THE
COHESION OF LAW, JUSTICE, AND TECHNOLOGY
By
PRAVEEN DALAL*
The aim of
this Article is to explore how far the impact of information technology has
been felt by the judicial system functioning in India. The Article further
depicts the acceptance and use of the medium of information technology by the
highest judiciary in India.
Introduction:
The first
duty of a court is to do justice. If the “rule of law” has been declared to be
a “basic feature” of the Constitution, which cannot be taken away even by
exercising the constitutional power of amendment, then “rule of justice” is
definitely above it and deserves the status of the basic feature of the
constitution. This is so because the concept of justice is wider and is of
greater importance than the rule of law. This does not mean that one can
ignore the concept of rule of law. It must be appreciated that both rule of
law and rule of justice must go hand in hand to make the justice system just,
fair and reasonable. In today’s world we cannot afford to say that “justice
must not only be done but it must also be seemed to be done”. The concept of
justice requires that:
(1) it must
firstly be done in a just ,fair and reasonable manner,
(2) it must be
seemed to be done, and
(3) it must be
“felt” to be done.
Thus, unless
this third element of “felt to be done” is satisfied, the concept of justice
is not complete because this third element is the most important component of
justice delivery system. The public at large in India has a great faith in
Indian judiciary and this third element is absolutely essential to maintain
and preserve that faith and confidence. A court of law cannot render justice
unless the ultimate decision is based on the contemporary law as prevailing in
the society. A decision based on an old law which does not satisfy the
requirements of the present situation and environment should be avoided.
In such a situation the efforts of the courts should be to give the law a
“purposive, updating and an ongoing interpretation”. This position makes the
interface of justice delivery system with the information technology
inevitable and unavoidable. We cannot allow the dead hand of the past to
stifle the growth of the living present. Law cannot stand still; it must
change with the changing social concepts and values. If the bark that protects
the tree fails to grow and expand along with the tree, it will either choke
the tree or if it is a living tree, it will shed that bark and grow a new
living bark for itself. Similarly, if the law fails to respond to the needs of
changing society, then either it will stifle the growth of the society and
choke its progress or if the society is vigorous enough, it will cast away the
law which stands in the way of its growth. Law must therefore constantly keep
on adapting itself to the fast changing society and not lag behind.
Thus, we cannot afford to take the information technology revolution lightly.
Legislative efforts to bring technology revolution:
To meet the
challenges posed by the information technology, the Parliament has enacted the
Information Technology Act, 2000. The aim of the Act is to provide a sound
base for e-governance and e-commerce. It must be noted that the e-governance
base can be effectively utilized for maintaining a sound justice delivery
system. The following provisions of the Act reflect India’s determination to
utilize the benefits of e-governance for judicial purposes:
(1) Legal Recognition of E-Records – Section 4
provides that where any law requires that information or any other matter
shall be in writing or type written or in printed form. Such requirement shall
be deemed to have been satisfied if such information or matter is rendered or
made available in an e-form and accessible so as to be usable for a subsequent
reference. The term e-record means data, record or data generated, image or
sound stored, received or sent in an e-form or microfilm or computer generated
microfiche.
The term e-form, with reference to information, means any information
generated, sent, received or stored in media, magnetic, optical, computer
memory, microfilm, computer generated microfiche or similar device.
Thus as an alternative to paper based record, e-record has been recognised as
a medium of communication and storage of information. Further, if an e-record
is authenticated by digital signature, it can be produced as evidence for the
inspection of the courts. This arrangement is definitely hassle free and more
transparent as compared to traditional methods of record keeping. Further, it
is not prone to tampering unlike paper-based record, which is difficult to
maintain and has its own limitations.
(2) Legal Recognition of Digital Signatures-
Section 5 of the Act mandates that if any information or any other matter is
required by law to be authenticated by affixing the signature, then such
requirement shall be deemed to have been satisfied if such information or
matter is authenticated by means of digital signature affixed in the
prescribed manner. The type of digital signature that shall be used to
authenticate an e-record shall be as per the rules that may be framed by the
Central Government. The rule may prescribe the manner or procedure to
facilitate identification of the person affixing the digital signature. It may
also prescribe the safeguards to ensure integrity, authenticity and
confidentiality of e-records. Further the rule may provide any other matter
which is necessary to give legal effect to digital signatures.
(3) Use in Government and its Agencies-
Section 6 of the Act recognises use of e-records and digital signatures in
government and its agencies for filing, issue, grant, receipt or payment of
money as an acceptable mode. The Central Government as well as the State
Governments is empowered to prescribe the manner and format in which the
e-records shall be filed, created, retained or issued. They may prescribe the
manner or method of payment of any fee or charges for filing, creation or
issue of any e-record.
(4)
Retention of E-Records- Section 7 is an enabling section, which
provides that if any law mandates that documents, records or information are
required to be retained for any specific period, then, that requirement shall
be deemed to have been satisfied if the same is retained in e-form.
(5) Electronic-Gazette-
Publication of official gazette in e-form is permitted by Sec.8 of the act.
Accordingly, where any law requires publication of rule, regulation, order,
bye-law, notification or other matter in the gazette, publication thereof in
e-form is permitted. If such publication is made in the e-form, the
requirement of publication in the official gazette is deemed to have been
fulfilled. When an official gazette is published in printed form as well as
electronic gazette, the date of publication shall be the date on which the
gazette was first published in any form.
(6) Non-Absolute Right- The provisions of Sec.9
mandates that e-governance, as envisaged in the Information Technology Act,
does not confer a right upon any person to insist any Ministry or Department
of the Central or State Government or any authority or body to accept, issue,
create, retain or preserve any document in the form of e-records or to
participate in any monetary transaction in the e-form. Thus, sufficient
safeguards have been taken to establish a proper and timely e-governance base.
