Chapter I

Introduction:

a) Development in science and technology:

Where, then, do we find the peculiar impact of science on law in modern times?
In answer to this query, it may be stated that the peculiarity lies in this-that the points of
contact between science and the law have, in modern times, increased in their number and
intensity. Each year brings a fresh crop of scientific discoveries. Knowledge that was
accumulated a decade ago becomes out of date. Fresh fields are trodden, fresh avenues
explored, fresh phenomena unearthed every year. These discoveries and explorations increase
not only in quantity and number; they touch individual and social life at so many points.
These are the points that ultimately become the points of contact between science and the
law. It is in this manner that scientific developments result in an increase in the need of legal
response to the various points of contact. A country would be able to deal with this situation
satisfactory to the extent to which its legal machinery that is to say, the machinery concerned
with the formulation, administration, interpretation and re-formulation of the law,- takes
adequate steps wherein the legal response referred to above finds Its reflection in
a satisfactory manner .
Certain scientific techniques could be abused. Need to protect
indlvidua1 liberty against unwarranted interference with privacy, which is technically
possible, is an example of the need to create legal protection against abuse of technology. It
may be elementary, but it is worth pointing out that the law acts only on human beings, and is
concerned only with the conduct of human beings. It is not therefore every scientific
development that may create legal problems. For example, the purely scientific discoveries
have been revolutionary - discovery of X-Ray (Roentgen 1895), psycho-analysis (Freud
1900), Mendelism (1900), radium (Curie 1903). But these did not rise any socio-legal
problems. On the other hand, disintegration of the atom (Lord Rutherford 1919) had
important consequences in the course of time. Legal response to technology is not new. The
greatest events of the 15th century were the invention of typography about the middle of that
century and the geographical discoveries initiated by Henry the Navigator, reaching a climax
at
the end of the century with Columbus and others. These geographical discoveries continued
during the 16th century and immeasurably increased human experience in many directions.
The invention of printing led to a far greater diffusion of ideas than had been possible before
it. For the first time, the progress of knowledge could be registered forever as soon as it was
made, standardised and transmitted to every corner of the civilised world. The discovery of
printing was so pregnant that it is well to consider it as the beginning of a new period.
Printing, and the abuses regarded as likely to result from a wide dissemination of ideas, led to
regulatory measures in law. Many of these measures were politically controversial and some
have passed into the oblivion of history. We are riot, however, concerned with their merits.
We are concerned with those measures as illustrating the response of the law to technology.

Recent Scientific Developments:

During the last two decades or so, there have been certain scientific developments and
technological inventions that require regulation in the interests of society and to prevent
abuse. The emergence of multifarious devices that permit a prying into the private affairs of
men and women through what has come to be known as “electronic surveillance" and similar
other devices, has led to a move in many countries for the enactment of legislation to regulate
them. The question is essentially one of the protection of the personal integrity and privacy of
the human being from the abuse of technology. There is one important technological
development that has not yet been attended to effectively by society and law. With growing
urbanisation and the mechanisation of transport, the number of road traffic victims is
gradually
increasing. While the law has devoted its attention to certain aspects-preventive,
penal and compensatory in respect of accidents on the road caused by motor
vehicles, much more remains to be done by society. The measures to be adopted may not
necessarily be legal. But they do require an inter-disciplinary study. There is a limit beyond
which punitive, or even curative, action may not succeed. Preventive measures should be
thought of more seriously than they have been thought of so far.

(I)(b) science and technology vis a vis sustainable and equitable

development:
‘Technology transfer’ means the use of knowledge and when we talk about transfer of the
technology, we really mean the transfer of knowledge by way of an agreement between the
states or companies. ‘Transfer’ does not mean the movement or delivery; transfer can only
happen if technology is used. So, it is application of technology and considered as process by
which technology developed for one purpose is used either in different applications or by a
new user.
A. Elements of Technology
Technology generally would comprise the following elements:
 Process Know how
 Design Know how
 Engineering know how
 Manufacturing know how
 Application Know how
 Management know how
The technology what we have utilizing today supports the necessity for human comfortable
life zone. The field in improvements is basically takes place on Medicine, Energy,
Agriculture and Resource Management which makes greater impact on the society. Sound
decision making and economic planning are necessary for nation’s sustainable development.
The global look must address the scientists and entrepreneurs from all over the nations for
towards the improvement of sustainability. The report framed by Brundtland commission
defines the sustainable development as “the development that meets the needs of the present,
without compromising the ability for the future generation to meet their own needs”.
II. NUCLEAR TECHNOLOGY:

Technology can either be developed through own research and development or it can be
purchased through indigenous or imported sources. Radiation techniques are used in
agriculture for producing high yields with better crops. The technique called Nuclear
Sterilization (NS) is used to eradicate the tests flies and have also been used to control the
harmful effects of pesticides for human being. Radiation techniques are also has an
application to preserve food by eliminating bacteria and pathogens that can cause disease. It
also prevents the harmful effects of chemicals that are presently being used in fumigation of
food. For effective sustainable agriculture and to get maximum benefits such as water and
fertilizer the nuclear techniques are used to optimize the intake of water and fertilizer-uptake.
This technique is also used for mapping of micronutrients. Nuclear techniques are used in
mutation-breeding have resulted in producing improved varieties of cotton, wheat, chickpeas,
mungbeans and rice.

III. HUMAN HEALTH AND MEDICINE

Human health is one of the key factor that must be addressed today’s sustainable
development. Nuclear techniques are used to diagnose and treatment of diseases. Nowadays it
is one of the powerful diagnostic techniques. Radioscopic techniques are used in the area of
health science in treatment of cancer as the cases of cancer are increasing rapidly all over the
world. Gamma irradiation facility is used for sterilizing the medical equipment.

IV. WATER RESOURCES

Clean water is the need of the hour all over the world and an increasing awareness in the
world that fresh water is a precious and limited resource. Ground water is shrinking due
to over-exploitation and being lost due to degradation of water –quality from pollution cause
by humans. The standard of living and over population are the main demand for produce
clean water. Global warming is also one of the additional inputs for demand for water.
Sustainable improvement in freshwater resources requires appropriate technologies like
radioactive isotopes and radioactive tracers.

V. INDUSTRY

Non-destructive Testing (NDT) is a quality control technique and quality assurance is the key
requirement in modern industry. Services using nuclear control techniques are being used in a
number of industries, including oil sectors, fertilizers and chemical plants. The services are
also extendable to hydroelectric and thermal power plants. The quality assurance laboratories
using nuclear analytical techniques are essential requirements in industries.

VI. INFORMATION TECHNOLOGY

Information technology plays a vital role in today’s societal importance, knowledge and
intelligence empowers both people and machines with information. The utilization of
machines, men, method and money contributes effective sustainable development.
Empowered people are playing the role as citizens to support environmentally sustainable
society similarly empowered machines have the knowledge to minimize energy and material
use, wastes and pollutants. Information technology improves the facilities faster, cheaper and
equitable and resource efficient access to information, improving learning environment for
people. Internet tools facilitate people to access the information globally and processing,
storing, transmission made easier in electronic form.

VII. BIOTECHNOLOGY

The fields of biotechnology are a multidisciplinary nature and contain many scientific
approaches on it. It began in 70‟s with genetics and DNA technology [1]. The genetic
engineering is covers almost all areas including, Agriculture, Environment, Industry and
Human Health. The applicationof biotechnology knowledge gives human kind the ability to
alter the structure of life itself. The modern concepts like Cloning, Genetic Algorithm, Ant
colony optimization, Swarm Optimization and Artificial Intelligence techniques are and new
heuristics are developed on nature inspired plants and animals [2], [3]. Biotechnology
techniques are boom for the human community and it depends on how it is used and
controlled. The genetic engineering has got the industrial revolution when it was introduced
and some the areas in which it perform well such as produce new and safer vaccines, treating
genetic diseases, increase crop-yields, decrease production costs, improve food nutritional
values, develop biodegradable plastics and decrease water and air pollution [4].

VIII. SUSTAINABILITY IN THE AREA OF FINANCE

Access to sound technologies is essential for sustainable development. The investment

decisions and transfer of technology are key vital part during trade. The imported technology
has to be compromised, against the bargaining position [5]. The vendor selection and
selecting areas will safe guard the environment and enabling them to upgrade the human
resources. The capacity building through technology acquisition, skill development and
evolution of local policies and support for technology transfer process. The problems like
market intervention of intermediation and matching technology with suitable applications,
brokering partnerships, negotiations and devising financial packages. Replication or indirect
effects must not affect the results and creation of such funds from includes: Project designs;
through demonstrations, Resource mobilization, Improved regulatory frameworks and
standards, Augmenting technical capacity, Devising new institutional models, and
Encouraging stakeholder dialogues.

IX. SUSTAINABLE HUMAN RESOURCE MANAGEMENT

Human Resource Development is the important area for sustainable development of
managing the human resources. Something from our own experience and some from
experiences of others it’s a way of transferring the knowledge and skill to offspring through
grooming [6]. Everyone expects their skill and knowledge has to be transferred to their
offspring’s and to become more respectable members of their societies. Some of the critical
factors for sustainable HRD are the population explosion, the rising expectations and the on
going knowledge revolution.

X. SUSTAINABILITY ON IMMEDIATE TECHNOLOGY

The change in technology should not confuse with the technical changes that takes place
nowadays. Change is now necessitated by national and global environment concerns were
that the need to the poor must be addressed. “…the major obstacle to the development of the
rural poor is the so-called educated man.”-- Bunker Roy, Indian Express, 1983 [7], [8]. As
social, economic and political problems increase in our technology-revolve world, it is
important to inquire where we have gone wrong, and to seek alternative paths to sustainable
development. Government of India issues from time to time lists of Industries “where foreign
investment may be permitted”. [9], [10]. No doubt, a broad technology base has been created
in the country, yet a need to update the production technology may arise due to constant
technological advancements in developed countries .Government of India (foreign investment
Promotion Board) may consider import of technology.

I)C) Impact on human rights on science and technology:

The recognition of water and sanitation as a human right illustrates two useful lessons for
understanding the relationships between technology, engineering and human rights. The first
is the process by which human rights proliferate, and the potential dilution of fundamental
rights. The second lesson has to do with the ambiguity of human rights as either a constraint
on, or an encouragement to science and its applications. Should human rights guide public
policy to slow or stop research and development in certain areas? Or rather, is human rights a
normative framework to promote advances in science and technology? Meier et al. provide a
narrative of how a claim (in this case to improved water and sanitation) was transformed into
an internationally recognized human right through formal vote of the international
community (“Translating the Human Right to Water and Sanitation into Public Policy
Reform,” 2014 ). Hall et al. propose a broadening of the definition of the right to water in
order to “more effectively address a comprehensive range of socio-economic rights in rural
and peri-urban areas” (“The Human Right to Water: The Importance od Domestic
andProductive Water Rights” 2013). Both assume the value of expanding the corpus of
international human rights. While Meier et al. are concerned about translating this right from
formal international and national pronouncements into practical action at the local level, Hall
et al. suggest “adopting a more holistic interpretation of existing international law on the
human right to water” (Hall et al. 2013). This process in the case of the right to water was
novel in that the main human rights instruments do not refer to access to potable water for
drinking and adequate systems of sanitation as a human right, except as an implied element of
the right to an adequate standard of living, including food and health. This was the case until
the adoption by the United Nations (UN) Committee on Economic, Social and Cultural
Rights in 2002 of the General Comment on the Right to Water (CG15) (United Nations 2002)
and, eight years later, the adoption by the General Assembly of Resolution 64/292 (United
Nations 2010). The Committee drew on three main arguments to construct this right: one
based on evidence, one on logic, and the third on legal construction. The Committee cited
evidence from the World Health Organization of the magnitude of the uncontested and urgent
problem of water: “Over one billion persons lack access to a basic water supply, while
several billion do not have access to adequate sanitation, which is the primary cause of water
contamination and diseases linked to water” (United Nations 2002). The second argument is
based on a logical construction, according to which water as a human right is a necessary
consequence of the nature of this commodity: “Water is a limited natural resource and a
public good fundamental for life and health. The human right to water is indispensable for
leading a life in human dignity. It is a prerequisite for the realization of other human rights”
(United Nations 2002). The third basis for positing the right to water as a human right is the
legal interpretation of existing human rights norms: “The right to water has been recognized
in a wide range of international documents, including treaties, declarations and other
standards” (United Nations 2002). Thus the right to water and sanitation bypassed most of the
steps in the norm-creating process.
A derivative right, it is difficult to claim the right to water is a binding norm. Indeed, states
have committed to what is written in the treaties but are not legally bound by how expert
bodies interpret them. The concept of derivative rights can be valuable in strengthening the
legal architecture of human rights, not to contribute to the proliferation of rights but rather to
identify the evolving practice that can crystallize into what is called a lex ferenda, that is, a
norm that is evolving in the direction of becoming recognized law. It has long been argued
that new rights must be subjected to “quality control” to avoid expanding the list of rights
unproductively (Alston 1984). The most likely candidate-rights to follow the path of the right
to water and sanitation in this emerging trend to expand on the list of human rights—such as
the right to essential medicines and devices, the right to a safe, clean, healthy and sustainable
environment, or the right to tobacco control as derivative from the right to health and to
life—have close links to advances in science and technology (Dresler, C. & Marks, S. 2006;
Marks 2009). It may be useful, therefore, to recall the way in which the relation between
human rights and science and technology has been dealt with in the past. The right to benefit
from advances in science and technology In its 1947 statement on the “Grounds of an
International Declaration of Human Rights,” the Committee on the Theoretical Bases of
Human Rights, convened by UNESCO, included a“Right to Share in Progress” according to
which “every man has the right to fully access the enjoyment of the technical and cultural
achievements of civilization” (UNESCO 1948). According to committee member J. M.
Burgers, Professor at the Technical College of Delft, the Netherlands, “the part played by
science in modern society makes possible and at the same time puts upon us the obligation of
international co-operation, as well as of looking into the future in the interest of coming
generations” (UNESCO 1948). He articulated a duty of the community “of setting aside from
its funds means for elaborate scientific research, as a means for alleviating wants of mankind,
for the development of mankind, and for the pursuit of truth” (UNESCO 1948). These ideas
are reflected in article 27 of the Universal Declaration of Human Rights, followed by the
International Covenant on Economic, Social and Cultural Rights (ICESCR), which stipulates
in Article 15 that States Parties “recognize the right of everyone” both “to enjoy the benefits
of scientific progress and its applications” and “to benefit from the protection of the moral
and material interests resulting from any scientific, literary or artistic production of which he
is the author” (United Nations 1966). This right was indirectly alluded to in the 1975
Declaration on the Use of Scientific and Technological Progress in the Interest of Peace and
for the Benefit of Mankind (United Nations 1975). In that declaration, the General Assembly
called for “measures to extend the benefits of science and technology to all strata of the
population…” (United Nations 1975). UNESCO’s Intergovernmental Bioethics Committee
(IGBC) and the International Bioethics Committee (IBC) addressed access to science and
technology in the 1997 Universal Declaration on the Human Genome and Human Rights
(“states should seek to encourage measures enabling … developing countries to benefit from
the achievements of scientific and technological research so that their use in favour of
economic and social progress can be to the benefit of all”) (UNESCO 1997), and the 2005
Universal Declaration on Bioethics and Human Rights (“The aims of this Declaration are …
(d) to recognize the importance of freedom of scientific research and the benefits derived
from scientific and technological developments… [and] to promote equitable access to
medical, scientific and technological developments as well as the greatest possible flow and
the rapid sharing of knowledge concerning those developments and the sharing of benefits,
with particular attention to the needs of developing countries”) (UNESCO 2005). Even more
explicit is Article 15 of the Universal Declaration on Bioethics and Human Rights on sharing
of benefits, in which the General Conference of UNESCO affirms that “Benefits resulting
from any scientific research and its applications should be shared with society as a whole and
within the international community, in particular with developing countries” and enumerates
seven forms of cooperation to give effect to this principle: “(a) special and sustainable
assistance to, and acknowledgement of, the persons and groups that have taken part in the
research; (b) access to quality health care; (c) provision of new diagnostic and therapeutic
modalities or products stemming from research; (d) support for health services; (e) access to
scientific and technological knowledge; (f) capacity-building facilities for research purposes;
(g) other forms of benefit consistent with the principles set out in this Declaration”
(UNESCO 2005). The right to enjoy the benefits of scientific progress was recently
resuscitated in part by UNESCO (UNESCO 2009) and in part through a project of the
American Association for the Advancement of Science (AAAS), which led, among other
outcomes, to a Board of Directors’ Statement recognizing the right as lying at the heart of the
mission of the organization (AAAS2010), an article in Science magazine (Chapman, A., &
Wyndham, J., 2013) and a study on United States (US)-based scientists’ perspectives on the
meaning and application of the right (AAAS 2013).
Threats to human rights from science and technology
The dangers of the misuse of science were also a concern of the UN in the 1940s through the
1990s anticipating several issues that occupy the front pages today. The International
Conference on Human Rights of 1968 adopted the Proclamation of Tehran predicting that,
“[w]hile recent scientific discoveries and technological advances have opened vast prospects
for economic, social and cultural progress, such developments may nevertheless endanger the
rights and freedoms of individuals and will require continuing attention” (United Nations
1968a). In a follow-up resolution, the General Assembly agreed that “recent scientific
discoveries and technological advances … may … endanger the rights and freedoms of
individuals” and requested a study on four issues of concern with regard to human rights
arising out of science and technological advancement, namely, (1) respect for privacy “in
light of advances in recording and other techniques;” (2) protection of physical and
intellectual integrity in light of advances in biology, medicine and biochemistry; (3) limits on
the use of electronics to protect the rights of individuals; and (4) “generally, the balance that
should be established between scientific and technological progress and the intellectual,
spiritual, cultural and moral advancement of humanity” (United Nations 1968b). The final
report was issued at the end of December 1970, covering all the issues assigned, as well as
the hazards arising from atomic radiation (United Nations 1970; Weeramantry, C. G. 1990)
Five years later, the Declaration on the Use of Scientific and Technological Progress in the
Interest of Peace and for the Benefit of Mankind was adopted, expressing concern “that
scientific and technological achievements can be used to … deprive individuals and peoples
of their human rights and fundamental freedoms” and calling on states to “ take appropriate
measures to prevent the use of scientific and technological developments, particularly by the
State organs, to limit or interfere with the enjoyment of the human rights and fundamental
freedoms of the individual.” (United Nations 1975) Almost two decades later, the World
Conference on Human Rights (1993) adopted the Vienna Declaration and Program of Action,
which noted “that certain advances, notably in the biomedical and life sciences as well as in
information technology, may have potentially adverse consequences for the integrity, dignity
and human rights of the individual, and call[ed] for international cooperation to ensure that
human rights and dignity are fully respected in this area of universal concern.” (United
Nations 1993) These early concerns of the United Nations regarding the negative impact that
certain aspects of science and technology can have on human rights anticipate many urgent
issues we face today

II- science and tech. & relation with law

Clinical trials form an integral part of the drug discovery process worldwide. Clinical trials
are the set of practices required to certify a new drug molecule as safe and efficacious for the
market. Medical research, in general, is a good thing and absolutely necessary to cure number
of chronic diseases. At present in India we have 40 million asthmatic patients, about 34
million diabetic patients, 8-10 million people with HIV, 8 million epileptic patients, 3 million
cancer patients, more than 2 million cardiac-related deaths, 1.5 million people with
Alzheimer's disease; 15% of the population is hypertensive, and 1% suffers from
schizophrenia In order to give best treatment to above diseases research on humans is both
necessary and desirable. A clinical trial is defined as "any research study that prospectively
assigns human participants or groups of humans to one or more health-related interventions
to evaluate the effects on health outcomes." Interventions include not only drugs but also
cells and other biological products, surgical procedures, radiological procedures, devices,
behavioural treatments, process-of-care changes, preventive care, etc. A set of guidelines are
already in place in India for the ethical conduct of studies to safeguard the interests of
patients or volunteers participating in the study. Research subjects' have long been
controversial, even after decades of debate, experience, and Regulation. In this review, this
paper aims at discuss the International and National Laws on Clinical Trials, ethics in clinical
research, next it reviewed some current controversies on clinical trials and concludes with a
discussion we need more standards and Legislations for future medical research on human
subjects.

