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Ethics in the time of Covid-19 pandemic

The decision to attend coronavirus patients worthy of intensive care first can be practically viable to save more lives, but whether it was morally right or not is a matter of discussion.

Anurag Mishra and Sahiti Kachroo

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There are days for which the wise plan for and then, there are days nobody plans for. The days of the pandemic fit the description of the latter kind. The plethora of problems that the pandemic has made us come tête-à-tête with cuts across domains and goes from financial to environmental, political to social. It is common knowledge that a lot of countries, especially the developing ones, do not do great in terms of health infrastructure and times like these when the number of infected persons swell by thousands every day. The shortages and lacunae of the system stare at us with their mouths wide open. Surprisingly, the coronavirus pandemic gave even the most developed of countries a reality check vis-à-vis medical infrastructure and preparedness. The suddenness and the ensuing congestion were such that the Italians had to wait a full hour on the phone to get to ‘Emergency Services’. China created makeshift hospitals and India had to massively up its PPE production among other things. But among all of it, a rather peculiar problem appeared on the nontangible front.

When the numbers suddenly spiked in Lombardy, Italy, it was reported that some hospitals flatly denied admission to the elderly citing shortage of intensive care facilities. Similar situations appeared in Brussels, Belgium, where a number of elderly people succumbed to the virus in want of medical care. One of the reasons for the denial was that the survivability of the decrepit elderly people was less than that of young people mostly without comorbidities. Official guidance to doctors in Italy, as reported by The Independent, said that only patients “deemed worthy of intensive care” should get it (intensive care) and decisions based on a “distributive justice” approach balancing the demand for care versus available resources. This approach might have been practically viable and had saved more lives than lost but whether it was morally right or not, is a matter of discussion.

 In this article, we attempt to delve into the dominant ethical principles of moral philosophy which shaped our thoughts and actions in the pre-corona world and how the same ethical principles play out in the peculiar situations which we find ourselves in, in the time of pandemic that is. The article however does not concern itself with medical ethics per se and only happens to incidentally use the case of hospital as the moral universe for showcasing the interplay of the ethical principles at work.

Moral righteousness of an act can be determined through normative ethical principles wherein either the actor is guided or assessed through the choices that he or she makes; or through the consequences of actions. Both these approaches have differing notions of underlying rationality that emphasise on parallel systems of moral justifications of any act or decision and are best understood in contrast to one another. These two prominent strands of approaches in ethical decision-making are deontology and utilitarianism.

In a world before pandemic, ethical decision making happened routinely with wonted moral implications wherein chronological advent of a patient prioritised the treatment to be received by them. For instance, a choice between an elderly and an adolescent (without comorbidity) is easier deontologically, where the first who came is prioritised, or preference of care is granted to the elderly/more needy. However, these priorities rapidly change in the pandemic-hit world, largely because of the magnitude of a multi-dimensional effect of decision making, and  where the chronological age ceases to be a moral impediment and those most likely to survive are prioritised over those with remote chances of survival, making it a utilitarian approach. To put it simply, if an institution, under circumstances of making a choice employs a set of rules, like prioritising on the ground of age seniority, or chronology of arrival; without consideration of the consequence like chances of survival or immediate need of either party, it will be understood best in the light of a deontological approach. Whereas, if the same institution while making a choice treads the Utilitarian pathway and prioritises the consequences over means, it will in all likelihood treat the adolescent and not the elderly, since the former’s survival is more plausible than the latter.

With a two-dimensional understanding of whether means justify its end or its converse, it is easy to comprehend the ethical support of a philosophical approach guiding decision making. However, in complex circumstances it becomes difficult to identify the ethical righteousness of a decision through the classical approaches. It was perhaps easier to determine the course of action a medical institution would (should) take, if it faced a situation like the one discussed above, that is of a choice between an enfeebled elderly and an otherwise healthy adolescent, both infected with the coronavirus and requiring intensive care. However, the real world doesn’t present itself in white and black. Imagine with the other two candidates, there comes also a doctor who specializes in respiratory illnesses and works at the same facility which is faced with the current moral dilemma. Now in such a scenario, a third school of thought would seem to take the centre stage.