It must be noted that to give
effect to these provisions appropriate amendments have been made in the I.P.C,
1860, the Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and
the Reserve Bank of India Act, 1934.These amendments have made these statutes
compatible with the “e-justice system”.
Judicial reception of information technology:
The judicial response vis-à-vis information
technology is positive and technology friendly. In M/S SIL Import, USA v
M/S Exim Aides Silk Exporters
the words “notice in writing”, in Section 138 of the Negotiable
Instruments Act, were construed to include a notice by fax. The Supreme Court
observed: “A notice envisaged u/s 138 can be sent by fax. Nowhere is it said
that such notice must be sent by registered post or that it should be
dispatched through a messenger. Chapter XVII of the Act, containing sections
138 to 142 was inserted in the Act as per Banking Public Financial Institution
and Negotiable Instruments Laws (Amendment) Act, 1988.Technologiacl
advancements like Fax, Internet, E-mail, etc were on swift progress even
before the Bill for the Amendment Act was discussed by the Parliament. When
the legislature contemplated that notice in writing should be given to the
drawer of the cheque, the legislature must be presumed to have been aware of
the modern devices and equipments already in vogue and also in store for
future. If the court were to interpret the words “giving notice in writing” in
the section as restricted to the customary mode of sending notice through
postal service or even by personal delivery, the interpretative process will
fail to cope up with the change of time. So if the notice envisaged in clause
(b) of the proviso to section 138 was transmitted by Fax, it would be
compliance with the legal requirement”.
In Basavaraj R. Patil v State of
Karnataka
the question was whether an accused need to be physically present in court to
answer the questions put to him by the court whilst recording his statement
under section 313. The majority held that the section had to be considered in
the light of the revolutionary changes in technology of communication and
transmission and the marked improvement in the facilities of legal aid in the
country. It was held that it was not necessary that in all cases the accused
must answer by personally remaining present in the court.
In State of Maharashtra v
Dr.Praful.B.Desai
the Supreme Court observed: “The evidence can be both oral and
documentary and electronic records can be produced as evidence. This means
that evidence, even in criminal matters, can also be by way of electronic
records. This would include video conferencing. Video conferencing is an
advancement in science and technology which permits one to see, hear and talk
with someone far away, with the same facility and ease as if he is present
before you i.e. in your presence. Thus, it is clear that so long as the
accused and/or his pleader are present when evidence is recorded by video
conferencing that evidence is recorded in the “presence” of the accused and
would thus fully meet the requirements of section 273, Criminal Procedure
Code. Recording of such evidence would be as per “procedure established by
law”. The advancement of science and technology is such that now it is
possible to set up video conferencing equipments in the court itself. In that
case evidence would be recorded by the magistrate or under his dictation in
the open court. To this method there is however a drawback. As the witness is
not in the court there may be difficulties if commits contempt of court or
perjures himself. Therefore as a matter of prudence evidence by video
conferencing in open court should be only if the witness is in a country which
has an extradition treaty with India and under whose laws contempt of court
and perjury are also punishable”.
In Sakshi v U.O.I
the Supreme Court observed: “The whole inquiry before a court being to elicit
the truth, it is absolutely necessary that the victim or the witnesses are
able to depose about the entire incident in a free atmosphere without any
embarrassment. Section 273 Cr.P.C merely requires the evidence to be taken in
the presence of the accused. The section, however, does not say that the
evidence should be recorded in such a manner that the accused should have full
view of the victim or the witnesses. Recording of evidence by video
conferencing has already been upheld. Moreover, there is a major difference
between substantive provisions defining crimes and providing punishment for
the same and procedural enactment laying down the procedure of trial of such
offences. Rules of procedure are handmaiden of justice and are meant to
advance and not to obstruct the cause of justice. It is, therefore,
permissible for the court to expand or enlarge the meanings of such provisions
in order to elicit the truth and do justice with the parties. Thus, in holding
trial of child sex abuse or rape a screen or some arrangements may be made
where the victim or witness (who may be equally vulnerable like the victim) do
not see the body or face of the accused. Recording of evidence by way of video
conferencing vis-à-vis Section 273 Cr.P.C is permissible”.
The above discussion shows
that the judiciary in India is not only aware of the advantages of information
technology but is actively and positively using it in the administration of
justice, particularly the criminal justice.
Conclusion:
The advent of information
technology has changed the mode of working of almost all the spheres of the
life. The justice delivery system has also been benefited by this
technological revolution. It must be noted that one of the cardinal rule of
interpretation is that the Parliament intends the Courts to apply an ongoing
Act a construction that continuously updates its wordings to allow for changes
since the Act was initially framed. An enactment of the former days is thus to
be read today, in the light of the dynamic processing received over the years.
This valuable and golden rule of interpretation has been properly appreciated
and adequately applied by the Indian judiciary. Thus, it can be safely
concluded that the “E-justice system” has found its existence in India.
I thank Mr Praveen Dalal for the following words sent
along with this article. I feel encouraged and rejuvenated to redouble my
efforts....Naavi, 30th July 2004
"Kindly accept my congratulations for providing
pioneer work in the field of “Cyber laws”. The information provided on
your web site is highly informative and educative in nature. A person who
is dealing in the field of cyber law cannot afford to ignore the contents
and information provided therein.
I wish to “dedicate” an Article titled “The cohesion of law, justice and
technology” to you and your web site.
Kindly consider the same.
Hoping for a positive and favourable response.
Sincerely yours
Praveen Dalal
(Advocate, Delhi High Court)"