Clinical Trials Practice in India

Global clinical research is exploring India. Yet, it is certainly not the West that is introducing
clinical research to India. Two ancient scripts, Charaka Samhita (a textbook of medicine)
and Sushruta Samhita (a textbook of surgery), compiled as early as 200 B.C. and 200 A. D.
respectively, show India's age-old proficiency in medical research. However, a lot has
changed in the clinical research scenario since then. Today, clinical trials are conducted
through a regulated approach following certain guidelines laid down by the International
Conference on Harmonization (ICH), which is spearheaded by U.S.A., Europe and Japan.
There are number of laws governing clinical research in India.

 Indian Acts/Orders related to Clinical Trials is:

 Drugs and Cosmetics Act - 1940

 Medical Council of India Act - 1956, (amended in the year2002)

 Central Council for Indian Medicine Act - 1970

 Guidelines for Exchange of Biological Material (MOH order, 1997)

 Right to Information Act - 2005,

 The Biomedical Research on Human Subjects (regulation, control and safeguards)
Bill - 2005

Even though we have number of legislations the important one for clinical trials is The Indian
Council of Medical Research (ICMR) - 1947(amended in the year2002) , which was set up in
order to foster a research culture in India, improve and develop infrastructure and foster
community support. The Drugs and Cosmetics Act, The Medical Council of India (MCI) Act
states that all clinical trials in India should follow the ICMR guidelines of 2000. The ICMR
has a mechanism of review for its own institutions, and so do other government agencies.
Every doctor is governed by the MCI Act. Any doctor doing wrong in a trial or in practice
can be prosecuted and the hospital can be closed. The MCI Act is very strong; the MCI has
the power to take punitive measures.

The Drugs Controller General of India (DCGI) is responsible for regulatory approvals of
clinical trials in India. The DCGI's office depends on external experts and other government
agencies for advice. Additional permissions are required for the export of blood samples to
foreign central laboratories. The ICMR has a Central Ethics Committee on Human Research
(CECHR). This committee audits the functioning of this Institutional Ethics Committee
(IEC). The recently amended Schedule Y of Drugs and Cosmetic Rules order the composition
of the IEC as per the ICMR guidelines. The DCGI's office in collaboration with WHO ICMR
and many committed research professionals, has been conducting training programs for
members of the Ethics Committees across the country.
Regulatory changes in India regarding clinical trials:

Schedule Y of the Drugs and Cosmetics Act -1940 was amended in the year 2005. Earlier, we
required that all foreign drugs be retested at one phase below the highest phase of testing
abroad. Now parallel global clinical trials have come. Schedule Y now permits concomitant
phase 2 and phase 3 trials. India can become part of global trials. But even then phase 1 has
to be repeated for safety. The advantage is that, if we become part of a global trial, a part of a
global movement to develop drugs, we can demand an affordable price. For example if a new
anti-malarial drug is developed by a multinational company, India is part of the global trial;
India can have a claim on it. ICMR should not approve drugs which are not relevant to India.

India Advantage for clinical trials includes;

 large numbers of people with a range of illnesses,

 relatively low costs, availability of trained human power and infrastructure,

 high enrolment rates (higher than in the West),

 good patient compliance/ retention, and

 an "increasingly accommodating regulatory environment"

As stated earlier India have people with the right diseases. They're also 'treatment naïve' -
they will not have been able to afford treatment - so they are ideal for testing new drugs. This
situation made India as an international hub for clinical trials. Using the loopholes in the law
the multinational companies are outsourcing clinical trials to India. A recent study reveals
that outsourcing clinical trials to India may be 'rash and risky'. This opinion is drawn on the
basis of concerns about timelines for regulatory approvals, deficiencies in the functioning of
the ethics committees, and an unethical approach to the recruitment of illiterate and
vulnerable Indian people to clinical trials. In order to control the above situation and make the
clinical trials transparent the ICMR is maintaining a clinical trial registry in India. It is
described in detail below:
Clinical Trial Registration in India

In order to make clinical data and reports available to all, an online clinical registry has been
initiated by the Indian Council of Medical Research (ICMR) for the registration of any
interventional trial to ensure the following goals:

 Transparency and accountability of clinical research

 Internal validity of clinical trials

 To oversee the ethical conduct of clinical trials

 Reporting of results of clinical trials

The clinical trial registry of India (CTRI) is the online registry of prospective clinical trials in
India. This is the initiative started by the National Institute of Medical Statistics (NIMS) of
the Indian Council of Medical Research and is supported by the Department of Science and
Technology (DST) and the World Health Organization (WHO).

CTRI will create a database of prospective clinical trials in India after their registration. The
data and reports of these clinical trials and their status will be available to the public and
professionals free of cost after formal registration on their website.

Currently, the registration of clinical trials is only voluntary and not mandatory. With
increased awareness about this initiative and wide acceptance of the purpose of CT
registration, it is likely that it may become mandatory in the future for initiation of clinical
trials in India. It has been affirmed that CT registration should be done before the actual
enrollment of study subjects in the trial. The principal investigator or sponsor should share
the responsibility of CT registration. In the case of multi-centric studies, the lead investigator
or sponsor should ensure that the CT is registered. For the registration of a CT, it is essential
to declare 20 items relevant to the CT as determined by the International Clinical Trial
Registration Platform (ICTRP) of the World Health Organization (ICRTP-WHO). For
registration with the CTRI, additional items related to the EC or IRB's permission and that of
Director Controller General of India (DCGI) are included. At the end of a successful
registration, each CT is assigned a unique WHO identification number called the Unique
Trial Reference Number (UTRN).

Ethics in Clinical Research

Most basic and complex principle of clinical research ethics is informed consent. An ethically
valid informed consent has four key components: disclosure, understanding, voluntariness,
and competence. This creates challenges for researchers in paediatrics, psychiatry, emergency
and critical care medicine. One can take surrogate consent or waived consent in the following
circumstances they are for example where a study of people at risk for Alzheimer's disease,
more than 90% thought that surrogate consent was acceptable for minimal risk studies as well
as randomized trials of new medications. Whereas in case of intensive care and surgery
patients their consent is also informed consent, but in reality people are not aware of the fact
that they are in clinical trials. This is revealed in number of studies.

However, it is important to recognize that if surrogate consent were eliminated, then it would
virtually eliminate almost all critical care research because many critically ill patients are
incompetent or unable to make a sound decision. Family members are frequently unavailable,
may not know the patient's wishes, or may not be specifically legally authorized to give
consent for the patient's involvement in research. Therefore, some have questioned whether
the concept of informed consent is even applicable to research involving the critically ill.

For example in USA only certain emergency and resuscitation research can be done without
prospective informed consent. This is based on the 1996 US Food and Drug Administration
(FDA) 'Final Rule' and the US Department of Health and Human Services' parallel 'Waiver of
Informed Consent' regulations. These require community consultation, public notification,
and independent data and safety monitoring to allow exemption from informed consent

These regulations further stipulate that they can only be applied to emergency research for
which human subjects can not give informed consent because of their life-threatening
conditions (for example, unconsciousness); the condition requires immediate intervention;
available treatments are unproven or unsatisfactory; clinical equipoise exists; the research
might directly benefit the subject; the research intervention must be administered before
informed consent from the subjects' legally authorized representative is feasible; and the
responsible IRB concurs and documents that these conditions had been met.

Other methods such as deferred consent, implied consent, or delayed consent are no longer
deemed acceptable, despite previous use in early resuscitation research. However, in the 10
years since the release of the Final Rule, investigators in the USA have reported variability in
IRB interpretation, and have called for standardization and refinement of the rule. To address
these concerns, as well as concerns from ethicists and other stakeholders, the FDA recently
announced a public hearing on emergency research to be held on 11 October 2006. An
updated FDA guidance document is expected following this hearing that is intended to assist
IRBs, investigators, and sponsors in the development and conduct of emergency research
using exception from informed consent.

Informed Consent situations in India:

Experimental cancer drug tested without people's consent

In November 1999, 25 people with oral cancer who went to the government-run Regional
Cancer Centre in Thiruvananthapuram were given an experimental drug, the chemical tetra-
O-methyl nor-dihydro-guaiaretic acid (M4N) or tetraglycinyl nor-dihydro-guaiaretic acid
(G4N), though there was an established treatment for their condition. They were not told that
they were taking part in an experiment or that they were being denied an established
treatment. Only later did it become known that the trial had not been approved by the Drugs
Controller of India (approval was obtained retroactively). Further, the sponsor institution, the
Johns Hopkins University in the United States, had not given ethical clearance to the study,
but managed to release the money for research anyway.

Diabetes drug tested on humans before toxicology studies completed

In 2002, the multinational company Novo Nordisk conducted multi-centre phase III clinical
trials of a diabetes drug before receiving the results of animal studies. The study report found
that the drug, ragaglitazar, caused urinary bladder tumors in rats -- and this should have been
known before the drug went for phase I trials, let alone phase II and phase III. Ragaglitazar
was developed by Dr Reddy's Laboratories, Hyderabad, and licensed to Novo Nordisk which
conducted the trials. The trials were conducted on 650 people from North America, 200 from
Latin America, 100 from Australia / New Zealand, 800 from the European Union, and 200
from non EU Europe- -and 550 from Asia -- including 130 people from eight centers in India.
Half of these people received the experimental drug.

Drug promotion as "research"

In 2003, Mumbai-based Sun Pharmaceutical Industries Limited launched a promotional-cum-

"research" programme by getting private doctors to prescribe the anti-cancer drug Letrozole
to more than 400 women as a fertility drug for ovulation induction. They then publicized the
doctors' reports to other doctors as "research", using their network of medical representatives.
As a result Off-label prescription of drugs was banned in India, prompting the Indian Medical
Association to launch a campaign to permit off-label prescription.
Research in emergency situations

In 2003-2004 the drug company Santa Biotech ran a bioequivalence study testing its version
of the "clot-buster" streptokinase against the established one. Streptokinase is given as
emergency life-saving treatment to stroke patients. While there were various controversies
about whether the company had taken the correct permissions to conduct the study, the
important questions are: could the patients have given their consent to participate in the trial?
After this In 2002, Dharmesh Vasava was among a number of daily wage workers who were
given a psychiatric drug as part of a bioequivalence study sponsored by the Mumbai-based
Sun Pharmaceuticals. He developed pneumonia and died. The People's Union of Civil
Liberties, Vadodara, conducted an investigation into the death. PUCL suggested that the
participants were unlikely to have been able to give their voluntary informed consent to
participate. Second, was their health checked properly before entering the trial, and
monitored closely during it? Incidentally, bioequivalence studies are conducted by drug
exporters, to prove that their product is as effective as the approved branded version. They
are not needed by Indian regulatory authorities.

These are the situations where the companies conduct clinical trails based on informed
consent. All these things are happening in these days where media and communication are
developed. Look at the situations in rural areas where people suffers allot to get good food
and shelter. Number of multinationals is taking advantage of these situations for their
business purposes. Now it is the duty of ICMR to control unauthorized clinical trials in India.

The gap between the developed and developing worlds needs to be narrowed in order to
ensure global justice, particularly with respect to the widespread availability of proven
interventions in developing countries. The emphasis is to ensure that Research ethics should
be made an integral part of all biomedical research. As such every stakeholder should
consider research participants as central players, who should be protected from any harm for
which an appropriate legislation should be in place to ensure the above.

III privacy , law and technology

Relationship Between Privacy and Confidentiality

The laws of breach of confidentiality and breach of privacy at first glance seem very similar
to each other. If a doctor releases health information relating to a patient that s/he is treating
then such an act would give rise to a claim both under the law of privacy as well as under the
law of confidentiality.
Similar is the case with financial information released by a bank, etc. This makes one wonder
exactly where and how it is that the law of breach of privacy intersects with that of the law of
confidentiality. An enquiry into such a complex question of law requires a deeper
appreciation of the relationship between these two different principles of law which require a
better understanding of the origins and evolutions of these principles.
In this paper we shall try to explore the origins of both the law of privacy as well as
confidentiality as they have evolved in the field of tort law in India. Although our primary
focus is Indian law, however in order to understand the evolution of these principles it is
necessary to discuss their evolution in three common law jurisdictions, viz. the United States
of America, the United Kingdom and India. The reason for an analysis of these three
jurisdictions will become clear as the reader goes further into this paper, however for ease of
reference it would be better if the reason is clarified here itself. The concept of a right against
breach of confidentiality has existed in English common law for a very long time, however
the concept of a claim for breach of privacy originated only in American law, other than
some statutory protection granted in the last couple of decades, has still not been granted
recognition in English common law.
After a discussion of the evolution of these principles in both American and English law, we
will then discuss these principles as they exist in Indian law. This discussion will (or should)
at once become easier to understand and digest because of the deeper understanding of the
interplay between these two principles gained from a reading of the first two chapters.