Contractarianism holds that actors are primarily self-interested, and that a rational assessment of the best strategy for attaining the maximisation of their self-interest will lead them to act morally (where the moral norms are determined by the maximisation of joint interest). If the medical facility takes the contractarian route, it would perhaps prioritise the doctor over the other two candidates, irrespective of doctor’s age, morbidities if any, or survivability. A plausible justification for it could be the first duty that the hospital owes to the doctor, who is an employee and also the general utility wherein the doctor if recovered can save more lives. With the three perspectives in the same line of sight, the contractarian approach seems to be reconciling with the utilitarian approach, given that the doctor has a utility not only for the medical facility where he works but also the society at large. Ironically, the deontological approach which enjoys the moral high ground otherwise comes a distant third in the race among the reconciling-conflicting philosophical pathways.

In the helter-skelter of the pandemic, the chaos has not remained just outside of us but has also shaped our conscience and actions. Our actions and their underlying moralities are undergoing change and all we can do is watch us becoming persons we probably never intended to become. For the conscientious beings it is difficult to stop at a traffic signal and shoo away the urchin who cleans their car’s windscreen in the hope of eliciting a penny or two. Of course, this is just one example but the divide is widening with each day passing. A crisis is an apt event to test the failings of popular norms and ideas. A crisis is also an apt event to find new ways of making the world a better place, proverbially.

Anurag Mishra is an independent researcher and an LLM from Tata Institute of Social Sciences. Sahiti Kachroo is a criminologist from Tata Institute of Social Sciences and practices law at the Supreme Court.

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Opinion

FARMERS’ ISSUES SHOULD BE ADDRESSED BEFORE IT IS TOO LATE

Pankaj Vohra

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farmer-protests-in-India

Describing Home Minister Amit Shah’s offer of talks as conditional, the agitating farmers who have blocked all entry and exit points on the Delhi-Haryana border, seem to be preparing for a prolonged protest. They declined to go to the Burari grounds that had been designated by the Delhi police for them, stating that the place was like an open jail, from where no one would care to listen to their grievances. The farmers have already announced that no leader belonging to any political party would be allowed to share the dais with them, thereby putting to rest the rumour, sought to be started by some BJP leaders, that the Congress was fuelling the agitation. In fact, the signals emanating from the farmers’ leaders suggest that they would not buckle under any pressure from any quarter and allow themselves to be used as pawns by politicians. This is the sole reason why political leaders have kept themselves away while identifying themselves with the issues, since they have no other option.

The situation, in a way, is also similar to what had happened during the UPA regime when the India Against Corruption Movement gained momentum with Anna Hazare as its spearhead with multiple Ramon Magsaysay award winners lending their weight to it. It is not a mere coincidence that many activists associated with the IAC are once again active and are openly supporting the farmers. These include Medha Patkar and Yogendra Yadav and even Delhi Chief Minister Arvind Kejriwal, who reaped the maximum dividends from the earlier movement. The RSS had worked behind the scenes during the IAC agitation and so far, there is no indication what its views are regarding the grievances of the farming community.

However, what needs to be understood in crystal clear terms by those in authority, whether at the Centre or in the states, is that the matter should not be allowed to get prolonged. This would be in the interest of no one. While Punjab and Haryana farmers have descended on Delhi, those from western Uttar Pradesh and some other places would shortly be joining them in the capital. The dilemma before the security forces that have been deployed to stop their march forward is that the majority of our jawans also hail from rural areas and can thus easily empathise with the agitating farmers. Undoubtedly, no administration in the country can term the agitators as “anti-national” since they not only provide food-security to the citizens but also contribute immensely to our overall income. Over a dozen leaders of Indian origin, now members of Parliament in Canada and the UK, have condemned the use of force on the farmers by the Haryana police. Therefore, there is every possibility that this could acquire an international dimension as well, and thereby needs prompt resolution.

