LAW, SCIENCE AND TECHNOLOGY

Ninth Semester (Optional Paper)

UNIT-I: Introduction
• Developments in Science and Technology
• Nexus between Science, Technology and Law
• Impact of Human Rights Law on Science and Technology
• The Need for control of Science and Technology

UNIT-II: Science and Technology in the Courts

• Impact of Technology on the Courts; NICNET, Tele-Justice, Technology and ADR
• Science and Technology in Legal Proceedings
• Use of Forensic Science in Criminal Matters
• Use of Technology in the Courts and Challenges

UNIT-III: Biotechnology and Law

• Biotechnology: Introduction from Legal Angle
• Issues involved in Biotechnological Innovations
• Genetic Engineering: Ethical and Moral Issues

UNIT-IV: Nuclear Technology and the Law

• Uses and Misuses
• International and National position
• Human Rights Vis-a vis Nuclear Technology

UNIT-V: Emerging Issues

• Technology, Intervention and Control of Individuals
• New dimensions of Data Collecting and Processing and Law
• Law of Privacy Vis-à-vis Science and Technology
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accumulated a decade ago becomes out of date.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-

 In 1952-53, 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.

 In 1962, W Arber; in 1968 M Messelson and R Yuan; in 1970 HO Smith; in 1971 D

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

 In 1966, M Nirenberg, S Ochoa and P Leder and HG Khurana determined the genetic
code.

 In 1967, M Gellert identified the enzyme DNA ligase.

 In 1970, HM Temin, S Mizutani and D Baltimore identified the RNA directed DNA
polymerase also known as reverse transcriptase.

 In 1971-72, HW Boyer, S Cohen and P Berg developed the DNA cloning techniques
which proved to be a big milestone in the biotechnology.

 In 1973, there was first international conference held on formal discussion emerging
rDNA technologies at Gordon. <.li>

 In 1975, C Milistein and G kohler developed the hybridoma techniques.

 In 1976, Recombinant Advisory Committee (RAC) issued the guidelines regarding the r-
DNA technologies.

 In 1977, F Sanger and W Gilbert developed the DNA sequence technologies.

 In 1980, US Supreme court rules that microorganisms are patentable.

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

 In 1982, Genentech and Eli Lilly & Co. developed first ethical product named Humalin
(Human Insulin) using rDNA technologies which got US approval.

 In 1982, Monsanto Co. Washington University and Max Planck institute found the
expression of a foreign gene in plants. They discovered the expression of bacterial antibiotic
resistance gene expressed in the tobacco plants.

 In 1983, KB mullis and Cetus Corp. developed the polymerase chain reaction (PCR)
which enabled the targeted amplification of DNA sequences.

 In 1986, Chiron corp. developed first recombination vaccine for Hepatitis B virus which
got FDA approval.

 In 1988, P Leder and Harvard University developed first genetically engineered mammal
(Transgenic mouse) which was patented in US patent and Trademark office.

 In 1990, Human Genome Project was launched formally.

 In 1997, I Wilmut developed the first cloned mammal (Sheep) and named it dolly.

 In 2001, Human Genome Project and Celera Genomics simultaneously published the
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.
Introduction

It is widely claimed
that law and science are
fundamentally different. Science
is devoted to the study of matter and its behavior
while law as part of social
sciences is concerned with the study of the
legal norms. Law prescribes the
patterns ofhuman behavior and in this sense, is purposive. Science is mechanical
and value-free. Law, on the other hand, is dialectical, idealistic.
value-laden and humanistic. To law, values are nontechnical
very life of it. "Law is not a
science, and the judicial process cannot remain judicial if subsumed by the
value-free scientific process."
Contrary to natural science, law is a normative science and in this way it
is concermed with sollen, not with sein. Science is
systematic explanation of
facts. In its endeavour to explain facts it makes an
analysis of physical facts and
phenomena. Thus, science itself is harmless, but the application of science
technology is not. Furthermore, science not only seeks to explain how events
take place but also why they take
place. Both science and law, thus, seeks to
find true facts but their goals are different. Science seeks to find truth and
truth
only whereas the goal of law is justice. As law prescribes the course of conduct
it has a social purpose whereas a scientist seeks to find causal
relations in the
natural world. Ihering states that this causality is
governed by a *because.""The
stone does not fall in order to
fall, but because it must fall, because its support
is taken away; whilst the man who acts does so, not because of
in order to atlain to something3
anything, but

Howard 1. Markey, "Jurisprudence o "Juriscienee"?" 25 William and Mary Law Review

525, 526 (1984)
ld.. at 525
See RWM Dias, Jurisprudence, (Kent: Bullerworth, & New Delhi: Aditya Bouks, First
Indian Reprint, 1994). pp. 423-24
 SCIE
between law and ce. it has been
dilferences about the cireumstances which made a man to behave in a
Given these
inherent
to law,
l cannot be applied to natur particular way. The
ofinquiry applied increased knowledge about human behavior due to advances in
claimed that the
system to cach ther. Scientifie
opposite
psychology
inquiry are and neurology has diminished some
sciences.
Their
methods of
methods enmployed by a social
from
assumptions about capacity of human
essentially
diflerent persons to distinguish right from wrong and necessitated a relook at them.
tools are
methods and rough an analysis of physical facts
truth throu
Seience seeks Similarly, advances made in recent years in the field of medical science have
or lawyer.
in finding answer to causal relations
scientist
share the belhet that posed before the law a challenge to restructure certain concepts of law, for
and phenomena. Many observations and on that basis develona
world a scientist
make Cxample, the concepts of "act" or "omission". The question whether the act of
in the natural and to explain his observations.
which he struggles to verily prolonging life in the case of terminal illness or not to prolong life in such cases
hypothesis differences between the natural
there are methodological is
But this belicefthat appropriate or not remains unresolved
despite of an extensive debate over
partially true. In recent years, the subject matter euthanasia. It is generally accepted that withholding treatment and
sciences and the law is only allowing
branches of studyhas expanded significantly. There has a patient to die, is not an
of enquiry of the two
in science and
illegal act. But it is never permissible to take any
in the methodological processes direct action designed to kill the patient. This
also been nemarkable change position is challenged for the
the disciplines closer to each other. For example.
law which have brought two main reason that active euthanasia is in many cases more humane than
of facts and their behavior. It has
passive
science is no longer limited to the study euthanasia.
come to concem itself with the study of
human behavior through Similarly, the emergence of the concept of surrogate motherhood has
increasingly
adv ances in genetic, physiological and physical sciences. As W. Friedman raised a host of issues which law needs to be tackled. The institution calls
has brilliantly shown in his Legal Theory, doubts have been raised about the for redefining certain relationships, for example, between the
absoluteness of the difference between methods employed by both natural
genetically
related mother and father on the one hand, and the child and surrogate mother,
and social scientists. Whereas, the purely causal and deterministic character on the other. The
recently flourishing fertility industry, from egg harvesting
of modem science is being questioned: there is an increasing emphasis on to surrogacy, has produced fresh and
certainty and measurability in the social sciences Methods and tools of
surprising alliances among former
foes. Surrogacy has posed a formidable challenge to the
scientifñic inquiry are increasingly being relied by the social scientist to achieve
reproductive rights
of women. The flourishing fertility industry may lead to
social goals and scientific approach to law has exploitation and
it helped enormously
to come commoditization of women and violation of human rights. There are several
more closely to the problems of human life. Friedman observed: ethical, legal and safety issues which need to be addressed. In India, there is
still no law to regulate the institution of
There has thus been a considerable surrogacy. Dr B.S. Chauhan, Judge.
softening of the once rigid Supreme Court of India, delivering a lecture in our Law School in December
distinctions between the methods of
sciences. By stressing the
enquiry in the natural and social
2012 emphasized the need for strict regulation
importance of hypotheses, of of surrogacy in the country
and the possibility of uncertainty, Developments in the field of scienceand technology present both challenges
articulated or unarticulated value
the natural scientists let in an assumptions,
element of indeterminism. The social
and opportunities. There is widespread concern that
developments in certain
sciences have widened the area areas, for example, genetic science have acquired such immense
of causality, by potentialities
statistics and mathematical extending
of fact research. the uses that they can do both good and evil and the law will not be able to
adequately
determination of legal
decisions computations
in the address the concerns regarding the inappropriate use of technology. While the
This close scientific developments have made the governance and law enforcement easy
relationship
between law and science
leads us to examine a more and efficient, have improved the prospects of human life,
they have also posed
profound question. To what extent
behavior may be allowed the increased scientific serious risks to human life and the environment. Legislators are overwhelmed
to
reestablish knowledge of human to strike a balance between the concerns raised
SCIence and
modern sociology have notions of right and wrong? by the widespread use of
considerably enhanced Modern technology and the immense benefits which are to ensue from such a use of
W
tricdmann. legul
our knowleage technology. Furthermore, under pressure to reduce costs while concermed with
1heory, (Delhi: Universal Law
P-print 2018). pp. 50-53.
ld Publishing Co. Lid, Fourth promoting publie welfare and safety governments are increasingly making
a p 52 Inataan
RWM Dias, supra note 3, ut p. 308.
 SCe Introduction
which raisc new COncerns es
lly ethieal
entific techniques
sometiies outwecigh the consideratis the adversarial system. Justice Kumar's contribution
These concerns presents a briefoverview
ofsome specifie fields-DNA evidence, cyber crimes, expert testimony -where
concerns.

and privacy
of technology.
use
widespread
law and science
supporting closely interact with each other. Emphasizing the utility of
in
Interrelationship of
law and science: Jurisprudential science
of science
adhministration of justice, Swatanter Kumar J. concludes that a level
literacy
is required
for proper functioning oflegal system.
In "Law and Science:
Perspectives Bridging the Gap" Subhash Chandra Singh touches
hegins with an
excellent contribution of Justice Swatanter the generaltheme of the impact of science on the law and society but in a
The volume Observations",. Justice Swatanto.
"Science and Law: Some spccilic context of civil and criminal litigations. In his scholarly analytical
In his contribution. modern tcchnology on the society and
issue of impact oI contribution on studying the impact of science on law and society the author
Kumar raises the
use of technology. Th
to regulate the widespread while focusing on the process of evaluating scientific evidence in both civil
emphasizes the need
rise of science and pervasiveness of ils etlects on our sociots. and eriminal contexts and explaining how decisions by non-scientists that
phenomenal
has made law reform a necessity. What IS really needed for law is
the embody scientific knowledge can be improved, raises some fundamental
induced social changes. Justice Kumar asks the issues on the law and science nexus. The author makes first an enquiry into the
adapt itself to technologically
question whether we are well equipped
with the laws to regulate the use of new nature of scientific knowledge "..because science can play an effective role in
technologies. He observes: "The interaction between law and science ends the determination
of
any case only if the scientific expert's testimony is based
on valid scientific knowledge..." For him, scientific evidence is fundamental to
up creating the world not only materially, but also culturally and morally"
Pointing to the essential characteristics of science as a system of acquiring criminal justice and to civil litigation. Having explained the nature of scientific
he then goes to enquire about the meaning of scientific method. To
knowiedge which uses observation and experimentation to deseribe and explain knowledge,
him, scientific method means taking an idea about how things work, framing
natural phenomena, he finds a shift from our age-old traditional ideas based
it in a testable hypothesis to see if it holds true, all measured and expressed in
on
subjectivism in our major intellectual exercises and observes that the shift
(i.e. probabilistic) terms. The author makes certain observations
has put a serious challenge to our conventional adversarial value-based
of justice. "Today. the most
system mathematical
which provide valuable insights into the nature of this method. He points to
pertinent question which generates much debate
among the jurists. judges. scientists, lawyers and academicians one defining characteristics of science which distinguishes it from law is that
of irrespective science is independent of the values of the practicing scientist.
ever legal sy stem is: how far the present value-based system ofjustice
to be
changed. or modified or re-oriented for the purpose of
requires Singh's contribution is also significant as it deals with the issues surrounding
of moderm scientific utilizing benefit
discoveries and technological advancement the debate over the idea of creating science courts- a sort of specialized courts
delvery sy stem. Does the reorientation minimize the injustice- created to minimize the difficulties associated with the law-science interactions.
subyectivism in the judicial process?" probability factors and His contribution ends with the observation that allowing scientifically fawed
Emphasizing the need of law reform in view of rapid changes in the society
evidence to influence any of the law's processes undermines law's moral
brought about the technological advances authority. "The very least that can be done in a system aspiring to do justice is
since a major function of the law is
to
respond changing values which
to to thoroughly test, carefully scrutinise, and properly limit data that carry the
cquality, Justice Kumar observes that occur within the society and to promote imprimatur of science."
today's
science to interact in a wide technologically advanced society
forces the law and
Dvolving patents. product array of cases. Many legal disputes
ad liability, environmental torts, Implications of Advances in Medical Science for Law
criminal cases regulatory procecdings
the two the require such interaction. In
view of close aflinity belween Part II begins with the modified version ofthe lecture "Law and Morality with
fact-finding tasks of the two disciplines
Overiap. if not merge. He have frequently begn
Special Reference to Assisted Reproduetive Technology" delivered by Hon'ble
as
cffective 1ools in the believes that technological Justice B.S. Chauhan, Judge. Supreme Court of lndia at the Law School on 22
adversarial advancements
system to facilitate legal
can be usea December 2012. It examines the etthical, moral and legal issues that arise in the
ore effiCIent dispensation growth
ume. he
cautions, it may also of justice for a better society. But al resulg context of assisted re-productive technology. Since the birth of the first baby

require rethinking off certain ne ame

values embodio in
by the technique of in vitro fertilization (IVE) in 1978, assisted reproductive
 SCect, e

6 to those who
who:
Ip those
help are not
able to procreate Introduction
developing
began time the need arose to
technology(ART)
at the. same
Howcver, regulate he Artificial Insemination: Social and Legal
gacy. Many countries came up with the legislation which
process. Perspectives" contributed by
hy natural
by naf qumogacy. Miathec RN Sharma examines a
variety of social, moral and legal issues that arise in
alternative
approaches: one
one
banning surrogacy: and
the other the context of artificial
insemination. People resort to artificial insemination
of issues to be
adopted
two

it. But
there still remains a wide
with e x a mining
addressed. where there is inability or
unwillingness to have
a child by the natural means.
inine
the
gulating
Justice
Chauhan's
contribution begins

nalysis
analysis of the
the
relationsh
ship Inability implies sterility, impotency or physical defects preventing pregnancy.
herween law
and morality.
In his excellent

becomes
relationship In India, artificial insemination is
scanty as it suffers from social non-acceptance.
"lu]jndoubtedly.morality
necessarily a
persuasive source of There are three types of artificial insemination
depending on the source of the
obsernves,
bee ccreated by one's
supplant the law. Morals may socicty, r semen viz.: (1)
Homologous Artificial Insemination or Artificial Insemination
law but cannot
Husband in which the husband's semen is used (AIH): (2)
aal conscience." In examining relationship of law and morality Heterologous
the debate between the naturalists and no: ositivist: Artificial Insemination or Artificial Insem ination Donor in which the
sperm of a
iustice Chauhan refers to
over the subject.
He opines that "law
has to be independent of sorts of all man other than that
of the husband is used i.e.. third party donor (AID); and (3)
dogmas except certain areas in which law is dominated by morality. ing Combination Artificial Insemination in which the
sperm from both the husband
eNamples of many branches of law where morality has virtually no role to play, and a donor is used (AIC). This Chapter
presents certain issues that arise in
each of three kinds of artificial insemination. However,
he concludes that "the level of enforcement of moral standards depends upon legal issues are mostly
related to the AID category of artificial insemination. The following
case to case" While pointing out the difterence between law and morality, questions
need consideration. Does artificial insemination amount to adultery on the
Justice chauhan alleges thattoday both law and morality are facing challenges part
of the wife? Does it amount to consummation of the
put forward by technology. fast urban life, secularism, equality before law. marriage? Is a child born
by this device a legitimate child? What are the custodial and visitation rights
democracy and constitutionalism. Focusing a beam of light on the relationship the father? Is the father bound to maintain such a child? And so forth. In
of law and morality. he goes to examine some recent decisions of the
English
of
and Indian courts in this regard. Some important decisions examined
by
absence of comprehensive legislation the rights and duties of donor, husband
and wife involved and the child will remain uncertain. "There would certainly
the author in this context include Gillick v West
Norfolk and Wishech Area be many problems and anomalies arising from the application of the existing
Health Authorin.' Rv R$ Lata Singh v State
of U.P & Anr:" and Khudhboo v law until corrective legislation is passed." There is thus the need to have an
Kannimmal enactment on artificial insemination. Professor Sharma has also provided
The author then turns to
examining plethora of legal
and moral issues that some valuable suggestions which should be considered for their incorporation
arise from the
increasing use of ART,
such as IVF, artificial insemination, and in a future legislation on the subject. He suggests providing matrimonial relief
surTogate motherhood. In particular, he considers new to the husband if the wife resorts to AID without his consent. Further. only
relations and the challenges to marital
impact of these technologies on the ethical and moral standards childless couples where the husband's sterility has been medically established
of the
society. He argues that the issues should be allowed to resort to AlD. The written consent of the husband should
n the
light of the fundamental arising in the context have to be examined
dehning the right to life and rights, particularly Article 21 of the constitution be taken and if he consents or ratifies the act the child should be deemed to be
liberty which has been given a his legitimate child. Only licensed doctor of high repute should be authorized
tErpretaion by the Supreme Court of India. The author very expansiv to perform the operation. The doctor should carefully select the donor and also
salient 1eatures the Assisted critically examines maintain a strict secrecy. He concludes,*The needs of a progressive society
ae poit out some ambiguities toReproductive Technologies (Regulation) Bill
be found in the should be reconciled with the demands of propriety and legal precedent while
aulan contribution
s
gives serious proposed law. Finally, Juste dealing with such cases."
o consideration to the role of law in
who artiveaccommodate various concerns, for
example,
striviren Contribution of Dinesh Kumar Srivastava, "Surrogate Motherhood: An
this
in
world through re-productive legitimacy of the Chid Analysis of the Legal and Moral Issues under the Present and Proposed Laws"
I985,2
149211 AC 549.
Al E R 402. technology deals with the legal regulation of the increasing use of the technology of in
vitro fertilization. In particular, his contribution is mainly devoted to a study
IR 2 SC
AIR 2522 of various legal and ethical issues involved in surrogate motherhood in lndia.
2010 SC 3196 In his quite informative and interesting contribution, the author, apart from
 donate in these
of sumogacy,
cNaMnes the possible impacts the crucial. Where consent to
dealing with various kinds nd ignorance the issue of eonsent is and
and egitimacy of child bOrn f Consent of donors to donate organs
present laws on surnogacy agreenments cireumstances will be taken as free?
therewith is
In the first section. the author deals with the nmeanins the legal presumption associated
surmgate mother. and in tlhe absence of such consent,
kindsofsumyacy. Brvadly defining surmogacy fhom bislogical and sociological nother important issue assoc iated with organ transplantation.
the human
noint ofview, he goes to describe its various kinds. In the second section, he
As thereis considerable gap in supply and demand. making
considers some very pertinent legal and ethical issues that arise in the contevt a genuinc and necdy recipient
is a major challenge
organs available tor
of the institution of surnogacy. The chief strength ofhis contribution is that it justice bc invoked in selecting a
for the society. Here some notions of may
considered
makes a comparative study of surrogacy related legislations of some important J. Mozika has beautifully
genuine and most needy recipient. Jyoti
transplantation. In her
countries like England and America shows the ditterence between our proposed the application of some such notions to cases of organ
legislation i.e. ART Bill. 2010 and the laws of these countries. He points out picce she has examined, in particular, two
distributive justice criteria, namely
in relation to selecting the neediest
that the proposed legislation in India prohibits partial surrogacy whereas the cqual access and inaximum justice criteria
in this context and which
same is not prohibited in England and in many other countries. Furthernmore, it recipient. However, one pertinent issue that arises
does not prohibit commercial surmogacy though a woman will not be allowed has received only seant attention of the author is at what point of time a person
of
to act as a surmogate for more than five successtul live births
including her is considered dead. After having examined the validity and sustainability
criteria, the author to have a look
own children. whereas many countries prohibit commercial
surrogacy. The certain arguments tor and against these goes
of
author feels that "allowing commercial surrogacy may lend to poor
villages of at the organ transplantation policy of the country and gives a brief account
India to become biological colonies for the childless couples of the West and certain strategies evolved over time in increasing the number of cadaveric organ
eploitation of poor Indian women by surrogacy agents." donations. In Final section of her Chapter
Jyoti J. Mozika presents an account
The author comes to the conclusion that the existing law is obscure with of the evolution of the organ transplantation law of the country focusing on
regard to the legitimacyof the child borm through surrogate mother and the rights the Transplantation of Human Organs Act. 1994. Besides presenting a general
and obligations of the surrogate mothers. overview of the law as applied to India and an assessment of the strengths and
Significantly, he finds many features
of the proposed legislation as weaknesses of the Act. this section includes judicial approach in this regard.
distressing and indifferent to the sentiments of
the surrogate mother. For example, the author is critical of the Declining child sex ratio (CSR), expressed as the number per 1000
of girls
provision under
the ART Bill. 2010,
whereby an individual also may requisition the surrogacy boys in the age group 0-6 is a major issue in India. The CSR has declined from
arrangement. This may result in abuse of the child because when the child will 945 in 1991 to 927 in 2001 and further to 914 female children per l000 male
not be
genetically related to the commissioning individual. there will be little children in 2011. In fact, the CSR is the lowest recorded since independence
feeling of guilt in abusing that child by him or her. This declining sex ration has brought the issue of sex- selection to the fore. In
With the advent of modern 1994 the Parliament passed the Pre-natal diagnostic Techniques (Regulation
techniques of organ transplantation,
developments relating to immunosuppressive drugs and improvedespecially and Prevention of Misuse) Act, referred to as the PNDT Act. However. this
techniques. the success rate has gone up. This has given rise to some surgical critical
proved inadequate in view of certain new technological developments. The
and interesting issues which need Act was then amended and renamed as the
thorough examination. Jyoti J. Mozika's Pre-conception and Pre-natal
contribution Organ Transplantation: Issues and Diagnostic Techniques (Prohibition of Selection ) Act, 1994, referred to as
of them that arise in this context Challenges" examines some the PC&PNDT Act. The new Act came into effect from
from different
perspectives. Here, the primary February 14. 2003.
legal and ethical issues arise from the fact that However, this too could not bring the desired result.
there is always scarcity of Bibha Tripathi's contribution "Sex Selection: Text and Context"
organs for uransplantation. The situation is provides
Problem is exacerbated in a likely to result in organ traflicking. some very valuable
insights into the issue of continuous decline in the CSR.
country like India where a sizeable section ol The author argues that if data on CSR is
population is
economically poor. One important issue relates analyzed in ditferent contexts it belies
of donation the donor. The issue
to the payment the popular conception that sex selective
to
assumes special abortjon is the only reason behind
individuals are easily enticed to donate importance in India, where the decline in child sex-ratio. She dravws our attention
to the
benefits given their lower socio
their organs in consideration ofmonetary that viewing sex determination as one and important fact
economic status. In a case, where donors leel only cause for gender inmbalance
themselves forced to donate their is not appropriate because
vital organs because of financial gender imbalanee is a multi-sectoral concem and
constraints
 1.c. practicce of sex selcctwn instead or. Introduction
symptom
targeting only
a
one

comprehensive policy.
based on reality will not be sufice to u olving of new technology in the field of civil aviation. he considers the role of
cause. Her contribution examines the causes of the decline in CSR and.
attem
mpls space law in resolving the conflict between the environmental protection and
provide some viable solutions perspective. What is si
in Indian
to
notc is that the author examines the issue ofdecline in CSR and the fem technology.
le Ater presenting a brief history of the evolution of civil aviation and its
foeticide from various perspcctives including human rights nere.
implications for global environment he goes to delve into the issue of impact
After examining the issue in the context of a womans right to control of civil aviation technology on the global environment. He argues for taking a
which means a women 's autonomy over her body,
their
re-productivity ality holistic view of the matter and emphasizes on adopting a balanced approach.
and re-productivity she goes to examine the permitted grounds of ahortio
his words, "[ijt is important to take a holistic view of the impact of
in the Temination of Pregnancy Act. She fecls a need to have a
rtion In own
re-looka aircraft flying in the world on the ecology of planet carth. Aviation needs huge
the permitted grounds of abortion under the existing law. Significantu airports, which in turn cause development of modern giant cities for promoting
questions the growing tendency of the parents' choice of having single mala economics, trade and commerce and tourism." Professor Bhatt sees that the
child. She finds that it can also be a cause of gender imbalance. nal future of growth in civil aviation very
"Surveys and promising in the country. *"With 42
studies are needed from this point of view then it could be said that keepino per cent of India's population of 1.2 billion below
a poverty line. the country
single male child is one of the most important reasons for gender imbalance needs economic growth. Civil aviation is an
important factor for
Bibha Tripathi then calls for addressing this tendency as a human
growth." He
also calls for strengthening the role of our academic institutions for spreading
right issile
Her contribution ends up with certain valuable suggestion which knowledge of air law, space law in India. He concludes that civil aviation
need to be
given serious consideration. and air law are looking to the future with
great hope. Civil av iation will
In the context of declining child sex help country achieve various goals of development. tourism. connectivity.
ratio, J.P. Rai's contribution
Technology and Female Foeticide in India: Issues and Challenges"
focuses
health-care measures in mountain areas, and help small and medium
industry
on the social evil of female foeticide which is operators. It will also enable India's growing population to settle abroad.
prevalent in many parts of the
country. The author has examined the issues and visit homeland periodically. But for that to
surrounding the problem from a
aviation has to be care fully balanced with the
happen. the growth in civil
rights perspective. imperatives
of the environmental
TheChapter begins with making a reference to historical texts to protection.
that son preference is deeply rooted in the culture suggest Advances made in the civil aviation
which is a major cause for technology in recent years have an
this evil. His contribution important role to play in the economic development. As the sector promises
provides a rich insight into the various causes of
female infanticide. It surveys the laws of various countries and huge economic implications for the future, structural changes are taking
also examines fast and there is place
many relevant international instruments to very a movement towards
privatization and deregulation of
foetus. enquire about the legal status of a the sector. Sector is
Finally, he discusses the
legal position in India and increasing being opened for market access for foreign
appraises the efforts
ofjudiciary towards addressing the issue of female foeticide. companies. It is in this context, the Chapter "Aviation Technology and Law:
The ends Chapter The Changing
with certain useful Regulatory Role of the ICAO" contributed by V. Balakista
suggestions to improve upon the situation. Reddy considers the role of law in particular the role of International Civil
Aviation Organization (ICAO), the
International Legal Regulation of specialized agencyof the United Nations
Part 11l consists of three Space (U.N.) whose mandate is to ensure
that the civil aviation may be
developed in
contributions mainly dealing with two a safe and orderly manner and that
international air transport services
av iation and
protection of space. Saligram Bhatt, an aspects- civil established on the basis of equality of may be
space law, in his outstanding expert on opportunity and operated
soundly and
illuminating piece "The Future of Air Law" discusses
interrelation of air law and the
economically, in responding to the changing needs. The author observes that
the traditional process of
the future direction technology focusing on civil aviation and law-making poses a challenge before the 1CA0 to
of space law and
its role in assesses ensuring its relevance in a scenario where civil aviation
civil aviation and the
environment.
reconciling the interests of is
technological changes. Professor Reddy also observes. undergoing massive
field of civil aviation Raising the issue of law reform in the and it is submitted
to cope with
the challenges rightly that "in order to ensure ICAO's continued
posed by the development legitimacy in an inereasingly globalized world. the relevance. viability. and
Organization must adapt
 its traditional rulemaking processes by adopting more rapid. Introduction 13
effective. and politieally acceptable means of norm creation". transparent,
This Chapter. the content of which is very informative, reviewe space science has linked the space environment with terrestrial environment.
the law
making powers. process and techniques of the ICAO as provided nder "there is a need to protect the space environment in a most befitting manner so
Chicago convention. Despite its ettectiveness and the that man can have an unhindered access to outer space". Third section focuses
longevity, the Chio
Convention has come under criticiSm as a constraint to the developmen,c on planetary protection. The author points out that its major goals are twofold
intermational civil aviation. Besides this, the chapter considers a range of issuso to prevent what is popularly known as the forward contamination of the
concerning safety and security of air navigation. lt suggests that the solutin celestial bodies by introduction of terrestrial elements into outer space: and
lies in the uniform application of the ICAO's Standards and to prevent backward contam ination of the earth's environment. This section
Recommendod also deals with the evolution of planetary protection policies, strategies and
Practises (SARPs) around the world and an unprecedented level of
global measures, and its the legal basis. Next section of the Chapter deals with
co-operation in all aspects of civil aviation safety and security. He ates
for adopting and implementing the SARPs by India also. the problem of space debris and the issue surrounding it. As B. C. Nirmal
and related issues and their
Considering the points out space debris, especially orbital's debris poses a variety of hazards
safety security implications for the
country, he the sustainability of space activities and presents a threat to multibillion
concludes that in the long run our country need to evolve a new
action plan to to
guard the civil aviation against the terrorist attacks. *Airline staff and people dollar space operations. Furthermore, if the space debris population
tackled effectively on a priority basis. the cascade effect would make
were not
the
manning key installations need to be given training to handle hijacking." problem increasingly worse. Here, the author refers to COPUOS guidelines
Professor Bhatt also suggests that there should be more awareness
of the on tackling the problem of space debris which were adopted by the general
threats at the airpots through the checking of
passports, travel documents Assembly in 2008. However, there is the need to adopt a comprehensive
etc. under more
sophisticated electronic surveillance. He rightly states that international convention on the subject and in this regard the author submits
the safety and security related issues are not a national
or regional issue but
are an international issue. Hence, "there has certain proposals to be incorporated in a future convention which are worth
to be more active consideration.
international
co-operation to overcome this problem." Threatsposed by near earth space objects are another aspect which needs
Increasing space activities have necessitated the regulation and protection consideration. This aspect of the matter has been dealt with in the fifth
part
ofspace environment. With the increased activities in the space, new challenges of the Chapter. These Near-Earth
Objects may have catastrophie impact on
have emerged posing risk to the the Earth. By providing some instances the author has shown that
space environment and the natural resources threats
of the space. These presented by Near Earth Objects constitute an actual probability. although the
challenges are fraught with grave and impending risks for
the international chance ofa larger object hitting the earth is very small. The author
community, which call for a coordinated global response, emphasizes
and decision- making to deal with issues that an appropriate and effective
related to protection of the space legal framework is needed for protecting the
environment and natural space resource. It is in this Earth from the threats posed by the Near-Earth
background, B.C. Nirnmal's Objects. In the next section. the
contribution "Protection of Space Environment: Need for author focuses on Article 1X of the Outer
International Legal Space Treaty which provides a basis
Framework" assumes significance. Nirmal for development of a new space environnment
attempts understand the nature of
to
he revisits Article IX of the Outer
protection regime. In this section
space environment and explain the Space Treaty, its breadth and scope and also
concept of protection of space environment its potentials and limitations as a foundational
with specific reference to prineiple for the international
planetary protection, protection against Near Eartn protection of the earth and space environment. The contribution ends with the
Objects (NEOs), arbitral activities coordination and space debris. The second
remark that "if for any reason
section
of his Chapter delves into the issue of defining the environment and drafting of a comprehensive treaty for protection
of the outer space environment does not seem
In
particular the space environment and to be feasible at the
gives justification for protection or moment, the
international community should negotiate a
thespace environment. While providing protocol to Article IX of the Outer
justification for protecting the spaee
environment, the author rightly observes that
space Treaty to address the issues related to
planetary protection and adopt
space environment havIng a and promote compliance with codes on
intrinsic value needs to be consultation procedure laid down in
protected as biodiversity and several plants
ana Article 1X of the Outer Space
iving and non-living creatures need
protection.
He that as advances
Treaty.
argues n
 Introduction
Implications of Advances in Genetics for Law
findings. For example. he finds that the improper use of
Although science and law are inherently diflerent, they are complentcns. reveals many startling
ntary t resulted in many wrongful convictions as shown by DNA
each other in many ways. Advances in science can help law in these techniques has
serving the
cicty exonerations. Tushaus then concludes that the use of DNA
evidence which
better. In particular. science and law work together towards
can creatingaba
etter United States criminal
and efficient criminal justice system. It is now adimitted position that has done more than exonerate innocent victims of the
traditional the criminal justice
method of identifying the persons and things on the basis of eyewitnessaceo justice system has raised doubts about the integrity of
that does not have a system
carries significant risk of being mistaken. Many cases have been system in the United States and anywhere else
documentad to adequately protect against human error. He stresses o n the need
where mistaken evidence of identity has resulted in the designed
miscarriage of justico
for building safety-critical systems whichis essential to ensuring public safety
Mistaken identityhas been one of the greatest causes of
wrongful conviction in many industries., from public transportation to medical care. He questions
Eyew itness testimony which relies on human perception in identifving
accused is notorious for its high risk of unreliability.!'
an our unfounded confidence in the safeguards presently in place. Pointing out
Similarly errar are that Police have an incentive to solve crimes with a conviction. the author
likely to occur in some forensic techniques without scientihc foundation such observes that "there is no systematic incentive to convict the right person.
as serology and hair
comparison. Forensic science errors are also responsible We must implement such procedures and adopt the suggested reforms in order
for wrongful convictions. Concerms have increasingly been raised
the improper use of some forensic techniques too.
regarding to reduce the errors known as wrongful convictions in our criminal justice