Indian Law

Tort of Breach of Privacy

Any analysis of the right to privacy in India, be it in the realm of constitutional law or tort
law almost always includes within its ambit a discussion of the two celebrated cases
of Kharak Singh v. Union of India[27] and Govindv. State of M.P.,[28] which elevated the
right to privacy to the pedestal of a fundamental right under Indian law. However, an
unintended consequence of this has been that pretty much every commentator on Indian law
includes a discussion of these two cases when discussing the right to privacy, be it under
constitutional law or under tort law. However, there is one problem with such an analysis of
the right to privacy, viz. these two cases were dealing with a pure constitutional law question
and relied upon American case laws to read into Article 21 an inbuilt right to privacy.
However from a strictly tort law perspective, these cases are not relevant at all, and the
seminal case for the tort of breach of privacy would have to be the Apex Court decision in R.
Rajagopal v. State of Tamil Nadu, [29]which specifically recognized this distinction and
stated that the right to privacy has two different aspects, (i) the constitutional right to privacy,
and (ii) the common law right to privacy.
The facts of the R. Rajagopal case revolve around the publishing of the autobiography
written by the prisoner Auto Shankar, who had been placed in jail for committing multiple
murders. The autobiography contained proof of involvement of many IAS, IPS officers in his
crimes. Although Shankar had initially requested that the magazine print his autobiography,
he later requested that his story not be published. The publishers held that it was their right to
publish the autobiography while the IPS and IAS officers on the other hand claimed that Auto
Shankar was trying to defame them and wanted to ban its publication. The Supreme Court in
this case, implicitly accepts the existence of a right to privacy under Indian tort law when
"21.The question is how far the principles emerging from the United States and English
decisions are relevant under our constitutional system. So far as the freedom of press is
concerned, it flows from the freedom of speech and expression guaranteed by Article
19(1)(a). But the said right is subject to reasonable restrictions placed thereon by an existing
law or a law made after the commencement of the Constitution in the interests of or in
relation to the several matters set out therein. Decency and defamation are two of the grounds
mentioned in clause (2). Law of torts providing for damages for invasion of the right to
privacy and defamation and Sections 499/500 IPC are the existing laws saved under clause
(2). "
Discussing the distinction between the two aspects of the right to privacy, the Court held:
"The right to privacy as an independent and distinctive concept originated in the field of Tort
law, under which a new cause of action for damages resulting from unlawful invasion of
privacy was recognized. This right has two aspects which are but two faces of the same coin
(1) the general law of privacy which affords a tort action for damages resulting from an
unlawful invasion of privacy and (2) the constitutional recognition given to the right to
privacy which protects personal privacy against unlawful governmental invasion. The first
aspect of this right must be said to have been violated where, for example, a person's name or
likeness is used, without his consent, for advertising or non-advertising purposes or for that
matter, his life story is written whether laudatory or otherwise and published without his
consent as explained hereinafter. In recent times, however, this right has acquired a
constitutional status."
After a discussion of the various arguments presented by the parties (a number of which are
not relevant for the purposes of this paper), the Supreme Court laid down the following
principles regarding freedom of the press and the right to privacy:
(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters. None can publish anything concerning the above matters
without his consent whether truthful or otherwise and whether laudatory or critical. If he
does so, he would be violating the right to privacy of the person concerned and would be
liable in an action for damages. Position may, however, be different, if a person voluntarily
thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the
aforesaid aspects becomes unobjectionable if such publication is based upon public records
including court records. This is for the reason that once a matter becomes a matter of public
record, the right to privacy no longer subsists and it becomes a legitimate subject for
comment by press and media among others. We are, however, of the opinion that in the
interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a
female who is the victim of a sexual assault, kidnap, abduction or a like offence should not
further be subjected to the indignity of her name and the incident being publicised in
press/media.
(3) There is yet another exception to the rule in (1) above - indeed, this is not an exception
but an independent rule. In the case of public officials, it is obvious, right to privacy, or for
that matter, the remedy of action for damages is simply not available with respect to their acts
and conduct relevant to the discharge of their official duties. This is so even where the
publication is based upon facts and statements which are not true, unless the official
establishes that the publication was made (by the defendant) with reckless disregard for truth.
In such a case, it would be enough for the defendant (member of the press or media) to prove
that he acted after a reasonable verification of the facts; it is not necessary for him to prove
that what he has written is true. Of course, where the publication is proved to be false and
actuated by malice or personal animosity, the defendant would have no defence and would be
liable for damages. It is equally obvious that in matters not relevant to the discharge of his
duties, the public official enjoys the same protection as any other citizen, as explained in (1)
and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish
for contempt of court and Parliament and legislatures protected as their privileges are by
Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this
rule."
The above principles have ruled the roost on the issue of privacy and freedom of the press
under Indian law, with certain minimal additions. It has been held by the Delhi High Court
that even though a claim for damages may be made under tort law for breach of privacy, the
Court may even grant a pre-publication injunction to prevent a breach of privacy.[30] The
principles laid down inR. Rajagopal were further clarified in the case of Indu Jain v.Forbes
Incorporated, [31] where a case was filed by Indu Jain in the Delhi High Court to stop Forbes
magazine from featuring her family in the Forbes List of Indian Billionaires. After a
discussion of the various authorities and cases on the issue the Court summarized the
principles relating to privacy and freedom of the press and applying those principles rejected
the claim of the plaintiff. However for the purposes of our discussion these principles are
extremely useful, and have been listed below:
"(V) Public or general interest in the matter published has to be more than mere idle curiosity.
(VI) Public figures like public officials play an influential role in ordering society. They have
access to mass media communication both to influence the policy and to counter-criticism of
their views and activities. The citizen has a legitimate and substantial interest in the conduct
of such persons and the freedom of press extends to engaging in uninhibited debate about the
involvement of public figures in public issues and events. (Ref. (1994) 6 SCC 632 R.
Rajagopal & Anr. Vs. State of Tamil Nadu & Others Para 18).
(VII) Right to privacy that rests in an individual may be waived by him by express or implied
consent or lost by a course of conduct which estops its assertions. Such implication may be
deduced from the conduct of the parties and the surrounding circumstances.
(VIII) A public person or personage is one who by his standing, accomplishment, fame, mode
of life or by adopting a profession or calling which gives the public a legitimate interest in his
doings, affairs and character has so become a public figure and thereby relinquishes at least a
part of his privacy.
(IX) The standard to be adopted for assessing as to whether the published material infracts
the right to privacy of any individual is that of an ordinary man of common sense and
prudence and not an out of ordinary or hyper-sensitive man. (Ref. (2007) 1 SCC 143 Ajay
Goswami v. UOI & Ors.).
(X) Even though in this country, the freedom of press does not have presumptive priority as
in some other jurisdictions including the United States of America, however the importance
of a free media of communication to a healthy democracy has to receive sufficient
importance and emphasis.
(XI) In evaluating a relief to be granted in respect of a complaint against infraction of the
right to privacy, the court has to balance the rights of the persons complaining of infraction of
right to privacy against freedom of press and the right of public to disclosure of newsworthy
information. Such consideration may entail the interest of the community and the court has to
balance the proportionality of interfering with one right against the proportionality of impact
by infraction of the other.
(XII) The publication has to be judged as a whole and news items, advertisements and
published matter cannot be read without the accompanying message that is purported to be
conveyed to public. Pre-publication censorship may not be countenanced in the scheme of the
constitutional framework unless it is established that the publication has been made with
reckless disregard for truth, publication shall not be normally prohibited. (Ref.: (2007) 1 SCC
143 Ajay Goswami Vs. UOI & Ors.; (1994) 6 SCC 632 R. Rajagopal & Anr. Vs. State of
Tamil Nadu & Others and AIR 2002 Delhi 58 Khushwant Singh & Anr. Vs. Maneka
Gandhi)."
Thus we see that the right to privacy in Indian law, even in the realm of tort law has had an
inextricable connection with constitutional principles and constitutional cases have had a very
huge impact on the development of this right in India. However a perusal of these cases
shows that the right to privacy is available only insofar as information which is personal in
nature, however in situations where the information is non-personal in nature the right to
privacy may not be as useful and this is where, as we shall see below, the tort of breach of
confidentiality comes in to fill the void.

Tort of Breach of Confidentiality

While there have been a number of landmark cases in India on the issue of breach of
confidence in a contractual or a statutory setting, these cases are not very relevant for a
discussion on the tort of breach of confidentiality. This is not to say that the tort of breach of
confidentiality is non-existent in Indian law, the Courts here have time and again accepted
that there does exist such a tortuous remedy in certain situations. We shall now try to
examine the contours of this principle of torts by discussing some of the landmark cases on
the topic.
In the case of Petronet LNG Ltd. v. Indian Petro Group and Another, [32] the Delhi High
Court considered a claim by a corporation seeking to prevent a news and media group from
reporting its confidential negotiations and contracts with counterparties. The claim was based
upon both the right to privacy as well as the right to confidentiality but in this case the court,
looking at the fact that the plaintiff was a corporation and also the type of information
involved denied the claim on the right to privacy. However, it did allow the injunction
claimed by the corporation based on the right to confidentiality. Summarizing its discussion
of the right to confidentiality, the Court stated thus:
"49. It may be seen from the above discussion, that originally, the law recognized
relationships- either through status (marriage) or arising from contract (such as employment,
contract for services etc) as imposing duties of confidentiality. The decision in Coco (1969)
marked a shift, though imperceptibly, to a possibly wider area or zone.Douglas noted the
paradigm shift in the perception, with the enactment of the Human Rights Act; even before
that, in Attorney General (2) (also called the Spycatcher case, or the Guardian case) the
Court acknowledged that there could be situations -where a third party (likened to a passerby,
coming across sensitive information, wafting from the top of a building, below) being obliged
to maintain confidentiality, having regard to the nature and sensitivity of the information….."
While discussing the factors that the Court would have to consider while deciding a claim
based on the breach of confidentiality, the Delhi High Court relied upon and quoted from
English judgments as follows:
"50. Even while recognizing the wider nature of duty - in the light of the Human Rights Act,
1998, and Articles 8 and 10 of the European Convention, it was cautioned that the court, in
each case, where breach of confidentiality, is complained, and even found- has to engage in a
balancing process; the factors to be weighed while doing so, were reflected in A v. B
Plc [2003] QB 195; the latest judgment in H.R.H. Prince of Wales indicates that the court
would look at the kind of information, the nature of relationship, etc, and also consider
proportionality, while weighing whether relief could be given:
"The court will need to consider whether, having regard to the nature of the information and
all the relevant circumstances, it is legitimate for the owner of the information to seek to keep
it confidential or whether it is in the public interest that the information should be made
public….
..In applying the test of proportionality, the nature of the relationship that gives rise to the
duty of confidentiality may be important."
Holding that the principles discussed in the English cases given in the context of individual
rights of confidentiality would also hold good in the case of corporations, the Court held that:
"51. Though the reported cases, discussed above, all dealt with individual right, to
confidentiality of private information (Duchess of
Argyll;Frazer; Douglas; Campbell and H.R.H. Prince of Wales) yet, the formulations
consciously approved in the Guardian, and Campbell, embrace a wider zone of
confidentiality, that can possibly be asserted. For instance, professional records of doctors
regarding treatment of patients, ailments of individuals, particulars, statements of witnesses
deposing in investigations into certain types of crimes, particulars of even accused who are
facing investigative processes, details victims of heinous assaults and crimes, etc, may, be
construed as confidential information, which, if revealed, may have untoward consequences,
casting a corresponding duty on the person who gets such information - either through effort,
or unwittingly, not to reveal it. Similarly, in the cases of corporations and businesses, there
could be legitimate concerns about its internal processes and trade secrets, marketing
strategies which are in their nascent stages, pricing policies and so on, which, if prematurely
made public, could result in irreversible, and unknown commercial consequences. However,
what should be the approach of the court when the aggrieved party approaches it for relief,
would depend on the facts of each case, the nature of the information, the corresponding
content of the duty, and the balancing exercise to be carried out. It is held, therefore, that
even though the plaintiff cannot rely on privacy, its suit is maintainable, as it can assert
confidentiality in its information."
Apart from privacy, the law of confidentiality has been used in cases where there has been a
definite harm to one side but none of the other laws provide for any relief. This was the
situation in the case of Zee Telefilms Limited v.Sundial Communications Pvt Ltd, [33] where
a company which developed television and media programming had discussed their concept
of a new show with a network during negotiations which could not be finalized. The network
however subsequently tried to start a new show which was based on the same concept and
idea as the one presented by the plaintiff company. The plaintiff sued the network, inter alia
on a claim for breach of confidential information and asked that the network be prevented
from airing its show. In this case the plaintiff's claim based on copyright was rejected because
copyright only subsists on the expression of an idea and not the idea itself, therefore the tort
of breach of confidentiality had to be resorted to in order to give relief to the plaintiffs.
Discussing the difference between confidentiality and copyright, the Division Bench of the
Bombay High Court held:
"10. The law of the confidence is different from law of copyright. In paragraph 21.2 (page
721), [of Copinger and Skone-James on Copyright (13th Edn.)] the learned author has
pointed out that right to restrain publication of work upon the grounds, that to do so would be
breach of trust of confidence, is a broader right than proprietary right of copyright. There can
be no copyright of ideas or information and it is not infringement of copyright to adopt or
appropriate ideas of another or to publish information received from another, provided there
is no substantial copying of the form in which those ideas have, or that information has, been
previously embodied. But if the ideas or information have been acquired by a person under
such circumstances that it would be a breach of good faith to publish them and he has no just
case or excuses for doing so, the court may grant injunction against him. The distinction
between the copyright and confidence may be of considerable importance with regard to
unpublished manuscripts / works submitted, and not accepted, for publication or use.
Whereas copyright protects material that has been reduced to permanent form, the general
law of confidence may protect either written or oral confidential communication. Copyright
is good against the world generally while confidence operates against those who receive
information or ideas in confidence. Copyright has a fixed statutory time limit which does not
apply to confidential information, though in practice application of confidence usually ceases
when the information or ideas becomes public knowledge. Further the obligation of
confidence rests not only on the original recipient, but also on any person who received the
information with knowledge acquired at the time or subsequently that it was originally given
in confidence."
A similar view, in a similar fact situation Single Judge Bench of the Delhi High Court had
also came to a similar conclusion in the case of Anil Gupta v. Kunal Das Gupta.[34]
The law of confidentiality has also come to the rescue of employers in attempting to prevent
important business and client information from being taken or copied by the employees for
their personal gain. In the case of Mr. Diljeet Titus, Advocate v. Mr. Alfred A. Adebare,
[35] the Delhi High Court had to decide a claim based on breach of confidentiality when
some ex-employees of a law firm tried to take away client lists and drafts of legal agreements
and opinions from their earlier employer-law firm. Discussing the importance of preventing
employees or former employees from away which such actions, the Court held as follows:
"81. I am in full agreement with the views expressed in Margaret, Duchess of Argyll (Feme
Sole) v. Duke of Argyll and Ors. (1965) 1 All ER 611, that a Court must step in to restrain a
breach of confidence independent of any right under law. Such an obligation need not be
expressed but be implied and the breach of such confidence is independent of any other right
as stated above. The obligation of confidence between an advocate and the client can hardly
be re-emphasised. Section 16 of the Copyright Act itself emphasizes the aspect of
confidentiality de hors even the rights under the Copyright Act. If the defendants are
permitted to do what they have done it would shake the very confidence of relationship
between the advocates and the trust imposed by clients in their advocates. The actions of the
defendants cause injury to the plaintiff and as observed by Aristotle: 'It makes no difference
whether a good man defrauds a bad one, nor whether a man who commits an adultery be a
good or a bad man; the law looks only to the difference created by the injury."
The Court allowed the claim of the law firm holding that the relationship between a law firm
and its attorneys is of a nature where information passed between them would be covered by
the law of confidence and would not be allowed to be copied or used by the attorneys for
their individual gain.
Recently, in 2009, the principles relating to breach of confidentiality under Indian law were
very succinctly summarized by the Bombay High Court in the case of Urmi Juvekar
Chiang v. Global Broadcasting News Limited,[36] where in a fact situation similar to the
ones in Zee Telefilms case and the Anil Gupta case, the Court discussed a number of previous
cases on breach of confidentiality and laid down the following principles:
"8. The principles on which the action of breach of confidence can succeed, have been culled
out as
(i) he (Plaintiff) had to identify clearly what was the information he was relying on;
(ii) he (Plaintiff) had to show that it was handed over in the circumstances of confidence;
(iii) he (Plaintiff) had to show that it was information of the type which could be treated as
confidential; and
(iv) he (Plaintiff) had to show that it was used without licence or there was threat to use
it…… It is further noted that at interlocutory stage, the Plaintiff does not have to prove (iii)
and (iv) referred to above, as he will at the trial. But the Plaintiff must address them and show
that he has atleast seriously arguable case in relation to each of them."
From the above discussion on Indian law it is clear that the Courts in India have tried to
incorporate the best of both worlds, in the sense that it has taken and adopted the principle of
a right to privacy, a breach of which would give rise to an action in torts, from American
jurisprudence while rejecting the stand taken by English Courts in rejecting such a right to
privacy. However, Indian Courts have often referred to the decisions given by English Courts
as well as American Courts in interpreting the principle of the right to confidentiality.
Therefore on an overall examination it would appear that insofar as the rights to privacy and
confidentiality are concerned, Indian jurisprudence has more in common with American law
rather than English law.
Introduction
Last year’s satirical release, Peepli [Live], accurately captured what takes place in media
news rooms. The film revolves around a debt-ridden farmer whose announcement to commit
suicide ensue a media circus. Ironically, in the case of the Radia tapes, the same journalists
found themselves in the centre of the media’s frenzy-hungry, often intrusive and unverified
style of reporting.[1] Exposés, such as, the Radia tapes and Wikileaks have thrown open the
conflict between the right to information, or what has come to be called ‘informational
activism’, and the right to privacy. Right to information and the right to communicate the
information via media is guaranteed under Article 19(1) (a) of the Constitution of India.
In State of Uttar Pradesh v Raj Narain,[2] the Supreme Court of India held that Article 19(1)
(a), in addition, to guaranteeing freedom of speech and expression, guarantees the right to
receive information on matters concerning public interest. However, more recently concerns
over balancing the right to information with the right to privacy have been raised, especially,
by controversies like the Radia-tapes.
For instance, last year Ratan Tata filed a writ petition before the Supreme Court of India
alleging that the unauthorised publication of his private conversations with Nira Radia was in
violation of his right to privacy. The writ, filed by the industrialist, did not challenge the
action of the Directorate-General of Income Tax to record the private conversations for the
purpose of investigations. Instead, it was challenging the publication of the private
conversations that took place between the industrialist and Nira Radia by the media. Whether
the publication of those private conversations was in the interest of the public has been
widely debated. What the Tata episode brought into focus was the need for a law protecting
the right to privacy in India.
India, at present, does not have an independent statute protecting privacy; the right to privacy
is a deemed right under the Constitution. The right to privacy has to be understood in the
context of two fundamental rights: the right to freedom under Article 19 and the right to life
under Article 21 of the Constitution.
The higher judiciary of the country has recognised the right to privacy as a right “implicit in
the right to life and liberty guaranteed to the citizens of this country by Article 21”. The
Indian law has made some exceptions to the rule of privacy in the interest of the public,
especially, subsequent to the enactment of the Right to Information Act, 2005 (RTI). The RTI
Act, makes an exception under section 8 (1) (j), which exempts disclosure of any personal
information which is not connected to any public activity or of public interest or which would
cause an unwarranted invasion of privacy of an individual. What constitutes an unwarranted
invasion of privacy is not defined. However, courts have taken a positive stand on what
constitutes privacy in different circumstances.
The purpose of this paper is to delineate the emerging privacy concerns in India and the
existing media norms and guidelines on the right to privacy. At present, the media is
governed by disparate norms outlined by self-governing media bodies, like the Press Council
of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics
drafted by the News Broadcasting Standard Authority (NBSA). The paper examines the
existing media norms, constitutional protection guaranteed to an individual’s right to privacy
and upheld by courts, and the reasons the State employs to justify the invasion of privacy.
The paper records, both domestic and international, inclusions and exceptions with respect to
the infringement of privacy.
The paper traces the implementation of media guidelines and the meanings accorded to
commonly used exceptions in reporting by the media, like, ‘public interest’ and ‘public
person’. This paper is not an exhaustive attempt to capture all privacy and media related
debates. It does, however, capture debates within the media when incursion on the right to
privacy is considered justifiable. The questions that the paper seeks to respond to are: When
is the invasion on the right to privacy defensible? How the media balances the right to
privacy with the right to information? How is ‘public interest’ construed in day-to-day
reporting? The questions raised are seen in the light of case studies on the invasion of privacy
in the media, the interviews conducted with print journalists, the definition of the right to
privacy under the Constitution of India and media’s code of ethics.