The Central government must go in for an out-of-box solution ensuring that communication channels are kept open. The farmers have protested in Delhi on earlier occasions too returning peacefully to their native villages after presenting their case. Nearly three decades ago, Mahinder Singh Tikait, the farmer leader from western UP, along with thousands of his followers, had camped at the Boat Club lawns. The Delhi police which was at its wits end, used a novel method to force them to vacate the place by turning on water faucets in the lawns. In the current instance, the agitation has been triggered because the Centre introduced farm laws without taking into consideration the views of those who were going to be impacted. The Centre must not stand on prestige and listen to the grievances with an open mind. If in the eventuality, some steps have to be retracted, it should not matter, as long as there is a forward movement in settling the dispute. Noted Urdu poet and political philosopher Mohammad Iqbal had during the height of the freedom struggle stated, “Jis Khet Se Dahkaan ko Myassar Na Ho Rozi, Us Khet ke Har Khoshaye Gandum Ko Jalda Do, Utho Meri Duniya Ke Gareebon Ko Jaga Do.” Such a situation should not be allowed to evolve in a free and democratic India.

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Opinion

Why our schools need a total revamp in science education

Teaching of science requires an overhaul as it was done in the United States and Britain in the mid-fifties and early sixties by developing enquiry-based curricula and modernise teaching of science. These initiatives infused new life in teaching of science by shifting emphasis from teaching theory to making it more interesting and relevant to the learners.

Ved Prakash

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Why our schools need a total revamp in science education

The Bengal Renaissance is as much known for its monumental contribution in exact sciences as in literature, arts and social reforms. During the period, a number of leading Indian scientists like Satyendra Nath Bose, Meghnad Saha, Jagadish Chandra Bose, Prasanta Chandra Mahalanobis, Jnan Chandra Ghosh, etc, came from Bengal. These scientists are specifically known for their groundbreaking discoveries and innovations, besides laying down the foundation of experimental science. It was during this period when the city of Calcutta bagged the second Nobel Prize, in Physics. The city now takes the crown to have produced five Nobel laureates within a span of nine decades. The beginning was made by Rabindranath Tagore in 1913 followed by Chandrasekhara Venkata Raman in 1930, Mother Teresa in 1979, Amartya Sen in 1998 and Abhijit Banerjee in 2019.

The influence of the Bengal renaissance, which continued for a long time, was such that it transformed Mahendralal Sircar into a crusader of science. He was a multifaceted personality, a medical doctor by training, a leading Homeopath by practice and an obsessive science lover. He was a great visionary. His vision was to humanise science for national reconstruction. While on the one hand he wanted to create a pool of scientists, on the other he wanted to bring knowledge of science to the doorstep of every child with a view to inculcating amongst them both the ‘scientific temper’ and the ‘universal values’. Initially, he made a modest beginning to inculcate scientific temper amongst school-going children through some simple scientific toys and equipment. But as his idea caught the public imagination, he laid the foundation of the Indian Association for the Cultivation of Science (IASC) at Calcutta on 29 July 1876 with luminaries like Pandit Ishwar Chandra Vidyasagar and Keshab Chandra Sen as the Trustees of the Board.

It is heartening to note that IACS, which is the oldest scientific institution in Asia, has successfully kept its tradition of maintaining excellence in all aspects of teaching and research. It is the birth place of C.V. Raman’s contribution to science in the discovery of the “Raman Effect”, which won him the Nobel Prize in Physics in 1930. IACS is the only research institution in India that brought a Nobel Prize in Science from the work done in India. Luminaries like S.N. Bose, known for his pioneering work on Bose-Einstein condensate, served as the National Professor in Physics at IASC. Meghnad Saha, the author of the celebrated Saha ionisation theory in stars served as its first director.

It is a matter of pride that IASC is now amongst the major research centres of India working in several frontier areas of physics, chemistry and biology with an interdisciplinary perspective. IACS has to its credit the highest number of Bhatnagar awardees, JC Bose National Fellows, elected Fellows of the Indian Academy of Sciences, National Science Academy and other international Academies, including the world Academy of Sciences. Today, 140 years after its inception, it is gratifying to know that IASC, which continues to adore the mantle of academic and intellectual excellence both in India and abroad, has partly realised the vision of Mahendralal Sircar by way of creating a pool of outstanding scientists.