Contribution of David W. Tushaus "Science, Technology and the system." Finding the existing safeguards as insufficient to counterbalance
Need for these systematic problems, he strongly advocates for reform in the criminal
Reforms in the Criminal Justice System" raises the issue
as a result of reliance on traditional methods of
of wrongful conviction justice system in terms of evidence gathering and evaluation.
identifying a person and the Human therapeutic cloning and stem cell research promise great
things as well as some forensic techniques whose scientific validity is doubtful, improvements in health care, including finding cures for people with
In particular, his contribution looks at how the use of DNA has
helpedexpose degenerative diseases such as diabetes. Parkinson's disease. heart disease etc.
injustice gross injustice in the United States' legal system. As shown
or even
these potential benefits come at a perceived ethical price because
by the author since 1987 DNA testing has exonerated 300 innocent However,
in the United States. 18 of
prisoners therapeutic cloning involves the creation and destruction of human embry os
these serving on death row, and exposed injustices for research purposes. Many ethical and
legal issues arise which make human
committed in the criminal justice system. Of the 300 cloning a highly contentious subject. The issue arises whether creation. use
prisoners exonerated
by DNA evidence, approximately one-half of these cases involved invalid and destruction
of human embryos in research are affronts to human dignity?
or improper forensic science techniques. Other significant factors behind Moreover, the need to obtain a supply of human egg leads to another sensitive
wrongful convictions include witness misidentification, poor defense work, ethical issue, is it ethical to
subject a woman to health risks for research
prosecutorial and police misconduct, false confessions and the improper use purposes? If women are offered decent payments to undergo such risk.
of informants. Although the observations of Tushaus are might
primarily based on a therapeutic cloning lead to a commercialization of human eggs or
study of the US legal system, they apply
also to other legal systems including Kshitij Kumar Singh's contribution "Human Therapeutice embryosand
Stem Cell Research: Ethical, Cloning
our as
wrongful convictions are
part of almost all legal systems. Legal and Policy Implications" reviews these
Tushaus's contribution begins with a brief account of the issues. The law in this
functioning of regard is in a state of tlux and confusion. Lawmakers
the criminal justice system of the US. The author shows his dissatisfaction around the world are united to some extent
of reproductive
only with regard to the banning
Over the
way the system is working as in many cases DNA evidence was cloning, while countries divide sharply in their
Ignored and convictions were based on other forensic towards therapeutic
cloning and stem cell research in laws and approaches
scientific foundation. He
techniques without of the existing laws and policies. Many
goes to examine the reliability of many forensic have inbuilt review
policies are in a state of confusion and some countries
1echniques other than DNA evidence such as serology and hair
comparisou provisions. Moreover, international position over the said
issue is far from clear.
which are
commonly used in determining the guilt of the accused. His study Against this backdrop, the author undertakes an
oflaws and policies relating to human analy sis
in some therapeutic cloning and stem eell research
important jurisdictions and at the international level.
e 1 1 . Deinis, 7 he Law ofEvidence, (1London: Sweet & Maxwell, 2007), pp. 252-5>. a
variety of Ater
regulatory approaches such as moratorium. ethical
examining
guidelines.
 Introduction
stringent legislationsand legislations with tlexible provisions, the autho.
out with certain imponant suggestions in this regard which need comes in Nagoya.
to be
a that arise in this context. The Supplementary Protocol was adopted
into consideration by the policy makers in offering an
appropriatc ro en Japan on 15 October 2010 as a supplementary agreement to the 2000 Cartagena
approach for India. The author argues for adopting a policy of moratsory Protocol on Biosafety. Additionally. the paper presents a brief sketch of the
allow the things to settle down. He further alleges that given the to
collaboro key provisions of the
Cartagena Protocol on Biosafety. Ajendra Srivastava
and universal nature of science. there is an urgent need for orative uniforn has shown that although the N-KL Supplementary Protocol is modelled on
and intemational policies to promote international collaboration onal
in the Goa civil liability conventions as it provides for broadly similar scheme of
human therapeutic cloning and stem cell research. liability
The concems regarding potential risks of genetic
and compensation, it is conspicuously silent on a number of substantive and
modification are ar procedural law aspects. For example. the Supplementary Protocol. itself, does
which led adoption of the 2000 Cartagena P'rotocol on Biosafety togreat
to the
the not expressly state whether liability of the operator would be strict or fault
Convention on Biological Diversity ("the Cartagena Protocol on based in the event of damage. Rather. it is for the States Parties to decide which
1he Protocol which was adopted as a Biosafety"2
supplementary agreement to the United form of linbility they prefer to adopt through their domestic legislations. The
Nations Convention on Biological Diversity ("the
UNCBD")" establishes author argues that this lapse is unfortunate. "This and other aspects of the matter
a
regulatorn regime to ensuring that the development, handling, which leave the considerable scope for national variations are likely to affect
including transboundary movements. use and release of living transport the prospect ofthe liability regime of the Supplementary Protocol in providing
modified
organisms (LMOs) resulting trom modern biotechnology are undertaken a quick and effective remedy in cases of damage to human health and biological
a manner that or reduces risks to
in
prevents the conservation and diversity." After analyzing the liability scheme of the N-KL Supplementary
of sustainable
use biological diversity, taking also into account risks to human
health,
Protocol in the light of other international convention which adopt civil
The Cartagena Protocol on Biosafety was liability approach in laying down a scheme of liability and compensation in a
Kuala Lumpur
supplemented by the 2010 Nagova-
Supplementary
Protocol on Liability and Redress to
the
case where a transdboundary damage occurs, the author concludes that it fails
Cartagena Protocol on Biosatfety ("the N-KL Supplementary to
provide uniform
a set of rules to facilitate bringing of claims for
damage
which establishes the Protocolry4 resulting from LMOs that find their origin in transboundary movements. He
from ransboundary movements of LMOs. The
liability
and redress regime for
damage resulting further concludes that in its present form the
liability regime of the N-KL Supplementary Protocol leaves
considerable scope for national variations which may be
Supplementary Protocol is aimed at ensuring the compliance of standards and exploited by the
procedures created for preventing the environmental harm. multinational corporations and other private actors to their
advantage. In
absence of internationally agreed upon substantive and
Ajendra Srivastava's contribution "Biosafety Challenges and Overview the prospect of the civil liability
procedural law rules.
of Liability and Redress Regime for Transboundary Movement of Living regime as established by the Supplementary
Protocol in meeting the primary objective of a
Modified Organisms: A Missed
Opportunity?" is aimed mainly to presentinga liability regimeseems to be
brief overn iew of the liability and redress bleak.
of living modified
regime for transboundary movement
organisms (LMOs) as established the 2010
by Nagoya-
Kuala Lumpur Supplementary Protocol and to examining the effectiveness Implications of Advances in Technology for Intellectual
and efficacy of the regime in addressing liability and redress related issues Property Laws
Increasing sophistication of equipments and techniques has brought about
Adopted on 29
January 2000. In force since 11 September 2003. For the text, see many significant changes. Impact of these
Protocol on Biosafety to the Convention on Cartagena changes needs to be
Secretariat
of the Convention
Biological Diversity: text and annexes, Monreal:
Biological Diversity (2000). Hereinafter referred to as tne
cautiously in order to revise our laws to make them relevant in the analyzed
on
Cartagena Protocol on Biosafety". circumstances. Justice Dilip Gupta's contribution changed
"3I LM 818 (1992). entered in the Aid of Law" "Technological
discusses some recent changes eftected
Innovations
into force on December 29, 1993. Hereinafter referred
"UNCBD to as ne
developments on law especially impact of technological by technological
*

Adopted on 15 October 2010. Not

yet in force. For the text, see Nagoya-Kuala Lumpur intellectual property laws and space law. Justice developments on
Supplementary Protocol Gupta's contribution
Liability and Redress to the Cartagena intellectual property rights aspects of the begins
on
Protocol on Biosatc with an analysis of certain
Monreal Secretariat of the Convention on
HercinafteT relerred Biological Diversity, United Nations (20 that have arisen in the
wake of
issues
10 as "the N-KL
Supplementary Protocol. internet. He considers some issues of vital
 to the aspects
domain and copyright lave
nanmes cases
importance related i n c r e a s e in the
number of the copyright violations
domain names, the author reviews 1hoSing maintains thhat with an
specially trained judiciary
of similarity in
on the issuc need to have a
related to registration of domai n g into the courts, there is the
violations of
policiesregarding resolv ing disputes coming
copyright violations
in general and
The issue assumes signihcance. as the author points out, that in mes to decide
cases relating to
modes of infringement
untry in particular. As the
there is no legislation which expressly reters to dispute resolution in copyright in computer programmes different and complex
which r a i s e
ction of computer software and
databases are
with domain names force to m o n i t o r
he further argues for creating special
a
Justice Gupta's contribution also discusses the impact of space technoloou many complex issues, of the copyright
calls for added protection
on the law. He considers certain legal problems related to outer space the copyright violations. The author of copying
in databases mainly because the costs
associated with communication and law for computer software and
particular those which are
mote such databases are minimal compared
to the cost of creating
sensing satellites. The author reviews existing laws on the subject especiallu or reproducing databases must
the Weapons of Mass Destruction and Their Delivery Systems (Prohibition them. He suggests that copyright protection of computer and
address the requirement of "originality".
His contribution examines these
of Unlaw ful Activities) Act. 2005 (the WMD Act). He emphasizes the need issues on the subject
some other very pertinent
and interesting contemporary
for evolving an appropriate legal regime to regulate the space activities and India.
utilizing the benefits flowing from the commercialization of the space sector and suggests necessary reforms in its close
After clarifying the nature of computer software and showing
and for that purpose to revisit relevant domestic statutes, including the laws in the third andd
relation with the copyright law in section ll of
his Chapter,
related to contract. transfer or property, stamp duty, registration, copyright issue of the protection of
fourth sections the author goes to examine the
and patents must be revisited to bring space-related issues within their ambit. under the TRIPS Agreement and the
In addition. Justice Gupta reviews the efforts made in recent years towards computer programmes and databases
In the fifth section, the author then examines
Copyright Act, 1957 respectively.
computerization of the various processes involved in the judiciary had started
the issues related remedies for the infringement of the copyright of computer
to
way back in 1990. He points out that to make the mission more meaningful software and databases. J.K. Das concludes that as the copyright law protects
some positive steps were taken. For instance, the constitution of E-Committee. of the ideas and not the ideas, this acts as a severe limitation
only expressions
The National Policy prepared by the Committee proposes to implement the with respect to the protection of computer programmes since
Information and Communication Technology in the Indian Judiciary in three
the computer
programme perforims a particular function and achieves a specitic task.
phases spanning over a period of five years. The Union Cabinet also realized Technology transfer is a major issue between developing and developed
the importance of this Project and, therefore, decided to declare the Project countries. The provisions relating to technology transfer in international
as a Mission Model Project under the National e-Government Plan. "It is instruments are aimed at enabling developing countries to reach their
on the recommendation of the E-Committee that Steering Committees have development goals, to compete in the global economy and to narrow down
been formed in the various High Courts. The prime objective of the Project the technological gaps between them and the developed countries.
is to enhance Judicial productivity both qualitatively and quantitatively and
Therefore
developing countries demand access to technologies from the developed world
1o make the justice delivery system affordable, accessible, transparent and
accountable," the author points out.
Developing countries were persuaded to sign the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement) because they were
JK. Das's Contribution, "Impact of Science and Technology on Copyright promised that IPRs would lead to increased investment and technology trans fer
Law: A Plea for Reform in India" discusses a range of legal issues that In their thoughtful contribution Objectives and
Principles, Technology
arise in the context of
strengthening the legal protection of newly emerged Transfer and the TRIPS Agreenent: Flexibilities and Options tor
Developing
echnologics especially computer programmes. His contribution examines Countries" B.N. Pandey and Prabhat Kumar Saha raise the issue of one sided
the implications of these technological develop1nents and their linkage interpretation of TRIPS Agreement which tavours developed countries and
with the lawof copyright with special reference to the role
of judiciary, and ignores he conceru of developng countries. ln view ot the concern expresses
recoimmends reforms necessary in the context of India. The author arguestna by developing countries that only one side ot the Agreement's
objective
Or promoung technological innovation the rights of individuals and irms The TRIPS Agreement is Annex lC Marrakes1 Agreement Establishing the W TOD
ot the
ecopinE cOmpuler programmes must be protected either under the existu signed
in Moroeev ou 25 April 1994 The TRIP'S Agreennent came nto etfect on 1 January
law or in Case 10r 1995
of inadequacy, of a new law. Ihc
the through framing u
 Introduction 21
relating to the protection of technology assets are pursued by dout

members. while the stated objectives that "the protection eloped country
and used
property rights
intellectual should contribute orcement of
omotion of technological Agrcement are in a sense constructive because they can be strategically
interpretations that meet their
innovation and to the transfer and dissemination of technologv
to help developing countries actively push for
is technological needs and interests.
to a secondary position the authors argue
that
Objectives and Prinorelegated In his contribution "Linkage between Biological Resources and Intellectual
the TRIPS Agreement include fiexibilities to facilitate technolopicals of
Property Rights: Implications for Developing Nations" V.K. Pathak explores
developing countries. The specific question they address is that howLs of the relationship between Intellectual property rights and biological resources
and Principles of the TRIPS Agreement can be better utilized for ntoes and points out the likely conflict between the two regimes of Convention on
technology transfer to the developing countries. The authors xp ore Biological Diversity and the TRIPs Agreement. Starting from the premise that
flexibilities and options inherent in technology transfer-oriented the here is a profound relationship between IPR and biological resources. the author
provisior
Objectives and Principles of the TRIPS Agreement from developing countriee focuses on the implications of the interface for the developing countries like
perspective. They rightly maintain that it "would help balance out the benefto India. He compares the provisions of Indian Biological Diversity Act. 2002.
of TRIPS. which thus far have gone primarily to the Patent Act, 1970 and Protection of Plant Varieties and Farmer's Rights Act.
developed world. and 2001 to examine the implications. He notes that the harmonization of laws as
ensure that developing countries receive the benefits that
they bargained for proposed by TRIPs Agreement is yet to be done completely and thus. the laws
and were promised."
In the first section of their well structured contribution, authors are different in various countries making it tough to ensure meaningful benefit
deal with the sharing and protection of traditional knowledge. Modification of Article 29 of
negotiating history of Objectives and Principles of TRIPS Agreement to show TRIPs Agreement so as to require all contracting parties to insist on disclosure
that the developing
countries proposals regarding Objectives and Principles ofgeographical location of the biological resources may be the starting point
became operative provisions as reflected in Articles 7 and 8 of the
while developed countries proposals largely set out in the Annex were
Agreement reforms.
reflected Since the advent of computers has effected significant changes in the
in the more general statement of intent (i.e., the
Preamble). Sections 1I and human life, the question that arises is: How to make law relevant to the
rapid
IV of the Chapter deal with
Objectives (Article 7) and Principles (Article 8) changes in the society brought about by the application of computer science
of the TRIPS Agreement
respectively. In the next section, the authors argue to and technology? Computers and internet have also
brought astonishing changes
give effect to the provisions of Articles 7 and 8 which contain Objectives and and developments in the field of information and communication
technology.
Principles of the TRIPS Agreement. They allege where an agreement itself But at the same time, being a double
edged weapon it has its negative impacts
contains objective clause then it is not too. There has emerged in recent
right for any panels and appellate body years a new breed of crime cyber crime-
-

to produce their own definition in

other provisions of the agreement. Authors posing new challenges before law enforcement agencies. Cyber crimes
further maintain that the
provisions contained in Articles 7 and 8 can be used represent an area where owing to scientific advancements nature of crimes
has changed and so has the mode
to strengthen other
operative provisions that promote social and economic of committing them. Dealing with computer
related crimes in an effective way
welfare. "Articles 7 and 8 can serve as a useful
bridge that connects the TRIPS depends on an optimum utilization of legal
and preventive measures and more
regime with those other regimes that may be implicated by the protection importantly its flawless investigation. A
flawless investigation of cyber erimes which can
play a major role in
cyber crimes at bay should be backed by adequate laws and eficient keeping
and enforcement of intellectual
property rights." The authors conclude tnat
the TRIPS
Agreement includes a number of flexibilities which can be used to of investigation. techniques
acilitate technological development and transfer of technology. The strategic It is in this context, the contribution
of Anand N. Rawat, Swatee
nterpretation and implementation of Objectives and Principles of the TRIPS and Sujata Tikande, "Regulating Cyber Crime in India: Need Yogessh
Agreement would enable developing countries to reach their and of Hour" reviews
analyses the provisions of the Information Technology Act. 2000 which
needs and
technologica relate to investigation of eyber erimes. Authors
goals and compete in the global economy. Furthermore, the au observe that the information
argue that in
safeguarding these flexibilities, Objectives and technology law has to a certaiu extent failed to address the issues
play important roles in the D detection and most importantly investigation
ot prevention.
interpretation
implementation of the
and otf cyber erimes. They find it
Agreement. They become even more important in light of the many ambsDS inadequate and in its nascent stage which does not
built
adequately address the issues
into the Agreement. Authors also maintain that ambiguities in
 of jurisdiction. powers of police to investigate. and procedure for Introduction 23
Authors point out that rate of conviction of cyber erimes is
in India. An important factor behind the low rate of convictia already very lov such a small level materials begin to behavior. In near future. "as
exhibit new

industries including
professional skill among the law enforcement personnel. They menti of the science progresses, it will lead to advances in n u m e r o u s
Nanomedicine which
important feature of cyber crimes is that in these sorts of crimes tfender
a l an electronics, healthcare, energy, and consumer products.
dreaded
enchases upon lack skills
of law enforcement IS an area of nanotechnology has great potential in treating many
of technological diseases. It is claimed that it will drastically improve the patient s quality
of
successfully commit the oftence andescape undetected. Authors ar
life, reduce societal and economic costs associated with healthcare, offer early
unique characteristics of cyber crime make even the traditional proceds
archaic and in addition to adequate substantive and procedural law detection of pathological conditions. reduce the severity of therapy and result
we ncod in improved clinical outcome for the patient.
have a comprehensive procedural law to deal with the to
cyber crimes While nanoparticles, as a result of their extreme microscopic dimension,
criticize the 1T Act, 2000 as it addresses primarily iSSues of They have unique advantages, they have potential hazards too similar to
fails to provide ammunition to combat cyber crimes. e-commerce and an particulate
Drawing upon Bentha matter. It has been shown that these particles have potential to cause varied
concept of 'complete code', the authors observe that the IT Act Vinod
being a complete code on cyber crimes. It "is neither complete in
falls short of pathologies of respiratory, cardiovascular and gastrointestinal system.
Shankar Mishra's contribution "Nanotechnology With Special Reference to
connection nor design.
expression
1on, Nanomedicine and Regulatory Measures: Indian Perspective" should be seen
Growing much dependency with computer, computer system in that context. His piece addresses many ethical and legal issues that relate to
computer resource, and wide and nanotechnology, in particular, nanomedicines. There is also great concern today
ranging Surveillance of cyber activities presents
serious threat information, communication and bodily privacy.
to over the environmental issues, health risks and safety of many nanotechnologies
democratization and liberalization of information Further, the and nanomedicines. Raising the ethical issues involved here, author asserts that
communication enabled sincenano-materials are a poorly-studied, chemically diverse class ofcompounds.
by the internet also poses many thorny issues
Golak Prasad Sahoo's contribution
concerning the privacy
rights. and for that reason may behave differently or exhibit
unpredictable toxicity
"Privacy Protection in Cyber Space: An in the host, therefore, it is essential that researchers inform
potential research
Overview" examines, in particular, issues related to subjects in clinical trials of all details pertaining to the study. Besides raising the
in the context of privacy protection that arise
increasing dependence on computer. The Chapter attempts ethical, legal and safety issues and examining them from dififerent
answer: (a) what is the teleological basis of
to
Vinod Shankar Mishra's piece makes a brief perspectives.
privacy protection in terrestrial as survey of the regulatory measures
well as digital world? (b) What distinctive
challenges do such crimes present
to be found in the field of
nanotechnology in some other countries. He makes
forcriminal justice and law enforcement? And (c) What are the the survey of the laws of
European Union, France, Gemany, The Netherlands.
at national, international, and regional levels to tackle the violationlegal
issues United States of America, Canada, and some
Asian countries, namely
of privacy South Korea and Taiwan. Final Japan.
right in cyber space? After examining in detail the concept part of his Chapter is devoted to appraisal of
of privacy, the author
considers the issue of its protection in the wake of information the legislative and other
regulatory measures taken in India towards addressing
technology. His the concerns associated with
nanotechnology. As shown by the author, the legal
contribution also contains certain valuable
suggestions in this regard. framework for regulation
Vinod Shankar Mishra has
of nanotechnology in the country is in the nascent
stage.
emphasized the need of enacting fresh
Nanotechnology and Right to Food so that "ethical, social and
regulatory of nanomedicine be
legislation
addressed so as to minimize adverse aspects proactively
Nanotechnology is a new area of materials science devoted to the study o case of
public reaction which we have been seen in
materials that are on the order of one billionth of meter. It is not genetically modified food and crops.
echnology but encompasses many technical
a
about on Eliminating hunger is an urgent priority in the world
today, where more than
and scientific fields sucn as 826 millionpeople remain chronically and severely
medicine, chemistry, physics, engineering, biology, etc. In fact, undernourished, undernourished. Most of the
s an umbrella term used to define the products, nanotechnoo especially
from the situation 'extreme
women and
children in developing countries.
sutfer
processes
aano (micro) scale. A study of materials so small in size
and properties at of hunger' where their daily intake
below the minimum of calories
quantity necessary for survival. A major issue in this is well
oenefits for mankind in future. Nanotechnology makes it promises imc new relates to international
disparity in food regard
possible lo
nalerials which will be far superior to the naturally occurring materai Du constantly ou the rise. While most Asian production and consumption which is
households spend around 40%
of their
 ofthe d s . .
income
on food -
tar more tor Alricans

ricultural velopcd countries,

in most

Organization
Oreani untrie
(FAO
to Food and Agricultural
7o to 12°%. According
the
India
Chapter
is home
only
it is "Food
to 237.7
Security
million
and undernourished
human Rights: Apeople.
Study of
Against
the Role
thioof judiciary
backdrop,
in lndia" written by Manik Chakrahortdiciary
in Evoing
A Legal Regime xamines
the concept of food security and its legal recognitic as a human right in
contribution lies in the fact that he has
has
India
signiticance of his
The examined the
the
hunman rights perspectives. His piece
issue of food security
from begins
providing an account of the concept and meaning of food security as it n be
instruments. The author refers to the
found in some international legal
international organizations in shedding liaht orts
and guidelines of some
meaning of food security. He gives a brief account of the efforts of the Ii.
United
Nations in conceptualizing food security as a human right to adequate fod
Manik Chakraborty refers to Universal Declaration of Human Rights (UDHR
which proclaims that "everyone has the right to a standard of living adeo
quate
for the health and well-being of himself and his family, including food"
Refering to Article 11 ofthe 1966 International Covenant on Economic, Social
and Cultural Rights (the 1CESCR) he points out that the ICESCR has clearly
established two different rights: () the right to adequate food and (i) right to
be free from hunger. Pointing out that there is the difference between the two
rights. he goes on to state, "[w]hile the right to be free from hunger means that
the State has an obligation to ensure, at the very least, that people do not starve,
the right to adequate food implies that states should also do everything possible
to promote physical and economic access at all times to food that is adequate in
quantity and quality for a healthy and active life."
Remainder of the Chapter contributed by Manik Chakraborty is devoted
to a well balanced discussion on the legal framework for the right to food
in India. After discussing the relevant Constitution provisions in this regard.
he goes on to present an overview of the commendable role of the Indian
Judiciary in adopting rights-based approach to food security. He examines
certain landmark judgments of the Supreme Court and which establish beyond
doubt that the right to food is a legally recognized right in India and isan
important limb of right to life guaranteed under Article 21 of the Constitution
of India. Having alleged that the right to food is a human right, he concludes
that there is a strong case for the enactment of the Right to Food Act whien
seeks to provide subsidized food grain to 75 per cent of the rural popudtic
and 50 per cent of the urban population and
belonging to priority g
categories of beneficiaries. While
advocating strongly tor impici of
the right food for the people, he at the same time
to toto
lake
emphasizes tnc i
strong and comprehensive efforts towards resolving the agratia"
crisis

With a
special emphasis on strengthening the base of small
farnies
Science and Law: Some Observations
Justice Swatanter Kumar

Law is the Ultimate Science- Frank Herbert, Dune

INTRODUCTION
The Notion that law is autonomous (legal formalism or legal positivism) has
been subjected to sustained challenge over many decades by scholars who draw
on scientific methodologies. as well as by the law and literature movement,
and by activists who constantly challenge the positivist image of law. Both law
and science derive their normative and epistemological legitimacy from public
processes, particularly processes of rational inquiry.
In mapping the field of law and science, we contextualize the place of law
and technology in the larger context of the scripting of the transformation of

legal and regulatory regimes.