Constitutional Framework of Privacy

The right to privacy is recognised as a fundamental right under the Constitution of India. It is
guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of the
Constitution. Article 19(1) (a) guarantees all citizens the right to freedom of speech and
expression. It is the right to freedom of speech and expression that gives the media the right
to publish any information. Reasonable restrictions on the exercise of the right can be
imposed by the State in the interests of sovereignty and integrity of the State, the security of
the State, friendly relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence. Article 21 of the
Constitution provides, "No person shall be deprived of his life or personal liberty except
according to procedure established by law." Courts have interpreted the right to privacy as
implicit in the right to life. In R.Rajagopal v. State of T.N.[3]; and PUCL v. UOI[4], the
courts observed that the right to privacy is an essential ingredient of the right to life.
For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar — who was sentenced to
death for committing six murders — in his autobiography divulged his relations with a few
police officials. The Supreme Court in dealing with the question on the right to privacy,
observed, that the right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of the country by Article 21. It is a ‘right to be left alone.’ "A citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-
bearing and education among other matters.” The publication of any of the aforesaid personal
information without the consent of the person, whether accurate or inaccurate and ‘whether
laudatory or critical’ would be in violation of the right to privacy of the person and liable for
damages. The exception being, when a person voluntarily invites controversy or such
publication is based on public records, then there is no violation of privacy.
In PUCL v. UOI,[5]which is popularly known as the wire-tapping case, the question before
the court was whether wire-tapping was an infringement of a citizen’s right to privacy. The
court held that an infringement on the right to privacy would depend on the facts and
circumstances of a case. It observed that, "telephone conversation is an important facet of
a man's private life. Right to privacy would certainly include telephone-conversation in
the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of
the Constitution of India unless it is permitted under the procedure established by
law." It further observed that the right to privacy also derives from Article 19 for "when a
person is talking on telephone, he is exercising his right to freedom of speech and
expression."
In Kharak Singh v. State of U.P,[6] where police surveillance was being challenged on
account of violation of the right to privacy, the Supreme Court held that domiciliary night
visits were violative of Article 21 of the Constitution and the personal liberty of an
individual.
The court, therefore, has interpreted the right to privacy not as an absolute right, but as a
limited right to be considered on a case to case basis. It is the exceptions to the right to
privacy, like ‘public interest’, that are of particular interest to this paper.

International Conventions
Internationally the right to privacy has been protected in a number of conventions. For
instance, the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12
provides that:
"No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, or to attacks upon his honour and reputation. Everyone has the right
to the protection of the law against such interference or attacks."
The UDHR protects any arbitrary interference from the State to a person’s right to privacy.
Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article
17 imposes the State to ensure that individuals are protected by law against “arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation. [7]
Thus, ensuring that States enact laws to protect individual’s right to privacy. India has ratified
the above conventions. The ratification of the Conventions mandates the State to take steps to
enact laws to protect its citizens. Although, human right activists have periodically demanded
that the State take adequate measures to protect human rights of the vulnerable in society, the
right to privacy has received little attention.
Similarly, Article 16 of the Convention on the Rights of the Child (CRC) provides protection
to a minor from any unlawful interference to his/her right to privacy and imposes a positive
obligation on States who have ratified the convention to enact a law protecting the same.
India does have safeguards in place to protect identity of minors, especially, juveniles and
victims of abuse. However, there are exceptions when the law on privacy does not apply even
in case of a minor.
The right to privacy, therefore, is not an absolute right and does not apply uniformly to all
situations and all class of persons. For instance, privacy with respect to a certain class of
persons, like a person in public authority, affords different protection as opposed to private
individuals.

Public Person
In case of a representative of the public, such as a public person, the right to privacy afforded
to them is not of the same degree as that to a private person. The Press Council of India (PCI)
has laid down Norms of Journalistic Conduct, which address the issue of privacy. The PCI
Norms of Journalistic Conduct, recognises privacy as an inviolable human right, but adds a
caveat; that the degree of privacy depends on circumstances and the person concerned.
In the landmark judge’s asset case, CPIO, Supreme Court of India vs Subhash Chandra
Agarwal,[8] the court recognised the tension between the right to information and the right to
privacy, especially, with respect to public persons. The case arose from an application filed
by a citizen who was seeking information under the RTI Act on whether judges of high courts
and Supreme Court were filing asset declarations in accordance with full resolution of the
Supreme Court. The court held that information concerning private individuals held by public
authority falls within the ambit of the RTI Act. It remarked that whereas public persons are
entitled to privacy like private persons, the privacy afforded to private individuals is greater
than that afforded to those in public authority, especially in certain circumstances.
The court commented:
"A private citizen's privacy right is undoubtedly of the same nature and character as that of a
public servant. Therefore, it would be wrong to assume that the substantive rights of the two
differ. Yet, inherent in the situation of the latter is the premise that he acts for the public
good, in the discharge of his duties, and is accountable for them. The character of protection,
therefore, afforded to the two classes — public servants and private individuals, is to be
viewed from this perspective. The nature of restriction on the right to privacy is therefore, of
a different order; in the case of private individuals, the degree of protection afforded is
greater; in the case of public servants, the degree of protection can be lower, depending on
what is at stake."
In testing whether certain information falls within the purview of the RTI Act, the court said
one should consider the following three tests:

 whether the disclosure of the personal information is with the aim of providing
knowledge of the proper performance of the duties and tasks assigned to the public
servant in any specific case;
 whether the information is deemed to comprise the individual's private details, unrelated
to his position in the organization, and,
 whether the disclosure will furnish any information required to establish accountability or
transparency in the use of public resources.

Would this rule hold true for information on relatives/ friends of public persons? The rule is
that, unless, private information on relatives/friends of public person’s impacts public interest
and accountability, the information should not be revealed.
In 2010, the media reported that Sunanda Pushkar, a close friend of the Minister of State for
External Affairs, Shashi Tharoor, holds a significant holding in the IPL Kochi team. The
media exposure led to the exit of Shashi Tharoor from the government. While the media’s
questioning of Pushkar’s holdings was legitimate, the media’s reporting on her past
relationships and how she dressed had no bearing on public interest or accountability.[9] The
media accused Pushkar of playing proxy for Tharoor in the Rs. 70 crore sweat equity deal.
Much of the media attention focussed on her personal life, as opposed to, how she attained
such a large stake in the IPL Kochi team. It minutely analysed her successes and failures,
questioned her ability and accused her of having unbridled ambition and greed for money and
power.[10]
If one was to consider the rules of privacy set by the court in the judges assets’ case much of
the personal information published by the media on Tharoor and Pushkar, failed to shed light
on the IPL holdings or the establishment of the nexus between the IPL holdings and the
government involvement.
The tests delineated by the court in considering what personal information regarding a public
authority may be shared under the RTI Act, can be adopted by the media when reporting on
public officials. If personal information divulged by the media does not shed light on the
performance of a public official, which would be of public interest, then the information
revealed violates the standards of privacy. Personal details which have no bearing on public
resources or interests should not be published.
The media coverage of the Bombay terror attacks displayed the same lack of restraint, where
the minutest details of a person’s last communication with his/her family were repeatedly
printed in the media. None of the information presented by the media revealed anything new
about the terror attack or emphasised the gravity of the attack.
A senior journalist, who talked off the record and reported on the Mumbai terror attacks,
agreed that the media overstepped their limits in the Mumbai terror attacks. As per her,
violation of privacy takes place at two stages: the first time, when you overstep your
boundaries and ask a question you should not have, and the second, when you publish that
information. Reflecting on her ten years of reporting experience, she said, “Often when you
are covering a tragedy, there is little time to reflect on your reporting. Besides, if you, on
account of violating someone’s privacy, choose not to report a story, some competing paper
would surely carry that story. You would have to defend your decision to not report the story
to your boss.” The competitiveness of reporting and getting a story before your competitor,
she agreed makes even the most seasoned journalists ruthless sometimes. Besides, although
PCI norms exist, not many read the PCI norms or recall the journalistic ethics when they are
reporting on the field.[11]
The PCI Norms reiterate that the media should not intrude "the privacy of an individual,
unless outweighed by genuine overriding public interest, not being a prurient or morbid
curiosity."[12] The well accepted rule, however, is that once a matter or information comes in
the public domain, it no longer falls within the sphere of the private. The media has failed to
make the distinction between what is warranted invasion of privacy and what constitutes as
an unwarranted invasion of privacy. For instance, identity of a rape or kidnap victim that
would further cause discrimination is often revealed by the media.

IV) use of science and tech.in judicial investigations:

Law, Science and Technology has a great relevance in our lives. Law and Science encounter
each other in many ways. When technology intrudes in the ambit of legal rights it is checked
by law, for example, cyber crimes, in the same manner to protect legal rights and
strengthening the evidence with the help of science, cannot be denied.

At present date, when the legal system has so much advanced, criminals take care to erase all
the evidences of their involvement, then in such case, scientific and highly sophisticated
methods are required to trace the involvement of criminals. Narcoanalysis, Polygraphy and
Brain Mapping tests collectively called deception detection tests (DDT) are new kinds of
interrogation techniques which are simple and civilized way of conducting investigation. But,
at the same time, one has to be conscious of its limitations also. It infringes fundamental
rights under Article 20(3), and also right to privacy and right to health which are guaranteed
under Article 21 of the Constitution.

Inspite of the verily limitations, it affirms certain attributes also which includes: ‘order of
court’, ‘pre-consent of subject’ ‘non-manipulated statements by subject’ and ‘secure public
interest’ Thus, there is a tension between desirability of efficient investigation and
preservation of individual rights.

Concept Of Investigation-
In order to study about the scientific criminal investigation, we need to understand the term
‘investigation’,

“Investigation means to examine, study, or inquire into systematically, search or examine into
the particulars of; examine in detail, or, to search out and examine the particulars of in an
attempt to learn the facts about something hidden, unique, or complex, esp. in an attempt to
find a motive, cause, it is about finding things.”

According to the Code of the Criminal Procedure under section 2(h) of the Code,“
investigation includes all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a magistrate) who is authorized by
a Magistrate in this behalf. Investigation, under the Code includes:-
1. Proceeding to the spot of crime.
2. Ascertaining the facts and circumstances of the case.
3. Discovery and arrest of the suspected offenders.
4. Collection of evidence,
* examination of various persons including the accused and recording their statements in
writing.
* Search of places or seizures of things which are considered necessary.

Criminal Investigation is an applied science that involves the study of facts, used to identify,
locate and prove the guilt of a criminal. A complete criminal investigation can include
searching, interviews, interrogations, evidence collection and preservation and various
methods of investigation. Modern day criminal investigations commonly employ many
modern scientific techniques known collectively as forensic science.

Application Of Science And Technology In Criminal Investigation-

The search for effective aids to interrogation is probably as old as man’s need to obtain
information from an uncooperative source and as persistent as his impatience to shortcut any
tortuous path. In the annals of police investigation, physical coercion has at times been
substituted for painstaking and time consuming inquiry in the belief that direct methods
produce quick results. The use of technology in the service of criminal investigations, and the
application of scientific techniques to detect and evaluate criminal evidence has advanced the
investigation process criminal justice system throughout the country. According to Cowan in
his article “Decision Theory in Law, Science, and Technology”,

“the aim of science, traditionally put, is to search out the ways in which truth may become
known. Law aims at the just resolution of human conflict. Truth and justice, we might
venture to say, having different aims, use different methods to achieve them. Unfortunately,
this convenient account of law and science is itself neither true nor just. For law must know
what the truth is within the context of the legal situation: and science finds itself ever engaged
in resolving the conflicting claims of theorists putting forward their own competing brands of
truth.”

This quote roughly means that the law needs to find the truth to resolve “human conflict” and
one method of doing so is to use the field of science. Today’s society has improved upon the
methods of the past to bring about more precise and accurate techniques. Forensic Science2
has expanded to Trauma Inducing Drugs and Psychotropic Substances. The application of
science to matters of law has made great strides in recent years. Development of new tools of
investigation has led to the emergence of scientific tools of interrogation like:

* Narcoanalysis Test
* Brain Maapping Test/ Brain Electrical Oscillation Signature Profile (Beos)
* Polygraphy Test
* Dna Profiling
* Fingerprinting Test

Deception Detecting Test

Deception, in another word means lying, it may lead to a serious aftermath in the
enforcement of law and the proceedings in the courtroom. According to DePaulo et al.,
deception is defined as a deliberate attempt to mislead others. Hence, much effort is devoted
by the forensic psychologists in developing different techniques and methods to detect lies.
The deception detection tests (DDT) such as polygraph, narco-analysis and brain-mapping
have important clinical, scientific, ethical and legal implications1. The DDTs are useful to
know the concealed information related to crime. This information, which is known only to
self, is sometimes crucial for criminal investigation2. The DDTs have been used widely by
the investigating agencies. However, investigating agencies know that the extracted
information cannot be used as evidence during the trial stage. They have contested that it is
safer than ‘third degree methods’ used by some investigators. Here, the claim is that, by using
these so called, “scientific procedures” in fact-finding, it will directly help the investigating
agencies to gather evidences, and thereby increase the rate of prosecution of the guilty and
the rate of acquittal of the innocent3. Recently, these methods are being promoted as more
accurate and best to none, without convincing evidence.

But, in a landmark judgment, the apex court of India has clearly stated that DDTs cannot be
administered without consent3. Deception Detecting tests implies psychological evaluation of
human brain it includes three main kinds of tests which are:

Narco Analysis Test:

The term Narco-Analysis is derived from the Greek word narkç (meaning "anesthesia" or
"torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses
psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements
with strong associated affects come to the surface, where they can be exploited by the
therapist. The term narco-analysis was coined by Horseley. Narco analysis first reached the
mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on
two prisoners. The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal
or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of
administering barbiturates or certain other chemical substances, most often Pentothal Sodium,
to lower a subject's inhibitions, in the hope that the subject will more freely share information
and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the
subject's inhibitions are lowered by interfering with his nervous system at the molecular
level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like
state efforts are made to obtain "probative truth" about the crime. Following procedure has to
be adopted while conducting narco test:-
# This test is conducted in government hospitals after a court order is passed instructing the
doctors or hospital authorities to conduct the test. Personal consent of the subject is also
required.
# Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the
controlled circumstances of the laboratory.
# The dose is dependent on the person's sex, age, health and physical condition.
# The subject which is put in a state of Hypnotism is not in a position to speak up on his own
but can answer specific but simple questions after giving some suggestions.
# The answers are believed to be spontaneous as a semi-conscious person is unable to
manipulate the answers.
# Wrong dose can send the subject into coma or even result in death.
# The effect of the bio-molecules on the bio-activity of an individual is evident as the drug
depresses the central nervous system, lowers blood pressure and slows the heart rate, putting
the subject into a hypnotic trance resulting in a lack of inhibition.
# The subject is then interrogated by the investigating agencies in the presence of the doctors.
# The revelations made during this stage are recorded both in video and audio cassettes. The
report prepared by the experts is what is used in the process of collecting evidence.

A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's
imagination is neutralised by making him semi-conscious. In this state, it becomes difficult
for him to lie and his answers would be restricted to facts he is already aware of. The subject
is not in a position to speak up on his own but can answer specific and simple questions. The
answers are believed to be spontaneous as a semi-conscious person is unable to manipulate
the answers. Narcoanalysis is a tool which is now being, alarmingly, used by investigating
agencies in criminal cases, as an interrogation technique. It was first used in 2002, in the
Godhra carnage probe. During the Telgi scam, the use of narcoanalysis came under the
scanner, and then it was used in the Arushi murder investigation. The scientific validity of the
test has been questioned by medical professionals, and the legal validity has also been
debated in several international and national cases. Recently in Gujrat, narcoanalysis test has
been conducted in connection with mysterious killing of Jhurjhura Tigress at Bandhavgarh
National Park in May 2010. The young tigress, mother of three cubs, was found dead in a
water-hole at Park. Post-mortem revealed that it had died of internal haemorrhage while
circumstantial evidence suggested a vehicle hit the big cat to death. The case has been handed
over to the Criminal Investigation Department(CID) and then to the Special Task
Force(STF). STF narrowed the list for narcoanalysis test to four persons- Man Singh, Pankaj
Vishvakarma, Dhirendra Chaturvedi and Shrilal Yadav. While three agreed to give their
consent, Yadav refused to take test on grounds of post-test hazards. They were subjected to
the test on july 30 at Gandhinagar Forensic Science Laboratory (FSL). The Officials are now
analyzing the CDs of the interrogation session provided by Gandhinagar FSL for further
investigation.

Brain Mapping Test:

Brain-mapping is a comprehensive analysis of brainwave frequency bandwidths. In this test,
forensic experts apply unique neuroscience techniques to find out if a suspect's brain
recognizes things from a crime scene which an innocent person's brain will have no
knowledge of. In brain-mapping, sensors are attached to the suspect's head and he or she is
made to sit in front of a computer screen. The suspect is then made to see images or hear
sounds. The sensors monitor electrical activity in the brain and register certain waves which
are generated only if the suspect has any connection with the stimulus (image or sound).
This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell,
Director and Chief Scientist “Brain Wave Science”, IOWA. In this method, called the “Brain-
wave finger printing”; the accused is first interviewed and interrogated to find out whether he
is concealing any information. Then sensors are attached to the subject’s head and the person
is seated before a computer monitor. He is then shown certain images or made to hear certain
sounds. The sensors monitor electrical activity in the brain and register P300 waves, which
are generated only if the subject has connection with the stimulus i.e. picture or sound. The
subject is not asked any questions. Dr. Farwell has published that a MERMER (Memory and
Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the
accused when his brain recognizes noteworthy information pertaining to the crime. These
stimuli are called the “target stimuli”. In a nutshell, Brain finger printing test matches
information stored in the brain with information from the crime scene. Studies have shown
that an innocent suspect’s brain would not have stored or recorded certain information, which
an actual perpetrator’s brain would have stored. In USA, the FBI has been making use of
“Brain mapping technique” to convict criminals. In Jan 30, 2008, Brain-mapping test on
serial killer Chandrakant Sharma concluded in Bangalore. He allegedly revealed details about
a case.

Lie Detecting Test:

A polygraph, popularly referred to as a lie detector, is an instrument that measures and
records several physiological indices such as blood pressure, pulse, respiration and breathing
rhythms and skin conductivity while a suspect is asked a series of questions.

Deceptive answers are said to produce physiological responses that can be differentiated from
those associated with non-deceptive answers.