Somehow the second part of the vision of Mahendralal Sircar to inculcate “scientific temper” and “universal values” amongst school children remains unfulfilled. It is sad that teaching of science at school level leaves a great deal to be desired. Most of the school graduates are found lacking in abilities like critical thinking, problem solving, creativity, decision making, courage to question, humility, honesty, quest for truth, empathy, etc, which are critical life skills one can learn experiencing science.

There may be multiple reasons for the failure of development of these essential life skills. It can safely be ascribed to substandard quality of curriculum, instructional materials, pedagogical processes, assessment procedures, and teacher preparation. These skills can be developed only when children have access to first-rate curriculum and improved classroom processes which are ensured by teachers who understand the philosophy of the subject and have the professional competence to design tools for the assessment of individuals’ potential. Regrettably, that is hugely missing and which is why we have not been able to develop the right kind of culture to teach science and learn science. It is primarily because of these inadequacies that teaching of science has remained under severe criticism.

Teaching of science essentially requires a complete overhaul as it was done in America and England in the mid-fifties and early sixties. The successful launch of the ‘Sputnik’ by the Soviet Russia on 4 October 1957 made the Western world realise that something was seriously wrong with their science education. Consequently, a number of science development projects were launched in America and England targeting different stages of school education. Prominent amongst them were the Physical Science Study Committee (PSSC) Project, Biological Science Curriculum Study (BSCS) Project, Chemical Education Material Study (CHEM) Project, Science Curriculum Improvement Study (SCIS) Project, Nuffield Science Teaching Project. These projects were undertaken to develop enquiry-based curricula and modernise teaching of science. These initiatives infused new life in teaching of science by shifting emphasis from teaching theory to making it more interesting and relevant to the learners.

The National Council of Educational Research & Training (NCERT) took a leaf out of the US and UK experiments and set up six Study Groups in 1964 to revamp science curricula by drawing experts from different Indian universities as also from USSR and UK. The project was based on the premise of learning from experiments to theory. It took a great deal of work to develop curricular materials in the form of instructional material, laboratory manual, teachers’ handbooks and science kits. But somehow the outcome of these efforts remained unutilised and the system maintained business as usual.

It is often observed that science is taught in the form of isolated facts; neither as principles of enquiry common to science, nor teaching of science is used to promote universal values. Somehow most consider that values can be integrated only in subjects like languages, humanities and social sciences and not in exact sciences which is wholly incorrect. Both are achievable propositions provided vital changes are made in curriculum development, approach to developing textbooks and teaching of science.

Firstly, a database needs to be created around every single concept right from simple to complex, like from the concept of colour of an object to Boyle’s law. Secondly, teachers should carry out experiments with active participation of students, using simulations wherever necessary, for clarification of concepts. Thirdly, they should carefully record the language used by the students during the course of experimentation. Fourthly, they should develop all the instructional materials in simple language used by the students and arrange all the educational experiences in a hierarchical manner. It would, in a way, amount to students constructing their own textbook. Such an approach will have an added advantage for the teachers as they can focus more on those chapters which provide the basic conceptual understanding and leave others for self-learning.

Lastly, teachers need to identify such spots of learning in the course content wherein universal values could be easily integrated. For example, whilst teaching the composition of atmospheric air, teachers may cite the example of Lord Henry Cavendish’s experiment of 1781 in which he could not resolve the mystery of the little bubble that he repeatedly noticed in the corner of the jar. His candid confession in his paper that he could not understand the mystery of the little bubble and had left it for posterity to resolve can be used to instil universal values like quest for truth, admission of failure, humility, significance of perseverance, concern for posterity and faith in future. Interestingly, as foreseen by Cavendish, Ramsay and his team discovered the bubble as a noble gas, Argon, in the same Cavendish Lab after a gap of hundred years in 1881.

Since the National Education Policy (NEP), 2020 has envisaged restructuring of school curriculum and pedagogy, reduction of curriculum content to enhance critical thinking and development of National Curriculum Framework (NCF), it would be the most opportune time to commission Science Development Projects to some of our premier institutions as it would require extraordinary level of expertise. There is a good network of eight premier institutions, seven Indian Institute of Science Education and Research (IISERs) and one Indian Institute of Science, Bangalore. They are best positioned to shoulder this responsibility in every aspect. Due to their country-wide presence they would be in a better position to develop curriculum and instructional materials in local vernacular which is extremely essential for advancement of science education in a diverse country like ours. This would be a win-win situation for both science education at school level and high-end research at university level. This would eventually help bring science education to the doorstep of every child and instil in them the universal values as envisioned by Mahendralal Sircar.