Science and technology have had a great impact on the way we live.
Law has tried to regulate the use and utility of science and the extent of its
application. The major question, however, is whether we are well equipped
with the law to regulate the use of such technologies. The interaction between
law and science ends up creating the world not only materially, but also
culturally and morally.
Science refers to a system of acquiring knowledge. This system uses
observation and experimentation to describe and explain natural phenomena.
The vital role of science and technology in modern life cannot be overstated in
today's world.
As an impact of the modern scientific and technological revolution on
different aspects of our social and cultural activities, we may often find a shitt
from ourage-old traditional ideas based on subjectivism in our major intellectual
exercises. This type of shift has put a serious challenge to our conventional
adversarial value-based system of justice. Today, the most pertinent question
which generates much debate among the jurists, judges, seientists, lawyers and
 is
is how far the present value-
how Droce

of every legal sy
stem
academicians
irrespective or modified or reoriented Car two conlicting interests of the society. The meeting of these two disciplines in
to be changed
requires technol
based system ofjustice moderm
scientihe
discoveries and
the courtroom magnifies the differences and at the same time and may not be
benefit of
purpose
of utilizing Does Ine
reorientation minimized + subject to the same constraints and requirements.
system.
justice-delivery
When technology is advancing at a rate faster than that of law reform, then
advancement in process, is what is
factors and subjectivism
in
the Judicial
probability it automatically puts pressure on the law to reform. For instance
considered.
which the laW IS
modified and shaped er
the process by of pictures
Law reform is that society feels are important, The a) New mobile phone technology which allows for the taking
the social values which can be transmitted by SMS has lead to calls for reform to privacy
time to better reflect
of the legal system is to respond to
law cannot stand
still. A major function laws.
occur in legal cases or events, pronmofe
concerms which
changing values and in
scientific or technological developments.
Law reform b) New technology has also allowed for DNA testing which can assist
equality and respond to to a changing society. Law reform solving crimes. The use of such technologies can lead to criminal law
to remain relevant
is essential if the law is
with widespread community consultation and reform.
tends to be a gradual process,
reform is that it is too slow.
involvement. Indeed. one criticism of law Law is never static. It is logical. selfcontained, autonomous, and ever-changing
system. It must change according to social needs, and advancements in science
RELATIONSHIP OF SCIENCE AND LAW and technology.
the two disciplines-law and
Today 's technologically advanced society forces
science to interact in a wide array of cases. Legal disputes involving patents, sCIENTIFIC ADVANcEMENTS AND LEGAL REFORM
product liability environmental torts, regulatory proceedings and eriminal Importance andRelevance of Forensic Science and
cases are some fields of such interaction. Further, law and science encounter DNA Technology in Legal System
each other in the laboratory through a number of actions governing intellectual
Forensic science, as a scientific discipline, functioning within the parameters of
property. research misconduct. etc. The fact-finding agendas of the two
the legal system not only provides guidance in criminal and civil investigation
disciplines have frequently begun to overlap, if not merge.
but also supplies the courts accurate information about all the attending features
there is a general lack of understanding of each culture, these
Because
interactions often lead to cognitive friction that is both
of criminals. In the new scientific era, the emergence of DNA testing changes
disturbing and costly the role of forensic science in the legal system from passive spectator to the
to the
society. Scientists are distrustful of the lawyers and legal proceedings main key player.
and prefer not to venture into the
legal proceedings and the courtroom. The DNA technology, as a latest tool of forensic science, is the byproduct
scientific community that believes that its methods and
legal scrutiny and questioning often frustrates
procedures are above of modern genetic science. The said science established the belief that the
seldom speak the same lawyers. Lawyers and scientists pattern of chemical signals i.e. the genetic structure which maybe discovered
of the
language. Each should develop a better understanding with the DNA molecule in the cells of each individual. is unique and different
principles and methods of the other's profession. in every individual. The discovery of modern genetic science can be used
between the two cultures is a Bridging the gap
There is no doubt that new
challenge that needs to be addressed. in identification of criminals in criminal cases by analyzing various objects

effective tools in the adversarialtechnological advancements can be used as an

on the crime spot like any body fluid, hair root, saliva, fibers etc.
recovered
with the crime and accurately linked to the perpetrator of
more efficient dispensation
of
system
justice
to facilitate legal growth resulting in
for a better
which are
associated
the crime. The strength of this technology is its objectivity. scientific
we cannot
overlook the fact that it cannot society. But at the same u accuracy.
be infallibility and impartial character.
without
hampering some basic human implemented in any legal syste In
self-incrimination. right of privacy
rights of an accused like right
agalns the
our country, initially the judges took very conservative views regarding
Therefore, the
etc. application of DNA evidence in resolving the paternity/maternity dispute
in
problem which the lawmakers and the judges cases. Indian judges often facedebatable question in deciding matters of
a
introducing this
technology is how would a paternal responsibility of whether the law should give priority to
to strike a balance between the biological
adOv parentage over socCial parentage or not.
 In Gotam Kmdu vs. State of W. 1B. the Supreme Court expressedt. i
most Science and Law: Some Observations 31
DNA evidence in resolvino tho.
reluctant attitude in the application of internet users increase
maintenance proceeding. In the said casa tremendously, but
the number of
even
dispute arising out of a father to mobiles and smart
phone platforms will
people migrating
disputed paternity and
demanded blood grouping test to determine parn usage of the digital format and the
rise
significantly. With increased
digital
cmerging trends that will haveenvironment,
whether a child IS maintenano"ge
entitled to get
cyber law is likely to
for the purpose of deeiding see various

Section 125 of the Code of

Criminal Procedure (Cr.P.C.) from hins In r law makers. to bc
appropriately addressed by
context. the Supreme Court held that where purpose of the application
this
Was
nothing more than to avoid payiment
of maintenance, without making a Expert Evidence
ground whatever to have recourse
to the test, the application for blood any
lest Then there are serious cases of medical
could not be accepted. rival parties seek to negligence and related torts where
However. in amore recent judgment in Sharda vs. Dharmpal2 the Supr rely on
expert evidence. Even in the field of environmental
Court took a very positive view regarding mportance as well as admissibilit.
pollution involving toxicsubstances, there is serious difficulty in
the levels of danger, the extent of actual and latent finding out
of DNA evidence in matrimonial cases. The Supreme Court categoricall damage to humans and
environment, and there are uncertainties in
observed that "A matrimonial court has the power to order a person to underea by the polluter accepting the technology installed
to conform to environmental standards. In
medical test". Further, the Supreme Court by distinguishing its earlier civil
decisian where handwriting, forgery, or paternity issues are involved there is extensive
some cases

in Gontam Kumndu case further held that right to privacy mder Article 21 af use of scientific
techniques. The courts are thus
compelled to analyze evidence of experts examined ondependent
the Constiution is not an absolute rigi and in a case of and. in fact,
conflict between the each side.
fundamental rights of the nwo parties, the court has to strike balance between
the competing righis.
When our Evidence Act was enacted, the legislature did not
Impact of Science on Court and Court Processes
the revolutionary change in society by vitue of advancement of
anticipate Science is not new to the Indian courts. Towards the end of 1989. one low-end
science and installed in the Supreme Court of India for caveat
technology and as such. though society has changed, law is lagging behind. computer was

Presently staff on the courts up to the taluka level is trained. matching.

Therefore. the Evidence Act is required to be There is complete
changed in the light of the automation from filling of a case to grant of a certified
changing social condition. copy. Digital production
of under-trial prisoners
by video-conferencing is made possible. Courts across
India have started using computers in Case
Cyber Crimes Management and Court Management
but we can make extensive use of
computers in improving quality and speed of
In the era of cyber world as the justice. We must try to make justice cost effective and time effective with the
usage of computers became more popular.
there was expansion in the help of computers.
growth of technology as well, and the term Cyber
became more familiar to the High technology court room is becoming a reality in the United States of
people. The evolution of information technology
IT) gave birth to the cyber space wherein internet America, Australia, Canada, England, Scotland, Israel, Singapore, Hong
to all the provides equal opportunities and Netherlands. Court room
Kong
people to access any information, data storage, technology is being considered as a promise of
use of
high analysis etc. with the effecting significant, direct and indirect financial savings. The adjudicative
technology.
This increased changes which computers may bring would improve the administration of
information also comes with its own perils. Our
access to
WoTy is the potential misuse of such information, the avenues such justice by making it more certain, more accurate, faster and less expensive.
to information access Technology based court record is the first target of high-tech Courts. Medical
provide in compromising privacy laws,
laws etc. This is what
has given rise to
banking laws,
securny forensic evidence plays a crucial role in helping court in
arriving at logical
international level. Each successive cyber crimes at the domestic
and conclusions.
year is likely to add huge numbers Importantly, although law and science have achieved unprecedented
new intemet users
to the internet o
bandwagon. Not only will the numbers o hegemony, both claim to recognize and rely for their legitimacy on limits to their
AJR 1993 SC 2295: own fields of action. In science, the limits are co-extensive with the scientifie
(1993) 3 SCC 418.
(2003) 4 SCC 493. method of inquiry: in law, the limits reside in procedural technicalities.
 as well as periodic exposure
Despite the limited transparency,
failures
and
consequence, science
and malfeasance of significant magnitude and law
nonetheless share extraordinary credibility
and support among mass

a sense. law and science

collaborate in a mutual constitution whor public.
cInIn
transformed and the authority of each is preserved and extended
reby each is

CONCLUSION
The practice of law is increasingly requiring a level of science literacv
will be required of anyone who is graduating from law school, todav
literacy that
with an understanding of the SCience, sCientists and engineers as well
as tho
regulatory mechanisms that we can best optimize these opportunities for tho
benefit of society and future generations. Advances in Science and
Technoloo
during the past few decades have accelerated the growth
of international lau
as a creative force in organizing and regulating cooperative projects among
nations.
Science is not marginal. It has become vital
part of our daily life. It helps
us
assessing what we know of the material world with reasonable
Take the case of communication certainty
and cost effective. Extensive use
through mobile phone, it is
easily accessible
of technology thus is destined
to become
global and democratic. Soon it will be
The notion of what omnipresent.
constitutes science and what it would take
law more scientific varies to make
across time. What does not vary is our constant
endeavour to broaden our horizons.
I would like to conclude here with the
engineer, futurist and philosopher Nikola Tesla:words of the famous Physicist
Science is but
betterment of humanity
a
perversion of itself unless it has as its ultimate goal, the
 Law and Science: Bridging the Gap
Subhash Chandra Singh

INTRODUCTION
Scientific evidence pervades modern legal decisions, whether the decision is
made in the courtroom, during the investigation stage or
through legislation.
The question of what counts as scientific knowledge has become a focus of
heated courtroom and scholarly debate almost in all countries. A critical theme
running under discussion here argues that, although untrained in science,
judges are fully capable of deciding what counts as science, and that it is their
responsibility to do so. Too often, because of the daunting complexities of
science, many refrain from their duty with dire consequences to the rule of law
and those seeking justice within it. This paper offers insights into scientific
process that will produce legal judgments and decisions that are intellectually
defensible and fairer to the litigants. A fundamental tenet of evidentiary
principles is that only facts having relevance rational probative value
should be admissible in the search for truth.
Many time-honoured methods of criminal investigation, such as hair
analysis, voice spectrography, and bite mark identification, to name a few.
have turned out to have no better foundation than ancient divination rituals.
This Chapter examines the process of evaluating scientific evidence in both
civil and criminal contexts and explains how decisions by non-scientists that
embody scientific knowledge can be improved. This is a timely and important
subject for anyone interested in the impact of science on the law and society.
The Chapter examines the valid use of scientific
knowledge with respect to
itigation in furtherance of justice. The science expert may employ the causal
concepts of science when expressing purely scientifie knowledge. Indeed, it
is the layman's lack of such
specialized knowledge that is the fundamental
justification for the law's use of scientific evidence. Ulimately, however,
 science
remains the excluSIveprovince of
xelusive province of the trier
principle of believed that the interaction of various scientific disciplines was important
application ofthe the layman concept of common knowlet
s
ledge
because the law employs that much ofthe tothe growth of knowledge. He believed that scientific inquiry could only
of fact issues.
here is perception
I legal
for the resolution ofscientificrelatuon of science and
law IS unenlightenine a benefit by listening to interdisciplinary voices.7 The element of rationality is
with the and. a third tenet of science. Popper asserted that a background in science should
scholarship dealing
failure to define
employ them consistentlyy.
terms, give
cineular because of
statements.
not be a necessity for understanding scientific ideas. He thought that ideas.
in the understanding of general
examples to aid including scientific ideas, ought to be tested in a public forum before it is
to describe their
evaluation process generally in terme
Scientists continue
Moreover, even withoul a single accepted in the court of law. For Popper, science could be distinguished from
their scepticism.
despite
ofscicntific method.method, about certain basic principles 1 myth by its openness to critique and modification in the light of criticism. In
there is a consensus

universal. scientific
Probabilistic assessment
of data, independent
verification of new procedurec the words
ofAllen
and Miller, 'The law is hostage to knowledge possessed by
others; it needs data. It can well do without the biases and prejudices of related
fundamental to sCientific argument in
and concerm overpositives are
false disciplines-it has enough ofits own to deal with.
is also basic to scientific understanding in very
every discipline. Metaphor
field SCIENCE IN THE COURTROOM
SCIENCE FOR THE One of the basic assumptions in common law is that there exists a distinction
WHAT COUNTS AS VALID between facts and the inferences that can be drawn from such facts. The
PURPOSE OF LAW? distinction between fact' and 'opinion', however, is not without difficulties.10
Daubert Pharmaceuticals
Supreme Court acknowledged in
vs.
The U.S. It is the function of the magistrate, and judge to draw inferences. The role of
are the key elements in
Inc. testability. rationality and openness to critique witnesses is to state the facts as they have been directly observed by them. In
scientifie theory. Afiming the importance of empirical content to scientific other words, witnesses do not give their opinions. However. the law makes an
theory. this concept asserts that what makes a hypothesis scientific is that it can exception to this basic rule in the case of an expert in cases where a tribunal
be provisionally corroborated or falsified by observation and experiment." As of fact decides that a specific issue calls for an expert witness because the
a corollary to the idea of falsiication, the hypothesis being tested must particular expertise does not fall within the knowledge and experience of the
precise logical consequences that are incompatible with alternative hypotheses.
have
magistrate, orjudge, and a witness qualifies as an 'expert'. Insome jurisdictions
In addition. the concept of testability includes the idea that the data obtained by (for example in the United States) an expert witness is allowed to also express
testing or observation must be accounted for in a proposed model. Testability an opinion on the ultimate issue, the very question, which the tribunal itself
assumes a laboratory science paradigm of methodology: it has to be stretched to has to answer. Hamlyn-Harris. however, has pointed to the danger of courts
encompass epidemiology, with its reliance on statistical inference. coming to depend on experts' opinion on an ultimate issue before deciding the
Moreover, testability does not stand alone as the sole criterion for issue.
distinguishing science from pseudoscience.6 In addition to testability. Popper
Karl R. Popper, "Normal Science and its Dangers", in Imre Lakatos and Alan
See Alan
Musgrave.
G. Gross. The Rhetoric of Science, (Cambridge.
Mass.: Harvard University ITeso (cds.). Criticism and the Growth of Knowledge, (1970) p. 57, arguing that science progresses
32. noting that
990).p.
Lhat no method is
although most procedures have limits and, there fore. detractors anu through communication of rival scientific systems.
universally accepted. arguments nonetheless proceeds from certain DuS Erica Beecher-Monas, Evaluating Scientific Evidence supra note 6. at 45
understandings about these procedures. R.J. Allen and J.S. Miller. "The Expert as Educator: Enhancing the Rationality
Id.at 47 in Child Sex Abuse Prosecutions". Psychology. Public
of Verdicts
Policy and Law, I. (1995) pp. 323-38
509US. 579 (1993) at 337.
See Francisco J. Ayala. Biology as an Autonomous Science, 56 American Scicntist , 207 I . Freckelton and H. Selby, Expert Evidence: Lav, Practice, Procedure and Ahocacv
1968) -o (Sydney: Lawbook Company. 2002). p. 10.
Sec Thomas
F. Gieryn. "Boundaries of Science", in
Sheila Jasanoff et al.. (eds.). t
S. Hamlyn-Harris. "The Limius of Expert Evidence", in Freckelton et al. eds.),
Current
of Seience ond
Lrice
Technology Studies. (1994) 395 p.
Controversies in Psychiatry Psychologv and Law. Proceedings of the Thirteenth Annual
Beecher-Monas, Evaluating Congress of the Australian and New Zealand Association ot Psychiatry, Psy chology and
ntelle Scientific Evidence: An Interdisciplinary' Trane
ctual Due Process (Cambridge: Cambridge Law Melbourne (1992). p. 82.
University Press, 2007). p. 4>
 lorensic evidence plays a cerucial
medical and measured and expressed in mathematical (i.e.. probabilistic) terms. Webster's
There is unanimity that
a conelusions. Theref
to arrive al logical ore, Dictionary defines "scientific method" as: "Principles and procedures for the
role in helping
the courts of law to undertake
should be encouraged dico- systematic pursuit of knowledge involving the recognition and formulation of
professionals
the expert medical
the atmosphere
in courts should be con nial a problem, the collection of data through observation and experiment, and the
work and simultancously the analysis of scicnti.
legal the requirement of formulation and testing of a hypothesis."
witness. To meet
to the medical
the following things: (i) identifv and Despite the U.S. Supreme Court's reference to the scientific method as the
be able to do
must
information. one
and hypothesis for their power
to explain e i cornerstone of scientific knowledge. its existence is debatable." First. there is
examine the proffered theory
undermines) the proffered theorv no monolithic scientific method. Karl Popper, the preeminent philosopher of
the idea that supports (and
examine
data:(ii) to hll the inevitable gaps bctween dat science cited by the Daubert court, thoroughly debunked any such notion.
assumptions,
(ii) employ supportable in probabilisti Differences arise among scientists in different disciplines, and even within
the methodology: and (v) engage
and theory: (iv) examine the same discipline, with respect to the amount of evidence that is needed to
the hypothesis.
data and
assessment of the link between the
evidence is different from ordinary testimony support a theory. Instead, there are many methods and many procedures. The
on scientific
Expert testimony only essential ingredient for good science - and, hence. the only overarching
to interences and
give opinions
from laypersons. A lay witness nmay lestify method-is that science must be open to critique and revision. In its broadest
based the witness s perceptions of the subject
only if they are rationally upon
conceptualization, science consists of making valid observations, inferring
of the testimony. Experts. by contrast, may give
opinions and testify about
reasons for the observations, and offering mechanistic explanations; success
based in on information obtained from second-hand
possible inferences part in this endeavour is measured by the resulting ability to predict future events.
sources and not from observation object of the testimony. For example, a
of the In principle, science is independent of the values of the practicing scientist;
would not be allowed to take the witness stand and offer an opinion
layperson this ideal characteristic distinguishes science from law, and from other human
on a plaintiff"s injury unless the individual had witnessed relevant information activities such as philosophy, theology, and art. In contrast to mathematics
regarding the injury. However, a doctor who is certified as a specialist in the which is axiomatic and seeks reasons based on logic, science is observational
particular injury could take the stand and offer opinions on the injury based not and seeks reasons based on experience.
only on an examination of the plaintiff but also on second-hand information

that is normally relied on by experts in that particular field of medical study.

One of the most important issues that arise in expert testimony is which
Law-Science Interface in the Context of Evidence
scientific procedures a court should accept as evidence. Many scientific Scientific evidence is an inescapable facet of modern legislation. It is
procedures are not seriously in dispute and are accepted by courts with little or fundamental to criminal justice and to civil litigation. However, the issue
no inquisition into their validity. Examples include fingerprint tests for purposes
of scientific reliability is a hot topic in India and other commonwealth
of identification, blood tests, breathalyzer tests for alcohol consumption, and jurisdictions, as well as in continental European system. A decision cannot
ballistics tests of bullets and their impact areas. These scientific procedures be based on bunkum. Permitting expert witnesses to confuse the court with
are so widely
wholly unscientific assertions should not be tolerated in any civilised country
accepted that a court may take judicial notice of the procedure's
much less one that prides itself on constitutional principles of due process.
validity. Judicial notice means that the parties in the case do not have to present
evidence to the court to establish the In order to be helpful, the expert needs to educate the judges in a scientifically
validity of the scientific procedure. ln sound manner, and this includes especially stating the statistical basis for the
some instances
legislatures have specifically authorized the use of scientilic
tests, such as opinion. The court must evaluate the admissibility of the expert testimony
breathalyzer tests for suspected drunk drivers.
The science can
play an effective role in the determination of any case Mish et al. (cds.) IWebster s Ninth New Collegiate Dictionary. (1990).
if the scientific
only expert's testimony is based on valid scientific knowledge, Erica Beecher-Monas, Evaluating Scientific Evidence,supra note 6, at 36
which Daubert explained as
knowledge grounded in scientific
commonly understood, scientific method means taking an ideamethod.
As See Karl R. Popper. 7he Logic of Scientific Discover (1992). pp. 276-281
16
about hoW d. at 279.
thinks work.
framing it in a testable hypothesis to see if it holds true, all Erica Beccher-Monas. Evaluating Secientific Evidenee. supra note 6. at 145.
I8
d. at 144.
See Daubert. supra note 3. at 589.
 the trier ol lact. The
basic question . Lawand Science: Bridging the 39
consndered by
hefore it may be
deternmining the legal admissibility ofscientilictestina. In some inslances courts are reluctant to admit
consider hen certain scientihc evidence
scientilhe Knowicdgc. Since the court cannotdo because tlhe procedures yield results that are
reliability of the expert's not considered
sufficiently reliable
it must focus on the eNpert decision-making procoe to be used as evidence. Such
s
the scientific issues. the opinion. Limiting testim
1hat procedures include polygraph and chemical tests
that have been created to determine whether
which the expert arrived at
is, the method by lo a
person is telling the truth. If all
ot procedural tairness. Even expert testin parties agree that testimony derived from such procedures shall be admissible.
what isrelevant is a basic notion
must abide by this structure. which means that it must have a sound seiontific however, a court is free to allow the evidence to be
introduced. In any case.
hasis. Gatekeeping for
scicntific validity ol cxpert testimony in criminal iustin regardless of the level of acceptance of a particular scientific procedure. the
law, with its goal of rational truth-seek inp 19 scientific evidence presented must be relevant to the issue at
is therefore basic to the rule of hand. Furthermore.
Some scientific tests and examinations that are not universally accepted the scientific evidence must have been obtained in a
manner that is consistent
with the way such evidence is
are nevertheless generally considcred reliable. Some examples are utron normally obtained. For instance, assume that a
activation analysis to determine the identity of goods, voiceprints to determino physicist intends to testify to the speed of the defendant's vehicle in a personal
a person's identity. and genctic testing or DNA analysis. These types of scientific injury case stemming from a car accident. If the physicist used different
methods from those used by other
in the medical communities. but
they are not physicists in determining a vehicle's speed.
procedures may be accepted the court may refuse to allow the
established that they may be judicially noticed as automatically valid sources physicist
to testify
as to the vehicle's
speed.
An expert witness giving
of scientific evidence. They may be admitted as evidence, but only after an testimony scientific evidence may offer
on

opinions on issues related to that evidence. An expert witness may also give
expert witness has testified to the validity of the test. In determining whether to
admit scientifñic evidence from procedures that are not universally accepted, a an opinion on the ultimate issue in the case. Under rule 704 of the Federal
Rules of Evidence. however, an expert witness testifying with
court must ask whether the test is reliable. A technique's reliability depends on respect to the
mental state or condition of a criminal defendant may not state "an
opinion or
a number of factors, including whether the technique can be or has been
whether it has been subjected to peer review, whether the test procedures have
tested inference as to whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged or of a defensethereto.
been published. whether the test has a margin of error and, if so, at what rate. This rule, which is applied by courts only in criminal cases, was
approved by
and whether the technique, as applied, conformed to existing standards for the U.S. Congress in 1984, largely in response to the outcome of the criminal
the test20 In Kumho Tire Co. Lid. vs. Carmichael, the U.S. Supreme Court prosecution of John Hinckley, who attempted to assassinate President Ronald
ruled that the Daubert standards govern not just the admissibility of scientific in Hinckley was charged with attempted assassination. assault
Reagan 1981.
officer, and use of a firearm in the commission of a federal offense.
evidence in federal court, but should be applied to all witnesses seeking federal
court approval to testify as an expert. Thus, the Supreme Court found that a
on a federal
but was found not guilty by reason of insanity after the jury heard testimony
purported expert on tire failure was subject to a Daubert inquiry before he from a psychiatrist who declared that Hinckley could not be found guilty
could be permitted to testify on the subject in a products liability trial, even if because he lacked the knowing mental state required fora conviction on the
some of his proffered testimony was not wholly "scientific." The lower court charges.
had attempted to draw a distinction between scientific expert for which the The weight given to scientific evidence may vary according to the
Daubert standards did apply and a lechnical particular test that yielded the evidence. One party's expert testimony may be
expert for which the Daubert convincing, but it may not be dispositive of the case because the other party
standards did not apply. By expanding the Daubert test, the Court
the trial court's broad discretion in matters of
reemphasized may have experts from the same field who have studied the same evidence
expert testimony. and come to different conclusions. Experts have become indispensable to the
vast majority of litigated cases, and many cases, civil and criminal alike, come
ld,at 144-145.
Daubert vs. Merrell Dow down to a battle between experts. One notable exception to this trend is the
couris
Pharmace uticals, Inc., supra Belore Daubert, the ledera
note 3.
paternity case, in which blood test results or DNA test results can establish
overwhelmingly applied a consensus standard for admissibility. This was the standalu
of frye vs
United States, 293 F. 1013 (D.C. Cir.
1923), explaining thal scientilic testimo
the ultimate issue in the case. This is true, however, only itf the parties in the
must "be sufficiently established
which it belongs."
to have gaincd gencral acceptance in the particular lietd i"
paternity case agree that the particular tests will be conclusive and if the tests
show that the individual named as the father could not be a parent of the child
21 526 US. 137: 119 S. Ct. 1167. 1431. Ed. 2d 238 (1999).
 idividual named a tne atl
aSs the lather could h
that the divIdunl
tests show
If the and the
and narti
in question.
test results
will not dispose of the
se,
case,
parties will have community and the seientific community as well as a better understanding of
the parent. the the language and professional constraints of both the scientific/medical and
lo present tiurtherevidence. opiniOns in Daubert and legal cultures.
Although the US
Supreme Court s
Joiner
to some basic
sCientifhe concepts, they lefi a ereat
Importing non-legal knowledge into both criminal and civil trials has
intnduced judges whether a Dart
many
How a judge is to dctermine proven problematical in western common law countries with their adversary
uestions unanswered. is to decid.
how a judge legal systems. There is no doubt that magistrates and judges sometimes
evperimental method good is science or
vhether
sound enough to be admissibie
are
open questions TL require assistance to establish the facts of a case before them. In this context.
imperfeet studies are that the scientific method the expert witness can play a crucial role. In the words of lan Freckelton. a
US Supreme Court also failed acknowledge
to

scientific disciplimes and that scientific reliability well-known Australian practicing lawyer and authority on expert testimony.
is not the same for all
not an all-or-nothing proposition but rather depends on the use to which thc The role of experts is vital. They supply information that can't be supplied
evidence will be put and the acceptable risk of error. Nor did the court give.
any elsewhere, as they supply count-intuitive and myth-dispelling information.
studies, each individually inadequate t which may be essential to clear thinking' 27 Alas. however, fact-finders have
guidance on ways in which separate
to also contend with the knowledge that expert 'evidence can be complex and
support a given conclusion, may cumulatively provide
a proper foundation for
a scientifcally valid expert opinion. Statistical analysis, although concededly hard for ajudge understand.
to Also, there 's the danger of bias. These are hard
financial times, and the forensic expert needs to be a repeat player. If they do
important to a Daubert detemination, was neither discussed nor explained.
Probabilistic causation issues were ignored. not supply the information required, they will find they do not have as much
Forensic science is almost entirely the province of the state, and its onlv work as they need to survive' 28
The court has a gate keeping role regarding the admission of scientific
application is in the courtroom. Experts appear for the defence in only a smaill
evidence. Before the expert's conclusions may be presented to the trier of fact.
percentage of criminal cases. All too often, the defence fails to challenge the court must be satisfied that it is reasonably
prosecution experts. even where the testimony is highly controversial.23 As an possible that the conclusions
are true. In making its determination, the court's focus must be on
example of this problem, the now discredited technique of voiceprint analysis the expert's
was once a widely used identification method that was never
decision-making process. Was the conclusion based on controlled observations
empirically of nature published in the peer-reviewed scientific literature? Were the
tested Permitting experts testify beyond the bounds of their expertise-a
to
applicable principles of scientific inference properly applied to the scientific
frequent occurrence in criminal trials- only makes matters worse.25
data? If the court answers both questions affirmatively, it is
reasonably possible
that the testimony is true, and therefore is reliable.
Language and Professional Constraints A number of writers have
Here. it may be noted that the cultures
suggested various approaches to overcome some
of of the inequities resulting from the insistence on
setsof beliefs and values,
science
and law operate within different using traditional burden and
resulting in differing languages which can produce onus rules in toxic tort
litigation. These remedies include, but are not restricted
undesirable outcomes such as to, the establishment of no-fault insurance
unintended consequences. For this misunderstanding,
frustration of purpose, and
cause of action for
schemes, legislating a statutoory
Work to promote
reason, they have
carefully crafted their persons injured by toxic chemical exposure.50 establishing
greater cross-disciplinary
communication between the legal governmental compensation boards,l and adopting risk/benefit analysis to
26
-Erica M.J. Saks, "Normative and
Beecher-Monas, supra n ote 6, al 84. Empirical Issues about the Role ofExpert Witnesses". in D. K.
For
example. Jimmy Ray Vromgard was Kajehiro and W.S. Laufer (eds.), Handbook of Psychology and Law (1992). p. l85.
more than fhfteen exonerated of rape by DNA 2 Quoted in M. Ragg. "Proof. Positive or Negative?", The Bulletin 14-17, 16 (1995).
years in
a Montana cvidence alter serving
the
victim s bedsheet matched his. prison on the basis of testimony that hairs found in lbid.
the crime. the Although
defence counsel failed to there was little else linking the delendant lo 2K. Feinberg, "The Toxie Tort
hire an expert to Litigation Crisis: Conceptual Problems and Proposed
www.innocenceproject.org/case/display_proflile.php?id=1|11.
Ce Bert Hlack, "Science and the Law in
Knowledge". 72 Texas lLaw Review the Wake of
challenge thc proseculi0n S expe
1Daubert: A New Search lor Scienunc
pert. 30
Solutions", 24 Houston Law Review 167-174 (1987).
J. Forstrom, "Victim Without a Cause: The
Missing Link Between Compensation and
Deterrence in Toxie Tort Litigation", 18 Environmental Law
163-168 (1987).
Scc lan R., "Of 715, 739 (1994).
Blood. Babics and 3 D.Harvey, "Epidemiologic Proof of Probability: lmplementing the
Behaviour", 17 Alernative Law
.Journal 10-11 t7-992). Approach in Toxic Exposure Torts", 89 Dickins on Law Review 24s Proportional Recovern
(1984).