It is an examination, which is based on an assumption that there is an interaction between the

mind and body and is conducted by various components or the sensors of a polygraph
machine, which are attached to the body of the person who is interrogated by the expert. The
machine records the blood pressure, pulse rate and respiration and muscle movements.
Polygraph test is conducted in three phases- a pretest interview, chart recording and
diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions
depending upon the relevant information about the case provided by the investigating officer,
such as the criminal charges against the person and statements made by the suspect. The
subject is questioned and the reactions are measured. A baseline is established by asking
questions whose answers the investigators know. Lying by a suspect is accompanied by
specific, perceptible physiological and behavioural changes and the sensors and a wave
pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these
reactions are corroborated with other evidence gathered. The polygraph test was among the
first scientific tests to be used by the interrogators. It was Keeler who further refined the
polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the
skin. The Attorney General of India Ghulam E Vahanvati, arguing before a bench presided by
the Chief Justice of India K.G.Balakrishnan, hearing petitions against the procedure of narco
analysis, justified its use as a tool of investigation. He asserted that the procedure of narco
analysis finds legal sanction under the newly amended Section 53 of the Criminal Procedure
Code. In 2005, an Explanation clause was added to Section 53 of the Criminal Procedure
Code, the relevant part of which reads as follows: (a) examination" shall include the
examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and
sweat, hair samples and finger nail clippings by the use of modem and scientific techniques
including DNA profiling and such other tests which the registered medical practitioner thinks
necessary in a particularcase; (emphasis supplied) It is submitted that the expression 'such
other tests' signifies a provision for recognizing newly developed techniques in forensic
science and permitting the same in investigative procedures.

Deception Detecting Test: How Far It Is Justified?

In India, the use of Deception Detecting Tests has been questioned in courts. The main
argument against it is the infringement of the fundamental right under Article 20(3)and under
Article 21 of the Constitution, which provides for a privilege against self incrimination and
right to health and privacy, respectively. The revelations made during the Narco analysis
have been found to be of very useful in solving sensational cases of Mumbai serial train
blasts, blasts at Delhi, Malegoan and more recently in Hyderabad and in various other
sensational cases of National and International ramifications. In most of these cases, the
revelations made have led to the discovery of information’s favouring probative truth and
consequently recoveries have been made in large number of cases under section 27 of Indian
Evidence Act3. Thus, it is right to say that DDT is proving to be a useful tool in the field of
criminal investigation. Legal questions are raised about their validity with some upholding its
validity in the light of legal principles and others rejecting it as a blatant violation of
constitutional provisions. There is a tension between efficient or successful investigation and
preservation of individual rights,

Violation of Individual Rights:

If a person is not willing to consent, it is being assumed by the people that he is not
cooperating with investigation and might have committed or involved in the offence. But,
DDT have certain outcomes which are unethical as well as unconstitutional.

As To Violation Of ‘Right To Be Silent’-

(Under Article 11.1 of the Universal Declaration of Human Rights, 1948)

(Under Article 14(3)(g) of the International Covenant on Civil and Political Rights, 1966)
(Under Article 20(3) of the Indian Constitution)

Section 27 in The Indian Evidence Act, 1872:

How much of information received from accused may be proved.- Provided that, when any
fact is deposed to as discovered in consequence of information received from a person
accused of any offence, in th custody of a police- officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered,
may be proved.

The right to remain silent is a legal right recognized, explicitly or by convention, in many of
the world's legal systems. Universal Declaration of Human Rights, 1948 under Art. 11.1
declares, “Everyone charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.” The International Covenant on Civil and Political Rights, 1966 to
which India is a party states in Art. 14(3)(g) “Not to be compelled to testify against himself or
to confess guilt”. The European Convention for the Protection of Human Rights and
Fundamental Freedoms states in Art. 6(1) that every person charged has a right to a ‘fair’ trial
and Art. 6(2) thereof states:

“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.” The right covers a number of issues centered around the right of the
accused or the defendant to refuse to comment or provide an answer when questioned, either
prior to or during legal proceedings in a court of law. This can be the right to avoid self-
incrimination or the right to remain silent when questioned. The right usually includes the
provision that adverse comments or inferences cannot be made by the judge or jury regarding
the refusal by a defendant to answer questions.

As To Violation Of Right To Health-

(Under Article 25 of the Universal Declaration of Human Rights, 1948) (Under Article 12 of
the International Covenant on Economic, Social and Cultural Rights in 1966) (Under Article
21 of the Indian Constitution)

Article 25 of the Universal Declaration of Human Rights 1948 states that "Everyone has the
right to a standard of living adequate for the health, and wellbeing of himself and his
family...". The Preamble to the World Health Organisation's (WHO) constitution also
declares that it is one of the fundamental rights of every human being to enjoy "the highest
attainable standard of health". The United Nations further defined the right to health in
Article 12 of the International Covenant on Economic, Social and Cultural Rights in 1966.
The supreme corut judgement of Urjit Singh Vs State of Punjab) AIR 1996 SC 1388 ordered
settle the claim as per the rates admissible in 'Excorts Hospital'. Law is therefore well settled
that right to health is an integral part of life guaranteed under Article 21 of the Indian
Constitution.

P. Chandra Sekharan, President of the Forensic Science Society of India, says that not only
are narcoanalysis tests unreliable, they may also lead to dangerous side effects. The truth
serum substance, sodium pentothal is the same substance that in larger dosages is used to
induce a deep coma like state for executions by lethal injection in USA. A large dose of the
drug is lethal; a test could result in coma or even death. It can be difficult to determine the
correct dose of the drug. But in 2011, Sheikh Mujib, an engineering student who was accused
in a bomb blast case in the Indian city of Ahmedabad, complained of health problems after
narcoanalysis. Arun Ferreira, a political activist who underwent forced narcoanalyis after
being arrested in 2007 under the Unlawful Activities Prevention Act for being an alleged
Maoist, described the procedure as a sort of torture.

As To Violation Of Right To Privacy-

(Under Article 19 of Universal Declaration of Human Rights, 1948)
(Under Article 17(1) of the Covenant on Civil and Political Rights)
(Under Article 21 of the Constitution)
The concept of privacy is internationally recognized under Article 19 of UDHR as:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive, and impart information and ideas
through any media and regardless of frontiers. By the expression “Right to Privacy” we mean
the right to be left alone to live one’s own life with minimum degree of interference. The
right to privacy is also stipulated in the Covenant on Civil and political Rights under Article
17(1) which says, “no one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation and everyone has the right to the protection of the law against such interference or
attacks.” But this right is not guaranteed in the Indian Constitution.
However, in Kharak Sing v State of U.P., [(1964) 1 SCR 33] it was held by the Supreme
Court that the domiciliary visits is an infringement of the right to privacy and is violative of
the citizen’ s fundamental right guaranteed under Art.21 of the Indian Constitution. Subba
Rao J. was of the opinion that privacy was an essential ingredient of personal liberty.

In Govind v State of Madhya Pradesh [1996 (0) MPLJ 649] the right to privacy was
assumed to be a part of the personal liberty guaranteed under Art. 21 of the Constitution, by
stating that although the right to privacy is not explicitly provided in the Constitution, it is
ingrained in the fundamental right of life and personal liberty.

In People’s Union for Civil Liberties v Union of India [1997 AIR (SC) 568], commonly
known as telephone tapping case, the Supreme Court held that right to life and personal
liberty includes telephone conversation in the office or home and thus telephone tapping is
violative of Art. 21.

In Smt. Selvi and Ors Vs State of Karnataka, Supreme Court held that the use of narco
analysis, brain-mapping and polygraph tests on accused, suspects and witnesses without their
consent, unconstitutional and violation of the ‘right to privacy'.
Thus, Right to Privacy is implicit in the Right to life and liberty guaranteed to the citizens of
India by Article 21 of the Constitution of India. None can publish anything covering the
above matters without his consent whether truthful or otherwise and whether laudatory or
critical. If done so, it will be violating right to privacy of person concerned and would be
liable in an action for damages.

Deception detection tests amounts to an invasion of privacy if it involves eliciting personal

information from the accused known only to him. However, it must be noted that the test
assumes the character of a restriction imposed by law on the said right.

Imperative For Efficient Investigation:

To Achieve Justice-
On The Part of Accused:
Pre-Consent/Informed Consent Is Taken-
Deception detecting test comes under the general power of investigation (Sections 160-
167,Cr.P.C.).But it must be realized that it is prerogative of the person to allow
himself/herself to be put to the test or not and it should not be left to the discretion of police.
Unless it is allowed by law and the accused himself, it must be seen as illegal and
unconstitutional. But, if it is conducted with free consent’ of the person it may be permitted.
The person should be made well aware of the technicalities of the procedure, the effect of the
narcotics under whose influence he shall be interrogated as well as the physical,
psychological and legal ramifications of undergoing the procedure, this knowledge becoming
the basis on-which he renders his voluntary consent.

‘Free consent’ means it is voluntary and is not given under coercive circumstances. For
example, If a person says, “I wish to take a lie detectors test because I wish to clear my
name”. It shows his/her free consent but it is still to be shown that whether this voluntariness
was under coercive circumstances or not. If a person is told by police “If you want to clear
your name take a lie detector test” or” take a lie detector test and we will let you go” then it
shows that police has linked up the freedom to go with the lie detector test and as such it
cannot be held voluntary.

So, we can say that when there is an informed consent about the consequences of the trauma
inducing tests, there is no question of violation of constitutional rights.

Supreme Court Judgments:-

The Supreme Court consisting of three-judge bench headed by the Chief Justice K.G.
Balakrishnan, said that so-called narco analysis, brain mapping and polygraph tests cannot be
conducted on any person without their consent. Such procedures “are illegal and a violation
of personal liberty.”

Arushi Murder Case

Rajesh and Nupur Talwar, currently on trial in Delhi for murdering their 14-year-old
daughter, volunteered for narcoanalysis in an attempt to prove their innocence.

Geetika Sharma Suicide Case’

Former Haryana minister Gopal Goyal Kanda has refused to undergo brain mapping and
narco-analysis test in a case of abetting the suicide of a former air hostess Geetika Sharma.
On the other side, the victim's family approached the National Commission for Women
(NCW) seeking strict action against the culprits. The city police had approached Bangalore-
based forensic sciences laboratory (FSL) for the tests. The FSL officials, however, said that
tests were not possible without the consent of the accused.

Jhurjhura Tigress’s Case

Till 2011, Madhya Pradesh was known as the tiger state of India, and not without reason: in
2000, it had 700 tigers. But according to census of 2011, there are only 257 left. Recently in
2010, in Bandhavgarh Tiger Reserve, a tigress was murdered in mysterious by tourists. Four
persons were charged suspected and undergone deception detecting test where one of the
suspected has refused to give his consent on narcoanalysis test on grounds of post-test
hazards.

NHRC Guidelines Being Followed-

National Human Rights Commission had published Guidelines in 2000 for the
Administration of Polygraph tests. NHRC guidelines, on their part, maintain if an accused
volunteers for a lie-detector test, then he should be given access to a lawyer and the physical,
emotional and legal implications of such a test should be explained to him by both police and
his lawyer. Moreover, the consent should be recorded before a judicial magistrate and during
the hearing, the person who has agreed to the test should be duly represented by a lawyer.
Among other things, NHRC guidelines say the actual recording of the lie- detector test should
be done by an independent agency like a hospital and in the presence of a lawyer. Also, a full
medical and factual narration of the manner of the information received must be put on
record.

On The Part Of Victim:

Though many would argue that these psycho-medical tests are invasive and brutally infringe
upon the bunch of fundamental rights guaranteed under Charters and multiple Covenants, let
us not forget that these same invasive psycho-medical tests enable law enforcement agencies
in securing much awaited justice to the victims/sufferers. These tests assume importance in
such scenarios where circumstantial evidences are baffling or lead to nowhere thus turning
out to be a ray of light in a dark tunnel.

Admissibility In Court Of Law:

Confessions made by a semi-conscious person is not admissible in court. Deception

Detecting Test report has some validity but is not totally admissible in court, which considers
the circumstances under which it was obtained and assess its admissibility. Results of such
tests can be used to get admissible evidence, can be collaborated with other evidence or to
support other evidence. But if the result of this test is not admitted in a court, it cannot be
used to support any other evidence obtained the course of routine investigation. The Centre
Bureau of Investigation, through G.E. Vahanvati, then solicitor general and now attorney
general, had supported the tests and told the apex court that investigative agencies had legal
mandate to conduct them. The results provided clues and did not have any evidentiary value,
Vahanvati had said.
The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy
and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain finger-
printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a
special court order given by the special court in Pune as mentioned above, allowing the SIT
to conduct scientific tests on the accused in the fake stamp paper scam including the main
accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect
of truth serum is also admissible. In the course of the judgment, a distinction was drawn
between “statement” (made before a police officer) and “testimony” (made under oath in
court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the
brain mapping tests did not involve any “statement” being made and the statement made
under narco analysis was not admissible in evidence during trial.

Section 45 of the Indian Evidence Act, 1872 does allow experts’ opinions in certain
cases. It reads:

“When the court has to form an opinion upon a point of foreign law, or of science, or art, or
as to identity of handwriting or finger impression, the opinions upon that point or persons
especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or
finger impressions are relevant.”

However this section is silent on other aspects of forensic evidence that can be admissible in
court in criminal proceedings.

The drafting committee on “National Criminal Justice System Policy” headed by Prof. N. R.
Madhavanan has recommended various measures to be taken up by the Govt. for effective
management of not only traditional Forensic Science requirements but also to overall S & T[
Science and technology] needs of Criminal Justice System to raise the levels of capability and
sophistication. The drafting committee recommended that-

# The evidence Act may need to be amended to make scientific evidence admissible as
substantive evidence rather than opinion evidence’ and establish its probative value,
depending on the sophistication of the concerned scientific discipline. Scientific techniques
and procedures used have to be validated by appropriate agencies and professionally
recommended for acceptance as evidence.

# The Investigating Agency has statutory right to investigate the crime and to find out the
truth and to reach to the accused. Narco Analysis Test for criminal interrogation is valuable
technique which would profoundly affect both the innocent and the guilty and thereby hasten
the cause of justice. Conducting of Narco Analysis Test and Brain Mapping Test on the
accused is in process of collection of such evidence by the Investigating Agency. Section 161
of the Criminal Procedure Code enables the police to examine the accused also during the
investigation. Criminal justice system cannot function without the cooperation of the people.
Rather, it is the duty of every person to assist the State in the detection of the crime and
bringing criminal to justice. Withholding such information cannot be traced to the right to
privacy, which itself is not an absolute right. It is the statutory duty of every witness, who has
the knowledge of the commission of the crime, to assist the State in giving evidence.
(IV) The significance of forensic science in the criminal matters:
There is urgent and widespread need for the application of forensic science in criminal
investigation. The present day picture of crime investigation and prosecution of criminals, is
a sad story. A large percentage of the murder trials, ultimately, end in acquittal. It is estimated
that the prosecution agency spends on an average over Rs.10,000.00 per trial. Thus, not only
a dangerous criminal goes scotfree but huge amount of public money is also wasted. These
frequent acquittals also embolden the criminals. Forensic Science in criminal investigations
and trials is mainly concerned with materials and indirectly through materials with men,
places and time. Among men, the investigating officer is the most important person. Infact ,it
is he whose work determines the success or failure of the application of forensic science in
the processing of a criminal case. If he fails to collect the relevant evidence, allows the
exhibits to be contaminated or does not provide correct samples for comparison, the findings
of a forensic scientist will be useless.

Nature
Forensic Science embraces all branches of science and applies them to the purpose of law.
Originally all the techniques were borrowed from various scientific disciplines like chemistry
, medicine, surgerybiology, photography. But in the past few years it has developed its own
branches which are more or less exclusive domains of forensic science. More recently
significant advances have been made in serology, voice analysis, odour analysis and in
studies relating to nose prints and ear patterns.

Needs
The need for the application of science in criminal investigation has arisen from the following
factors:

Social Changes:
The society is undergoing drastic social changes at a very rapid pace. India has changed from
a colonial subject race to a democratic republic. Sizeable industrial complex has sprung up.
The transport facilities have been revolutionized. There is a growing shift from a rural society
to an urban one. These changes have made the old techniques of criminal investigation
obsolete. In the British days the police was so much feared that once it had laid its hands
upon an individual, he would ‘confess’ to any crime, he may not have even known. The fear
is vanishing now. The use of ‘third degree’ techniques used in those days does not find
favour with the new generation of police officers and judges.

Hiding facilities:
The quick means of transport and high density of population in cities have facilitated the
commission of crimes. The criminal can hide himself in a corner of a city or move away to
thousands of miles in a few hours. He, thus often escapes apprehension and prosecution.

Technical knowledge:
The technical knowledge of an average man has increased tremendously in recent years. The
crime techniques are getting refined. The investigating officer, therefore, needs modern
methods to combat the modern criminal.

Wide field: The field of activities of the criminal is widening at a terrific rate. Formely, the
criminals were usually local, now we find that national or international criminal is a common
phenomenon. Smuggling,drug trafficking ,financial frauds and forgeries offer fertile and ever
expanding fields.

Better Evidence: The physical evidence evaluated by an expert is objective. If a fingerprint

is found at the scene of crime, it can belong to only one person. If this person happens to be
be the suspect, he must account for its presence at the scene. Likewise, if a bullet is recovered
from a dead body, it can be attributed to only one firearm. If this firearm happens to be that of
the accused , he must account account for its involvement in the crime. Such evidence is
always verifiable.

Functions
Forensic science provides answer to the following three questions:

1. Has a crime been committed?

Consider the case of recovery of a dead body. Death could be natural accidental or homicidal.
Forensic Science by ascertaining the nature of death, establishes the existence or absence of
corpus delicti.

2. How and when was the crime committed?

The examination of the ‘corpus delicti’ reveals the way of the crime was committed and
possibly the time when it was committed.

3. Who committed the crime?

Forensic science establishes the identity of the culprit through personal clues like
fingerprints, footprints, blood drops or hair. It links the criminal with the crime through
objects left by him at the scene with the victim or carried from the scene and the victim.

On the other hand, if the clues recovered do not link the accused with the victim or the scene
of occurrence, the innocence of the accused is established. Forensic science, thus, helps the
innocent.

Development
The application of Forensic Science in the investigation of crime can be effective only if the
investigating officer knows:
1. The nature of physical evidence to be collected.
2. Where it is found.
3. How it is collected and packed.
4. What standard samples for comparison purposes are necessary.
5. How much sample is required.
6. How the sampling is done.
7. How the evidence will link the crime with the criminal and to what extend his labours will
be rewarded by the laboratory results.

This is possible if the investigating officer is given a thorough grounding in the above
aspects. He needs both theoretical and practical training.