The writer is former Chairman, UGC. The views expressed are personal.

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Opinion

FARMERS’ ANGER COULD WIDEN PUNJAB-HARYANA DIFFERENCES

Pankaj Vohra

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FARMERS’ ANGER COULD WIDEN PUNJAB-HARYANA DIFFERENCES

The attempts to prevent Punjab farmers from entering the national capital, to protest against the recently enacted farm laws by the Centre, could escalate into a major confrontation between the two neighbouring states. The decision of the Haryana government (which was reversed on Friday) to seal its borders, in order to deny free passage to the agitators, was not in the interest of either of the states, as well the democratic traditions which have been followed in this country so far. The entire issue has been poorly dealt with by the Centre, which should have taken the initiative in addressing the grievances, or at least commencing a dialogue with the kisan leaders. The Haryana farmers as well as those from western Uttar Pradesh, are equally anguished, and it is evident that the state government’s action could be totally counter-productive, and needlessly impact the stability of the Manohar Lal Khattar dispensation.

The sealing of the borders had resulted in a spat between the two Chief Ministers, with Captain Amarinder Singh condemning any kind of coercion on farmers, who had not violated any law to go to the national capital. There are several outstanding issues which have strained the relations in the past between the Haryana and Punjab governments. The demand for Chandigarh as the state capital and the contentious matter of the Sutlej-Yamuna link canal were used by vested interests to foment trouble during the period of heightened militancy in the border state. If politics comes into play, these issues would crop up again, thereby disturbing the peace and harmony with which the people of the two regions, once a part of larger Punjab, have existed. Pakistan has always been looking for opportunities to create problems in the sensitive states, and any kind of nefarious designs should not be allowed to succeed.

There are indications that the Haryana government took the decision of thwarting the farmers› march at the behest of the Centre. If it is so, whoever sent the suggestion was himself ill-advised. It was only some days ago that the Punjab CM had directly intervened to convince the farmers to lift their rail blockade, which was affecting supplies as well as passenger traffic to another sensitive area of Jammu and Kashmir. This gesture of goodwill by the farmers should have been reciprocated by the Centre in the same spirit. There is no reason why the farmers cannot be given assurances which would assuage them and go a long way in withdrawing the agitation.

Former Prime Minister Lal Bahadur Shastri had during the peak of the India-Pakistan conflict in 1965, equated the farmers with our soldiers by coining the slogan, “Jai Jawan, Jai Kisan”. He realised that both segments contributed to the overall security of the nation. Farmers by giving us food security and the Jawans by protecting us from our enemies. When the Centre deals with the farmers, the basic fact should never be forgotten that they are our valued citizens, and not pawns in any political game. If political parties are backing their demands now, it is solely because there is realisation that they are genuine concerns. This situation would never have arisen if the Centre, while preparing the draft of the farm bills, had taken the representatives of the farming community on board.

Larger consultations always lead to more acceptable solutions. There should be no more delay and the Centre must not allow matters to deteriorate. Laws gain sanctity if they are backed by rationale and reason which are not in variance with the ground realities. The dialogue must begin.

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Opinion

Requirements for admissibility of electronic evidence

The IT Act is based on the United Nations Commission on International Trade Law and the Model Law on
Electronic Commerce. The primary purpose of the Information Technology Act 2000 is to provide legal
recognition to electronic commerce and to facilitate filing of electronic records with the government.

Siddhant Mishra

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INTRODUCTION

The advancement of computers, the social influence of information technology and the ability to store information in digital form have all required Indian law to be amended to include provisions on the appreciation of digital evidence. In 2000 Parliament enacted the Information Technology (IT) Act 2000, which amended the existing Indian statutes to allow for the admissibility of digital evidence. The IT Act is based on the United Nations Commission on International Trade Law Model Law on Electronic Commerce. The primary purpose of the Information Technology Act 2000 is to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the Government. The IT Act also penalizes various cyber-crimes and provides strict punishments (imprisonment terms up to 10 years and compensation up to Rs 1 crore). The IT Act was amended by the Negotiable Instruments (Amendments and Miscellaneous Provisions) Act, 2002. This introduced the concept of electronic cheques and truncated cheques.