cd ty I1C
 inese approaches are i n n o v a t e and mut
ol
chenmicals. Marny
reeulate specific
assess
their merits, luding the
includi cost-ctfectiveness of courts around the country reached a broad consensus on what is required for a
to
be carefully
examined
of Kumho ljre, the US Supreme Cou held toxic tort plaintiff to mect his or her burden of proof.
ith the advent
implementation. and lawyers-that the d The battlc of experts has been the most vicious in toxic tort cases. In
to make it plain to Judges ction
- and laboured and science was illusory, :and the only real differ civil law countries such as the Netherlands, where experts are appointed
between "hard" "soft was between scientifical by the court on mutual agreement of the parties and prepare a joint report.
one-

well as the only justihable and

-

as
theories.2 disagrecments are rarely aired in courts. But in the United States. toxic torts
invalid data and
scientifically have been a battleground about what counts as science in the courtroom, and
this issue propelled both Dauhert and Joiner into the U.S. Supreme Court."
Conundrum in Toxic Tort Cases
Causation The main controversy is in the area ofcausation. In toxic tort case. the plaintiff
tort cases often posce dilicult problems of proof must prove causation by a preponderance of the evidence Preponderance is
Environmental toxic
substance's toxicity may be unknown or uncertain. A combination of ctors
only one of the legal standards that come into play when assessing causation

mav cause a plaintift's injury,

may arise many ycars afier
and the injury
nlaintuif's exposure to a toxic substance. It is likely that many cenvironmental
injuryvictims simply fail to recognize their
ilinesses as tortuous injuries
never receive compensation. Cancer and various respiratory ailments, or
instance. can result from exposure to commonly found and commonly released
pollutants. Because of the difñiculty of identifying potential defendants and
proving causation, such cases simply fall outside ofthe tort system. This leaves
social costs externalized
A 1oxic tort. as the term here, is a cause ofaction that arises wlhen a plaintil
has developed a disease following long-term exposure to a physical agent
either a chemical or a form of energy such as electromagnetic fields
a evidence. The proponent of scicntific evidence must first persuade the judge
that the proffered evidence is more likely than not scientifically valid."* Then
a there is the Daubert standard, which requires only a scintilla of scientifically
valid and relevant evidence to survive an admissibility determination. How
these legal standards ought to be interpreted is far from clear and how to prove
causation is a debate that predates Dauhert by a considerable margin."
Traditionally, in tort cases, proving causation means the factfinder must
conclude that, having heard both side of the story- including the seientific
evidence supporting cach side- the defendant's action, inaction, or product
caused the plaintiff's harm. What such proof of causation does not require
-

or permit- is that judges first decide as a matter of law whose evidence is

(EMFs).
Typically. the defendant's economic activity resulted in the plaintiff's exposure most persuasive and then exclude evidence pointing the other way
to the agent. Courts
essentially must determine whether the plaintiff's exposure It is important to realize that humans are bombarded with exposure to in
and subsequent disease are numerous chemical substances every second of every day. But even the most
causally related, as that relationship is defined by
the applicable law, or whether the dangerous ofsubstances are not harmful to humansif the exposure level is
exposure and disease are associated merely
by chance. For example, did the asbestos inhaled by the below the threshold level necessary to cause harm. However, the law recognizes
cancer? Did the radar gun used plaintiff cause his lung these harms, known colectively as "tOxic torts," and has begun to evolve a
by the traffic control officer cause his testicular
cancer? Did the Bendectin taken body of rules to allow victims legal recourse. Yet. because this is a relatively
by the plaintiff cause the birth defects that
OcCurred thereafter? Traumatic
injury occurs instantaneously, but discase
develops over a
period of time. The cause of disease, therefore, cannot be the For the Netherland's experience. Petra Kampen and lans Nijboer, "Daubert
see van in the
direct object of the senses and Lawlands", 30 U.C. Davis Law Review 951. 985 (1997).
can only be inferred.
Courts have 34Dauberl involved claims that the plaintiffs' birth delects were caused by the anti-nausia
are
struggled to create rules for
both consistent with causation in toxic tort cases that drug, Bendectin (Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 3). Joner

taced with longstanding tortprinciples and fair to all

involved claims that the plaintilfs' lung cancer had been
promoted by the exposure to the
conflicting and often novel expert parue defendants' PCBs, which the plaintilT sought to support by eNpert testimony founded on twO
legal and scientific culture,testimony, scientific uncertany
the gap between and four epidemiology studies (see General Electric
and
animalstudies Co. v. Jouner. S22 Us

massive
damages, common-law unprecedented claims to' 136 (1997).

themselves to the brave new courts needed time to adjust and accommoaa See E. Cleary (ed.). MeCormick on Evicdence ( 198-4). p. 337.
world of toxic tort 30
Erica Beecher-Monas, supra note 6, at 82.
litigation. Eventually, nowov
ver,
lbid.
Jbd SB Sec, e. g, National Bank of (ommerce v Dow Chen Co. 965 F. Supp. 1490 (E.D. Ark
1996).
 to a wide
1s
bemg adapled
Ily bemg
continually
adaptcd
range
nge of harms.
that
of law is proving xposure to a
Willamettesubstancea
new
area
such roblem pro and credible manner so as to be understood and believed by the lay trier of fact.
exist. One
problenms alleged. ghts v.
It is unlikely that the trier of fact will be swayed by an expert who testifies in
many
known to
the harms
cause

the Western District of

Industries
Arkansas
strict Court for a manner that is inconsistent with the scientific facts when the adverse party is
level
a
while
Arkansas law, imposedon plaintiffs
Imposed on plaintills
standard
a new represented by able counsel.
purportedly applying t o r t s - a showing of exposure to substa
recovery for toxic Indsc
at
levels
for the threshold.
Appellant Willamette
owns THE SCIENCE COURTS: SOME OPPOSING
bc above
known to town of Malvern in western
fibreboard manufacturing
plant nearthe
and pulp and refines them intoo a iber.
Arkansas. VIEWPOINTS
Willamette takes pine wood slhavings It has been suggested that a specialized court be created to minimize the
dried. A resin of
urea formaldehyde is mixed with the fiber
which is then
particulate matter
emils
just difficulties associated with the law-science interface. One proposal would
It is undisputed that the plant
prior to drying. part allow scientific advocates on opposing sides of a technical issue to present
with formaldehyde, into the air. The Wrighte
treated live
ofwhich has been the claim to have suffered from
evidence and argument to a panel of distinguished scientists. The panel
a short distance
from plant and a
Jmber of would resolve the scientific issues. The Court would then utilize these factual
sore throats, watery eyes, running noses, dizzines
affictions (e.g. headaches, conclusions, supply the relevant legal or policy judgments. and make a final
and shortness of breath) which they blame on the emissions from the nla decision. Another variation would allow litigants to argue their cases before
The Wrights brought suit on a variety of theories and prevailed on their
a panel of judges with recognized scientific credentials. The concept of the
the five plaintiffs total of $226,250.00
negligence claim. Thejury awarded
a
science court has generally fallen into disfavour.45 Judges have historicaliy
in compensatory damages for their personal injuries. shown great adeptness at understanding the essentials of complex litigations.
In Smith . Rasmmussen, the lowa Department of Human services appealed In this regard, toxic tort litigation is not unique. In any event, the problem
the trial court's finding that the State owed medical coverage to the plaintiff. faced by litigants is not that the science of environmental risk is complex but
a 41-vear old transsexual. for his sexual reassignment surgery. On appeal, the that the data needed to establish the case is equivocal or unavailable. Thus, the
Department challenged the district court's limitation of its expert's testimony science court would be faced with exactly the same difficulty in determining
to "general psychiatric principles and basic diagnostic criteria'".4l The district the cause-effect nexus faced by traditional law courts. The idea has received
court refused to allow the expert to testify considerable attention over the years, but some see it as too opaque and elitist.
regarding the effectiveness and
necessity of reassignment surgery in general and for Smith in particular. Ironically, others may view it as too transparent. Beyond that. as proposed, it
holding that these specific areas were beyond his expertise.2The Eighth Circuit might have been too time-consuming and expensive, and few scientists would
upheld the trial court's limitation on the ground that the expert's testimony on have welcomed a suggestion for cross-examination. Yet. its key features still
thedisputed subject "was based neither on his offer promise for resolving difficult policy disputes and might be usefully
personal experience nor on his
knowledge of the relevant discipline" 43 integrated with notions since leading to the creation and endorsement of
Science is a collaborative advisory science boards.
enterprise and scientific studies cannot be
interpreted in isolation. Scientific
studies integrate with and build on one In the regulation of toxic substances this can have substantial effects
another. Because on public policy and the public health. There will be a tendency to evaluate
they ignore this pivotal idea, courts frequently find the issue
of
"ht a difficult detemination to make. An expert in toxic tort cases carries each substance on a substance-by-substance basis, for otherwise oneis
a
heavy burden. In the face of not evaluating carefully each substance. Such analysis is slow. and several
cross-examination and direct testimony Dy procedures for identifying carcinogens are insensitive (they may not detect
opposing witnesses, the expert must choose valid scientific data on which
rely, and form his a risk of harm even when it is present). This, combined with
principal inductive and deductive opinions thereon in a lucu
many laws that
Jeave carcinogens in commerce until an agency has established that
91 F.3d 105. they pose
249F 3d 755
1108 (2th Cir. 1996).
(8th Cir. 2001
ld. at 75%. *See
1058for example, James A. Martin. "The Proposed Science Court". 75 Michigan Law Revw
(1977).
Jhid 45
See R. Carpenter, "Ecology in Court. and Other
ld. at 759 Disappointments of
Environmental Science
and Environmental Law" 15 Natural Resources Lawyer 573, 593 (1983)
 be a .
will be w and Science: Bridging the Gap 47
indicates
that feW substances will addressed. Both mav
ham.
risks of unidentulied and unaddressed as carcinogens
as

for Kantrowitz
leave human
caremogens
Seience courts appear
to reinfor
a claims." originally suggested that a science court might work best
eriod oftime. when addressing relatively specific, but "big" or "large scale" questions, such
raises
out
questions about their appropriate use
as whether the SST would harm the ozone layer or how rapidly to reduce
which
conservation,

issue raised by science courts is the desirability ofh automobile emissions. Since then, however, writers have suggested that any
The general
than another to address mixed science-polieu
institution or procedue rather such proccdure should be directed at quite specific scientific and technological
desiderata by which such procedures mioh issues thatare addressed by regulatory agencies or even those that may arise in
1s there are several
obvious, and frequently .
claimed to be lacking, is tort cases."
judged. The most scientific
accuracy, A decision reached by an institution should be scientifically acecurate
On the one hand, if harm is allevot.
rest on accurate scientifie judgments. to EMPOWERING JUDGES AND LAWYERS TO
or
the government ha
not, but
substance, and in fact it
is
be caused by a
Will have wasted time,
ed EVALUATE SCIENTIFIC EVIDENCE
money and h .
because of public concems, society On the other hand, ifa substane
human Judges are relevant gatekeepers for good reason. That leaves open the very
resources in addressing non-existent problem.
a
practical question of how judges without a science education are to perform
is misjudged cause harnm, then people will
not to
be injured, and society wil
the gate keeping role. Making judges the gatekeepers of relevant evidence is
too much ot a harmful product. Thus.
have wasted money by producimg the
thus a facet of fundamental fairness and due process. In the context of scientific
criterion of accuracy is critical and one to which Kantrowitz gives high priority
evidence, relevance means validity as well as fit. Judges must not abdicate
However. since no procedure is unerringly accurate, the evidentiary procedures
this important responsibility. They have training in eritical thinking. they
that aim to secure accuracy are important. Also, the kinds and the costs of
are accountable to reviewing courts and to legal commentators, and they get
mistakes resuling from institutional procedures merit comment.
regular feedback about how well they have followed prescribed procedures
It seems clear that science courts should not become part of the ordinary
and whether the procedures are appropriate and effective in the pursuit of
regulatory procedures for evaluating toxic substances. Present procedures for
justice.50
identifying toxins. conducting potency and exposure assessments and coming It is a daunting task to formulate rules within which the potential societal
to a regulatory decision are much too slow. Their slowness leaves a large of scientific knowledge can be recognized and evaluated. One of
significance
universe of substances un-assessed, and thus people at risk. We need faster, the barriers to such an effort is the traditional absence of scientific training
not slower and not more science-intensive
procedures.6
Science courts as pant in the formal education and practical experience of judges and lawyers
of ordinary regulatory processes seem likely to make
regulatory processes Nevertheless, the cost and importance of scientific knowledge are so great that
even slower than they are at
present. Proposed science cout procedures seem such rules must be developed.
roughly analogous to fomal adjudicatory procedures within the agencies. As separate disciplines, law and science each exert tremendous intluence
the slowest and most cumbersome over the world as we understand it today.3 But the synergistic benefits of
legal procedures that are most likely to
frustrate more
expeditious agency actions. Such considerations argue against law and science acting in concert are much greater than the impact of each
incorporating science courts into ordinary agency procedures. discipline acting independent of the other, or even worse, antagonistic to the
Arthur Kantrowitz goal of law is to seek
the
proposed a science court as an alternative or supplement other. If goal a of science is to seek physical truth,
to
existung institutions. With advocates on both justicethat is, truth tempered by merey. In a very practical sense. when one
sides of a scientific debate
and judges to evaluate their claims, a science court
would evaluate only ne discipline acts independent of the other, each is incomplete. To a significant
sCientifie portion of mixed
more accurate
scientific-policy debates. His aim was to assure
scientific information about technical See e.g.. Arthur Kantrowitz. Controlling Technolog Democraticallhy. 163 American
policy making powers scientists issues, to lim e
Scietist 505 (1975). Sec also James A. Martin, supra note 44.
of (who are claimed to have too much
infuence). to prevent policy makers
from hiding behind scientific
poluy Ibid.
1or their
policy decisions. and to concius 49
Ibid.
identify and expose discredited scie $0
Id. at 233.
68 Bar 1ssociudttont
Markey, "Science and Law: A Dialogue on Understanding" . Inierican
Oiceof Technology Assessment, Identifying Jouwnal 154 (1982).
und Regulating Carcinogens, 1987).
48
law and
SCience is the ress
esult of misund
mderstanding
between

the conflict
the practitioners oft. ther 52
Cxtent.
discipline by
of o n e
and ignorance

CONCLUSION

has much
human
behaviour,
atnd science
tell us on
Law conccrns
use ol science can lead law ha.
badly astray. that
subject. But,
an
uneritical
research requires eva
sray Sound
of scientile
interdisciplinary application
or e x p e r i m e n t s - t h e research
ation of thethe
of
series
weaknesses of a
strengthsand experimental design, statistical samme
i nterms of underlying theory, crafting legislatioin ptions
how they are applied
and predictions and debate. Ihis paper exposed howo ciding
disnutes. and cngaging in scholarly
a cornerstone n ne construction and applicat.
evidence has become n
that are fundamental to the realisatidon of

assumptions and predictions

whether in legislation, adjudication. justice
colstice
or

in all of law's aspects,

baseless or flawed evidence to poison in. or
Allowing scientifically
any of the law's processes
is not only cynical, it also undermines law's
1oral
authority. The very least that can be done in a system aspiring to do justice is
to thoroughly test. carefully scrutinise, and properly limit data that carry the
imprmatur of science.
Lawyers' lack of understanding of science, its role in society and
methodologies is pervasive, and unacceptable. Scientists' ignorance of la
its role in society and its methodologies is equally pervasive and is also
unacceptable. A pivotal first step in coming to terms with the conflict must
be for each profession to begin to understand the strengths and limitations of
the other. Professional associations must sponsor conferences with workshops
and plenary sessions which specifically address the law/science interface.
University curricula must encourage cross-disciplined education, at both the
undergraduate and professional levels. The editorial boards of professional
journals must solicit quality articles from various professional disciplines
Perhaps nost importantly, lawyers must appreciate that they have a clear
obligation to carefully assess the potential for winning toxic tort litigation.
Dut
only ater they fully comprehend the implications of the science 155c
involved. In appropriate circumstances, lawyers must look at alterna s to
htigation, including negotiation and mediation processes to resolve dispu
Is
hoped that if some of these steps are taken, lawyers and judges wll devc
a better
appreciation of the parameters of science. Armed witn n
insights, they will undoubtedly be better able to accommodate the goals
which are at the
sOCld
very heart of science and law.

bud. Sec also D. v.ard

Bazclon, "Scienee and A Jurist's VIC
Evironmental Law Review 209 (198): andUncertainty:
W. 'Thomas (ed.), >cien
he Legt
Systen1 (Ann Arbor P'ublishers,
1974).
 Balancing the Scales
of Justice Through Artificial Intelligence
2021 191

THROUGH
of Al systems. and its major processes which is reflective of the actual
BALANCING THE sCALES OF JUSTICE
the state-of-the-art AItechnology. The technical aspects of the AI capabilities of
ARTIFICIAL INTELLIGENCE
clear and lucid language that it is also understandable by
so systems are
presented
in a non-technical person.
Uday Shankar
re aim is to primarily understand the underlying process of current AI
highlight the potential and limitations of existing AI technology, so that technology
Shubham Pandey** an
the AI
cesses and techniques can be realistically utilised in the
legal domain for solving
Abstract orld problems.
real-
In the later part ot the paper, the authors will explicate how AI
with unmanagcable numbers eustems are being
used or suggested to be
used by
The docket of Indian judiciary,
at all levels, is clogged
of the cases results
lawyers and law firms in the practice
of the disputes. The huge pendency of law; by the judges in the administration of law; and by user like ordinary people and
waiting for final disposals and inefficient c o u r t
inadequate manpower
governed by law.
from insufficient infrastructure,
techniques, like
machine learning, businesses, who are

sy'stem. Artificial Intelligence

(A)
managemcnt holds the
natural language processing, expert systems,
and predictive analytics, What is artificial intelligence?
administration
and improve the
the justice delivery process
potential to r e s t r u c t u r e is an important function of Defining Al is a challenging task, as it has no universal meaning Some scholars have
and governance of law in the society. Justice delivery
of AI for timely,
state. It must be equipped
with the latest state-of-the-art techniques defincd AI as systems that think lke bumans. Haugeland defines AI as who possess a
AI into judicial system
cfficient and etfective resoluion of dispute. Integrating mind and are capable of thinking Bellman defines AI as automating human activities
documentation. In
requires digitalisauon of Courts
and online repository of courts
of India this task is either completed
o r is under way towards ike thinking, decision-making, problem solving, learning Other scholars like
almost all the states

What is needed then is to implement Al technologies

to facilitate court- Charniak and McDermott have defined AI as ystems that think rationaly by means of
completion. based
assist lawyers in giving their clients AI
processes, improve judge-case ratio,
authors in the paper computer generated models.' Winston defines AI as the domain of study which deals
prediction of case outcomes, and speedy disposal cases. The with the
of
with computer generated models that make it possible to perceive, reason and act.
aim to study and map the various
state-of-art Al techniques help of
from India and abroad, and assess the general applicability of Other scholars have given more action-oriented definitions of AL Primarily, when
illustradve examples,
of developing machines
Al systems in the judiciary. ystems that at like humans. Kurzweil defines AI as an art that
can behave inteligibly like humans Rich and Knight define AI as the field of study
I Introduction that engages in the development of machines that can perform tasks better than human.
ARTIFICIAL INTELLIGENCE (AI) is a field of science, engineering and technology Lastly scholars have defined AI as systems that act rational. Schalk off defines Al as a

emulate human reasoning o r thought

which involves creaion of complex algorithms, to
to specific
areas like perception and logical reasoning,
processes. From general purpose
mathematical theorems, writing poetry and 2 Speculative trends associated with the growth and development of Als, suggest that machines
tasks such as playing chess, proving
the role of and enslave the
diseases, AI encompasses them all.' But what is AI and what is synthetic intelligence will one day surpass human 'cognitive' intelligence
diagnosing
Al in the administrauon and governance of law in the legal system?
In the first part of mankind. This view has been circulated in the popular media like movies and TV shows. These
Speculative trends give a n exaggerated and often misleading view of current state of the artAL
a realistic understanding
the paper, the authors will address the question by providing and legal experts trom taking
Systems. Imaginative speculations often distracts the policy-makers barrier for the non-technical
policy decisions. The speculations also poses
a
mportant Al-law and
real-world problems Se
person to truly appreciate and employ the AI techniques in solving atailabie at: https:/
Robot Movies of All Time" V'ulture, Mar. 6, 2015,
ge Ebiri, "The 15 Best (last visited on Feb.2
wwwwulture.com/2015/03/15-best-robot-movies-of-all-time.html

2021).
JHaugeland, Mind Design (MIT Press Massachusetts, 1981).
Fraser
Can Computers Think? (Boyd and
Delman, An Introduction to Artificial Intelligence:
Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of ublishing Company, San Francisco, 1978).
(Addison-\Wesley, Reading
Technology, Kharagpur, West Bengal a r n i a k and
D. McDermot, Introduction to Artificial Intelligence
Research Scholar, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Massachusetts, 1985). 199).
Massachusetts, `rdedn.,
Technology, Kharagpur, West Benga, India
7 . Winston, Arificial Intelligence (Addison-Wesley, Reading, Massachusetts 1990).
S. Russel and P. Norvig, Artificial Inteligence: A Madern Approach (Prentice Hall of India Pvt Cambridge,
urzweil, The Age of lntelligent Machines (MT Press, New York, 2nd edn., 1991).
Lud., India, 1" cdn.,1995). i c h and K.
Knight, Artiticial Iutelligence (McGraw-Hill,
 [Vol. 63: 1 2021
Balancing the Scales
of Justice Through Artificial Intelligence
Indian Law Institute
192
Journal of the 193

pertormed byhuman, from the outside, but it

a
modcls to cmulate human intelligence and when employs a completely different
ficld of study that devclops computational the branch of computer thetic' process for problem solving, from inside," When people
Stubbleficld define Al as hear the
achieve real world tasks° Luger and
automated machines that can
work intelligibly. iscOnccive Al systems as thinking machines, which produces results term AIan
scicnce that is involved in developing ation of some sort of
through
'synthetic cognitive ability that matches or
aforementioned definitions, what emerges
out is a practical aP evcl thinking By contrast the reality is that these
surpasses
Upon assimilation of all the technology
huma
systems apply heuristics,
and useful definition of Al. \Where Al can be
understood as 'using computer it, they detect patterns in the given data and
knowledge, rules and logic which are
use

to solve problem or
predictions for tasks that, when
make automated decisions or cally coded into them by people, in
computer readable
language, to produce
intelligence."" A few illustrations will mated results. Through these
computational techniques, the system is able to
thought or done by humans, typically require
of Al. nerform complex tasks and produce intelligent results, which when done by human
help in understanding this depiction
automate some complex tasks
like playing nld require higher-order cognitive skills. However the computational mechanism
Researchers have applied Al technology to
in these tasks followed by the AI system does not match the mechanism
chess, translating languages and driving
automobiles." What is common employed by humans,
entrusted with performing these activities, while doing cognitive functions.
with relation to Al is that, when people are

they employ higher-order cognitive processes

associated with intelligence human The AI makers and developers have since long had the vision of making a Strong
perform complex tasks associated with human Arificial General Intelligence (AGI) which can surpass the human-level cognition
This ability of computer systems to
are intelligent,
intelligence have led to create an impression that computer systems and can engage in arbitrary conversations about abstract topics like philosophy, can
assume that an AI is reallyas
thus earning a reputadon of AI. But is it correct to comprehend concepts and ideas, and can perform broad spectrum of functions that
capable as a human in performing all complex tasks? Is Al really intellgent?4 are associated with human intelligence." But these aspirational ideas have long since
fuelled AI makers to arrive at the current state-of-the-art AI technology, which on
Is AI actually intelligent?
contrary is nowhere near achicving strong AGL Researches in the field of Al suggest
tasks like translating
Computer scientist who engage themselves in automating complex that, systems of today excel in narrow, limited settings where there are clear cut right
languages, driving cars, have termed these computers systems possessing
as some sort
are underlying patterns and
similar to that
or wrong answers like playing chess, or where there
of Al. These computer systems performs complex tasks that looks very
structures, like translating languages, visual recognition, speech recogniion. There is
illusion
'intelligence' in artificial intelligence is misnomer, which
creates an of
15 The word a

deduction engines
with the
cognitive of human intelligence. Computers are
9 RI. Schalkoff, Arifiaial Inteligenue: An Engineering Approach (McGraw-Hill, New York, 1990). Similitude process
chess Ga or
succeeded
capable of induction, as is the case when they mastering at
that are also
10 G.F. Luger and W.A. Stubblefield, Artificial Intelligence: Structures and Strategies for Complex Problem and hence there are limits to
Solring (Benjamin/Cummings, Redwood Ciry, California, 2ndedn., 1993). hey are not capable of abducive reasoning o r creaing a story,
M. Tandoc, "Thinking in Parterns
11H. Surden, "Aruficial Intelligence and Law: An overview" 35(4) Georgia State University Law
their
creativity. For more discussion o n the topic see R. Logan avalablk athrrps:/
the Pattern of Human Thought as Contrasted with AI Data Processing",
Rerica 1305 (2019). and
www.mdpi.com/2078-2489/9/4/83/htm (ast visited on Feb. 23, 2020).
12 For instance, when a person is playing chess, he employs a range of cognitive functions including 0 H. Surden, "Machine Learning and Law" 89 IVashington L a Reviev 87, 89 (2014).
reasoning, strategising, planning and decision-making Se J.M. Unterrainer ef al, "Planning
17 ld.at 89.90.
Abilities and Chess: A Comparison of Chess and Non-Chess Players on the Tower of London
Task" 97 British Journal of Pycholezy 299, 299-300, 302 (2006). Likewise when translating a 18 ld .at 87.

language, a person activates higher-order thinking process context, symbols, language and
to M i l s , "AI v. AGI: What's the Difference?" Forbes, Sept. 17, 2018, avulabk athrtps:/
ww.forbes.com/sites/ forbestechcouncil/2018/09/17/ai-vs-agi-whats-the-ditterence/
meaning S. P. Norvig, upra note 1. Similarly when driving a car, a person engages a
Russeland
variery of brain funcuons which includes spatial recognition, siruational awareness, vision, FF8b957b638cel (last visited on Feb. 23, 2021). and
movement and judgement. D. Shunichi, "Technological Development of Driving Support 20 of Artificial Intelligence, Machine Intelligence
Sysems Based on Human Bchavioural Characteristics" 30 1ATSS Research 19, 20-21 (2006).
rupansky, "Untangling the Detinitionsavailable at: https://medium.com/@jackkrupansky
Cine lcarning" Medium Jun. 13, 2017,
gung-thedefinitions-of-artificial-intelligence-machine-intelligence-und-machine- learning
13 H. Surden, supra note 11.
14 This becomes a pcrunent field of enquiry because AI systems have generatcd a lot of hope for 244882f04c7 (last visited on Dec. 24, 2020). somenmes
areas is
rcsolving real-world issues and making human lives better. J. Anderson and L. Rainie, "Artifical constrained, well-de tined
Dlity of today's AI to excel in specific,
Intelligence and the future of humans" Pew Research Centre, Dec. 10, 2018, availuble at: hups:// See R. Desai, "Ariticial Intelligence (AI)", Rair Desa:
as "narrow" intelligence.
O http://drrajivdesaimd.com/2017/03/25/aratical-

www.pewrescarch.org/internet/2018/12/10/aruficial-inteligence-and-the-future-of-humans/ nonalBlog, Mar. 23, 2017, availableat

(last visied on Feb. 22, 2021). i.ntelligence-ai/ (last visited on Dec. 24, 2020).
194 Journal of the Indian Law Institute
[Vol. 63: 2021 Balancing the Scales
of Justice Thmugh Artificial
Intelligence 195
little actual evidence which suggests that a strong AGl is anywhere possible within the loc representation is the oldest form of Al which is still in and relevant. It
realistic time frame of tive-ten years, from 2019 to the next decade.2 nderlying process in modern day expert
use
systems." A good example of such an
VStcm from the field ot law which uses
II Al technology: Major Al approaches expe
ntation system is TurboTax." Legal expert logical rules and knowledge
Al as a discipline is considered to be a sub-ficld of computer science." But recent
systems, like TurboTax is created by
uare developers in consultation with the tax attorneys and other
growth in Al rescarch, indicates that Al isn't an isolated stream of computer scicnce, experts in the
Geld
ficld of personal income tax laws, who help in 'translating'the meaning
rather it is an interdisciplinary enterprise which incorporates idcas, techniques and provisions into a set of formal rules which a logic of tax
computer can use." "Most of the laws
processes from various ficlds, like statistics, linguistics, mathermaties, robotics, clectrical whether made by legisiature, Courts, agencies or anyone else can be understood as
engineering., logic, neuroscience, cconomics and philosophy:" AI in its truest essence, if
then statementsOnce the rule
gets programmed into the system, the
can computer
is a bundle of technologies that are compiled together under an umbrella term of 11se the rule to filter out relevant intormation from the data and calculate the
appropriate
Arificial Intelligence. There are some major under-lying technologies that are at play, income tax liability of the clients. This tool has been
successfully used in United
States
when an Al system is used to automate complex tasks like advising judges on sentencing and a similar tool like this is also being used in Europe to calculate the income tax
and bail pleas, translating languages court languages and assisting lawyers in e-discovery duties.3 The tax authorities also defer to the calculations made by these legal "expert
and e-reviews of cour related documents The most successful artificial intelligence systems" in their day to day proceedings.
technological approaches can be classificd into two broad categories: () logical rules
Important features of knowledge representation system can be summarised here. First,
and knowiedge representation, and (i) machine learning Let's us look into each
it is a top-down approach" of programming where the programmer encodes the logical
approach in some detail.
rules, ahead in time, into the computer software. This is in contrast to the bottom up
Logical rules and knowledge representation approach of the ML software," where the system trains itself to idenufy and use

A major branch of AI, logical rules and knowledge representation technique is used patterns for complex tasks. Second, once the rules are implemented in the system, the
for modelling real-world processes and phenomena in a
computer readable form. computer uses such rules to form deductive chains to come to non-obvious conclusion
about the world. The system also engages in complex chains of computer reasoning
The programmer provide the machine with a set of rules which represents the
underiving logic and knowledge of the activity which the machine is desired to model that is very difficult for a human being" Third, knowledge based systems through use

reveal hard-to-detect details- such as contradicnons and

or automate. The knowledge is provided deliberately to the machine before hand in of power of computing can

a
computer readabie format, which is used by the machine to process and 'deductively
use and) reason about them'

Artiticial Intelligence
Susskind, "Expert Systems in Law: A Jurisprudendal Approach
to
67 K. E.

and Legal Reasoning'" 49 Modern Law Reriew 168 (1986).