All police training institutions have courses in scientific aids, but the syllabi and the teaching
standards are far from satisfactory. Periodical attachment of investigating officers to the
departmental forensic science laboratories can go a long way in inculcating the scientific
spirit.
Ignorance about the value of evidence sometimes causes a lot of disappointment to an
investigating officer. For example, hair are recovered in quite a few cases. Evaluation of hair
does not lead to positive identification of the source of hair. It is not possible at the present
stage of development of the science. They would not be disappointed , if they know the
limitations.

Principles
The laws and principles of all the natural sciences are the bases of forensic science. In
addition,it has developed its own principles.

Law of individuality- Every object, natural or man-made, has an individuality which is not
duplicated in any other object.

This principle, at first sight appears to be contrary to common beliefs and observations. The
grains of sand or common salt , seeds of plants or twins look exactly alike. Likewise, man-
made objects: coins of the same denomination made in the same mint,currency notes printed
with the same printing blocks one after the other (excluding serial number) and typewriters of
the same make,model and batch appear to be indistinguishable. Yet the individuality is
always there. It is due to small flaws in the materials, in the arrangement of the crystals ,
imperfect stamping or due to inclusions of some extraneous matter.

The individuality has been verified in certain fields. The most extensive work has been
carried out in finger prints. Millions of prints have been checked but no two fingerprints,
even from two fingers of the same person have ever been found to be identical.

The law of individuality is of fundamental importance in forensic science. Anything and

everything involved in a crime, has an individuality. If the sane is established , it connects the
crime and the criminal.

Principle of exchange- ‘Contract exchanges traces’ is the principle of exchange. It was first
enunciated by the French scientist, Edmond Locard.

According to the principal, when a criminal or his instruments of crime come in contact with
the victim or the objects surrounding him, they leave traces. Likewise, the criminal or his
instruments pick up traces from the same contact. Thus, a mutual exchange of traces like
takes place between the criminal, the victim and the objects involved in the crime If these
traces are identified to the original source, viz., the criminal or his instrument (or vice versa),
they establish the contact and pin the crime on to the criminal. The principal of exchange is
aptly demonstrated in hit and run cases and in offences against person.

The basic requirement of the principle is the correct answer to the question ‘ What are the
places or objects with which the criminal or his tools actually came in contact?’ If the
investigating officer is able to establish the points of contact , he is likely to reap a rich
harvest of physical clues:

1. If a criminal enters the premises through a ventilator , he leaves his foot prints in dust on
the sill.
2. If he breaks a window or a door, the jimmy leaves its marks on the wooden frame.
3. The burglar, who opens a safe by an explosive, leaves the area around and the clothes
(including shoes ) covered with insulating material as well as some exploded and unexploded
explosive materials.

The criminal is likely to leave and carry minute traces only. It is seldom that he dares or
neglects to leave or carry gross objects or traces. On a thorough search, the inconspicuous
traces will always be found in all types of crimes. The minute traces connect the crime and
the criminal as effectively as the gross objects or traces.

Law of progressive change- ‘ Everything changes with the passage of time’. The rate of
change varies tremendously with different objects. Its impact on forensic science is immense.

1. The criminal undergoes rapid changes. If he is not apprehended in time, he becomes

unrecognizable except perhaps through his fingerprints, bone fractures or other characteristics
of permanent( comparatively speaking ) nature which are not always available.

2. The scene of occurrence undergoes rapid changes. The weather, the vegetable growth,
and the living beings (especially human-beings) make extensive changes in comparatively
short periods. Longer the delay in examining the scene, greater will be the changes. After
some time , the scene may become unrecognizable.

3. The objects involved in crime change gradually, the firearm barrels loosen , metal objects
rust , the shoes suffer additional wear and tear and the tools acquire new surface patterns. In
course of time the objects may loose all practical identity vis-à-vis a particular crime.

The principle, therefore, demands prompt action in all aspects of criminal investigation.

Principle of comparison- Only the like can be compared is the principle of comparison. It
emphasizes the necessity of providing like samples and specimens for comparison with the
questioned items:
1. In a murder case, a bullet is recovered from the deceased. The expert opines that the bullet
has been fired from a firearm firing high velocity projectiles like a service rifle. It is futile to
send shotguns ,pistols or revolvers as the possible suspect firearm.

2. A bunch of hair is recovered from the hands of a deceased. The expert opines that the hair
belong to a Negroid person. Hair from persons of white races for comparison will not be of
any use.

3. The questioned writing is found to have been writing with a ball pen. To send fountain pen
as a likely instrument of writing is futile.

Once handwriting available on a photograph allegedly written on a wall was compared with
the specimen written on a paper. It did not give worthwhile results.

A second set of specimens was obtained by writing on the same wall, at the same height and
with the same instrument and then photographed . It allowed comparison. (CH)

Principle of analysis- The analysis can be no better than the sample analysed. Improper
sampling and contamination render the best analysis useless. The principle emphasizes the
necessity of correct sampling and correct packing for effective use of experts.
1. A criminal while running away from the scene if occurrence brushes against a painted
surface. Some powdered particles of paint get deposited upon his clothes. The investigating
officer scraps a few grams of paint from the same surface with a pen-knife and sends it as
control sample. The result of the analysis shows that the two paints do not match. Why?

2. A small amount of dust is recovered from a small sticky patch of the shoe of a culprit. The
investigating officer collects about two kilograms of soil from the scene packs it in tin and
sends it as a control sample. The results of comparison are inconclusive. Why?

3. In a rape case, the investigating officer collects the clothes of the victim. The clothe carry
both blood and semen stains. The investigating officer dries the clothes and packs them
together and sends them through a railway parcel. He wants to know if the clothes carry
semen stains , and if so, to which blood group does the secretor belong?

The expert establishes the existence of semen but fails to give its blood grouping; because he
finds powdered blood sticking to semen stain.

Facts do not lie- ‘Facts do not lie, men can and do’ , hence the importance of circumstantial
evidence vis-à-vis oral evidence. The oral testimony depends upon the power of observation ,
assimilation and reproduction of the witness. It is modified by the power of observation,
assimilation and reproduction of the witness. It is modified by auto suggestion , external
influence, suggestions, descriptions and opinions of others and rationality. Oral evidence ,
therefore , is coloured whereas factual evidence is free from these infirmities.

But ‘facts’ can also be created:

1. A person is killed in an accident firing. The relatives want to implicate their opponents.
They procure an unlicensed firearm, fire a cartridge ,place at at the scene and plant the
firaram on the opponent.

The police recovers the shell and the firearm. The shell is married to the firearm. The police
prosecutes the person.

2. A person is in the armed forces. He is seen carrying out duty upto 1 A.M. in the unit. He
slips through the guarded premises, goes about a hundred miles, and commits a murder,
returns to his unit, enters into the guarded premises secretly and is present on his duty at

By circumstantial evidence he proves his presence in the unit throughout the night.

3. A threatens B with death. The next day B is found murdered. B had no other enemies
except A. Police suspects A as the murderer. He is not found anywhere. He is declared a
proclaimed offender. Soon afer ‘A’ appears before a magistrate and says he had gone on a
pilgrimage. But checking at the allegedly visited places, his visits to the places are not
established. He is arrested and prosecuted. In defence , he produces the jail record. He was
behind the bars at the relevant time. He escapes sentence.

Law of probability- All identifications, definite or indefinite, are made , consciously or

unconsciously,on the basis of probability.

‘ Probability’ is mostly misunderstood. If we say that according to probability a particular

fingerprint has come from the given source, the defence counsels will make most of the word
and plead that it is not a definite opinion. Consequently, it is not customary to talk of
‘probability’ or ‘probability figures’ in counts.

Probability is the mathematical concept. It determines the chances of occurrence of a

particular event in a particular way out of a number of ways in which the event can take place
or fail to take place with equal facility. If P represents probability N1 the number of ways in
which the event can successfully occur(with equal facility) and N2 the number of ways in
which it can fail (with equal facility

We have neglected other factors (sex, age and dress) and even without these additional
factors , the identity of the deceased is established beyond a ‘ reasonable doubt’.

Tools and Techniques

The tools and techniques of forensic science are oriented to meet the following exacting
demands in an analysis :
1. Sensitivity
2. Specificity
3. Rapidity

The instruments and techniques should be highly sensitive because the quantities of materials
involved are extremely small, often in micro , sub micro or microscopic ranges. For example,
a few milligrams of certain poisons are sufficient to kill a person. The quantity is distributed
in whole body.

Paints, soils , dusts , inks and body fluids are often met with in micro quantities.

The number of cases requiring evaluation of clues is increasing everyday. The techniques and
instruments should , therefore, be rapid. In classical examination of viscera and organs each
item is subjected to lengthy process of extraction, purification, identification and estimation.
The results are checked and cross checked for mistakes. Modern techniques may eliminate
most of these steps.

The tools and techniques currently used in modern forensic science laboratories belong to
both classical and modern categories.They are as follows:-
Ø Measurements
Ø Microscopy
Ø Photography
Ø Invisible rays
Ø Chromatography
Ø Electrophoresis
Ø Spectrography
Ø Laser Techniques
Ø Mass Spectrometry
Ø X- Ray diffraction analysis.

Forensic Science And Criminal Prosecution

I. Scene of Occurrence
A scene of occurrence is the meeting place of the persons involved. The parties exchange
traces with one another and with the scene, leave odds and ends and mark of tools, wearing
apparels, means of transport , hands and feet. Thus the scene of occurrence provides a wealth
of information which is useful to:
1. Establish corpus delicti
2. Provide link between the criminal , the victim and the scene of occurrence; and
3. Evaluate the pattern of events.

The scene is of great importance in almost all crimes except perhaps in cases of forgery
where the utility is limited. The examination of the scene needs planning , care and diligence.
In many cases the success or failure of the investigation depends entirely upon the proper
handling of the scene. The scene of occurrence changes rapidly and cannot be preserved
forever. Some of the evidence gets lost soon after the occurrence, the other evidence
disappears, gets contaminated or altered with further passage of time. The opportunity to
examine the scene is available only once. If the same is not fully exploited the wealth of
information is lost for ever.

Case Laws:
1. Raghunandan v State. Of U.P., 1974 Cri. L. J. 453 (S.C)

In the above case both the trial court as well as the High Court had brushed aside the
objection that the blood recovered from the place of occurrence was not sent for chemical
examination. The failure of the police to send the blood for chemical examination is a serious
case of murder , such as the one before us., is to be depreciated . In such a case the place of
occurrence is often disputed.

2. Marachalil Chandra Tukaram Talekar v State of Gujrat. 1980 Cri. L.J.5 (Guj)

Identity of the scene:

It was argued with great vehemence in the High Court as well as in the court of sessions that
there was trial of blood from the front door of the house of the vakil into the corridor rooms
marked H and H-1 in the plan and that supported the defence theory that the deceased
Kannan received the stab injuries not in or near the house in question but somewhere far
away near the railway station. The High Court took the view that if Kannan had received the
injuries somewhere outside the house it was impossible for him to have come into the room
in view of the doctor’s evidence. It was concluded on the material placed on the record that
there could be no room for doubt that Kannan received the injuries in the room itself and not
outside, and that he was carried out of the room while life was still lingering and therefore
there would be dripping of the blood from the body during the course of transit as the injuries
were very serious and vital arteries had been cut.

II.Fingerprints:
The identification of criminals through fingerprints was the first important break-through in
the scientific investigation of crime. As usual, the judiciary and the public took some time to
believe in the utility of fingerprints as a scientific aid. The same is now recognized
throughout the world. The importance of fingerprints in criminal investigation is immense,
because they are:
Unique
Ridge pattern of each finger has an individuality. The patterns vary not only from one
individual to another , but they are different in the same individual on each finger.
Duplication of pattern has never been observed. Nor the same is expected.

Permanent
The fingerprints of an individual do not change throughout his life. In fact, the ridges appear
before birth. They start appearing during third or fourth month of pregnancy. They remain
even after the death of the individual ever till the epidermal skin is destroyed by fire,
putrefaction or is eaten by insects or other creatures.

In a murder case the body of the victim was partially burnt and buried. The same was
discovered many days after the murder. The body was completely disfigured and could not be
identified.

The investigating officer got removed the remaining skin pieces from the tips of the fingers
through a doctor. He sent them to fingerprint bureau alongwith the one authentic print of the
deceased available on his will. The bureau confirmed the identity of the deceased.

The digital skin pieces were recovered and sent to the finger print bureau. The fingerprints of
the deceased tallied with the fingerprints of the convict , available in the records,

The permanence of fingerprints permits identification of an individual even after many years,
if his finger print record is available. Many criminals have been identified through this
medium after years of absconding.

Universal
All individuals and hence all criminals carry this medium of identification. The finger digits
and palmar surface of the hands carry the friction ridges. The fingers have more intricate
patterns. They allow easier individualization and classification.

A criminal uses his hands in the commission of crime. He leaves marks at the scene of
occurrence or on the objects which come in contact in the commission of crime. There are
fair chances of occurrence of fingerprints , therefore in all types of crime.

Inimitable
Successful forgery of fingerprints has not been reported so far. Near perfect forgeries have
been attempted. It is possible that the advancement of science may bring the forgery still
closer to perfection but complete success in the enterprise is extremely difficult ,if not
impossible.

For all practical purposes it may be taken that it is not possible to forge a fingerprint. This is
important because no person can deny his or her fingerprints. The identification through
fingerprints is certain and infallible.

Classifiable
The scope for classification of fingerprints is large and yet the work is simple. Records of
millions of persons can be classified and kept on nicrofilms. Computerisation of fingerprint
record, and hence searches are becoming popular and is increasing the efficiency. A search
can be made virtually in seconds with the help of these devices.

Case Laws
Sufficient Evidence
1. The question was raised before the sessions Judge as to whether a conviction can be based
upon the unsupported testimony of a fingerprint expert. There is no rule of law on the point; it
is merely a matter of caution whether a court will act on such unsupported evidence or not.
The correct principle was defined by S.K. Ghose,J. in Hatendra Nath Sen v Emperor.

“ I do not think that it can be laid down as a rule of law that it is unsafe to base a conviction
on the uncorroborated testimony of a fingerprint expert. The true rule seems to me to be one
of caution that is to say, the court must not take the expert’s opinion for granted , but it must
examine his evidence in order to satisfy itself that there can be no mistake and the
responsibility is all the greater when there is no other evidence to corroborate the expert”

Uncorroborated Evidence
In Bazari Hajam v King Emperor(AIR 1922 Pat.73 :23 Cr. L.J 638) the question arose
whether it will be safe to act on the uncorroborated testimony of the fingerprints and declare
the guilt of the accused. On this point Bucknill,J., observed thus:

“ I think that apart from the fact that I should be rather sorry without any corroborative
circumstances to convict a person of a serious crime solely and entirely upon similarity of
thumb marks or finger prints, the very fact of the taking of a thumb-impression from an
accused person for the purpose of possible manufacture of the evidence by which he could be
incriminated is in itself sufficient to warrant one in setting aside the conviction upon the
understanding and upon the assumption that such was not really a fair trial.”

The above view was disapproved of by Schwabe, C.J. in Public Prosecutor v Kandasami
Thevan (AIR 1927 Mad. 696 :27 Cr. L. J 1251) although the point did not directly arise in the
case as there were thumb-impressions of the accused in evidence other than that taken by the
judge in court for comparison with the thumb-impressions in the document alleged to have
been forged.

III. Track Marks

The culprit approaches, stays and then leaves the scene of occurrence. He leaves track marks
on and around the place in the form of prints and impressions( collectively called ‘marks’) of
feet, shoes, tyres, hoofs and the like. The evidence often connects the criminal with the crime
conclusively. It should, therefore be properly understood ,collected, evaluated and presented
in the courts.

The track marks establish not only the presence of the culprit at the scene of crime but also
give the number of participants. The evidence is helpful in tracking down the criminals to
their houses or hide-outs, especially in India where most of the people live in rural areas. The
roads in the country side are not metalled. Besides, the criminal, ordinarily, follows
untrodden routes ; fields ,garden and stream beds. He leaves track marks on routes used
before and after the commission of the crime.

The nature of the vehicle used in the commission of crime wether it is a cycle , scooter, car,
bus, truck, tractor, rickshaw, bullock cart or a buggie can be ascertained. It is sometimes
possible to identify the individual vehicle also.In some cases animals are involved in crimes
sometimes. For example , a horse or a camel may be used for transport ; a cow , a buffalo or a
bullock may be stolen or a dog or a tamed wild best , like a snake or a tiger may be used to
destroy or kill a human-being or a domestic animal. The type of the animal or the beast can
be found out from the track marks.
Foot Wear marks include the marks of shoes , sandals , chappals , socks and the like. The
footwear may be factory- made or hand made.

Case Laws
Rejecting the contention that the study of footprints is not a science in Din Muhammad v
Emperor , Central Provinces Police Gazette dated 27th May , 1914 pp. 125-130, the court of
the Judicial Commissioner at Nagpur (H.J. Stanyon and H.F. Hallifax, A.J. Cs ) as far back as
in 1914 held:

“The knowledge of footprints has similarly been systematized and pursued by trackers ,
mainly uncivilized and ignorant people an all other respects, all over the world . The matter is
therefore undoubtedly a science and the opinion of a person specially skilled in it is a relevant
fact, under Sec-45 of the Evidence Act “

In Re Paramban Manmmadhu, which is a bench decision of that court, delievered by Horwill,

J (Supra) the learned judge held that opinion of a foot print expert is not admissible as
evidence.

In the case of Pritam Singh v State of Punjab (AIR 1956 S.C. 415) there is an observation to
the effect that the science of identification by footprints is a rudimentary science and much
reliance cannot be placed on the result of such identification.

Poisons
Poisons are frequently involved in homicidal accidental or suicidal deaths. They are
sometimes used to destroy animals and plants. The detection of poisons and their
identification is an important aspect of forensic science.

The investigation of cases of poisoning is one of the most difficult tasks. The quantity of a
poison required to kill a victim is extremely small in some cases. For example , the fatal dose
of nicotine is about 50 milligrams.

The investigation is further complicated by the variety of poisons available. The ever-
increasing number of synthetic drugs which are used as poisons is further adding to the
complications. Some drugs are very close to one another in their chemical and physiological
behaviours. Their identification requires the most fined analytical techniques.

