence, it could relax the procedures based on the facts in the interest of justice.
However, by using such an ambiguous and undefinable word, the Court may have over broadened the scope of the Section as ‘interest of justice’ is not a concrete term. While the Court’s reasoning that the two sections do not constitute a code is well founded, its opinion that the entire procedure may be subverted and that the certificate is not mandatory is questionable.
By giving Courts the ability to subjectively apply a law that was made to govern all digital evidence, they are entering a very problematic area. It is observed that if the Court is satisfied with the authenticity of the evidence, it can forego the procedure, but the purpose of the procedure was to establish the authenticity of the document. As observed by the Court on multiple occasions, it is very easy to tamper with digital evidence which is why stringent safeguards are needed.
The case also did not lay down guidelines on how to determine the authenticity of the evidence it is examining. Therefore, the option to insist on compliance with the requirements of Section 65B is entirely left to be subjectively determined by the Courts on a case-to-case basis.
Thus two separate lines of reasoning lay open for interpretation. Since none of the cases since 2014 have been overruled, it has led to a very uncertain area of law and there is an urgent need for the Courts to clarify on this position.
Therefore, there exists two positions of law presently. One laid down by the Anvar case which enforces strict compliance with the Section 65B and one in the latest case of Shafhi Mohammad v State of Himachal Pradesh, which holds that the requirement may be foregone in the interest of justice.
This is very problematic in the current society when most of the documents are digitized and with growing awareness of reducing physical documents and the added benefits of durability that digital documents provide, the amount of digital evidence is increasing too. The unsettled law in such a topic can lead to disastrous consequences.
I agree with the Anvar judgement and feel that the law should be followed strictly. The Legislature made the certificate a mandatory requirement as falsification of digital evidence is easier than physical evidence. It also crosses into the grey area of judicial activism where the judges decide whether or not a law made by the Legislature applies or not. Any practical problems that may be faced in enforcing the provision should lead to a response from the Legislature, rather than the Judiciary deciding to selectively apply a provision.
It can only be hoped that this unsettled position of law is cleared at the earliest by the Supreme Court or certain amendments are introduced into the Act to rectify this discrepancy as an unsettled position of law in submitting evidence in this age of digitization can lead to a grave miscarriage of justice.