30 H. Surden, supra note 26 at 78.
he or she wil
22 H. Surden, supra note 11 ar 6. income is m o r e than Rs. 15,00,000,
PPOse the tax code says person whose
that a
it i n t o if-then
23 B. Mar, "The Key Definitions of Aruficial Inteligence (AI) That Explain lts Importance". of a legal expert "translare
Oc tAxed at a rate of 30%. A programmer with the help
Forbes, Feb. 14, 2018, auilablk ar: https://www.forbes.com/sites/bernardmarr/2018/02/14/
the tax
underlying knowledge
ot provINOn. I
nputer rule which directly represents the
the
key -definitons-of-aruícal intelligence-ai-that-explain-its-importance/#139a6a954f5d (last Income 15,00,000 THEN tax rate =30%o. ld.at 78. of Chicago Ptess
law (Universicy
visIted on Sep. 24, 2020).
arnsworth, The legal analyst: A toolkit for thinking about the
24 L Desa, supra nott 21.
2007). NModels, 4ppücanons
aná eeancD

25 R Buest, "Aruficial Inuclligence Is Abour Machine Reasoning-or When Machine Learning s 33

and R. Akerkar (eds.) Advanced knowledge-based ystems:
ajja
Just a Faney Plugin" CO, Nov. 3, 2017, anuilable at: htups://www.cio.com/article/3236030/ (2010).
aruticial-intelgence-is-about -machine reasoning-or-whenmachine-learning-is-just-a-fancy
plugin.html (last visited on Feb. 24, 2021)
34
35
H. Surden, supra note 26
d at
2 H. Surden, "The Variable Determinacy Thesis" 12 Columbia Stiene &Technalogy Iaw Review , 36
72
ld.
20 (2011
at
21-22 Reason Like
Humans" Saene,
Jun. 14, 2017,
Jiaone

/www.sciencemag.org/news/2017/06/computers-are-startung-reason-humans
Are Starting to (Ast
,"Computers
27 ld. at
2
28 ld.a1 21-22. VIsited on Mar. 26, 2021).
 Balancing the Scales of
Justice Through Artificial Intelligence
196
Journal of the Indian Law Institnute [Vol. 63: 2021 197

words and
to detect
not obviously visible
to a eye. This human of word probability phrases that more often appear in spam mail,
hidden patterns in the data- which is e-mails. How
system a very powerful tool in than your daily owever, for this process to
kick-in, the software has to be
makes the logical rules and knowledge representation
srained'. The training starts wnen the users receive a mail, and they given
modern AI systems. mail as spam or not. Every time the user marks a mail as
are an
option
mark a
spam, the ML
Machine learning u a r e detects and analyses the patterns in mail and makes
sofi reasonable automated
share Jerisions based on its analysis. The result is spam mails are automatically
Machine learning (ML) refcrs to a family of Al techniques that common
segregated
Grom daily mails and is sent to spam folder without the knowledge of the user.
of pattern
characteristics." Most of the machine learning methods employs detection
then used complex
to undertake various
important features ot ML software. First, that the software learns a pattern
in large volumes of data."" These patterns are There two
faces and speech,
tasks and produce useful results, like driving cars, recognising onits own without havinga programmer explicitly program the pattern ahead in time"
fraud ele" ML is a predominant approach of AI, Second, the software learns over time through analysis of more data" and drawing of
translating languages, o r detecting
naive Bayes classifier,
which employs techniques like neural networks/deep learning, additional patterns. This ability of the machine to learn and improve its performance
However the ability of AI to learn' does not overtime has been analogously compared to human learning However it is clear from
logistic regression and random forests.
are replicating the higher-order
neural activities that occur in
imply that these systems the illustration, that 'learning' in machine does not involve 'repicating higher order
human brains, when a person is in the process of learning. Rather the word learning
braia function and cognitive processes of human mind', rather it involves detection
is used in machine learning as a rough metaphor for human learning" of useful patters through statistical analysis of more data 50
of a very
For better understanding of how ML works can be illustrated with the help One limitation of ML also emerges out from the ensuing discussion.
The ML software
to communicate, i.e., the email. Most of the
c o m m o n tool that is used in our daily lives needs data to train itself in identifying useful patterns. It depends upon large
amounts

o r commercial
email suites use ML to automatically detect spam mails (unwanted private of high quality, structured, machine processable data enhance its capacitry and improve
the technique there is little or
mails) and drvert them into a
separate spam folder."" ML software uses
its performance. It cannot function well in an environment where
sofrware's are used in
poor quality data.31 This becomes absolutely relevant, when ML
38 See MC de Marneffe et. al, "Finding Contradictions in Text", 46th AnnHal meeting of the association
for computation knguistics: Human language tecbnologies 1039 (2008).
Forms" Justia Legal Marketing e> Tecbmolog
39 D. Fumo, "Types of Machine Learning Algorithms You Should Know" Towards Data Saience 40 N. Moline, "Combatting Spam Emails and Contact
4, 2018, arailable at: https://onward.justia.com/2018/12/04/combarting-spam-emails
Jun. 15, 2017, availablk a: htrps://towardsdatascience.com/types-of-machine-learning-algorithms B0gDec.
youshould-know-953a08248861 (1ast visited on Mar. 26, 2021). and-contact-forms/ (last visited on Mar. 27, 2021).
as spam. The
ML sofrware then
has initially marked 100 mails
40 What Is Machine Icarning? 3 Things You Need to Know", Mathworks: Machine Learning, available An nstance: Suppose that
the user
used is 'Cashless
at: https://www.mathworks.com/discovery/machine-learning.html (last visited on Mar. 26, it and finds that in almost 85% of the mails the word
analyses the pattern in the mail only 15% ot the ume.
The ML uses
word in average
2021). laims' whereas the same appears
which 'Cashless Claims' becomes
a statistical indicator,
model in
41 B.Mar The Top 10 Al and Machine Learning Use CasesEveryone Should Know About", S pattern to c r e a t e a
proxy
mail. The software then implements
this model to segregate
all

Forbes, Sept. 30, 2016, available at: https://www.forbes.com/sites/bernardmarr/2016/09/30/

n e mail to be likely spam a

Claims' appears in the mail,

the ML sofrware automaucally
what-are-the-top-10-use-cases-for-machine-learning-and-ai/#6e7f4c3094c9 (last visited on Mar.
rure mails. If the words 'Cashless better over time by examining more

folder. The machine gets

26, 2021). CrEs that mail into the spam
42 M. Sidana, "Types of Classification Algorithms in Machine Learning" Medium, Feb, 28, 2017, data and identifying additional useful patterns.
the 100 mals that
were
in
another correlating factor,
available at https://medium.com/@Mandysidana/machine-learning-types-of-classification- Suppose that the ML software finds be a spam than
from Angola is likely to

9497bd4f2e14 (last visited on Feb. 26, 2021). dentified as spam, that

emails originating correlaton berween
y else. The ML software
trains itself to draw a

43 The word 'learning' is used in ML in a functional sense- when humans learn, they get better at
Cmerging from anywhere of mails 'emerging
trom Angola
.
"Cashless Claims' and new parameter the ML sottware
will
a
parucular task through experience. In the same way, machine learn by examining more data CXISting parameter word Cashless Claims',
and improve their performance over úme by looking for additional patterns in it. Se H. Surden, a mail c o m e s from Angola
containing N. .\Moáne, supra
When of likeness'. See generally,
sutra note 11 at 1312. mark it as a spam with 'high degree
hood
note 46.
44 H. Surden, sutra note 11 at 1311.
48 H.
Filer Setungs", Googl, available Surden, supra 11 at 1314.
45 Cusumize Spam at:https://support.google.com/a/answer 49ld at 92.
note

2368132hl=en (last visied on Mar. 27, 2021); "Overview of the Junk Email Filter', Micms 50d. at 89.
avalabk at: htups://support.officc.com/enus/artide/overview-of-the-junk-email-iter-5ae3eabe
cf41-4fa-b02a-3h9%e21de089 (last visitcd on Mar. 27, 2021). R . Desai,
supra note 2l.
 Journal of the Indian Law Institute
[Vol.63: 1 2021] Balancing the Scales of Justice
198 Through Artificial Intelligence
199
the field of law because law is one of thosc domains wherc high-quality machine Human and
Al bybrid

processable data is comparatively scarce in public domain.

However recent technological
Another category of successful Al systems are those who
developmental cfforts, relating to the digitisation of court systems
and crecation of
but rather they 'keep
a human
in the loop' for decision
are not
fully autonomous,
online databasess" in countries like India, have raised hopes for more intensive utilisation which make all the making" An autonomous
of Al systems in improving thc administration and governance of law in the society.
system
is o n e
important decisions about itself. However such
ustem is very rare. Al modern systems Al are autonomous to certain a
a

after
Hybrid systems
hich they defer to human judgments, when decision making falls outsideextent
its area of
a

Hybnd system as the name suggest is a combination of cither ML and knowledge

amnetency. One such problem is a
long tail problem which refers the idea to that
here are so many unanticipated and
extenuating circumstances while
representation systems o r its a combination of human with the Al hybrids. The authors driving the on
road that it is impossible to tran the Al systems or encode
will explore these rwo systems in more detail. appropriate behaviour in
Such cases. An illustration will give a clear meaning to the idea. Suppose self
a
driving
AI hbnd: Combination of knowledge based representation and ML car is on running on the road. Due to some road
has diverted maintenance, the police
all the vehicles to use the pedestrian lane to cross the section. In such a case the self-
Modern Al systems today, do not use ML or knowledge representation systems
driving car is unable to make a decision. In such a situation, where the self-driving car
separately, but, rather a combination of these two systems." For example a self-driving
cannot make its own decision, it can call for help to a call centre staffed by human
car uses a hrbrid approach of knowledge representation and ML techniques to run.
experts. The human counterpart is spurred into action, he/she assess the siruaion in
The system learns to drive itself through a series of training whereby it keeps improving
which the car is struck by gathering data from the cars sensors, picks up the control of
its performance through repeated training of appropriate behaviour.s However a
the car and steers it out of the situation." When the situation is normal for the car to
majority of its behaviour coded into the systerm, beforehand by a programmer, through
function, he/she delivers the control back the system. This type of system if known
implicit rules and knowledge representation," which the system uses to deduce what
as human in a loop, which has lot of utility in situations where the systems is faced
is legally and socialy appropriate behaviours. For example all self-driving cars are
with choices which the system is not trained or programmed to do. Such a system is
programmed before hand to obey the road signs and signals. They are coded to stop if
also desirable for the field of law.
the signal is red and go if the signal points at green. They are also coded to use
indicator lights on a turning and use horns if necessitated by the situation. Thus a Potential and limitations of AII
successful Al system uses a mixed approach of Al techniques, including machine
For optimum and best utilisation of a technology, it becomes essendal to understand
iearning models and encoded knowledge representation rules." ne strengths and weakness of it. From the ensuing discussion we can deduce the

Strengths as well as weakness in the state-of-the-art AI technology. This will allow us

TO a5Sess what tasks AI can fulfill and where AI will fall short when the techniques and

process of Al are used in the domain of law

52 ET Edin, "Move to complete digitization of courts", The Economic Times, Aug. 4, 2020, available
is intlligence,
ne thing that has to be clearly put forth is that AI, of today,with
a narrow

atof-courts/
herps://conomictimes.india times.com/blogs/et-editorials/move-to-complete-digitisation-
(last visited on Mar.28, 2021). 1s
narrowly tailored for performing specific
tasks a particular set ot

53 Nauonal Judicial Data Grid'", availablk at: hups://njdg,ecourts.gov.in/njdgew/index.php (last

visited on Mar. 28, 2020),. 6 Ravi Mehta, "Demystifying AI: Can Humans and Al coexist to create a hyper-producave

C.Cothell, https://indianexpress.com/
54 "Hybnd Inielligence: How Arificial Assistants Work", Medium, May 4, 2016, atailable t Organisation?" Indian Express, Jun. 12, 2020, anailable at

(last visited on
ar
haps://medium.com/@carecorthell/hybrid-artificial intelligence-how-arificial-assistants
work cefbafbd5334 (last visited on Mar. 28, 2021). Mar nology/
Mat. 29, 2021).
tech-news-technology/can-humans-and-ai-coexist-6453996/

55 A. Sagar, "Haw to Train Your Self

Driving Car Using Decp learning" Towards Data Saene Cx Davies, "Nissan's Path to Self-Driving Cars? Humans in Call Centres
ru,
Nay l, 0
ast
Aug 29, 2019, avalablk at: https:// V
uwardsdatascience.com/how-o-train-your-self-driving-car
using-decp-learning cebff76119cb (last visied on Mar. 28, 2021).
ul
on
https://www.wired.com/2017/01/nissans-self-driving-teleoperauon

Mar. 29, 2021).

from Call Centres?" Geo Jan. I1,
2017, aaoe a
"Self-driving cars
explained: How self driving cars work and what do they mean for future . Kumar, "Self-Driving cars to be operated visited on cpL
Umun of oncerued (last
saentists Feb. 21, 2018, available at:
htups://www.ucsusa.org/resources/se
w w g e o a w e s o m e n e s s . c o m / s e l - d r i v i n g - c a r s - o p e r a t e d - c a l l - c e n t r e s /

driving-cars- 101 (last visited un Mar. 28, 2021). 2920

29, 2020).
57 H. Surden, supra noe 11 at 1313. bid.
 Law Institute Vol. 63:1 Balancing the Scales
of Justice Through Artificial Intelligence
200
Journal of the Indian 2021]
201

a machine has automated complex tasks, like plavino erforms inadequateiy in areas or
persuasion or
arbitrary conversations
characteristics Just becausc or court
it docs not mean that the machinc can do
room a r g u m e n t a t i o n .

cars and translating languages,

chess, driving
that ditferent problem arecas require
almost anything. What is important is to understand forms poorly in domains where there little or poor
quality, unstructured data." is
somctimes the approach used in one domain, like
different npe of apprvaches and
III AI systems in administration and
in other domain, like automating legal process. governance of law
self-driving cars, cannot be successful of Al technology will lead
Thus a blanket assumption over the omnipotent capacity Artificial intelligence has a lot of potential in the administration and governance of
nowhere in the real-world. lawin the society. For countries where there are huge arrears of cases and the
us to judiciary
is overburdened," Al techniques could be employed to ease the burden and reduce
Potential applications of Al systems
the backlog of cases, bringing efficiency in the judicial sector. Up until now
and rules," wel1
technology works best in areas where there underlying patterns
is
Al administration of law was solely a
human activity, but with the increased
sophistication
semi-formal structures that make up
defined ight or wrong answers" and formal or of Al techniques like machine learning, logical rules and knowledge representation,
the process. administration of law ill no more be a human activity, and those who are involved in
Al performs specdily and with high degree of accuracy, in areas which requires the process will see a rapid change in their roles. With supportive new technologes

computation, scarch or calculations. like predictive coding, predictive analytics, e-discovery, e-reviews, knowledge
representation, natural language processing, deep neural networks and machine leaming,
machine
Al performs well when there is availability of high quality, structured, AI has changed the way in which lawyers practice law, judges and police administer the
p r o c e s s a b l e d a t a "

law and users assess their accountability towards their legal systems.
Limitaions in use of AI systems
AI in law involves application of computer and mathemaical techniques to make
open ended discussion,
in of abstract thinking, policy matters law more understandable, manageable, useful, accessible, and predictable.? The use
Al is inadequate areas

which are valuc laden* and equity oriented decision-making. of mathematical techniques and formal rules to law was first anticipated and
expounded by mathematician Gottfried Leibniz in the 1600s, who was also a lawyer
Al is inadequate in areas that require common sense or intuition or conceptualization
of Al into law
or
understanding of ideas and concepts like equality, liberty, justice, reasonableness or by profession. In the 20th Century, around 1970-80's, all applicaions
based
primarily logical rules and knowledge representauon technique, where
good wil1 was on
into computeT
egal rules, legislation and legal arguments were essentially modeled
eadable language.74 But at the start of 21th Century, in 2000's, knowledge representaion
of Al in the tield o
62 R Desai, supra note 21. cnniques were supplemented by machine learning techniques
63 B.Kivman, "The Art of Al: Understanding Architecture and Use Cases", Data Center Frontier
jul 25, 2016, availabk at: htps://datacenterfronier.com/the-art-of-ai-understanding-architecrure
and-use-cases/ (last visitcd on Oct 1, 2020).
G4 What ls Aruficial Intelligence? How does Al work?" Builtin, available at: https://builtin.com/ RDesai, supra note 21.
aruficial-intelligence (ast visited on Mar.1, 2021). 71 (wo)manpower, L
Creating Addiional Judicial
65 I. Rowan, "The Suate of Al in 2020", Towards Data Science Jan. 27, 2020, available at: https:// v o . 245, "Arrears and Backlog:
at:http://lawcommissionotindia. nic. in/ reports
wwardsdatascience.com/the-state-of-ai-in-2020-1f95df336cb0 (last visited on Oct. 1, 2020). 1510n of India, Jul. 2014, available Chelameswar, Eonomie
lES

S . Russell and P. Norvng, supra note 1 at 1. no.245.pdf; S. Rautray, Arrears a concern, says Justice poliucS-and-nanO
https://economicimes.indiatimes.com/news/

67 P Desai, sugranote 21. 018, available at:

Cern-says-justice-chelameswar/articleshow/62609506.cms?utm_source
undamental
GEJ Byrum, "Arufiaal Intelligence: The values that should guide the Al revolution" Analytic R Bhushan, The
a l a o k 1r
s t c u t m m e c d i u m = t e x t & u t m _ c a m p a i g n = c p p s t > ;

CNBC, Jan. 13, 2020,

aualabk at: htp://analyucs-magazinc.org/aruficial-intelligence-the-values-that-should-guide-the caso On
lndan courts have a huge backlog of cases",
i-tevolution/ (last ht y the-fundamental-reason-why-indian-courts-have-a-huge

visited Oct. 1,
21020) on
backl enbctvI8.com/legal/ 2021).
Mar.9,
69
Jeb.Puntun, "Grcedy, Brirte, Opaque, and Shallow: The Downsides Deep learning" Wired to
12 I.
Oof-cases-5045901.htm;(last visited on

2, 2018, auailabk at htups://www.wircd.com/story/grecdy-britle-opaque-and-shallow-th

3
Nurden, supra note I1.
downsides-LO-deep-learning/; R. Waters, "Why We Are in 1Danger of Overestimang Al' 2005).
Ie7 4 ico Pattaro (ed.), Legal Reasoning 389.90 (Springer,
25 Years ot
the Internaaonal
2018, anailable a. T. Bench-Capon
manaul Tmes, Feb 5,
9504-59cfdb70e12f (last visitecd on last Mar. 1, 2021).
hups://www.fl.com/content/4367e34e db72-11 Confer"pon
e. al, "A History
and Law 215, 277
of Al and Law in 50 Papers:
(2U1)
CC on Al and Law" 20 trtificial Iutelligence
 Journal of the Indian Law Institute [Vol. 63: 1 2021) Balancing the Scales
of Justice Through Artificial
202
Intelligence 203

witnessed in the field of Al and la time consuming

and laborious, but also was
law From then onwards, a sudden growth was
human errors.
fraught with
inadequacies and prone to
where interdisciplinary associations began between technology and law in the form of

legal-tech start-up's," and public and private

universities started interdisciplinary courses with the development of electronic
discovery which uses machine
This led to development of ictive Ccoding and technology assisted reviews have learning techniques,
and centres among law and technology departments." P
ments.32 replaced the manual review of
uniques applications of Al techniques, in the administration and governance of law in documo For example ROSS, which is a
legal research engine that uses artificial
the society. The application of Al has impacted almost
all the domains of legal system- intelligence to automate legal processes making them more efficient and less
and government Tr uses natural language processing to search and
expensive
from the practice of law by lawyers, to adnministration of law by judges provide legal information from
in ations to full legal briefs." These AI tools has
offices, to common usages of law by ordinary pcople and businesses assessing their changed the way legal documents are
rights and liabilities in the legal system.* analvsed completely by quickly review millions of pages of contract, documents
merger
and others,en masse, in real
time. This saves lots and lots of man hours which can
AI use by lawyers and legal practitionerts now be effectively utilised by lawyers in other areas which involves abstraction and
traditionally incharge conceprualisation, like case argumentation, court. strategising, and other cognitive tasks,
Lawyers have been an integral part of every legal system. They
are

like client counselling, that Al technology is not good at. Technology assisted
of various roles from client counselling, to gauging the strength of legal positions,
to

and other documents, to legal research and document review document discovery and review has an implicit effect on the time-taken by the court in
drafting contracts, plaints
disposing the case. From initial filing of suits to final dispositions of the suits in the
and analysis, avoiding risks, pursuing litigaion, to name just a few." Some of these
courts, the lawyers are now taking less time to prepare and present their cases before
tasks now face the risk of partial or complete automation by A.
the judges, which has specd up the justice delivery process, by some significant margin."
and e-reaien of documents
E-discovery Predictions on case-outcome and other related isswes
Law firms and lawyers around the world are now employing tools of machine learning
like natural language processing for document discovery and document review.
In Also with techniques like predictive coding and predictive analytics,* lawyers are
modern lingaion, especially in c o m m o n law jurisdiction where the primary source of predicting the success-failure probability of their clients in going to the cour. Earlier
time in discovery lawyers used to make case predictions on the basis of their instincts and prior experience
litigauon is case precedents, the lawyers spend most of their crucial now make

of relevant legal documents and case laws. This is followed by reviewing documents to 1n the
courtroom, which has now changed as machine-learning algorithms
the liügants in
sort out relevant documents from irrelevant one. Traditionally it was done manually predictions about cases based upon facts and data.8 This has helped
taken from initial iling to
which only KIng inftormed decision about the cost of litigation, time
by lawyers or their juniors who did this task by a quick reading," was not

and N. L. Roos, "Predictive Coding: Emerging Quesions and

Concerns"
64 Jouth
75 ICAIL 2015, First Call for Papers", International Assodiation for
Arificial Intelligence and L a Yablon
ICAL Sept 10, 2014, avuailable at: http://www.iaail.org/?q=aricle/icail-2015-first-call-papers Carohina Law Review 633, 634,637 (2013).
at: hteps://www.rossintelligence.com
83 The ROSS, available
(last visited on Mar. 3, 2021). intelligent legal research choice",
76 D.L Farris, "Top 5 Trends in Legal Tech and Privacy for 2019" 25 Westlaw Journal Class Action ast visited on Mar. 4, 2021).
84 Ibid.
15, 15 (2018). Reuters, available ar:
https://
B5 "Der Intelligence",
Thomson
77
See "CodeX: Stanford Center for Legal Informatics", Stanford Lew Scboa, availabdle at: https:/ ttying Artificial
(last visited on Nlar *

aw.stunford.cdu/codex-the-stanford-center-for-legal-informatics/ (last visited on Mar. 3, 2020) cg m s o n r e u t e r s . c o m / e n / i n s i g h t s / w h i t e - p a p e r s / d e m y s t i f y i n g - a i

78 H. Surden, supra note 11 at 1328. 2021).

86
justice", Advocatelanmoy Law Librar, Oct. Supra note 80.
79 Role of lawyers in the adminisuration of
11, 204 7 lbid.
aailabe at:hteps://advocatetanmoy.com/2019/03/14/role-of-lawyers-in-the-administration-oO 08
Predictive B. Marr, "How Al
and Machine Learning Are
Transtorming

jusuce/ (last visited on Mar. 11, 2021).

a C coding
coding and
and analytics.See
analytics.e 23, 2018,
aailable at:
hetps://www.torbes.com/

80 JBrickel, "Al-Enabled Processes: And You Thought E-Discovery Was a Headache" Nov the-leo
Sites/h and
the Legal Sector", Forbes, May
rt2018/05/23/how-ai-and-machine-learning-are-transtorming-aw-tirms-und-
Journa, Jan. 31, 2020, available at: hups://www.law.com/newyorklawjournal/2020/01/31/
(last visited on NMar. 4, 2021) Cssitiers

enabled proceses-and you-thought-e-discovery-was-a-headache/?slreturn=20200911012 89 D l-sector/#3d0cl039832c3

based on Legal Factors using
(last visited on Mar. 3, 2021). 1Legal Cases Outcome of
I67
7oedia La., "Predicting2393-2402 (2020).
, Computer.Science
81 hd
204 Journal of the Indian Law Institute [Vol. 63:1 Balancing the Scales of
2021) Justice Through Artificial Intelligence
final disposition of the matter, success-failure probability of their case. 205
, ol to re-offend or
Alternate dispute resolution a
run-away. for this the judges
fu defendants risk of reoftending or are
employingAI tois to
Igorithm attempts to make running-awa Tne machine learning
The litigants are being prompted to usealternate dispute resolution (ADR) in resolving
sented to a judge in
a
predictios oased on past crime data, which is then
their cases," based upon the prediction scores generated by Al. Litigants have in the from of a
score. Though the
successfully shifted from court based litigation to Al assisted ADR and have resolved efer
de to the automated scores, however these judges are not bound to
scores
indocs behaviour" while play an influential role in the
their dispute through Al-aisted ADR.2 This has effectively reduced the court burden granting sentences or bails.
without compromising on the justice needs of the socicty. There is a declinc the number Translations of legal documents
of litigants who visit the court in order to seek justice as their need for justice is being
Other good example 15, Al techniques are being
met by other ADR
techniques employed in court houses to make
c0od quality translations of court related documents from
vernacular
AI use by judges English and vice versa. Court houses operate primarily in their official languages to
The possibility of using AlI system to assist judges in speedily disposing off a case is English and therefore require all the documents in the same languages, ie.,
countries, including India, English is the official language of the language.
For most
being explored now all over the world. Government official systems are using AI to
the lower courts use vernacular languages to function on their
higher courts. However
make substantive legal or policy decisions" For countries like India, which suffer
day to day hearings. The
from huge backlog of cases in the judiciary," the administration and governance of problem of translation' arises when the case via
appeal reaches the higher courts. Due
law and justice in the courchouses are in tatters. It's imperative to use AI systems to to paucity of good translators who can translate
from vernacular to English and ice
speed up the justce delivery process, making it more transparent and efficient, thereby versa, there are huge delays in resolving disputes.
Judges in India have come up with an
reducing the arrears effective solution and are using AI systems to translate documents from
vernacular
Risk-assessment of criminal defendants languages into English and vice verse. Through natural language processing techniques,
thecourts have
successfully translated hundreds of documents from nine vernacular
There aregood examples of Al techniques being used by judges in making sentences languages into English and rice versa.02 These techniques are working berween the
and delivering bails for criminal
defendants. A judge when deciding whether to release accuracy range of 60%%-80%,0 which is likely to increase in future, because the machine
a criminal defendant on bail
pending trial has to make a risk assessment if the defendant Icarning algorithm keeps learning' by processing more and more high quality and
structured data. The citizens of India can now
easily access and read judgments from
90 D.Faggella, "Al in Lzw and Lcgal Practice A Comprehensive View of 35 Current Applications",
-

ugner courts in their native, vernacular language. This AI tool has democratized access
Business Intelligence, Mar. 14, 2020, available at.
https://emerj.com/ai-sector-overviews/ai-in-law-
legal-pracice-current-applicaions/ (last visited on Mar. 5, 2021).
ustice by makingimpactful courts decisions, of the higher courts, easily accessible
91 common people in their vernacular language. It has also hastened the process of
RJ. Kartez, et.al, "Al and its impact on furure ADR", available at: ustice
https://nysba.org/NYSBA/ thereby improving the administration of law in the court houses." 04

Secions/Coursebooks/Dispute%20Resolution/2019%%20Fall%20Meeting/_Panel%205.pdf
last visited on Mar. 5, 2021). 97
92 J. South and A. Rogers, "What might arificial intelligence mean
Cathy °'Neil, supra note 94.
for alternate dispute resolution?", 98 lbid.
Kluner Mediation Blg, Aug 30, 2018, availabk
athrtp://mediationblogkluwerarbitration.com/
2018/08/30/might-artificial-intelligence-mean-alternative-dispute-resolution/ (last visited on
99 Ibid.
Mar. 5, 2021) 100 lbid.
93 D. Ashman, The impact of alternate dispute resolution SUVA "Supreme Court Vidhik Anuvad Software", Supreme Court of India Press Release,
(ADR) in employment law (2011) (Unpublished Nov
Colege of Technology Master Theses, Purdue University). 019, available at: htps://main.sci.govin/pdf/Press/press%20release%20foro 20law"o 20
94 Cathy O' Neil, Weapon 20celebratoin.pdf, SUVAS "Supreme Court Vidhik Anuvad Sofrware translaion rool
of Math Destruction: How Big Data Increases
(Crown Publishers 2016); D. Kehl, et.al, Ineq ity and Threaten Democracy
"Algorithms in the criminal hel eccan Herald, 2019, available at:https://www.deccanherald.com/national/ national
use of risk justice system: Assessing visited Mar.6,
2021 OItware-to-translate-sc-judgments-in-9-languages-784940.html (last
assessment in on
sentencing', 2017, atvailablk at:
https://dash.harvard.cdu/bitstream 2021).
95
handle/1/33746041/2021).201707_responsivecommunities_2.pdf?sequence=1&isAllowed=y (as
visited on

Supra note 72.