Body materials in which the poisons are found,is a complex mixture of organic , inorganic
and biological substances. They interfere in the isolation , detection and estimation of the
poisons. In fact the most difficult task of a toxicologist is to isolate the

V) Biotechnology and Law :

The Department of Biotechnology (DBT) was set up under the Ministry of Science and
Technology in 1986. This gave a new boost to the development of biotechnology in India.
The DBT has set up many Centres of Excellence in the country. These centers are responsible
for generating skilled manpower, developing research initiatives and opportunities as well as
supporting R&D efforts of private industries and providing platform to them to out source
their research activities to these centres. This has promoted interactions between the
academics and the industry which has resulted in several industry houses and entrepreneur
initiatives to take root and grow biotechnology in India.

The Indian Government has evolved biosafety guidelines and has helped to lay down patent
rules. It has also participated in technology transfers and international collaborations. The
center is also planning to introduce additional venture capital funds in line with its
Technology Development Fund (TDF) to promote small and medium biotech enterprises.

The Indian government has laid down a decent regulatory framework to approve GM crops
and r-DNA products for human health. A proactive government policy allows stem cell
research in the country while having in place sound ethical guidelines. The product patent
regime which has come into force since the year 2005 and resulted in giving a message to the
world as well as Indian Industry that India supports world regulatory framework and rewards
new research and initiatives. The second amendment of the Indian Patents Bill include a 20-
year patent term, emergency provisions and commencement of R&D immediately after the
filing of patents. The bill is compatible with the provisions of WTO and TRIPS and make
Indian laws compatible with what has been agreed within the framework of these multi lateral
negotiations.

Several states have taken their own initiatives in terms of defining their own biotech policies
to give an impetus to the industry in this sector and to biotechnology in India as a whole.
States like Andhra Pradesh, Karnataka, Gujrat, Maharashtra, Kerala, Tamil Nadu and
Himachal Pradesh are developing biotech parks. They are encouraging research activities,
establishing links between their research institutions and industry. Several concessions are
being offered to the industry in terms of single window clearance, speedy customs clearance,
exemption from tax, creation of funds to be used for the incubation of new project.

Due to the concerted efforts of the Ministry for Science and Technology, a number of centers
of excellence in the field have been established. These places have world-class infrastructure
and fully developed research centres. These centers are open for collaboration. Some of these
are: Plant Genomics Center, New Delhi, Center for Human Genetics, Bangalore, National
Institute of Biologicals, New Delhi, Center for Cellular and Molecular Biology (CCMB),
Hyderabad, National Facility for Macromolecular Crystallography, BARC, Mumbai,
National Facility for High Field NMR, Tata institute of Fundamental research (TIFR),
Mumbai, Central Drug Research Institute, Lucknow, National Brain Research Center, New
Delhi, CIMAP, Lucknow.

Definition of biotechnology:

The term biotechnology was first coined by Hungarian engineer, Karoly (Karol) in 1919.
Biotechnology is derived from two words, biology and technology. So in simple words,
biotechnology can be defined as the use of technology in the advancement of biology. In
broader meaning, biotechnology is the branch of biology which exploits the biological
processes to produce various products which are useful to human beings.

Earlier use of biotechnology was limited to agriculture to produce high yielding crops but
nowadays its use is broadened to many fields such as in pharmaceutical industries,
biodegradation of wastes and diagnosis of many diseases.

History of Biotechnology

Although biotechnology is not a new branch but earlier it was limited only to agriculture.
From the last fifty year biotechnology has broadened its aspects in various areas. Lets have a
brief glance of the development of biotechnology in last 50-60 years-

-53, RE franklin and MH Wilkins; JD Watson and FH Crick proposed the double
helix model for the 3-dimensional structure of DNA with the help of X-ray diffraction.

Nathans brought performed the site specific recognition and cleavage of DNA with the help
of endonuclease enzyme.

code.

ase.

polymerase also known as reverse transcriptase.

-72, HW Boyer, S Cohen and P Berg developed the DNA cloning techniques
which proved to be a big milestone in the biotechnology.

rDNA technologies at Gordon. <.li>

 tee (RAC) issued the guidelines regarding the r-
DNA technologies.

1981, Ortho diagnostics developed the first biotechnological diagnostic tool name anti-
C3 Biodone which got US approval.

(Human Insulin) using rDNA technologies which got US approval.

expression of a foreign gene in plants. They discovered the expression of bacterial antibiotic
resistance gene expressed in the tobacco plants.

, KB mullis and Cetus Corp. developed the polymerase chain reaction (PCR)
which enabled the targeted amplification of DNA sequences.

got FDA approval.

P Leder and Harvard University developed first genetically engineered mammal

(Transgenic mouse) which was patented in US patent and Trademark office.

mammal (Sheep) and named it dolly.

human genome sequence.

Scope of biotechnology in India

Biotechnology industry is growing with very rapid rate in India. Apart from the basic
qualification in biotechnology, biotechnologist should possess a scientific aptitude, Strong
practical hand, good analytical power and should have thorough knowledge of the subject.
Basically biotechnology finds its application in agriculture, health industry, environmental
science and teaching.

Scope of biotechnology in agriculture- Biotechnology is used for the development of novel

crops which have better yield, better immunity, better nutritional benefits and better
resistance to the environmental stresses. As we all know India is an agriculture dependent
country so there always an ample scope for the biotechnologists for finding new better crops.
New improved varieties help to decrease the expenses of farmers as they use less fertiliser
and give better yield.

Scope of biotechnology in health industry- From last one decade in India there is lot of
research is going on the development of better health products which can be more safe and
efficient than traditional one.
Lots of vaccines are developed with the help of biotechnology and research is going on to
further for the development of more such vaccines. Biotechnology also provided us the
Humalin (Human Insulin) which brought revolution in the treatment of Diabetes. Main
advantage of biotechnological products is that they are safer than the synthetic drugs. It is
estimated that in the next 5 years there will be an explosion in the research on
biotechnological health products in India.
As Cancer and AIDS are the most threatening diseases of the present scenario and till date no
accurate treatment of these diseases is found in India so scientists are moving towards
biotechnology for finding the cure of the diseases.

Scope of biotechnology in environmental studies- Pollution is the major concern of the

world as it is deteriorating our environment. There are lots of researches are going on the
microorganisms which can be helpful in controlling the pollution. Recently scientists have
discovered a bacterium named hydrocarbonoclastic bacteria which eliminates the oil spilled
in the sea by the ships. There are many other bacteria which are discovered and are
responsible for biodegradation of the waste products. There is still lot to explore in the
environment so biotechnology provides a great opportunity.

Scope of biotechnology in teaching- Those who are interested in the teaching can also opt
for this career after completing the post graduate course in the biotechnology. Although
salary in teaching is less than the industry, but job of teaching offers a feeling of satisfaction
and stability in the job.

Earnings in biotechnology- In the starting a fresher can earn from Rs. 10000 to 15000 per
month in the industry which goes on increasing with the experience. The earning can go up to
1 lakh per month depending on the hard work and capability of the biotechnologists.
(VI) Uses and misuses of nuclear technology:
Harvesting the energy residing in an atom was an unimaginable idea until the mid-20th
century. It was Sir Ernest Rutherford, considered the 'father of nuclear physics', who first
became aware of the energy trapped in an atom. While examining the result of an experiment
conducted by John Cockcroft and Ernest Walton, the latter being his doctoral student, he
realized the massive amount of energy produced in the 'splitting' of an atom. However, he
also noted that looking for a stable source of energy in this process was pointless, since the
energy required to split an atom of a light element was so much that the surplus output came
up to a paltry amount. While this notion holds true for lighter elements even to this day, the
scientific world was yet to realize the capability of heavy, radioactive elements to produce a
highly energy-efficient fission chain reaction.

To understand nuclear power, we must first have a basic understanding of the structure of the
atom and the phenomenon of radioactivity. Those who are already familiar with what I'm
about to explain may skip the theoretical illustrations.

The Atom

The atom consists of two regions: the central nucleus and the outlying electron orbits. The
nucleus is made up of protons, which are positively charged, and neutrons, which do not have
any electric charge. Protons and neutrons are called 'nucleons', since they make up the
nucleus of the atom. Electrons are negatively charged particles and orbit the nucleus at a
distance directly variable with their energy level (the further an electron is from the nucleus,
the more energy it holds and vice versa). The characteristic physical and chemical properties
of an element are imparted due to the number of protons present in the nucleus, which is
known as the atomic number of the element. In other words, the number of protons in an
atom's nucleus gives the element its 'identity'. While an atom can lose or gain electrons while
maintaining its atomic number (i.e., its identity), nuclear reactions bring about a change in the
number of nucleons of the atom. This changes or transmutes the atom of a particular element
into an atom of a different one. The loss of protons, neutrons, or splitting of a large atom into
smaller ones is due to radioactivity.

Radioactivity is observed in elements having an atomic number higher than 83. Bismuth, the
83rd element, is very slightly radioactive, but its half-life period is so long (a billion times
more than the age of the universe) that it is considered stable. The cause behind radioactivity
lies in the force which holds together identically charged protons in a nucleus. As any eighth
grader would know, like charges repel each other, which should result in positively charged
protons repelling each other when bound together in the nucleus. The reason that does not
happen is a short-range force known as 'nuclear force'. Within a specified range, nuclear force
is one of the strongest forces in the universe and requires a massive amount of energy to
overcome. However, after a limit (considered to be 2.5 femtometers), it has close to no effect
at all. Heavy nuclei, such as those of uranium and radium, have protons close to or outside
the outer limit of the pull of nuclear force, rendering the atom unstable. Through
radioactivity, heavy atoms may lose a variety of particles in order to acquire stability,
including alpha particles, neutrons, neutrinos, photons, gamma rays, etc. This, incidentally,
also explains why lighter elements, tightly bound by nuclear force, cannot be a viable source
of energy via fission, as noted by Rutherford, but heavy elements can.

Types of Nuclear Reactions

Nuclear reactions can be of two kinds: fission and fusion reactions. Fission is widely
practiced and constitutes, in simple terms, the 'splitting up' of a heavy nucleus, such as that of
uranium or plutonium, to produce energy along with a combination of lighter elements and
various nuclear by-products. Nuclear fusion, on the other hand, constitutes joining two lighter
atoms together to produce a heavier atom. It produces much more energy than fission
reactions. However, as I will explain later in the article, the full potential of nuclear fusion
has not yet been realized, and sufficient research has not been made to enable it being used on
a commercial scale.

Nuclear Fission

The process of nuclear fission was discovered by Otto Hahn in 1938. Hahn was an eminent
German chemist, renowned not only for his academic merits, but also for his open opposition
of Nazi Germany's anti-Semitic policy. He discovered that neutron bombardment of uranium
produced barium and krypton along with neutrons. Hahn was, at first, baffled by the results of
his experiments, which did not fit the existing scientific paradigm as nuclear fission had not
been invented yet. His exiled colleague, Lise Meitner, confirmed that the result was due to
nuclear fission. Meitner's cousin, Otto Frisch, confirmed Hahn's results experimentally. Since
then, nuclear power has risen in prominence, both as a useful boon and a destructive bane.
While nuclear power remains the most effective power source available to mankind right
now, the ever-present threats of the risky nuclear technology, ably demonstrated by the
nuclear bombings of Hiroshima and Nagasaki and the Chernobyl and Fukushima-Daiichi
reactor accidents, cannot just be ignored.

Coming to the point of this article, nuclear power is widely being harnessed across the world
in an effort to reduce the global dependence on depleting stores of fossil fuels. But is nuclear
energy really the "wonder fuel" it is made out to be? Let's find out.

Advantages

►► Extremely Efficient Power Source

Compared to fossil fuels, nuclear fission produces much more energy per unit of fuel - more
than a million times more. Due to this, larger amounts of electricity can be produced more
effectively via nuclear power. Fossil fuels release energy through chemical reactions, i.e., the
transfer of electrons. Protons, on the other hand, contain much more energy - due to a force
known as nuclear force - when clustered together in the nucleus, and thus produce
correspondingly higher amounts of energy when separated.

►► 'Greener' Emissions
Nuclear reactors do not produce greenhouse, or otherwise harmful gases. Since, unlike fossil
fuels, nuclear energy sources do not include hydrocarbons, gases such as CO2, CO and
methane, which are all compounds of carbon, are not produced. CO2 and methane are the
primary contributors to the global greenhouse effect, while CO is extremely poisonous. The
only gaseous exhaust produced by nuclear reactors is water vapor.

►► Later Expiry Dates than Fossil Fuels

Although uranium stockpiles on the earth can hardly be termed 'inexhaustible', thorium,
which is much more abundant, could provide electricity to the world for at least half a
millennium. Fossil fuel reserves are, even by the most optimistic predictions, expected to
have been exhausted by that time. The primary drawback with using thorium as nuclear fuel
is that the naturally found form (isotope) of thorium is not fissile, unlike the naturally found
form of uranium. The natural thorium isotope has to be converted into a fissile material
before being used as a nuclear fuel. Although uranium is currently the first-choice nuclear
fuel, many countries, primary among which is India, have set up extensive research facilities
on the suitability of thorium as a substitute for uranium, and we could soon have thorium
powering our nuclear reactors in place of uranium.

►► Nuclear Fusion
Ongoing research on nuclear fusion could well herald its advent as a universal power source.
Fusing two hydrogen nuclei to form a helium molecule, which is the most commonly
performed fusion reaction, produces exponentially more energy than fission. The amount of
energy produced via fusion reactions can be best illustrated by the fact that nuclear fusion is
responsible for the massive amounts of energy produced in stars, such as our own sun. The
cores of stars are violently active regions, with continuous nuclear fusion of hydrogen atoms
taking place. It is a tiny part of the energy produced from these fusion reactions that all life
on Earth depends on to survive. If nuclear fusion could be truly mastered, it would be,
without a shadow of a doubt, the single most important technological breakthrough in human
history. The abundance of hydrogen on the Earth could mean a virtually inexhaustible power
source, while the absence of radioactive by-products would ensure safe removal of the end
product, helium.

Disadvantages:

►► Misuse of Nuclear Technology

The technology used for generating nuclear power can also be used to produce nuclear
weapons. Left in the wrong hands, such as terrorist or extremist groups, nuclear technology
could lay the foundations of a global disaster.

►► Radioactive Waste
Although gaseous exhausts from a nuclear reactor are environment-friendly, solid waste
products generated in the same, which are radioactive, cause more long-term problems than
the waste material generated by conventional fuels. The radioactive by-products can pollute
the environment beyond repair and cause fatal diseases, such as cancer, in the human
population if not properly disposed of.

►► Tragic Accidents
Accidents in nuclear reactors are much more devastating than those in conventional energy
plants. Despite being a much rarer occurrence, individual nuclear disasters are much more
deadly than, say, fossil fuel disasters. To be fair, the collective number of deaths from nuclear
accidents underwhelm those from conventional energy plants. However, apart from the
immediate blast radius, a nuclear explosion (weapon detonation/reactor core meltdown) is
also terrifyingly active in its thermal and ionizing radii. Radiation from the core can cause
genetic abnormalities in the population, which can be carried on for generations. Long-term
aftereffects of the Hiroshima-Nagasaki nuclear explosions continue to manifest in Japanese
population even to this day.

►► High Costs
The construction cost of a nuclear reactor is high; according to various studies, the total cost
of building and making a nuclear power plant operational ranges between $8-17 billion. The
high cost, coupled with the inability of the plants to generate any income until fully
operational, deters many sponsors.

►► Long Timeline
Building a nuclear power plant takes a number of years. Although extensive research is
undertaken before initiating such a project, there's no guarantee that the conditions required
for the power plant's maximum usage would prevail through the period of its construction.
With increasing research in various other energy sources, the changing energy demographics
could alter conditions so as to make the under-construction nuclear power plant redundant.

►► Contamination Perils
Uranium mining operations can turn out to be hazardous for the health of miners as well as
the surrounding population. If necessary safety precautions are not observed, radioactive
contamination can spread, even to the next generation.

Nuclear energy has its distinct set of pros and cons, and each has its own community of fierce
proponents. While other renewable power sources such as solar energy and wind power are
catching on, there is no doubt that at this point of technological advancement, nuclear energy
remains the most efficient energy source. If its flip side could be negated, nuclear energy
could propel the world into a clean, environment-friendly atomic age, an era fantasized by
many for decades. However, supporters of an atomic age would do well to remember that
atomic energy is, after all, completely dependent on limited and nonrenewable stocks of
radioactive elements, which, like fossil fuels, will run out at some point in the future. Even if
some anorak comes up with a solution to extend the application of nuclear fuels, it would and
could only be a temporary one. Many countries, including the likes of Germany have
prioritized the risks - rather than benefits - of nuclear power, and have decided against new
nuclear power plants, and to decommission the existing ones. Some, like Italy, have banned
nuclear power altogether. It is clear that although nuclear energy remains one of the most
important technologies of the present, the future belongs to the renewable resources.

Interrelationship between human rights and nuclear technology:

The notion of advanced technologies refers here both to technical appliances and to methods
of their usage, leading to the replacement not only of manual work but also of the mental
work of man. In this sense, an example of advanced technology is electronic communication
techniques.29 These, like traditional technologies, have a double impact on human rights. On
the one hand they may contribute to the fulfilment of certain rights, and on the other they may
simultaneously hamper the fulfilment of other rights. This relationship can also be inverse,
with some human rights speeding up the introduction of advanced technologies and others
making the adoption of such technologies impossible.

Advanced technologies exert a positive influence on labour productivity, the improvement of

quality, and other modern features of production. They eliminate a whole range of adverse
side-effects of mechanization and automation, such as noise, air pollution with chemical
substances, dust, etc. In countries suffering from a shortage of trained labour, advanced
technologies make it possible to overcome this barrier.

Advanced technologies completely change the position of man in the process of his
interaction with nature. His role in some ways becomes more and more superior, and in
others increasingly subservient. Superiority comes from his increased power over nature and
subservience from his increasing dependence on the technology.