Mar. 5,
102 lbid.
103 ustice L. N. ao,"Artificial Intelligence and Law'", Legal Empowerment Tbrougb Interaction Onan
96 Supra note 94. Lectare Series,Aug
ug: 0, 2020, available at: https://youtu.be/ZJs1QwPn5AU (last visited on Mar. o,

2021)
104 lbid.
 Balancing the Scales
2021] of Justice Through Artificial Intelligence 207
Journal of the Indian Law Institute [Vol.63:1
206
liabilities,
10
hese legal exper
systems use logic based knowledge to representation
hep identify the violators of law" Also AI is being used in legal self-help systems, which
E-anahsis of egal documents
judges automated chatbots to provide user with answers to basic legal questions. Also
review and predictive coding, can now
help of technology assisted
uses

With the
thousands of pages of legal documents, of law
users ot law are using computer generaled computable legal contracts for purposes of online
and relevant information from
analyse extract
Al system that trading and other trade rela ted activities. These contracts are expressed electronically
within a of minutes. In India,
matter
the courts have envisaged an can

relevant information in computer-readable languages," which could be executed automatically without the
criminal petitions and extract
sift through thousands of pages of
Earlier judges had to human legal experts.
out of them and present it
to the judges and judicial officers. help of or

documents manually which usually

took a month or even more to read V Challenges with the use of AI systems in the legal sector
go through the
system does this task quickly
The Al and
each and every line of the criminal petition. It is important to take into consideration emerging issue with the use of Al in the legal
court judgments and learn patterns
accurately. The AI system 'trains' itself by analysing ficld. The authors would briefly point out certain contemporary issues that are emerging
and
on- How a judge asks questions
in a criminal case? What questions are commonly
How judge is going to react in a particular out of the use of the artificial intelligence tools and techniques in the legal field.
most asked
frequently in a criminal petition? a

case? And based upon this 'raining the system able to pick out most relevant Potential of learning-bias in algorithmic decision making
concise
information 150 data points from thousands of pages, and presents the from data
Many researchers have raised the issue that machines that learns patterns
on

than two-three. All this process happens

in a
information to a judge in not more
to the biases embedded in
can be biased against certain group of individuals due
when done manually.
matter of minutes which earlier used to take more than a month, data." For instance, a machine learning software that was used for calculating the risk
of AI will drastically reduce the time taken
It is estimated that the application system
of re-offence of criminal defendants, used large number of judgements
from the
and appeals, in the
by in for the final determination of criminal petitions
judge a certain group of
courts. The judges gave their judgments, which were biased against
a

courtrooms. situation. This led the

individuals from that of the other group, in a similarly situated
it in all furure autormated
AI use by individuals and businesses machine to pick up bias from the data-set, and perpetuated
to these learn these
are governed by it,
of administraion of law is those who decision making.5 All machine learning tools are susceptible
The third important facet during 'training
ordinary
of law people, organizations, and erent b1ases in the data-set, which gets encoded in the machine
i.t., the users of law'. The users are

that are governed by the law and use

the tools of law, eg, contracts, wills, processes.
companies
their personal and business activitdes.
grants et, to conduct
Turbo Tax, to caleulate
Individual users and companies use legal expert systems, like
use private expert systems, like business-logic
their tax lhabilities. Many companies
rules about company affairs to assess wbether
policy systems, that use computer-based Federal Administraave

Government authorities deferring to the Artificial Intelligence in

vith legal regulations or not. are now "Government by algorithm:
theycomph assessment of rights and
A gstrom et.al., athttps://www-cdn.law.stanford.edu/wp-content/uploads/2020/02/CUS-

outcomes of these legal expert systems in their formal AT D

availabe
Al-Report.pdf (last visited on Dec. 7, 2021). with cnatdos,
to modernise
"California courts look
L N Rao, supra note 106; D. Fracassa, available at: htrps://www.Stchroniciecom
2017,
tech" San Francisco California, May 14, visited Mar. on

105 B. Marr, supra note BB. 7.2094radc/California-courts-lookto-modernize-with-11|143095.php(last

106 Justice L N. Rao, supra note 104. 1, 2021).

Las 629 (2012),
107 H. Suren, supranote 11. Cn, Computable Contracts" 46 UC Daris Scboolof
108 W. Fanswortb, supro note 32. 113 lbid.
Problemauc in the Legal Sector ua
and Compliance", Expen System, available at: htups://expertsystem.com/use-casc 14
Catby 0' Ve, "Can Al Be
109 *Legal
knowledge-discovery/ legal-and-compliance/; "Expert System Achieves a World First D Sve Neil, supra note
note 994; B. Boessel,
https://kirasystems.com/learn/can-u-be-problemnc-in-igu

pr. 16, 2020, available at:

Enhancing Different AI Capabiliües Acceleraung Human-Like Language Comprehension Sec.
Scctor/ (last visited on Mar. 7, 2021)
I15 S. Mattu, the COMPAS
recidivismn algorithmn

Tex Analyucs", PRNcvwir, May 15, 2018, avuilabile at: https://www.prnewswire.com/r ner
Angwin, "How
analysed
we
https://www.propublica.org/article/how-we-analyzed-the-
and).
compas
clcases/capert-system-achieves-a-world-first-by-enhancing-different-ai-capalbiliies-accelerau
Mar ProPublica, avan
lable at:
human-ike-language-comprehension-for-exl-analyucs-300647843.html; (last visited O is visited Nlar. 20, 202).
u-agorithm (last on

7, 2020).
 Journal of the Indian Law Institute Balancing the Scales
of Justice Through Artificial Intelligence
208
Vol. 63:1 2021)
209
Transparency and interpretability in algorithmic decision making related to data privacy
Jssues

Also commonly referred as the 'back box problem'" Machine learning software are
designed particularly to train itself with data-scts. This changes the algorithmic design
of the systems and it becomes complex as the machine starts to train itself"" It so
happens that ML sofrware becomes so complex that they become unreadable, even by
their own programmers, except by their input or output." This is a serious issuc when
it comes to making reasoned decision in law, where important questions dealing with
life and liberty of an individual is at stake."° 1lt is almost impossible to give a reasoncd
decision of how the machine has arrived at such an outcome. This raises further
questions on the transparency of algorithmic decision making, which in the opinion
of the researcher, must be interpretable, explainable and transparent at the very least.
The illusion of mathematical objectivity and fairness
While the algorithmic decision making perpetuates, 20 I t is generally assumed that a
computer is more neutral, objective and accurate than a human. Quite contrary an AI
sy'stem's working is far more obscure and subjective than they appear to be.2
Government official, individuals and other beneficiaries of AI systems who rely on
the mathematical nature of output which the systems provides them, often defer to its
decision making without bothering about the processes that are involved in the system
to arrive at a certain conclusion. For eg, if a machine give a result that a person has a
high risk of recidivism or he is highly likely to commit a felony if released on bail, a
judge wil acquiesce to the systems prediction rather than apply his own mind. The
judge does not even bother to inquire what parameters were being used to calculate
the risk score of the criminal defendant. This raises doubts over keeping a 'human in
the loop as well', who is placed in the loop to ascertain whether the system maintains
its neutral and objective poise. But it seems that human intelligence is quite susceptible
the illusion of mathematical objecivity which the AI system
to
creates
wh the development of sophisticated Al tools there is
high probability of vsing
ersonal information ot users in ways that can intrude on privacy interests.22 For
eample natural language processing tools that are employed in translation of court
related documents and oiher contidential resources, learns patterns and critical
information about clients, judges and lawyers, which can be leveraged against them.
These datasets might contain some other relevant information that are not visible to
the human eyes, but can be picked up by AI system, like political affiliation, sexual
orientation, and other likes and preferences, which may then be used to influence their
choices and decision making." Also tools like facial recognition which are
employed
by the police in survellance at airports, railways and bus-stands also raises privacy
concerns about the sensitive information of the users. With the availability of rich
data on social media platforms like Instagram and Facebook, these machine recognition
software's have a potential to manipulate sensitive data like retina scans and other
facial attributes of individual persons. Another serious concern with the facial
recognition technology is the probability of misidentification of individuals leading to
their wrongful convictions, which is a 'damaging prospect for our society123 Such
tools, without robust privacy protection policy, also hold the potential to be abused by
law enforcement agencies and other governmental and private agencies for constant
surveillance of the public.126
V Conclusion
Artficial intelligence has unique abilities to perform tasks with great speed and accuracy
It holds the potential to reform the legal system, reduce arrears and backlog of cases,
to the litigants' at-their-
h e capacities of judges and lawyers and serve justice
door-steps. Since the advent of modern societies, the invention of AI technologies is
onc of the major revolutions in the information technology sector. Its techniques,
of law
therefore,
the society.
must be harnessed to improve the administration and governance
in

erty, "Protecting privacy in an Al-driven wordd'", Brookings, Feb. 10, 2020, avazlablk ashtps:/
visited Mar.
wwv (last on
116 S. Mongomery, "Whar's in an Algorithm? The Problem of the Black Box", Tyftsobserver, Feb. 9.20211
S.Cdu/research/protecting-privacy-in-an-ai-driven-world/

25, 2019, availabk at:

htrps://tuftsobserver.org/whats-in-an-algorithm-the-problem-of-the-black- 9,2021). Nar
box/ last visited on Oc 8, 2020). nOwsky, "How Cambridge Analytica Sparked the Great Privacy Awakening, ired,
117 lbid. a i a b l e al: https://www.wired.com/story/cambridge-analytica-facebook-pavacy

118 Ibid. awakening/ (last visited on Mar. 9, 2021).

the Capital Gazette Shooter
119 Seloomis v. Wisconan (2016) 881 N. W.2d 749; Also see J. Tashea, "Courts Are Using AI ndone, "Police Used Facial Recognition Identify to

How It 2018, available

at:https://www.cnn.com/2018/06/29/us/
Sentence works CNN, Jun. 29,
Criminals.That Stop Now", Wired, Apr. 17, 2017, available athttps://
Must
www.wired.com/2017/04/courts- using-ai-sentence-criminals-must-stopnow/ (last visitea ton-technology-law-enforcement/index.html>(last
visited Mar. 9, 2021). on

125 N A Technology Nicole

Martin rortE,
Mar. 8, 2021). Stin,"The Major Concerns Around Facial Recogniion h t t p s : / / w w w . f o r b e s . c o m / s i t e s / n i c o l e m a r t i n 1 / 2 0 1 9 / 0 9 / 2 5 / t h e - m a j o r

120 Ibid. dvailableat: Mar. 9, 202).

Concer n d - t a c i a l - r e c o g n i t i o n - t e c h n o l o g y / # 6 d b - 4 0 c d 6 4 f e 3
(last visited on

121 Tnd. 126 Tbid.

210 Journal of the Indian Law Institute [Vol.63:1
good dealinong
It is not in
The state of the technologies have certain limitations.
art AI
are value laden, judgment
abstract thinking, open ended discussion, policy matters which
Also performs poorly in domains where there is little
oriented decision making. or

it has been very usetul in areas where there

poor quality, unstructured data. However,
is underlying patterns and rules, well defined right or wrong answers, and where there
is availability of high quality, structured, machine processable data. Thus AI must be
deliberately used, but with caution, in the legal systems knowing its potentials and
limitations. Justice delivery institution works primarily on the faith and trust' of the
people. The faith on Judiciary is on the precipice and the 'scale of justice' have long
lost their alignment, due to the huge arrears of cases and poor court management,
which adds to the long hearing of cases in the courtrooms. It is
important, therefore,
to balance the scales of
justice' and re-instate the trust and faith of the on the people
judiciary by making the justice delivery mechanism more efficient, reliable and
transparent through the application of AI technologies.
 THE INDIAN ORGAN TRANsPLANT LAW:
SUCCESSES, FAILURES AND REFORMS

C.M. Jariwala

INTRODUCTION

Causes like various disease processes and aging lead to human organs
to become dysfunctional or non-functional requiring transplantation
which gives a new life to the recipients but also improve survivability.
The organ transplantation procedures are much more advanced, and
practiced in the developed countries as compared to the developing
have yet to effectively join the
nations, and the underdeveloped ones
race. The world-over situation is: an acute shortage of donor organs;
technical failures in the operative procedures; issue of graft rejection;

however, the more important issue is the involvement of

ethically
illegal international, interstate and intrastate trade in human organs
the
and unethical activities. In order to regulate the above activities,
the nations and
family of international medical fraternity, some of
India, in particular, have framed legislations and Rules to make organ
successful. Unfortunately, there is no
transplant procedure legally
serious research works in this branch of law in India. The present

paper presents bird's eye view of the scenario of international and

a
and what we need
comparative law to find out, where India stands,
now to meet out the challenges
and failures. The study of the
homework done before the legislation will help to find out how
far the
has or has not tried to include the pre legislation
present legislation
inputs.

LL.M. Ph.D. (London), Prof. & Dean (Academics), Dr. R.M.L. National Law
Law School, BHU, Varanasi;
University, Lucknow; Fornmerly Head & Dean,
Environmental Law Commission, Switzerland and nternational Couneil of
Member,
Environmental Law, Gemany. Email: dean_academies@mlnlu.ac.in
 The human organ
transplantation has attracted attention all over Covenant on
Civil and
Political Rights,
world and has become a subject of national the International
all forms, the
importance and therefore article 7 of the d i s c r i m i n a t i o n in its
who, should have the legislative power in this 1966. In order to prohibit racial of Racial
answer. The law of 1994
regard deserves
the theElimination of all
Forms
amended and along with the
as International Covenant on
health and
medical

provided different facets of organ transplantation and its Rules, haua Discrimination, 1965 guarantees
the right to public
and authorities. The laws of procedures racial discrimination in any forms.
large number of countries have care' with no

conflicting stands and left vacuums. It would be important to adopted world

India has been able to break the tie and fill the know if is one of the most important
vacuum. The The World Health Organization contributions to
study, mainly, critically examines the seleect present have been making important
level institutions which
takes the stock of its success and
provisions of the law and International Human Organ
Transplantation
failures. In addition, the development of the Brussels, o n
critical World Medical Assembly at
questions pertaining to organ transplantation
especially covering
Law. The Thirty-seventh must take
issues like: Have the authorities become well October 1985 suggested that
the appropriate governments
equipped to monitor and commercialization in kidneys." It was in
supervise the success and failure in this sensitive medical field? appropriate action to prevent submitted a draft
Are number of countries
the donor and recipient
adequately dealt in the process? Are the May 1986 that a large World Health
human organ transplant to the
conditions so prescribed are transplant resolution on
firiendly? Are the different Organization at A Draft
Geneva. Guiding Principles o n Human Organ
Forms to be filled in by the concerned 1991. The Nine
persons and authorities are self. adopted by the Assembly in May
sufficient? Have the role players played Transplantation was

successfully their role? These Guiding Principles broadly included",

for example, a free consent of
issues will be specifically addressed in the present study. must be to the
donation
the donor as mandatory; living person's
to donate
The main theme of the genetically related person; generally minor was not eligible
present paper is to find out where did the his organ; there shall be no commercial transaction or advertisement
legislativeexercise succeed, fail and what reforms are needed
to make for the retrieval of human organ; and last but not the least, the organ
the Indian organ transplant law to achieve its
objectives in a better shall be available to the recipient on the basis of medical need and not
way so as to serve the humanity at large. the considerations. These nine Guiding Principles mainly aim to
regulate accessibility and allocation of human organs for
INTERNATIONAL DEVELOPMENTS
transplantation and trafficking in human organs. Subsequently in
Before 1991, the world August 1989, a Congress on Ethics, Justice and Commerce in
community hardly paid any serious attention Transplantation: A Global Issue was held at Ottawa once again
to regulate the human
organ transplant mainly because organ reiterated unacceptable stand on sale and purchase of human
transplant; however public health remained the main concern of the organs
and tissues for transplantation. The Fourteenth International
families of nations. Initially the
right to medical services was Congress
recognized in 1948 in the
Declaration of Human Rights' followed by Art. 5, see
particularly sub-article e(iv). See also the Charter
every one's right to enjoy the benefits of 1(3), Art. 13(1)(b). of the U.N. 1945 Art.
scientific progress and its See also the World Health
application. The requirement of free consent also finds a place in Organization, World Health Assembly (WHA).
Resolutions of WHA40.13 and WHA42.5. The
Oct. 1887 also condemned it. Thirty-ninth WHA held at Madrid in
'Art. 25(1). 5
See for details World Health
Ant. 15(1)6). 42 International
Organization, WHA, Document WHA 44/1. See also.
Digest of Health Legislation, 389-413, 1991
2 3
 collaborate
on Penal Law held in Vienna even advocated for severe penal sanei
to monitor
and

in this regard.
on ct monitoring
mechanisms s o as

and evolve
transplant practices.
with the existing organ
The important international development is that of the
other
COMPARATIVE VISION
Declaration of Istambul on Organ Trafficking and
Transplant Tourism t
it is necessary
of May 2008 which adopted six Principles contributions,
advocating for a Before embarking on the Indian
done which will help
us to

comprehensive implementation programmes with least countries have

organ other leading Indian law.
explore what not do to
reform the
trafficking and transplant tourism. On the basis of the aforesaid find out what w e
should and should

Principles, the participants suggested prohibition on organ trafficking. it is surprising

and transplant tourism. Further, the Report of the Secretariat of advancement in the present area,
the In the technological wherein Singapore was
lead
WHA on March 25, 2010 suggested to increase public countries have taken the
awareness; a that the Asian the period from
global coding system of transplantable materials; and to provide a and China. However,
the first followed by Malaysia of the
time when majority
high quality public health programme. In May 2010 the WHA further 1980-1990 may be
termed as the prime
s t a t u t e s . However, there
out with the
related
expanded the scope of the International Organ Transplant by Law world countries c a m e
and Poland which only came

adding the 'opting in' and 'opting out system in consent, and a minor w e r e countries
like the Czech Republic
in the present decade.
or a legally incompetent person be allowed only in exceptional case to out of hibernation
be adonor. The WHA further issued Directive in 2016 which mainly enacted the
national or federal legislatures
cares for educating the people so as to gain their trust in this
regard." In most of the cases, the
the countries.
of government adopted by
law irrespective of the forms
their o w n
the Provincial Legislatures had
The World Health Organization, it may be reiterated, is continuously However, in case of Canada,
Even in China, Shenzhen City
doing a good job in this field. However, the questions remain: have laws except the Province of Quebec.
enacted its own Regulations in 2003. Thus the large number of
the Parties stopped the main problem of illegal trade prevalent had
countries aimed at a uniform system of
law instead of a multi-window
throughout the world? Have they attained equal distribution of organ?
Have the poor countries been saved from becoming prey to the illegal clearance.
activities? These are some of the questions which have presently no
and must be in
conclusive answers. It is time that the WHO must grow teeth to bite Generally, the laws required the donor must be a major
health. The Malaysian Law do not allow a person aged seventy
good
years to donate his organ. A minor, mentally ill or handicapped
The Declaration person is not allowed to donate his organs. However countries
like
of Istanbul on Organ Trafficking and Transplant Tourism, April
30- May 2, 2008, Available at:
Hungary, Malaysia, Netherlands, Singapore, Sweden and even the
http://www.multivu.prnewswire/mmr/transplantationsociety/33914/does/33914-par
See also this point the Report
on United Kingdom allowed such donation
subject to certain
prepared by
the Council of Europeand the United
Nations, Caplan A. Dominguez et al., Trafficking in Organs Tissues and Cells a conditions", Fortunately, voices are also raised against organ donation
Traficking in Human Beings for the Purpose of the Removal of
See, Document, World Health Organization, WHA, WHA 63/24 Organs, 2009, 10
March 25, 40
and WHA 63.22 May, 2010.
See
for details, 10d. at Malaysia, Vol. 3, 45.
2016. http:/www.int/transplantation/donation/en accesscd on Oc 7,
ld. at Hungary. Vol. 2. Art. 204(1); Sweden, Vol. 5, Sec. 1.
4
 deceased person's
by children.2 The Poland's law of 2005 allows even a
pregnan it is treated as presumed
consent and the
cases
donation is generally
woman to donate her organ but this may be done in for transplant. The organ
consultation with organ may be used
a gynaecologist and neonatologist. allowed for the therapeutic purposes.

whom it adds be
Surprisingly in Singapore, transplantation has attracted a rcligious Once the organ is donated,
the question comes: to

controversy and its law of 1988 exempted specificand uniform criteria adopted by the
persons with Islamic faith, 14 implanted? There are no
It may be submitted that donation of organ is a pious to decide, or the organ banks to
a
laws. Either it is left to the hospital
obligation, and organs at
their
therefore, caste, religion, regionalism,
etc. should not come allocate the governmental agency to provide
or
as a
of human organs, the
barrier. Further the laws generally allow only the citizens discretion. But the fact remains that in
allotment
to donate and the
by the rich
organ; however there are countries like Belgium whose law of
19865 genuine and under-privileged are superseded
race, religion etc.
allows a foreigner provided that his country has a MOU with influential people on the grounds of colour,
in that regard.
Belgium that the priority should be given
However, Stolberg rightly suggested
The Spain Law provides three tests: how
to the 'sickest' patient.22
how long he has been
Most of the countries
prefer transplantation of organ from the urgently the patient needs the transplant,
must come in the way oof
cadaver and a live donation is allowed with certain conditions. Death waiting for, and that no social consideration
the
has been given different meaning by different laws to mean distribution.23 Generally the laws require near relatives as
as 'brain
death' recipient. the donor suffers any bodily deformity, pain or loss,
In case
or
'cardiopulmonary cessation'. However,
uniform approach is a
the
in pipeline to introduce the brain-stem death. the law of Hungary makes the State responsible to compensate
Coming to consent, the d o n o r 24
laws adopted a conflicting
approach between the informed consent"
and the presumed consent;" however there is a
cry to adopt a flexible The next question is where shall be the procedure for transplant may
approach." If a person objected to donate any organ during his life be performed? The laws generally prohibit the procedure to be
time, then in no case his
organ shall be taken for transplantation after
his death. If there is neither performed in an unrecognized private hospital. It should be either in
any consent nor objection, then in some an authorized or licensed hospital.25 Most of the countries favour the
government hospital or centres specially recognized by the Health
See also the case of Teresa Ann
Camp Pearson's Little Angel' who was borm with Ministry or the medical authority.20 Further, in order to control
vegetative life with his
head having open brain stem and the court did allow her
organ to be donated. See Sandra H. Johnson, et al. Health Law and
Bioethics, 131,
2009 20
See, for example, Encyclopedia of Medical Law, Singapore, Vol. 4, 134,
3
Id. at Vol. 4, Art 12. Uruguay
14
Vol. 5, Law No. 14005.
Id.Vol. 4, page 134-35.
at 2 See S.R.D. Pattinson, Medical Law and Ethics, 474. 2006; P.A. Ubel et al..
5
Id. at Vol. 1, Art. 13. Geographic Favouratism in Liver Transplantation - Unfortunate or Unfair? 339 New
Death has been given different Engl. Jour of Med. 1322-25, 1998.
brain death and by some as meaning by different countries' laws to mean as 22
S.G. Stolberg, Transplant to sickest, New York Times, A.K.. Feb.
cardiopulmonary cessation.
See Mara Stauch et al, Text 2 Encyclopedia of Medical Law, Spain. Vol. 4, 200.
27, 1998.
Cases and Materials of
2006, G. Dwarkin, The Law
Medical Law (3rd Edi) 618 ld. at Hungary, Vol. 2, 132.
Med L. Rev. 353. Relating Organ Transplantation in England (1970) 33 25
15 Encyclopedia on Medical Law, Belgium, Vol. I, Art. 13; Bulgaria, Vol. 1, 105:
Encyclopedia of Medical
Law, Id at USA, 167, Vol. 5. Germany, Vol. 2, S. 17.
T . Wilkinson, Individual 26
Id. at Peru, Vol. 3, Art. 45.
and Family Consent to
the Current Position Organ and Tissue Donation. 1>

Coherent, 31 Jour. of Med. Ethics, 581-90, 2005.

6
 Members
traficking in the human organs, the laws have banned not only sc welcomed by all the
trade but also its advertisements and also banned illegal import was that the Bill was

The positive part

or full support.
export of human organs, and such activities are subjected to sever. and it received their
penalties.2 The UK and Spain laws attract criminal liability of no of Human Organs Act,
1994 the Transplantation
only both the parties donating and receiving organ but also even the Finally, on July 8th, to the States
of Goa,
enacted which was applicable only
hospitals surgeon or medical staff involved in such illegal activities 1994 was territories and
M a h a r a s h t r a and all
the Union
Himachal Pradesh and a
However, these countries permit payments to be Act. Subsequently
and procedures. rules were made to carry out
the purposes of this
the court,
made to compensate the donor for any physical or economic loss or
filed before the Delhi High
Courts and
writ petition was Rules needed relook,
for the expenses incurred in extracting, conserving, processing, of the Act and
harvesting. storing or transportation of the organ for transplant.30 realizing that the provisions The Review
Committee's
Committee.
Review
constituted a Authorisation
restructure the
for example, to
suggestions included, Retrieval and
INDIAN LEGAL PERSPECTIVE a data bank and Organ
Committee and its functioning;
the Central Nodal Agency
be established as
A. BEHIND THE CURTAIN Banking Organization be
centres or unit; a national programme may
with five regional
cadaver donations; a fund should be created;
Transplant of human or animal organ is not unknown in the ancient launched to promote
donors; the mass media must play a

time in India but it could not progress further because of its incentives should be given to
and the religious leaders must encourage people for
discouraging results. In British raj transplantation was practiced in positive role;
cadaver organ donations.
only few cases and did not see any legal control. During the course of
time, the transplant technology developed and there was increasing
Bill was drafted, and was referred to the Standing
involvement of unprofessional and unethical practices. A need was Accordingly a

Committee whose recommendations were accepted by the

felt to have a legal control through a comprehensive and uniform law. Members showed
Government.3" In the discussion in Parliament, the
For, a Bill was tabled in Parliament in 1992 and during the course of main concern for commercialization and criminalization in organ
discussions, the Members of Parliament made the following important of
transplantation. They suggested, for example, a liberal definition
suggestion which included, first no delay should be there to enact the 'near relative'55 equitable treatment in allocation of organs; removal
law:; second, a uniform legislation applicable throughout the country
must be enacted"; third, to stop trading in organ33; and the fourth,
serious
more penalty must be prescribed34, including deathpenalty. 35
1d. at Mulchand Meena, 436.
36 Balbir Singh v. Authorization Committee, AIR 2004 Del. 413.
37
27
Id. at for example, See, for example, Lok Sabha. Deb., Aug 11, 2011. Arjun Ram Meghwal, 4/25,
Bulgaria, Vol. 1, 109. 5/25; Bhartuhari Mehtab, 18/25; Raj Sabha. Deb., Aug 26, 2011, Prabhat Jha, 264.
ld. at Japan, Vol. 3, Art. 2; Singapore, Vol. 4, Sec 14(1), Turkey, Vol. 5, Art.
extends to 9 years; South Africa, Vol. 266; K.N. Balagopal, 278; Anik K. Sahani, 279.
4, S. 34; Sweden, Vol. 5, Art. 91;
2Id. at UK, Vol. 5, S. 1(3); Spain Vol. 201. See Lok Sabha. Deb., Aug 11, 2011 Dr. Joyti Mirdha. 7/25: Jagadaanand Singh.
4, 23/25. Raj Sabha. Deb.. Aug 26, 2011. Shashi Bhushan Behera, 283; D.
1d. at Belgium, Vol. 1, Art.
4(1);
Germany, Vol.
2, .
17; Hungary, Vol. 2,
S.zu Bandyopadhyay. 284: Ram Gopal Yadav, 285; and Dr. Vijayalaxnmi Sedhouva, 295.
See Raj Sabha Deb., May 5, 1993 B. Shankaranand, 441; Sunil Basu Roy, 427 39
See Lok Sabha. Deb., Aug 11, 2011, P.
Id. at John F. Fermandes, 424;
Bapu Kaldete, 427 Sunil Basu Roy 430. Venugopal, 20/25; Jagaddnand Singh.
23/25, Raj Sabha. Deb, Aug 26, 2011, Shashi Bhushan Dehera, 283;
Id. at See for example, John F. Fermandes 421; Narredy Thulasi Reddy, 45 Shelvagnapaths, 284,
T.M.
ld. at John F. Fermandes 425; Narredy Thulasi Reddy, 433; G.G. Swell, 452, *
9
8
of organ transplant illiteracy among the people;" and to nra:
rovide LEGISLATION:

SOURCE OF
unmarried and 2. medical
solution to the problem of a single man women modern
is a product of in
needing transplantation."
After a hurried discussion, the The transplantation
of human organ
subject w a s
mentioned

Amendment Act was passed in 2011. In order to make the Act of 1994 as such no specific legislative C o n s t i t u t i o n of
India.
technology Schedule to the
self-sufficient and self-contained, Rules were framed from time to the Seventh
Act, 1992
that regard in Amendment)
t i m e . 43 Constitution
(Seventy-third and
However, the the Gram Panchayat
Health' to
Health' and Public infrastructure and
gave the existing
but looking to will
In this back drop, the following study critically examines how far the Municipality respectively these authorities
almost doubtful whether
financial position, it
is other
provisions of the Act successfully helped in working of the contribution in this
field. Parliament,
unlike

transplantation of human organs in India. make any positive national law o n organ
a
no power to pass under
countries, having w a s enacted
the present legislation
B. THE LAW SCENARIO transplant* and therefore, State Legislatures6.
The difficulty
consent of the
article 252 with the comprehensive law
it cannot have a
1. OBJECTIVES: that: First,
with article 252 is fluid
article 252 creates a
States in India. Second,
applicable to all the a State which had
The initial transplant legislation of 1994 was enacted for reasons and gaya r a m which
m e a n s

position of aya r a m
which included one window operation for transplant of human organs withdraw at any Third, it has only a temporary
time.
consented may view
instead of different laws of Parliament and the State Legislatures. The numbers of States allow its continuation. In
base till the required
Objects and Reasons Clause takes into cognizance the persistent in the Kuldeep Singh cases
of the direction of Justice Arijit Pasayat,
demands to prohibit commercialization of human organs. The well the State of Jammu and
and fortunately the other States, except
drafted comprehensive Law of Crimes, the Indian Penal Code, 1860 of human organs being a
Kashmir also adopted it. The transplant
cannot be left at the mercy
of the
which hardly provided any legal sanction in this regard.4 The Clause
subject of national importance
is mainly confined to the transplant of human organs but it leaves that Parliament may be given an
States, and therefore, it is suggested
health of national
important aspects like procurement, transportation, storage, export and exclusive legislative power with respect to 'public
left for the State Legislature. In
import, etc of human organs. importance and the rest may be

See Lok Sabha Deb., Aug. 11, 2011 Anup K Saha, 16/25, Bharatuhari Mehtab,
18/25; Arjun Ram Meghwal, 16/25. Raj Sabha. Deb., Aug 26, 2011, Prabhat Jha,
264, 270; T.M. Shel Vagnapathi, 282.
45 It is now recommended that the Federal Legislature alone may have power to

4 Raj Sabha. Deb., Aug 26, 2011, Gana Charan, 298. legislate in this area Y.U. Rao, Law Relating Medical Negligence, 2010; George J.
-

Annas, Legal Medicine (Sixth Edi), 615, 2004.

f theentire proceedings of the Lok Sabha and Rajya Sabha Debates in case of the 46 See another Medical law passed under article 252 the Clinical Establishment
Bill of 1994 and also 2009 and 2011
is examined, it will show na (Registration and Regulation) Act, 2010.
Chairman/Deputy Chairperson was in hurry to close the discussions f
ne
47
See the experience of the Water (Prevention and Control of Pollution) Act, 1974.
individual MemberS and
repeatedly rang the Bell and in almost large numb 48
Kuldeep Singh v. State of T.N.,
AIR 2005 SC 2106.
cases requested the Members in detail to
To avoid repetition the
immediately wind up the discussion. " I tis now recommended that the Federal Legislature alone may have powerto
provisions of the Rules are discussed wherever necess
in the critical treatment to
**
th Act. legislate in this area Y.U. Rao, Law Relating Medical Negligence, 2010; George J.
Annas, Legal Medicine (Xixth Edi), 615, 2004. See for example, the Federal laws in
The original section 370,
though dealt with 'trafficking of person' 'a slave, nas
-

Austria, Australia Germany, Switzerland USA. etc.

reference to the present problem.
11
10
Brazil, organ transplant has been given a
higher place will
at the that a liberal approach
constitutional level.50 allowed.36 It is submitted
consent may be
which should not be allowed.
add fuel to theexisting fire
3. WHO CAN BEA DONOR
A. DECEASED PERSON

Section 2(f defines 'donor to mean any and is

person, not below eighteen deceased person's body is preferred
years of age, who voluntarily authorises the removal of Generally, the organ from a in section 2(e), to
any of his 'deceased person' is defined
human organs. The section provides for the minimum invariably practiced. A of all
age but no in whom there is permanent
disappearance
mean a person
maximum age is given, thus the elderly population death or in cardio-pulmonary
may be an evidence of life by reason of brain-stem
important source of organ retrieval. live birth. This definition, it may
be pointed
sense after the time of

both the English and American

models to operate in India.
out, allows
The main requirement in the retrieval or implantation of human organ also been defined in section 2(d) to mean where
Brain-stem death has
is the consent of both the and irreversibly
parties. There are two models which are all functions of the brain-stem have permanently
practiced all over the world: the English model express consent and has chance of a successful transplant of
ceased. Such an approach a

the American Model- present consent, but in India the Act and the dead. It is interesting to note that now
organ as the organ is not totally
Rules allows out for consenting their organs
presumed consent.2 The Amendment Act, 2011
even a large number of persons are coming
puts two restrictions: first, that a minor, who has not completed the after death. The data shows that there were 196 deceased multi-organ
age of eighteen years, cannot be a donor before his death except in the the number increased to 411 which mean
donors in 2012 and by 2014
cent.35 In this, the Southern States like
manner as may be prescribed" but presently no Rules are prescribed a rise of nearly twenty-six
per
in thisregard. Second, no human organ shall be removed from the Tamil Nadu which contributed the highest number followed Kerala,
Andhra Pradesh, Karnataka but Uttar Pradesh, Punjab and Bihar
were
body of a mentally challenged person before his death for the purpose
back benchers.3" But as world's experience, India has
of
transplantation. This section has no exception like section 9 (1-B), the to compared
which will mean that in no case a mentally challenged person can be a to go miles ahead.
donor
live proposed donor after his death. The donations inthe
or

above cases have attracted controversies. The one view is that when The prospective donor, has to fill in respective Forms which mainly

they are not in a position to give legal consent then they cannot be emphasis on the identity of the prospective donor, and the declaration
that he had been specifically and clearly informed about the risk
subjected to transplant procedures.55 The other view is that proxy
56
50
See Sec. 199 which Michael T. Marley Proxy Consent to Organ Donation by Incompetent, 1 11 Yale L
S1 prohibits commercial dealings. J, 1248, 2002.
See supra page
2
Modi's Textbook See M. Brazier, Organ Retention and Retums Problem of Consent, Jour of Med
(24th Edi) 212, 2011.
of Medical Jurisprudence and Toxicology, (Ed) K. Kann
a
et al
Ethics, 30, 2003 wherein it is reported that the snatchers left the Children's bodies
$3 Sec. 9(1-B). merely'empty cell'. See also, Paul Bradley, Stealing the Parts: There are Body
s4 Sec. 91-C).
Snatchers in England in Jean Mettele and Merice Fox, Health Case Law (2nd Edi)
Cara Cayette, Organ Harvesting from Legally Incompetent; An ers.
ent 10, 2007.
S8
Indian Transplant Newsletter, Indian Society of Organ Transplant, Vol. 14, Issue
Compelled Altruism, 41 BEL Rev; 514, 2000; D. Price and A Garwood 44, March-June, 2015, 12.
Transplant from Minors: Are Children other 59 Id.
Law, 1995. People's Medicine, 1 Conp *
13
12
involved and that the procedure was not involved with a commereiot the guardian
failure on the part of the Court,
deal at any stage. These Forms, it is submitted, do not an unfortunate
require the question, submitted, missed
donor to state about his existing health conditions, how Fundamental Rights. The High Court, it is
many times an
of the retrieval of organ from any
which allows
organ was donated by the donor, and the financial position ofth the provision of section 9(3) with the recipient.
e attachment
donor, which should have been given a place in the respective Foms on the ground
of affection or any
person casein order to determine
In case of a dead body lying in a hospital, prison or unclaimed The Supreme Court in
the Kuldeep Singh
body. down the tests of
the period of acquaintance,
his organs may be retrieved within forty-eight hours from his the above criteria laid
death and reciprocity between them. Such expansions
There are large numbers of cases of calamities, traffic acidents degree of association a matter against
or
doors for illegal trade in human organ,
suicides where the dead bodies are not claimed. This is an will open
important which the Members of both
the Houses of Parliament fought.
source of organ retrieval but the limit of forty-cight hours' does not
allow this source to be immediately tapped. practiced. It may
The donation of kidney, lung and heart is commonlynow subject of
foetal parts are also
be mentioned that
B. LIVE DONOR how to enhance
The scientists are researching as to
transplantation.°
to note that Russia is the
Generally live donation is not common because of fear of future the availability of organ.6 It is interesting
in the head transplantation.
first country which went ahead
e v e n
complications0; economical loss; and in some cases the religious
However in these organs, kidney tops the
list. Once a person gets a
taboos which become hindrance. The main requirement prescribed in other
green signal, he has to
fill in an Application Form 10 along with
section9(1) is that the donor must be a 'near relative' of the recipient, have suggested
Forms. It is interesting to note that the Courts
however, the Amendment Act, 201l expanded its definition to include
inclusion in the Form information about income particular
respective
even grandfather, grandmother, grandson or granddaughter. The their
of last three years of both the parties so as to help in examining
English Law in section 24(4) includes even step-brother, step-sister, take
involvement in illegal trading.6% The Central Government must
step-father and step-mother also. Such expansion may allow more note of this while revising the respective Forms.
organs for transplantation and even the Supreme Court has aso
suggested a liberal approach in the mater.1 However there is a
question: whether a patient who does not have any relative or any 2 See Sailja v. State of Kar., 2005 (4) Kar LJ 133.
other persons to act as a donor, should be allowed to die in absence of 63 K.C. Reddy, Should Paid Organ Donation be Banned in India and To buy or Let

availability of human organ? Article 21 of the Constitution of India Die, 6(3) Nat. Med. Jour of India, 137-39, 2005.
64Kuldeep Singh v. State of T.N., AIR 2005 SC 2106.
guarantees right to life including the right to medicare and the State 15 66
Michael Davis, Medical Law, 399-400, 1998; Mason and McCall Smith, Law and
under the constitutional Medical Ethics (4th Edi) 310, 1994; A. Stuhmake, The Legal Regulation of Foetal
obligation to protect it. However this being Tissue Transplantation, Jour. of Law and Medi Nov. 4, 1996.
complicated issue, the Karnataka High Court did answer Madhar Sharma and Nirmal Tripathi, Encyclopedia of Biotech. 34, 2008. See also
the interesting advancement. Richard A. Reting.
Hearts, 65 South, Calif. L. Rev. 503-528, 1991
Artificial Kidneys and Artificial
67
Indian Transplant Newsleter, the Indian Society of Organ Transplant, Issue 2
Elliott, Vol. 14, May-Aug, 2015, 14.
Carl Doing Harm: Living Organ Donors, 21 Jour of Med. Ethic, 91- 8
1995. See also, A
Garwood-Gowers, Key Legal and Ethical Issues in:
Kuldeep Singh State of T.N., A 2005 SC 2106: S. Sanson
v.
v. Authorization
Donors Organ Transplantation,
Liv Committee, AlR 2008 Mad. 227; Rajendra Kumar v. State of
See
1999.
H.1172.
Punj. AlR 2005 P &
Kuldeep Singh v. State ofT.N., AIR 2005 SC 2106.
14 15
 Government of India
the
4. CAN ANY PERSON BEA RECIPIENT? On the other hand, million
fifteen cores per annum." but it is a
success
stories to tell Act,
and the States have many realities? The
Section 2(m) defines recipient' to mean a person into whom anu they
become ground
human organ is, or is proposed to be, transplanted. This makes it cile any dollar question, have
a large number of authorities which

clear Amendment and Rules provide Authorization

Committee",
that any person of any age or sex can be a recipient. Section 9 (10A) Authority5,
the Appropriate and
include, National Registry"
along with the proviso do not make the thing clear about foreigners. Committee", National Network6,
Advisory the important
and this lead to India being made a breeding ground for human Accreditation Board.
The following are
organ the National
transplant tourism like other poor countries. Such a diffused
bodies:
situation, it is submitted, needs clarity.
I. APPROPRIATE AUTHORITY

Unlike the donor, there is single Form to be filled in separately

not a
Central and State
one or m o r e
officers to constitute the
by the recipient. It is suggested the Rules must prescribe a separate There shall be the
and its members shall be appointed by
Fom for the prospective recipient giving all the necessary details. The Appropriate Authority Government respectively.
and the State
Government
main problem is who should get the priority in allocation of human Central
be its members, an important
provision, is
organ? The Act and the Rules do not give a clear direction in this However, who shall for
its functions which include,
regard. Thus it leaves this matter at the discretion of the concemed missing. Section 13(3) prescribes registration of
cancelling
example, granting, renewing, suspending
or
hospital, leaving a scope for not only discrimination but also and inspect the hospitals
enforce prescribed standards;
corruption. There are cases inside and outside India when on the any hospital; to
and the follow-up
grounds of economic position, religion, race or geographical for the maintenance quality of transplantation
to bring
medicare." The Authority, it is suggested, should be required
preferences organs are distributed.0 In India though there is a sanction in its functioning.
out its annual report so that there is a transparency
under article 14 and 15(1) but unfortunately it has yet to see the light and unethical
The increasing number of illegal commercial dealings
of the day. of the
practices in the hospitals raise a finger on the functioning
The need is for an effective serious monitoring, inspection
5. AUTHORITIES: Authority.

The Act provides multi-window dealing by creating different

authorities. This will create lot of hurdles, delay and discourage 71
Raj Sabha. Deb, May 5, 1993, 433 Narrendy Thulasi Reddy.
72
transplant-friendly actions and procedures. However, the question See the Research Report, 2 ORGAN, India, available at www.organindia.org
accessed on Dec. 8, 2016.
remains: will such a large battalion of authorities control the failures 3
See for detailed provisions Sec. 13.
and the lucrative business in 74
See for detailed provisions Sec. 9.
organ transplant? However, the lao
remains that in case of See for detailed provisions Sec. 13-A.
kidney alone there is a turnover of Rupc 76
See for detailed provisions Sec. 13-C.
7
9
See for detailed provisions Sec. 13-D.
S.D. Pattinsan, Medical Law and 78
See for detailed provisions Rules of 2013, Rule 2(d).
M. Goodwin, Organ
Ethics, 474, 2006. 79
Taking, Racial filling and Distributive Justice, 6 The Indian Medical Council Act, 1956 in section
Law, 2. See also P.R. Ubel, nal 19(6) also provides inadequaey
in hospital shall be subject to withdrawal of
or Unfair, 339
Geografic Favourtism in Liver Transplant Racial recognition but the Act of 1994, being a
New Engl. Jour. specilic central legislation will prevail over the Aet of 1956 in the
Access to Kidney
of Law 1322-25, 1998; I. Ayres et al, Unequa matter.
Transplant, 46, Vand L. Rev, 805, 1993. 17
16
and auditing must be done by an apex authority to that if
bring some positive the jurisdiction of the Committee,
Rule 6B provides
results. Coming to
are different,
then
domicile of the parties
the place of transplant and shall have
of the domicile of the parties
II. AUTHORISATION COMMITTEE the Authorization Committee
objection certificate. The Gujarat
High
the jurisdiction to issue no
the
if both
The Authorization Committee is an Court allows the Committees of
both the States to operate
important Committee which has Rule 6F (III) further extends the
great responsibility in the organ transplant procedures. Section parties belong to different States.0
9(4a) jurisdiction over the foreign
nationals of Indian origin whose cases
only talks about the composition of the Authorisation Committee but to case basis.
the Act no-where deals in detail with such an shall be considered with great caution on case
important body. Even
there is no mention of the Committee in
Chapter IV dealing with 6. HOSPITALS:
'Appropriate Authority'. However, the Rules of 2011 have made
provisions for the State level, Hospital base and District Level In India, it seems there is no particular hospital mainly specialised
in
Committees. The Rules, unfortunately, do not provide as to who shall different
the organ transplantation and generally a hospital having
be the Members of the State Level Committee. In case of the
Hospital specialty or super-specialty in surgery having different departments
based Committee, Rule 6A (A) cater the needs of transplantation. Now it is a matter of appreciation
provides that it shall consist of six
members with the Medical Director or Medical that the Government of India, Department of Health and Family
Superintendents
as its
Chairperson and two senior most doctors of the hospital and two Welfare has established a University of Transplantation Sciences* in
persons of high integrity, social standing and credibility shall be its 2015 at Ahmadabad, which will at one place not only give transplant
members who shall include, for education to the professionals but also execute transplant procedures.
example, a reader of University,
Chartered Accountants and a It is high time that such institutions must be opened in all other States
self-employed professional. The
question is: how far such persons will be able to provide important also.
help in the processes of organ transplantation? The other two members
shall be the Secretary (Health)
or his nominee and the Director, Healtn 'Hospital has been defined in section 2(g) to include a nursing home,
Services his nominee. The
or clinic, medical centre, medical or teaching institution for therapeutic
placement of 'nominee' without auy
designation will allow the government to nominate any officer ot purposes and other institutions. The nursing homes and clinics are the
rank in place
any private medical service providers. In such hospitals, it is reported that
of such responsible persons. A practice whicn
generally followed, and therefore, the expression 'or his nominee 95% transplant procedures are
e done and they are in most cases
be replaced by specific mention of the official. The members ac commercial business or
corporate houses. Will the nursing homes and
involved in the large decision private clinics have the prescribed infrastructure and follow the
processes, the Act/Rules should nav
provided a condition to declare that they have not been
guilty of any crime and to submit last three adjuo O

weed out
incomeyears' positto Mukesh Gandhi v. Dy. Sey Health, AlR 2009 Gul. 7.
any black sheep the 8 See the Newsletter of the Indian
Committee.
or
discourage a tainted person to
Jo 2015, 1. This society, it must be
Society of Organ
Transplantation, May-Aug
2,
mentioned with
positive services in this branch of surgery. appreciation has been rendering
2
See the Statement of the
Central Health Minister, J.P.
Lucknow, Aug. 1, 2015, 2. Nadda, Times of
India
18 19
 service
maintenance
and
and back-up
be positive.5 The definitie parts
standards? The
answer cannot ition the accessories, spare
transplantation.
prescribed for the organs
some riders in this regard. support system
clause should have put
7. MEDICAL PRACTITIONER:

successful and no unethical Or

that the transplant is
In order to ensure
the Rules make the following the entire transplant
Act and role player in
are adopted, the is the main section 2(n),
illegal practices A medical practitioner definition in
and the required infrastructure. Section 14 person who,
as per the
provisions for registration shall conduct the procedures. He is a
a s may be prescribed
without proper registration medical qualification
provides that no hospital only. The possesses any
recognized
on a State Medical
that too for the therapeutic purposes
Medical Council
and is enrolled
procedures and by the Indian
will be a person having
only
from the Appropriate Authority. This raises a question:
hospitals have to get the registration submitted by the Register (RMP). procedure? The
answer

are required to be the

There are various Forms which
the MBBS Degree
be allowed to perform
satisfied that the hospital with super-specialty
Authority is It is suggested that,
a person
hospital. If the Appropriate cannot be positive.
has great responsibility,
for
conditions, it may grant the registration be preferred. He
fulfils the prescribed qualifications may declaration of
in Form 2. The registration may transplantation of
different organs;
certificate in the format prescribed example, to perform the same; to
section 16 authorizes the organ and also preserve
be renewed for a period of five years. However, brain-stem death; to remove
for therapeutic
Authority to suspend or cancel the registration of any the procedures at registered place and only
a
the Appropriate to
perform and recipient of all
been given an opportunity to inform the donor
erring hospital provided that it has purposes; he is required
have mentioned the grounds upon and hazards involved in the transplant
defend its case. This section could possible effects, complication his
could be taken, limiting the discretion
of the
and to certify in Form 2, that the donor has given
which an action procedures;
to the relative or not; andto
appeal consent to ascertain whether party is near
Authority. The aggrieved party may prefer
an a

the Appropriate for the procedure. The doctors are

appropriate government against the order of
certify that the party is medically fit
in the courts. In the
the main target of violent attacks and are dragged
Authority the apex court directed the authorities
Kusum Sharma case,3
twenty-four hours harass the doctors. It
Coming to the infrastructure, Rules 9(A) requires including police personnel's not to unnecessarily
staff including senior and junior, is for this reason, section 8 and 23 exempt him particularly from any
availability of medical and surgical
operation criminal liability and also protect him from any legal proceeding
general and specially trained nursing staff; ICU, laboratory,
theatres and the communication system. It is a general complant tna respectively.
doctors available in the auy
invariably the senior and junior are not
tne
room leaving the responsibility on the nursing staff. The life of
The
donor and recipient cannot be left under their total superviSion.
Appropriate Authority must seriously investigate such complaint an
in case of continuing defaults it must take action against such errs
84 K. Kannan, Medicine and Law, 127, 2014.
hospitals. Further the transplant centres shall ensure the
availadl 85
See Kusum Sharma v. Batra Hospital, AlR 2010 SC
1050; Mlalaya Kumar v.
Sukumar Mukherjee, AlR 2010 SC T162; State
1888.
of Har. v. Santra, AIR 2000 SC

Richard Allen, A Manual of Renal Transplant, 1, 1994. 21

20
 some favour on the
AND
PENALTIES:
to the trading in human body parts,
8. OFFENCES Coming to the have nots; part a
s o u r c e of income
ground of easy accessibility; of large numbers
Clause hardly takes into account the and save the life
The Offences and Penalty of the right to bodily liberty;
ca

other hand, scholars

infected organs are transplanted in the transplantation.*" On the
where defective organs
or
waiting in que for organ
Unfortunately Mettle and Fox drive such commercialization saying that
it is against humane and
nursing homes and clinics. object to such lives;
It is suggested that the innovative moral value; resulting in
more pain and risk to many
victim to the consumer forum. their
will c o m e forward to sale
treatment of crime
must provide both the punishment and exploitation of poor; and not many who
window. The Act provides two types of markets." However, there are persons
compensation through one body in the open organ new legal regime
that a
offences relating to human organs: First,
the removal of human organ have defended the both and have suggested
coherent path. India like other world
the punishment is imprisonment fora must be developed to adopt a
without any authority for which It is reported that
fine which may extend to twenty countries is not immune from such illegal trading.
term extending to ten years and
a
Rs. 400
alone there was a turnover of
lakh rupees. Further ifa RMP is convicted then he shall not be entitled just in one year in kidney
Villivakam, is now
of three years for the first offence and billion. Even a town in the south of Chennai,
to practice for a period
It is further reported that out of
permanently for the subsequent offence. locally known as kidneyvakkam'.
'
to donor, 20% to the
the total money so illegally earned, 10% goes
intermediaries.3
The second offence deals with illegal trafficking in human organ. But agent and rest is pocketed by the
before discussing this, it may be pointed out that a trade can be in any
It
Section 19 makes commercialisation in human organ as an offence.
property, and therefore, the first question the body parts be
is can
who either receives any payment for the supply
treated as a property? There are different opinions: one group treat it prohibitsany person
of organ, searches a person to supply organ on payment, offers to
as property: and otherpersons, do not subscribe to such stand."* Itis
submitted that if the human body part is treated as property to be sold supply or negotiates the deal, assists in such activities and makes
in the butcher's shops it will degrade the human values, respect,
dignity and integrity of human being. 39 S. Wilkinson, Body for Sale: Ethics and Exploitation 4 Human Body: 2003:C.
Erin &John Harr's, Market in Human Organs, 9 Jour of Med
& Eth 137, 2003;
Reddy, Should Paid Organ Donation Be Banned in India: To Buy or Let Die, 6(3)
K.C
Nat. Medi Jour ofIndia, 137-39, 1998.
90
B. Teo, Stratagies of Organ Procurement, 6 Bioethics, 113, 1992: D. Dickenson,
Body Shopping 217, 2009; M. Goodwin, Black Markets, 2007; L. Andrews & D.
Jean Mettale and Marie Fox, Health Care Law (2nd Edi) 1177, 2007. Nakin Body Bazar: The Market for Human Tissues 280 JAMA, 164.2002: S.
David P.T. Price,
Contemporary Transplant Initiatives, Where's the harm in
24(2) Jour of Law, Medi and Ethics, 145, 1996.
Rajlakshmi and D.Uma Commercialisation of Transplant of Human
Meheshwari,
See also Johnath Herring, Organ: ACriticalStudy with Special
Reference to Kidney Racketing, Jour Innov of
Law 197, 2011; R. Hardcastle, Law and Human Body, 2009: M. Munzer, An Mea Uneay
Resch & Solus 102, June 1, 2014
Case against Property Rights in Body
Parts, in E. Paul et al (eds.) Property Ku 3.Herring and P.L. Chau, May Body Your Body, Our Body, 27 Legal Saudies, 51-
1994; David E. Jeffaries, the e the 73, 2007. See also Sejal Sanghvi, The Human Organ Bazar: The Transplant of
Body as Commodity: The Use of Markets to
Organ Deficit, 5 Indiana Jour of Global Legal Studies, 639-45, 1998; Human Organ Act, 4 Lawyers Collective 7, 1996.
Property Right in Body: A Philosophical H. S See S. Rajalakshmi
& D. Uma Maheshwari at 102- see footnote 88.
Property Rights in Human Body Perspective in K. Stern and P. wais" ds) S.V. Jog Rao and C.P. Ayyappa,
Paul Mathew, the Man of 201, 1997. Transplantation of Human Organs: Law and
Practice, I Law and Medicine; 73-74, 1995. M. Cherry, Kicney for Sale
of Lords, Property 3. Med L Rev 251, 1995; see also, louse
2005.
bv Owner,
Report of the Select Commitlee on Stem
Cell Research, rad
g.32:
Declaration of Amsteram, March 1994. 23
22
 negligent in
been
regard. this
the organ, form a part of the offence. ThThe act o r has
advertisement to retrieve commit any prohibited
creates a difficulty as it exempts
adds activity to section 21
Act, 2011, in section, 19(g)
one more tho that
Amendment However, the proviso if it is proved
or such persons,
'abatement of such
activities. The law of Indonesia is stricter which criminal liability
of the company
or that he had
members of both the donor and committed without
his knowledge
includes in section 16 even family the offence was
commission of such
offence.
are involved in any commercial dealing. to prevent the
exercised all due diligence
recipient to be guilty if they such provision will delay
in prosecution and
the
is imprisonment for a term not less than five years It is submitted that and the
The punishment The greedy
his time in the matter.
fine which may extend to one crore rupees will buy own
extending to ten years and guilty party
should not be allowed to hide their

Unfortunately, section 19 does not take care of subsequent continuing body snatcher corporate
is of life and death of person.
a

offence for which an additional penalty

is necessary. However, the accountability when the question Comparative
above
countries discussed in the
fact remains that the high pitch of penalties have not controlled the Moreover, none of the to such guilty
treatment to be given
trade in human organ, and secondly, such penalties Part show such a preferential and its
flourishing offences of a company
The inactive authorities and
6
It is submitted that the
generally remain on the statute books.* persons.
attract absolute criminal liability. Even a voice was

active and greedy private nursing homes and clinics and the personal managers must
in Parliament which remained
raised against such exception
interests of the donor and recipient, have forced the penal provisions the erring government
front? First, the best unheard.7 Unfortunately the Act allows
to lay in hibernation. What is needed at this
Department go scot free. Such a discriminatory approach must be set
medicare should be provided to avoid the needs of transplantation.
rich dividends to the private
Second, more authorised sources of retrieval of human organs have to right. The transplant tourism, giving
low cost in
be opened. Third, people have to be educated at this front. Fourth, the
hospitals, is on increase in India in view of comparatively
control this traffic; whereas
India. The law has yet to effectively
black sheep's have to be blacklisted and be banned to perform any
countries like Mexicos, Colombia have provided separate
medical procedure in future and their names must be published on the It is time that the transplant Rules must make detailed
mass media so that peoples' movement may start against them. And provisions.
and also criminal sanction, wherever required. Separate
provisions
lastly those who perform meaningful duties to provide a new life to
Forms must be prescribed for the foreigners so that the strain of
the recipient, must be protected from the harassment of police action
transplant tourism is reduced on the hospitals infrastructure and
or else not many will come forward to be involved in transplant
manpower in India.
procedures.