Production of Electric Power by Nuclear Fission

The technologies involved in the production of electric power by nuclear fission can certainly
be referred to as advanced. They have led to an almost complete elimination of manual work
and a limitation of mental work through the use of robots, computers, and other modern
appliances. These technologies are very efficient. They can be installed far from the sources
of raw material, and they do not produce dusts or chemical substances as by-products. They
are also silent and sterile. However, in the case of equipment failure, they can lead to
ecological disasters that cannot be averted by man and the aftermath of which is long-lasting
and poses a threat to large populations in far-away regions.

This is why nuclear power stations give rise to controversy. An example is the public debate
on the future of nuclear power engineering, which has been going on in Poland since the
middle of 1989. Although decisions on the development of nuclear power engineering were
taken earlier, the change in the political system, involving a different approach to human
rights, has aroused broad social resistance to these decisions.

The proponents of nuclear power engineering especially atomic physicists, express the
opinion that it offers a better method of electric power generation than that provided by
thermal power stations burning coal.30 In Poland, suffering from acute shortage of electric
power, and virtually deprived of other possibilities for generating electric power (apart from
power engineering based on coal), nuclear power engineering should, according to this
opinion, command a special interest. Nevertheless, human rights in a liberal sense form a
barrier to that interest.

The proponents of nuclear power engineering argue that for economic reasons electric power
generation in nuclear power stations is much more worth while than in coal-burning power
stations. A yet more serious reason for the replacement of coal-burning power plants with
nuclear power stations is, according to them, environmental pollution, as power engineering
based on coal causes much more pollution than nuclear power engineering does. In Poland,
for instance, coal-based power engineering contributes to the discharge of some 50 per cent
of all particulate matter and some 70 per cent of sulphur dioxide.

At the same time, coal-based power engineering discharges into the natural environment such
substances as uranium, radium, thorium and their derivatives, increasing by three times the
risk of cancer as compared with nuclear power engineering. A properly operated nuclear
power plant is a source of very slight radiation affecting people living in its surroundings and
insignificant radiation affecting employees at various stages of the production cycle.31 In the
case of populations living near the power plant, the doses of radiation are millions of times
lower than those required to cause detectable effects. In the case of power-station employees,
the difference is of the order of hundreds and thousands of times. Thus, this kind of threat
does not have to be taken into account. On the other hand, the aftermath of accidents, even at
low doses of radiation, must be considered. According to the opinion expressed by Julian
Liniecki, a UN expert on Research into the Effects of Atomic Radiation (UNSCEAR), these
risks are quite insignificant, taking into account 434 nuclear reactors in operation in 1988,
generating 318 thousand MW of electric power, and the number of accidents that have
occurred in those power stations so far, in comparison with other risks faced by every society.

The risks posed by nuclear wastes dumped by nuclear power plants are, according to the
proponents of nuclear power engineering, 200,000 times lower than those entailed in coal-
based power engineering. This proportion is not considerably altered by equipment for
reducing the amount of sulphur and nitrogen pollutants discharged into the atmosphere. Even
if the efficiency of that equipment amounted to 90 per cent, the remaining 10 per cent of
pollutants would be more dangerous than pollution caused by nuclear power stations.

Thus, in the opinion of the experts mentioned above, the comparison of the harmful effects of
nuclear and coal-based electric power generation on health and the environment justifies the
claim that the nuclear process, at the present technological level, represents an incomparably
lower risk for human life and health. Besides, it does not bring about, even to a limited
extent, the environmental damage typical of coal-based power engineering.

At present 235 nuclear reactors are in operation in Europe, accounting for 70 per cent of the
total electric energy output in France, 66 per cent in Belgium, and 47 per cent in Sweden. At
the same time 97 other nuclear reactors are under construction, of which 26 are in the Soviet
Union and eight in France.

Poland is one of the few countries in Europe without nuclear power engineering. Apart from
Poland, this group includes Albania, Austria, Denmark, Greece, Ireland, Norway, and
Portugal. It should be remembered that Poland is surrounded on all sides by countries with
many nuclear power stations in operation on their territories. In the Soviet Union there are as
many as 53, as well as eight in Czechoslovakia and five in the eastern part of Germany . At
the same time, eight other nuclear power stations are under construction in Czechoslovakia
and six in the east of Germany. New nuclear power stations are also being constructed on the
eastern side of the Polish border, in the Ukraine and Byelorussia.

The proponents of nuclear power engineering claim that in this situation, taking into account
even a slight possibility of a threat caused by a technical failure, this would most probably
take place on the territory of one of the neighbouring countries, where the number of nuclear
power stations in operation is already considerable (several dozens) and where another dozen
or so new plants are under construction. In view of the fact that the distances separating
Poland from her neighbours are small, she would suffer a great deal from a nuclear accident.

However, all these arguments are not convincing to the Polish opponents of the plans to
construct nuclear power stations. They place in the forefront two fundamental human rights:
the right to life and the right to a healthy environment. The action undertaken by the Polish
opponents of nuclear power engineering successfully blocked the implementation of several
investment projects of this kind in Zarnowiec, Klempicz, Miedzyrzecz, and Karolewo. It
should be added that the construction of the Zarnowiec nuclear power plant was suspended at
the last stage of implementation of the project.32

What are the reasons for the public attitude in Poland towards this issue?

First and foremost is the complete change of approach to human rights that took place at the
end of 1989 and the beginning of 1990, expressed in terms of the replacement of the
collective needs of society as a whole with the rights of an individual in the liberal sense.
Owing to the fact that all decisions on the construction of nuclear power stations in Poland
were taken in the period when human rights were identified with the collectively perceived
social rights of citizens as seen by an authoritarian government, it is suspected at present that
these decisions were taken on an incorrect basis, without respect for the interests of local
communities and without safety guarantees, both at the regional and the national level.

According to this argument, technological decisions were political decisions, and experts
were used only to justify politicians' orders. Lack of any kind of opposition hampered the
development of adversarial mechanisms and procedures constituting the basis of social
dialogue on important issues and choices in the field of technology. Restrictions on
information, affecting not only citizens and journalists but also experts, and strict censorship
made it possible for the politicians of the time to manipulate information. Public discussions
on nuclear power engineering were not allowed, except for discussions among experts
forming the atomic lobby.

The second reason for social resistance to nuclear power stations is the low technical culture
of society. In the process of technical education available in Poland hitherto, scope for
objective evaluation of the advantages and disadvantages of technological development,
including nuclear power engineering, was too narrow. It is also for this reason that groups in
society which influence social opinion are unable to make an objective assessment of the
positive and negative aspects of the development of nuclear power engineering. Positive
opinions formulated by experts on nuclear power engineering are suspected of lacking
objectivity and/or falsifying reality.
In this process an important part is played by the mass media in attempting to win the support
of public opinion and questioning the truthfulness of experts. For instance,
the Morze monthly33 quoted an opinion of an "expert," who said that construction of the
Zarnowiec nuclear power station would have increased the cancer mortality in that region by
200 per cent. According to the opinion of Julian Liniecki already quoted, this falsified the
actual position by 100,000 times. The impact of such information on public opinion is
apparent, causing as it did increased hysteria in opponents of nuclear power engineering.
There are numerous examples of such opinions presented in the Polish press. The purveyors
of such information, often representing skimpy knowledge and low technical culture, react
spontaneously and sometimes harshly to the construction of nuclear power stations, taking no
account of arguments provided by experts in the field of nuclear power engineering and
opinions voiced by internationally distinguished authorities.

The third and most serious cause of the negative attitude of Polish public opinion towards the
construction of nuclear power stations is the Chernobyl disaster. This disaster has proved that
one serious accident can completely ruin all the advantageous effects , whether economic,
environ mental or social, of nuclear power engineering. This was the first time that the truth
about the dangers involved in the development of nuclear power engineering penetrated
public opinion so deeply. The Chernobyl disaster was bound to strengthen the negative
attitude of public opinion towards the development of nuclear power engineering, not only in
Europe but also in the world generally.34

For these reasons social attitudes towards traditional and advanced technologies are different.
The former do not give rise to strong social emotions, although in everyday practice they may
be much more hazardous to human health and life, e. g. coal-based power engineering. In
contrast, advanced technologies are treated with great caution. It is also of significance here
that man is completely helpless in the face of, for example, an accident in a nuclear power
station which can in the long run pose a threat to people not directly involved with the power
station. An accident in a conventional power station affects only people having direct contact
with it. It is like a car accident- except for those directly involved in it, the rest are safe.

The negative attitude of Polish public opinion towards nuclear power arises also from the fact
that the technology for the construction of nuclear reactors comes from the Soviet Union, i.e.
the country in which the Chernobyl disaster took place. Opponents of nuclear power
engineering in Poland remain silent over the fact that the reactor in Chernobyl was of a
completely different type to those built in Europe and intended for operation in Poland.
Polish public opinion remains mistrustful, no matter what arguments are put forward.

The opponents of nuclear power give priority to - and are right in doing so - the need to
reduce the energy-intensity of the Polish economy, the elimination of en route losses of
electric energy, the use of equipment for eliminating the adverse effects of coal-based power
engineering on the natural environment, and the development of other kinds of power stations
(gas-burning, hydroelectric), etc. Reluctant to admit arguments relevant to the subject, they
emphasize their right to participate in the making of important choices concerning
technology. In their view society should have the decisive say in the matter of choosing
advanced technologies which are especially dangerous to health. It should have unlimited
access to information on technologies being chosen, possible alternatives, and the
possibilities of other non-technical solutions. In this connection society should be extensively
informed about economic, ecological, social, and other costs, including the costs of
alternative solutions. Decisions taken on the choice of advanced technologies should be
preceded by discussions among proponents of various solutions. In this way society should
influence the choice of technology. The stance of various groups in society should be
represented by independent experts who exert influence on the making of technological
decisions.

Some adherents of liberal human rights go even further, demanding the right to control
research and development and investment and operational processes. In their opinion, the
location of advanced technologies must not be chosen without the consent of local
communities; if those communities veto it, the project should not go ahead. Such an opinion
should be binding even if arguments put forward by the local community are based on wrong
assumptions. Representative institutions and citizens' representatives should respect their
decisions and preferences without exception.

Opinion polls carried out among local communities in Poland concerning the location of
nuclear power stations confirm the negative attitude of these communities towards nuclear
power engineering. According to J. Kaminski, who carried out an opinion poll among the
inhabitants of territories close to the location site of a nuclear power station in Klempicz, as
many as 53 per cent of respondents declared themselves against the development of nuclear
power stations in Poland, 62 per cent were against locating the power station on their
territory, and 89 per cent demanded participation in the decision-making process on nuclear
power stations. More than 92 per cent of those polled were convinced that there were risks
involved with the operation of such stations; 76 per cent assessed this risk as high. In the
opinion of 56 per cent of respondents, every nuclear power station had an adverse effect on
the population's health.35

In the light of the results of this poll, the future for nuclear power engineering in Poland looks
bleak if liberally perceived human rights are to be fully observed. In 1990 the Polish
government renounced the development of nuclear power engineering in Poland. The
construction of the most advanced Zarnowiec nuclear power station was stopped. The fate of
other advanced technologies is also uncertain.36

Electronic Communication Techniques

The idea of "electronic communication techniques" covers any transfer of information from
one place to another by electronic means. It includes the transfer of the printed world and
pictures, as well as the transfer of live auditory or visual messages, and the capture and
storage of such information on audio or video tapes or by other means for future electronic
transmission or retrieval.37

The impact of this technology on human rights is manifested in several fields, first of all in
the field of access to information by marriage of computers and communications. The
combination of those two kinds of advanced technologies initiated a genuine revolution in the
field of in formation , enabling the owners of computers connected through wires, cables,
microwave radio waves, or earth satellites to data banks to obtain immediately all the needed
information, even in the most remote place in the world. This gives them an unquestioned
advantage over those who do not have access to such technologies.

By the same token, the combination of computers and communications opens up vast
possibilities for subordinating people, enslaving their minds, and influencing their political
views and public behaviour on the part of those holding a monopolistic position in deriving
and transmitting information. This leads to the violation of human rights in many fields,
especially the right of access to objective information.

Finally, the combination of computers and communications enhances the technological

advantage of countries in possession of these technologies and of the facilities for their
manufacture over countries without access to them. This has an adverse impact on the
development opportunities of the latter.

The foregoing means that electronic communication techniques may, on the one hand,
positively affect human rights, and, on the other, may simultaneously violate these rights. For
instance, violation of the right of free access to information is incompatible with Article 19 of
the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights. Control over computer communications may in some situations have a
bearing on the rights of people to self-determination, as enumerated in Article 1 of the
International Covenants.

In Poland the situation in the field of electronic communication techniques is diversified. It

differs substantially in reference to computers and communications. It should be pointed out
that the barrier to their development is placed not by human rights but by economic
possibilities.

This can be seen, first of all, in private imports of computers to Poland. Some 65 per cent of
all personal computers and 35 per cent of professional computers operated in Poland come
from private tourist imports. As regards the number of computers in use, Poland occupies a
leading position among European countries and the first position in Eastern Europe. The total
number of PC type computers operated in Poland exceeds 1.5 million.38 At the same time
there are many computer centres using large computers manufactured by IBM, ICL, and the
like. In this field Poland has become a special centre of modern technology in Eastern
Europe. Microcomputers manufactured in the United States, Japan, the newly industrialized
countries, and Western Europe are re-exported from Poland to the Soviet Union.39 Computer
exhibitions and fairs, the largest in Eastern Europe, are staged in Poland with the participation
of representatives of the biggest producers in the world. It is also here that the newest designs
in this field are sold.

Unfortunately, Poland has so far been unable to exploit its advantage over other East
European countries in the field of computerization. Private owners of computers often use
them for purposes having little to do with computerization. They are little utilized in
economic activity programming. To a very small extent they are used to gather, process, and
transmit information. Thus, unlike in Western countries, where computers constitute parts of
an information system, in Poland they are used independently by their owners.

In Poland there are no data banks to which a computer owner could have access through a
telephone or so-called modem, nor are there the information networks so popular in the West,
through which computer users could cooperate among themselves. Such banks, in view of the
present level of computer ownership, which is high by East European standards, would be
useful in Poland.

There are two causes of this state of affairs. The first is of a cultural nature. Some owners of
computers do not feel the need to use a data bank or to take part in an information network.
Some use their computers for financial accounting purposes, but they do not feel the need to
take part in modern information-gathering networks. Some use computers as typewriters and
others for fun and for computer games.

Overcoming the cultural barrier requires, first of all, raising the level of knowledge of
computer science. Many computer owners lacked the time, or felt no need, to improve their
knowledge of computer science. For some of them having a computer was a question of
fashion, not functional utility.

The other, equally important reason for the inadequate use of computer potential in Poland is
a technical one, resulting from the underdevelopment of telecommunications. At the
beginning of 1990 almost 3 million telophones had been installed in Poland, which was
equivalent to 7.8 per 100 inhabitants - i.e. three times less than the European average and six
times less than the indicator for the most advanced economies.

Only one in ten telephones is installed in rural areas and 8,000 Polish villages do not have
telephones at all. The situation in towns varies. In some of them the level of subscription is
very low; for example, in Walbrzych, where there are 6.6 subscribers per 100 inhabitants. In
Warsaw there are 23 subscribers for every 100 inhabitants. Even there, where the number of
telephones is greater, the chances of obtaining a connection are limited owing to an
insufficient network of telephone exchanges, the obsolete design of those exchanges, etc.

The underdevelopment of the Polish telephone system is the basic barrier to the development
of connections with the world. In 1988 Poland had automatic bidireetional circuits with only
22 European countries. Outside Europe only the USA, Canada, Australia, South Africa, and
Kuwait could get automatic connections with Poland, while Poland could only connect with
them through manually operated telephone exchanges, with waiting times of up to a dozen
hours. Poland is connected with the outside world through 564 lines only, and the world with
Poland through 980 lines. In 1988 these were used for almost 140 million calls between
subscribers in the outside world and Poland, and 65 million calls between subscribers in
Poland and the rest of the world. This explains, to a large extent, the long waiting time
experienced by a subseriber in Poland for connection with a number outside the country.

Telefax connections are also inadequate. According to estimates, in 1990 the number of
telefax devices in the world amounted to 6.3 million and in Poland to 5,000. The situation is
not satisfactory as far as telexes are concerned (in 1990 there were 34,000 in Poland).
Wireless telephony is virtually non-existent in Poland.

Changing this situation requires considerable capital investment and time, without which
conditions for computerization will not improve.

In other words, a changed approach to human rights, reflected in giving priority to the
liberally perceived rights of individuals, especially the right of access to information, can be
seen as one of the conditions for the development of computerization. However, this is not
the sole condition. An equally important part is played by the creation of appropriate
technical conditions, for without this computerization cannot be implemented.

Poland, like other countries of Eastern Europe, still lags far behind the West, as a result not
only of an underdeveloped technological base, but also of a lower level of technical culture.

Conclusions
Poland, like other countries of Eastern Europe, has now undertaken a substantial reorientation
of her approach to human rights. Citizens' rights, subordinating individual human rights to
collective and social rights, and identifying increases in the satisfaction of the fundamental
needs of society with increases in the fulfilment of human rights, are being replaced by
liberally perceived human rights, which place individual freedom above the interests of the
collectivity.

This new approach to human rights has changed, in a substantial way, the attitude of the
societies of East European countries towards technological development. Traditional
technologies collide with the new interpretation of human rights, giving rise to sharp social
protest. In view of this, the necessity arises to bring about a profound transformation in the
field of technological development, especially with regard to the replacement of traditional
technologies with advanced technologies. However, here again collisions are possible, as
shown by the example of nuclear power engineering.

While the process of reorienting the countries of Eastern Europe in the field of human rights
has been short and radical, the reorientation of technological development is impossible in a
short time and encounters many economic, cultural, and social barriers. The basic economic
barrier is the lack of means for the implementation of advanced technologies. In the short run,
importing advanced technologies is, in practical terms, the only possibility for countries with
low- and middle-level development. Such imports cannot be rapidly replaced by domestic
technologies because of the inferiority of local scientific and technological potential,
compared with that of leading countries in the field, and also because of the lower
qualifications of local technical staff.

To sum up, it should be stated that the thesis on the interaction between human rights and
technological development finds confirmation in the example of East European countries. It
should be noted, however, that the change in the approach to human rights has resulted so far
in a one-sided impact on the direction of technological development.