The section 21 brings within the criminal liability zone, not only an
artificial person, a company, but also its director, manager, secretary
or any other officers of the company who consent or connive
95
However, a Company, being an artificial person, cannot be subjected to
*
See for
imprisonment A.K. Khosla v. T.S. Venkatesan,
-

1992 Cri.L.J. 448 (Cal.); MCD v.

example, the cases reported in AIR or SCC, the apex court's J.B. Bottling Co.. 1975 Cri.L.J. 1148
regard is almost negligible. However, it is reported that 660 contribu
in this 96
(Del. F.B.)
See, Raj Sabh. Deb, May 5, 1993, Id at 437-Mulchand Meena.
transplant were sold for $37500 where in operating senior doctors were kidneys
9 See, Raj Sab. Deb, May 5, 1993, Id at 437-Mulchand Meena.
guilty and igorous imprison nent of seven years and fine of Rs. 60 lakh on adjuug 98
Mexioco Law, 1983, Sec. 333 read with sec. 21.
imposed. It is further reported that in one case, eacu
being a rare of rarest case death Colombia, 1988, sec. 18.
penalty was imposed. See S. Rajalakshi & D. Maheshwari.
Supra
note 90. 25
24
 did its job, yet the other components
EPILOGUE Parliament
Parliament. Though execute the law and also
executivehas yet to seriously
The study of the changing dimension of the transplant law from he of the State, the this regard;
welfare schemes in
monitor seriously the projects and
international and comparative perspective has many lessons to learm is not given an appropriate
whereas the judiciary, unfortunately, these two
The World Health Organization deserves appreciation for mainly in this field. Unless
opportunity to show
its dynamism
remain more or
focusing attention on commercial, unethical and discriminatory are activised, the legislation
will
activities and most importantly, the eradication of organ transplant organs of the State in action, has
The multi-window management
less a paper work. Central
illiteracy. In the entire journey the positive sign is that the WHO has it is high time that a
hardly dealt with the crisis effectively,
shown the seeds for the evolution of the International Organ and audit their actions and
established to monitor
apex agency must be
Transplantation Law and has also given a clear vision to the national make them accountable.
laws.
directions of the legislation, it has
some
Taking the final stock of the thee
In the comparative law regime, the Asian region initially initiated the which include for example,
bright and appreciative visions the
process followed by developed countries and the under-developed of all the Members in Parliament;
legislation had full support
nations must now join the race. The credit goes to the comparative law generally saved from the organ
minors and mentally challenged are
of consent; the
for certain uniform directions and appreciations for speaking in one transplantation; a flexible approach in the requirement
voice deprecating illegal trafficking and unethical activities and definition of 'near relative' and 'death' has been expanded; a detailed
and
imposed stricter penalty. However, there are areas where the laws took requirement of the infrastructure and manpower is prescribed;
conflicting stands. Further there were subjects which hardly received more importantly, the commercialization and unethical activities in
any detailed treatment, for example, the matters connected with the organ transplantation were not only out rightly deprecated
but also

transplant procedure, like, storage, grafting harvesting; transportation banned and subjected to harder punishments than in other countries.
of organs; organ transplant tourism; priorities in allocation of organs;
compensation to the donor. These conflicts and vacuums need In spite of the above positive sides, there are some misgivings also
solutions to resolve the existing crisis among the nations so that those which include, for example, the harder criminal sanction has yet to hit
waiting in the never ending queue get new life. hard, the NGOs and transplant friendly people and the whistle blowers
are not allocated due role so that the provisions do not remain on the
The Indian law scenario deserves statute book. The company and its managers and the
appreciation as it has government
forward when a large number of countries have remained outside
yet to open u Department,
saddled with absolute criminal
the zone of offence, which must be
account; and secondly, its
provisions have tried to proviae liability and wherever necessary, with
o compensatory input as well. The breeding grounds for unethical
transplant friendly approach. However, the main problem remal
the exorbitant cost a ch activities are flourishing in spite of the
luxury for the rich but a dream for the po0r w legal control which must be
needs to be taken care of the ment. Further, the Central nipped in the bud. The role players and stakeholders involved in
Government muststep in conflict crisis so that implementation
commercialisation continue it is time that they must be
submit at least previous three required to
becomes equitable
and accessible. India needs a balanced deral
years' statement about their income and
approach giving public health of national 1ou to
such information must find a
place in the requisite Forms.
interest exclusiIvely
27
26
 in the legislation;
for example, who dho
There are vacuums
priority in implantation of organs; should conditional nsent be

allowed; some of the activities like, organ storage, grafting,

harvesting, transportation, wastage and export and import are lefit
out
from the legal control. The treatment about the abandoned dead

bodies, an important source for retrieval of organs, has no detailed

treatment. Further in the categories of offences, exploitation, fraud and
coercion have no place; no punishment is preseribed for a guily
Derson if he continues the offence. Furthermore, the legislation has vet
to recognize and encourage modern developments in
organ
transplantation, its procedures and transplant medicines so as to make
it safe with least sufferings. If these
misgivings and vacuum are taken
care of, the Indian law would become
self-sufficient and self
contained and over-reaching the crisis and
stand tall in the comparative law world.
challenges, allowing it to

So what is the end

of the journey? The Legislature has done its dutyto
a
large extent, the executive is
lagging behind and the judiciary has
hardly made any contribution.
has They cannot forget that the transplant
not just a statutory recognition, but it
theconstitutional mandate of the transcends, and reaches
fundamental
direction of the law in action? rights, right i
What should be the to

(Let
everybody be happy and
nobody should have
misesery).

28
 3

JOURNAL OF THE INDIAN LAW INSTITUTE

vOLUME 52 JANUARY-MARCH 2010 NUMBER 1

GERM-LINE ENGINEERING AND FUTURE

GENERATIONS: AN ETHICAL AND
LEGAL OUTLOOK

P.S. Jaswal*
Stellina Joly**

"Life is entering a new phase in its history. We are

seizing
control of our own evolution."- Gregory Stock

I Introduction

ON SEPTEMBER 14, 1990 researchers at the U.S. National Institute of

Health performed the first approved gene therapy procedure on four-year
old Ashanti De Silva. Born with a rare genetic disease called severe
combined immune deficiency (SCID), she lacked a healthy immune system,
and was vulnerable to every passing germ. Children with this illness usually
develop overwhelming infections and rarely survive to adulthood. Ashanti
led a cloistered existence-avoiding contact with people outside her family,
remaining in the sterile environment of her home, and battling frequent
illnesses with massive amount of antibiotics.
In Ashanti's gene therapy procedure, doctors removed white blood
cells from the child's body, let the cells grow in the lab, inserted the
missing gene into the cells, and then infused the genetically modified
blood cells back into the patient's bloodstream. Laboratory tests have
shown that the therapy strengthened Ashanti's immune system; she no
longer has recurrent colds, she has been allowed to attend school.2 This
case of somatic gene therapy elucidated how gene therapy can be
successfully used to cure diseases and give a new life to patients.

Chairman, Department of Laws, Panjab University, Chandigarh.

**
Lecturer, University Institute of Legal Studies. Panjab University, Chandigarh.
Mary Carrington Coutts, "Human Gene Therapy" 4 Kennedy Institute of Ethics
Journal 63-83 (1994).
2 Ibid.
 Indian Law
Institnte Vol. 521 Germ-line Engineering and Future Generations
Journal of
tbe 2010

is the modification of DNA in

breakthrough
in matic gene therapy. Although
som: genetic engineering, germ-line engineering In
claimed as a
have already been taken, arch created from the joining of an egg and sperm.°
zygote, the first cell
resea.
was
This a
somatic gene therapy cells are changed with
in its infancy. The capacity and
the initial steps therapy is
still in germ-line gene therapy, the parent's egg sperm
human germ-line gene cells will symbolize a key progress the goal of passing on the changes to their offspring.
on
alteration to our germinal
human embryo the organism, there is a
genetic tirst cell ot the
Moving from the cellular level to the level of
are
re
create
alteration to the
because to any tissue. At the further division depending on the aim of the intervention. If genetic
in science, and can thus reach
cell of the body then
copied into every engineering is to cure or prevent a medically unacceptable condition,
considerable ethical and
therapy raises
same time
the issue of germ-line it is called therapy, while if the aim is to enhance a function or property
deals with the
issues raised by germ-line engineering.
issues. This paper Thus the categories: somatic
legal of the body then it is labeled as enhancement.
and present status of germ-line engineering and germ-line therapy and somatic and germ-line enhancement.
II Fundamentals
than Germ-line genetic engineering is still in its infancy. However, it has
has been there for much longer most
been instrumental in research involving animals. It has been responsible
Human genetic engineering about genetic
Plato, wrote

people realize. The Greek philosopher, have

for producing different types of specially altered animals. Some examples
He stated that "the best men must

engineering in The Republic. are:10

intercourse with the best w o m e n as frequently

possible, and the opposite
as

form of genetic engineering was Cows with elevated milk production.

is true of the very inferior" This early
traditions and this argument was supported by many Sheep which synthesize a valuable hormone or enzyme in the
part of long-standing Still
elaborate eugenic programme. udder and secrete it into the milk. This is an especially convenient
including Hider who started of an
these attempts were controversial. source for purifying large scale amounts of medical products.

the technique
The addition to the pool of genetic engineering is
new Germ-line engineering embodies the most profound possibilities and
of gene therapy. Gene therapy is the introduction of genetic material into challenges because it promises (some would say threatens) eventually to
The
human patients in order to alter the expression of particular genes. the very being as
a disease or
transform ever more significant genetic changes are
introduced into their genomes." This technology will force human beings
goal of these alterations is to treat, cure, or ultimately prevent
disability" There are two main strategies in gene therapy to re-examine even the very notion of what it means to be human, for as

1. Gene addition, one become subject to the same process of conscious

design that has so
dramatically altered the world around them. Until
recentdy, germ-line
2 Kemoval of a harmful gene by antisense nucleotide or ribozymes. engineering in humans had not been discussed much because it seemed

Itis generally accepted that, whatever may be the strategy followea distant, something theoretical and concerned with our children or
genetic interventions, these genetic interventions are distinguished baseu
upon the type of cells that are targeted. Genetic interventions therapy c " 6 Francis
De Targeted to somatic (body) or germ (egg and sperm) cells. Somane
Fukuyama, Our Post-buman Future: Consequences of the Biotecbnology Revolution
136 (2002).
engincering, involves introducing new genes into an already grown pei rson.
7 Rashmi Sharma and Ruchi Khajuria, "Gene
the Science 62 (2004).
Therapy : Current Concepts" 6 JK
Somanic gene engineering the recipient's genome is changed, Du
of B. Hoose, "Gene
Change 15 not
passed along the The secona Therapy: Where to Draw the Line" 1 Human Gene Tberapy 299-
to next generation. y 306 (1990).
9 L. Walter "Ethical Issues in Human Gene
267-274 (1991).
Therapy" 2 Jounal of Cinical Etbics
Randy Moore, Evolution 144 10 Germ-line Gene Therapy available at http://www.ess.ucla.cedu/huge/genetic.html
(2006).
nthony J. Zuccarelli, "Changing our Genes: Medical Promiscs (visited February 12, 2009).
on
Threats" inda Univeriity Center For Christian Bioethics (September 20 00). 11 Gregory Stock, Engineering The Human Germline (2000).
e g a n R, "The Basic Science
of Gene Therapy" 260 Science 920-3 \
 Institute Vol. 52: 1 Germ-line Engineering and Future Generations
Indian Law 2010
Journal of the
6

has progressed so rapidly the therapy experiments would involve too much scientific
But molecular biology
not us.
germ-line gene
grandchildren but in humans is already nearly uncertainty and clinical risks, and the long term effects of such therapy
manipulation
that rudimentary germ-line o n e demands for are unknown; such gene therapy would open the door to attempts at
the safety and reliability
if not yet with
possible, even
human traits not associated with disease, which could exacerbate
altering
human medical interventions.2
problems of social discrimination; as a sociery, we are already in struggle

engineering:
Promises and pitfalls with class discrepancies."
Germ-line
As germ-line gene therapy involves research on early embryos and
in support of germ-line gene
Perhaps the most engaging argument usefulness." It could in principle
affects their offspring, such research essentially creates generations of
and
therapy is its therapeutic efficacy effectual than unconsenting research subjects. The doctrine of informed consent is central
diseases eternally. It is clearly to medical ethics. It is now a widely accepted legal and moral principle
treat and eradicate genetic
effects not limited to the actual persons
somatic cell therapy because its
are
that competent adults are not to be subjected to medical treatment without
from the genetic condition
treated. All of their offspring will be freed their consent. In addition, genuine consent requires knowledge of relevant
to this, there might be
a
treated with germ line therapy. In addition facts. Some have thought that this poses a problem for germ-line genetic
cell gene therapy is
number of diseases for which no effective somatic engineering because future generations will not have consented to being
sufficient, leaving germ-line gene therapy as the only probableway to cure genetically engineered.20 Gene therapy is very expensive, and will never be
the
and eliminate them. Proponents of germ-line therapy argues that in
latter case, medicine has a moral commitment to provide the best existing
cost
effective enough to merit high social priority; germ-line gene therapy
would violate the rights of subsequent generations to inherit a genetic
treatment" endowment that has not been intentionally modified.21
Secondly, there is a theoretical consideration in favour of germ-line Besides this there are arguments concerning effects on the gene
pool.
therapy namely, scientific freedom which allows scientists to
choose Experts point out that the gene pool is a joint possession of all members
whatever they want as a subject of their research. Zimmerman argues of human society, and should not be subjected to
tna any intentional,
artificial,
the prevailing ethic of science and medicine is that knowledge has
intrinsie perhaps arbitrary manipulation by a few individuals. The right to be born
value, and that its pursuit should not be impeded except unaer with one's genome, or
genetic patrimony, in fact has been a
strongly
extraordinary circumstances."15 motivating factor in European discussions on germ-line interventions and
has been incorporated into a
Arguments against germ-line gene interventions are numerous. n report of the Parliamentary Assembly of the
Council of Europe.22
Intervention at the germ-cell level could eliminate a
most common fear is that since the effects of these manipulations may be gene thought to be harmful today, which might be
proven to be useful in
nhented by an unlimited number of generations, the possible outcomes the future. A present
might well be considered as irreversible."16 Another inst day example of this potential is the case with the
genetac
argument that
engineering is that of the genetic divide. Further it is argueu
17 S. K. Pandya, "Ethical Aspects of Clinical Trials in Gene Therapy" Indian Journa
of Medical Etbies 34 (2000).
18 Faden and Beauchamp, A
12 Ibid.
19 ld. at 248.
Histoy and Tbeory of Informed Comsent 241 (1986).
14 ehe Ethics of Human Gene Therapy" 320 Nature 225-227 (960
Fletcher and
20 J.C. Fletcher, "Moral Problems and Ethical Issues in
Prospective Human Gene
Health Care Lav,
W. F. Anderson "Germ-line Therapy: A New Sag Therapy" 69 Virginia Law Review 515-546 (1983).
Medicine 26-39 (1992). 21 Eric T Juengsth, "Human Germ-Line
B.K.
Zimmerman, "Human Germ-Line opment Pbilosopby 587-694 (1991).
Enginecring" 16 Journal of Medicine and
and Use", 16 The Therapy: The Case for 1ts e
Journal
T. Tannsjo, "Should weof Medicine and Philosopby 593-612(1991)
22
16 Parliamentary Assembly, Council of Europe, Recommendation on Genetis
Change the Human Genome"? 14 Theoretical Med 934 (1982). Engineerning
231-247 (1993).
 Journal of the
Indian Law
Institute Vol. 52:1 2010 Germ-line Engineering and Future Generations 9

with sickle-cell anemia,

which is also protective against against germ-line engineering should bear in mind that the benefits of
associated
gene germ-line engineering outweigh the consequences. Germ-line engineering
malaria 23
has potential to get rid of hereditary diseases if perfected, not only in the
mention the classical slippery slope
argument against
Almost all authors foetus itself, but the cure will be passed down to future generations of the
to this argument,
once a course action of
germ-line therapies. According limit its consequences, e v e n undesirable individual's offspring. It was also questioned whether ethically acceptable
to
is followed, it will be impossible clinical research can ever be begun. Further, most of the concerns discussed
gene therapy
even
a slippery slope to begin germ-line
ones. It would be above are not solely relating to germ-line engineering. Any introduction
because no one could
curative intention, of medical and scientific technology is associated with certain risks and
with the most problem-free
of knowledge learned
inhibit the use for enhancement or eugenic purposes uncertainities. For instance, Stephen P. Marks notes, when the techniques
would profit from the germ-
during this research. Only richer population of in vitro fertilization (aV) were first developed many felt revulsion and
line therapy, because it would be very expensive. spoke against "test rube babies"," At the present time, IVF is widely
the
In the of germ-line interventions for enhancement purposes,
case
accepted both emotionally and morally.
we do
objections fundamental and are based o n the idea that
are more
III Germ-line engineering : Legislative
not have the right to predetermine the characteristics
of future generations. response
raises various
The impact of germ-ine engineering on future generations "The struggle for human rights is like an
concerns regarding the realisation of human rights and the concept
or
overflowing river that floods
bear in
down across the valley making the fields ever more fertile". The above
human. At the same time, any discourse on human right should
comment aptly illustrates the
mind that if there is a human right not to be genetically enhanced, then expanding force of the human rights
movement, which tends to cover all new areas, which are in need of
the right must apply to humans generally. It must apply in the present and
to tne protection. Probably the most recent field that needs to be "fertilized" by
ne future as well as rights treaties subject
in all cultures.26 Human the principles of human
rights is medicine, especially genetics.
vicissitudes advancing science and changing cultural
of norms
caniinot The concept of human dignity underlies the concern of human
ctfectively apply human rights to future generations. That means t rights.
Earlier human rights doctrines in
pcople should be free to develop their potentialities without be general terms tried to protect and regulate
activities having an impact on human
biologically conditioned by the particular conceptions of "good" and Dd dignity. Later, the scope of human
buman traits that were dominant at the time of those who preceded the rights got expanded to include specific human rights such as right to
ln other
words, genetics should become the instrument for a privacy, right against discrimination, right to development etc. At the
not k international level U.N, the primary
intergenerational tyranny. agency, to protect, promore and
preserve the human rights, first paid its attenion to the close
At the same time, one should bear in mind that any discussion o
and impact of science and relationship
Ene
engneering should be seen in an objective manner. Any objecto technology on human rights in the 1968 Tehran
Declaration on Human Rights.0 The
principle of the declaration observed
25
"w]hile recent scientific discoveries and technological advances have
Imte Szebik, "Ethical Issues of Human Germ-cell or
Therapy: A opened vast
prospects tor economic, social and cultural
Public Discussion"
76Academic Medicine 32-38 (2001). IICa progress, such
24 D.Resnik, "Debunking the Slippery
Slope Argument Against I1unma
Gene Therapy" 19 Journal of Medicine and Philosoply 23-40 (1994).
E E.M. Berger, G. F. Cahill Jr. el.al., Morality and the New Genetics: 1 or 28 S. P. Marks, "T'ying Prometheus Down: The International
Students and Health Care Law ot Human Genetic
Z6 Marun
Provider 32 (1994). Manipulation" 3 Cbicago Journal of International Lau 115-136 (2002).
Gunderson, "Enhancing Human Weakens the Usc of Huma
Rights 29 Roberto Andorno, "Biomedicine and International Human
TCatucs to Prohibit Genetic EnginceringRights: How
Human Rights'" 18 Journul of a Cilobal Consensus" Rights Law: In Search
in Buletin of
Evolutio and
Technology
27-34 50 F'inal Act of the lnternational the World Heaitb Organization 959-963 (2002).
(2008). Conterence on Human Rights, Teheran,
NEnzong, "Germ-1ine lEnginecring the
Hugenics of the
as
o
May 13, 1968, U.N. Doc. A/CONF.32/41. April 22
Kesponsibilities to l'uture Generations 105-10 Future
nienenlion and Our
1998). t
 Vol. 52: 1 Germ-ine Engineering and Future Generations 11
Institute 2010
the Indian Lav
Journal of
10

and freedoms of reiterates this stand.38 Following this the European Parliament adopted a
nevertheless endanger
the rights resolution providing that people have a human right to their own genetic
developments may attention."3
i n d i v i d u a l s and
will require continuing found its place in the identity.39
engineering
response
to germ-line
Human Rights.32 There At the national level, some legal provisions and guidelines that ban
The specific Genome and
Declaration of Human For germ-line interventions have already been adopted by some countries.
1997 Univcrsal germ-line response.
related to
which c a n be has In United Kingdom the Clothier Committee, established to look into the
are various sections in part that "everyone
states
Declaration, ethics of gene therapy reported that, "[wje share the view of others that
instance, article 2(A) of the Article 12(b) implicitly rules out
for their dignity..". there is at present insufficient knowledge to evaluate risks to future
a right to respect e n h a n c e m e n t . The
article s t a t e s that
for purposes of generations". They recommended that germ-line therapy "should not yet
genetic engineering in biology, genetics
including applications be
attempred" and this has now become a law in Britain. This is a safe,
the applications of research, shall seek to offer
relief

and medicine, concerning

the human genome,
humankind as a pragmatic response, but it falls short of a proper ethical evaluation of the
individuals and since it focusses on the presently insufficient means to evaluate risk
the health of
from suffeing and improve that germ-line issue,
the declaration provides to future
generations, and does not address the underlying issue of whether
whole." In specific terms,
This approach 15
to human dignity"33 or not we have any right to decide for them.42
interventions "could be contrary
human rights. Violations of tne
also closely tied to previously accepted hence ot the
Besides there are various experts who support a blanket
prohibition
be violations of dignity and
prohibitions can be said to to
germ-line engineering. According to George Annas and Lori Andrews
human right to respect for dignity. "cloning and inheritable genetic alterations can be seen as crimes against
prohibitions of germ-line and non-therapeutic
The clearest
genetic humanity",43 Annas proposed an international "Convention on the
Convention to Preservation of the Human
found in the Council of Europe's Species" that would outlaw germ-line genetic
engineering are to be
Human Being wi engineering and cloning.*
the Protection of Human Rights and Dignity of the She argues that
germ-line engineering may one
of and Medicine.36 Article 13 or n
regard to the Application Biology
convention states that "[a]n intervention seeking to modify the huna"
38 Council of Europe. 1998. Additional
genome may only be undertaken for preventive, diagnostic or therap
of human rights and
protocol to the convention for the
protection
"
the dignity of the human being with regard to the application of
purposes andonly if its aim is not to introduce any modification ion biology and medicine, on the
prohibition of cloning human beings. Available as
genome of any descendants"37 Additional protocol to the conve
http://conventions.coe.int/treaty/en/treaties/html/168.htm.(visited
10, 2009)
on February
39
European Parliament, Resolution on the Ethical and
Engineering, Doc. A2-327/88 Called for an absoluteLegal Aspects of Genetic
ban on all
31 Ibid. designed reorganize
to on
an
experiments
arbitrary basis the genetic make-up of humans.
(1998) 40 Global Lawyers and
S2
A. Res. 152, U.N.
U.N, GAOR, 53d A/53/625/
Sess., U.N. Doc. and germ-line
Physicians. Database of global
policies on human cloning
(hereinafter General Assembly Resolution
on
engineering legislation on cloning and germ-line interventions.
thc and Human Available at
Decaration)adopting Universal Declaration on the Human Genomecan tm 2008). http://www.glphr.org/genetic/genetic.htm (visited on December 1 1,
Kaghts available at
<http:!/ www.unesco.org/ibc/uk/genome/projet/ " htm 41
Department of Health. Report of tbe Committee
(visited on April 20, 2008). HMSO 1788 (1992).
on tbe Etbics
of Gene Therapy, London
33 ld, Art. 2(4).
42 Donald M.Bruce, "Moral and
34 ld., Art. 12(b). Ethical lssues in Gene
35 ld., Art. 24. and Technology
Project lvailable at Therapy" in Society Religion
36 Council of Europe 1997, Convention for the protecuon. human righis and
43
on
February 12, 2009). http://www.srtp.org.uk/genthpyl.htm (visited
G.J. Annas, L.. B. Andrews and R. M.
dugnity of the
human being with
regard to the application of Toward an International Isasi, "Protecting the Endangered Human:
onvention on human bioloE http:// Treaty Prohibiting Cloning and lnheritable
rights and biomedicine. 28 American Alterations"
(visitedAvalla Journal of Law and Medicine
1ary 12, 20109).
37 onvenuons.coc.int/treaty/en/reaties/html/164.hum
1d., Art 13. on Jaa* 44 1d. at 162. 151-178 (2002).
 Vol. 52: 1
Indian Law Institute 2010 Germ-line Enginering and Future Generations 13
Journal of tbe
12

the common human 20004 and the Good Clinical Practices (GCP) 2001 Guidelines.50
undermine
and
human n a t u r e of
to alter Correction a
day be able of human rights depends." The most comprehensive guidelines on biomedical research on human
which the system embryos (germ-
cells or early stage
nature o n

specific genetic
abnormality in germ
out in medical practices.
Because patients are
published by ICMR and the guidelines state that, as a
genetic research practice, gene therapy would help to alleviate human
human
carried
intervention) has not yet been possible harmful
line
problems and
aboutuncertainties suffering. According to the council, somatic cell gene therapy is "the only
of the many
technical
intervention has been strongly method that may be permissible for the
future generations, germ-line
purpose of preventing or treating
effects on a serious disease when it is the
only therapeutic option.
discouraged or legally banned.46
on bioethics and germ-line engineering The council adds that
gene therapy trial consists of two parts. The
The emerging global
consensus
international first part is the
When addressing these
sensitive issues, preparation of the 'gene construct' to be administered,
is clearly minimalist. and definitive
answer to and the second part is evaluation of the
do not pretend to provide precise
a
the
efficacy and safety of the
instruments
engineering.
On administered 'gene (construct)'. As far as the first
intricate questions posed by germ-line like
part is concerned, the
the most

international bodiestend to down very general principles

lay
guidelines and clearance for it is to be regulated by the National Bioethics
contrary,
confidentiality of
health Committee under Department of
the requirement of informed consent,
the Biotechnology
(DBT) and for the second
for genetic reasons ana part clearance from the local IEC and Central Ethical Committee
information, the principle of non-discrimination
of the ICMR shall be obtained. (CEC)
the promotion.
Safety should be ensured especially because
of the possibility of
unpredicted consequences of gene insertion.32
IV Germ line engineering: Indian Regarding germ-line therapy the guidelines does not put a blanket
legal framework prohibition. But, it prohibits germ line
therapy in two categories gene
therapy for enhancement and eugenic genetic
India has achieved spectacular progress in science
and techno108 the ICMR states that there is engineering. In particular,
e of insufficient knowledge at the time
including in
research genetics. It claims to be having a
from directly huge concerning the effects of the attempts to "alter/enhance present the genetic
scientific and human resources. But it has till now shied vay
iearch
legislating on the various ethical and legal issues arising out of tne ieo
machinery of humans," and that, "the influence of environmental
interaction on the
expression of genetic characters is poorly understood."
in genetics. The guidelines
The
come
heavily against selection personality, character,
formation of body organs, fertility, intelligence and
There is no
specific legislation in India governing gene tnet agenc ncies
emotional characteristics which is physical, mental and
only regulations are in the form of certain guidelin issued by ICMR) Policies on the Human
prohibited. Further under the Ethical
egulatng human research. Indian Council of Medical Research Genome, Genetic Research and Services
states that gene therapy should be subject to ethical codes that app.
to
2001,3
of gene
research involving human the gulation
patients. Therefore, trials 49 Indian Council of Medical
therapy can be covered by the same regulations that controi Research., "Ethical Guidelines for Biomedical
on Human Subjects Guidelines Research
2000" available at
or
human experimentation. Clinical trials in India are m comply ethical.pdf (visitedon October
11, 2008). http://www.icmr.nic.in/
regulated by the Drugs and Cosmetics Act, 1940.48 This must also 50 Indian Good Clinical
Practices, 2001, Good Clinical Practice
Subjects is
wIth the Ethical for biomedical studies a set of guidelines
Guidelines for Biomedical Research Human
on which encompasses the design, conduct, termination, audit,
analysis, reporting anddocumentation of the studies
(aclopted by the Ministry of Health). involving human subjects.
45 Id. at 153. 51
Supra note 49, Statement
40 lantation
52 Dinesh Specific Principles
on
on Human Genetie Researb 2000.
Keport of the International Bio -Ethics Committec, IBC on
C
Sharma, "lndia Publishes
Genetic Diagnosis and Germ-line Inervention (2005). Biomedical Research" 356 The Lancet
Comprehensive
1528
Ethical Guidelines tor
47 Supra note 29. 5.3 ithical Policies on the Hluman
(2000).
46
Drugs and
manufacture,

of Bio Genome, Genetic Research & Services,

Cosmcucs Act, 1940. This Technulogy (2001). Department
distribuuon and sale of
is an Act o regulate the
mp""
drugs and cosmetics.
 Institute Vol. 52:1
Journal of the
Indian Law 2010] Germ-ine Engineering and Future Generation 15
14

Science and Technology serious problems regarding their

the Ministry of appropriateness will arise.30 It iss a
Department of Biotechnology, cell gene therapy be beginning of the science of genetic engineering. It is not clear what
the all agree that
somatic
Government of India,
and the and "when it is the only advances will be made in the science, and it is not clear how the culture
allowed "with appropriate
safety measures
considered superior to other will change in light of those advances. The
or "it is indisputably potential for benefit as well as
therapeutic option" in humans." harm, along with our current profound ignorance, counsels in favour of
ban germ-line therapy
These policies also taking small regulatory steps rather than sweeping prohibitions based on
existing options."
human rights.57
v Conclusion
either positive
for germ-line engineering,
As of now, the technology has always shown
of the future. But history
or negative, is still a prospect a
is realized later. This prospect is
that whatever is today's imaginaion well
linked disorders as
welcome aspect for those living with genetically new
as for their possible offspring
and for future generations. This
that comes
and with
technology, however, brings with it awesome power, this
the knowledge wisely and
handling
the great responsibility of using ethical,
countless moral,
information seriously and cautiously. There are
medical 15sues
and
relagious, philosophical, psychological, societal, scientific this
regarding gene therapy, and specifically germ-line engineering.
In pape
ine
authors have examined some of the arguments for and against get
evaluatcu
the
gene therapy as found in the mainstream literature and
argument to determine if they apply exclusively to germ-line gene
therapy
to
It can be said that most of the arguments cannot be applied uniquely
OcCur

this intervenuon. Many

of the of germ-line gene therapy
properties to eplace
either in odher medical interventions or ewhere. Yet the ability ound
or alter individual
genes within the DNA has perhaps a more pro
's view of
potental when compared to stem cells and cloning to alter one cut

human life. In this

backgroundit is difficult to
provide sent

answer regarding the ethical aspect of germ-line gineering. The pre

to answer this
sCientific and moral
knowledge is clearly insufficient to
*"
quesüon.
of
It is
certainly true that for pus
enhancement pose dangers germ-line genetic engineering,
that make them unjustified at the pres
e n t time.

Can

On the
other hand, the time may engineering

come when genetic c

Sately be used to
prevent diseases such Tay Sachs
ton's

human rights are used to

as
Hun or
such
cases,

prohibit germ-line engineering ""

56 Martin Gunderson,
Treaties to Prohibit "Enhancing Human Rights: How the Use of
Human
Evolwtion and
Genetic
Engineering Weakens Human Rights" 18 Rights
54
Supra note 52 57 J. W. Tecbnology 27-34 (2008). Journal of
55
at 1502. Nickel, Making Sense of Human
David A. Rigbss: Pbilosopbical Reflections on tbe Universal
Prentice,
g" The National

"Brave New World of Declaration of Haman

Catholic Bioethics Genelic Engineenb Rigbts 257 (1987).
Quarterly 529-539 (2001).