ELECTRONIC EVIDENCE IN THE INDIAN EVIDENCE ACT 1872, INDIAN PENAL CODE 1860

Changes Incorporated to the Evidence Act 1872 Although the Evidence Act has been in force for many years, it has often been amended to acknowledge important developments. Amendments have been made to the Evidence Act 1872 to introduce the admissibility of both electronic records and paper-based documents.

DEFINITION OF EVIDENCE

The definition of ‘evidence’ has been amended to include electronic records. Evidence can be in oral or documentary form. The definition of ‘documentary evidence’ has been amended to include all documents, including electronic records produced for inspection by the court. The term ‘electronic records’ has been given the same meaning as that assigned to it under the IT Act, which provides for “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche”.

ADMISSIONS

The definition of admission has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. Section 22A has been inserted into the Evidence Act which provides for the relevancy of oral evidence regarding the contents of electronic records. It provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of the electronic records produced is in question.

STATEMENT AS A PART OF ELECTRONIC RECORD When any statement is part of an electronic record, the evidence of the electronic record must be given as the court considers it necessary in that particular case to understand fully the nature and effect of the statement and the circumstances under which it was made. Section 39 deals with statements that form part of a longer statement, a conversation or part of an isolated document, or statements that are contained in a document that forms part of a book or series of letters or papers. Admissibility of the Electronic Evidence New Sections 65A and 65B are introduced to the Evidence Act under the Second Schedule to the IT Act, 2000. Section 5 of the Evidence Act provides that evidence can be given regarding only facts that are at issue or of relevance. Section 136 empowers a judge to decide on the admissibility of the evidence. Section 65A provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B. Section 65B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record (i.e., the contents of a document or communication printed on paper that has been stored, recorded and copied in optical or magnetic media produced by a computer (‘computer output’)), is deemed to be a document and is admissible in evidence without further proof of the original’s production, provided that the conditions set out in Section 65B(2) to (5) are satisfied. These provisions shall be analysed further in detail.

PRESUMPTIONS REGARDING ELECTRONIC EVIDENCE

A fact which is relevant and admissible need not be construed as a proven fact. The judge must appreciate the fact in order to conclude that it is a proven fact. The exception to this general rule is the existence of certain facts specified in the Evidence Act that can be presumed by the court. The Evidence Act has been amended to introduce various presumptions regarding digital evidence under Sections 81A, 85A, 85B, 85C, 88A and 90A.

CHANGES INCORPORATED IN THE INDIAN PENAL CODE 1860

A number of offences were introduced under the provisions of the First Schedule of the IT Act, which amended the Penal Code with respect to offences for the production of documents that have been amended to include electronic records. The range of additional includes: Section 172, Indian Penal Code: Absconding to avoid the production of a document or electronic record in, a court. Section 173, Indian Penal Code: Intentionally preventing the service of summons, notice or proclamation to produce a document or electronic record in a court Section 175, Indian Penal Code: Intentionally omitting to produce or deliver up the document or electronic record to any public servant Sections 192 and 193, Indian Penal Code: Fabricating false evidence by making a false entry in an electronic record or making any electronic record containing a false statement, and intending the false entry or statement to appear in evidence in judicial proceedings Section 204, Indian Penal Code: The destruction of an electronic record where a person hides or destroys an electronic record or obliterates or renders illegible the whole or part of an electronic record with the intention of preventing the record from being produced or used as evidence Sections 463 and 465, Indian Penal Code- Making any false electronic record.

ADMISSIBILITY OF THE ELECTRONIC RECORDS IN THE INDIAN EVIDENCE ACT

Among all the changes made in the provisions of the Indian Evidence Act 1872 thus recognizing the electronic records as a document u/s. 3 and electronic signatures under, the most important provisions are sections 65A and 65B of the Act. Section 65A lays down the special provisions as to the evidence relating to electronic record and Section 65B deals with the admissibility thereof. Section 65A provides that the contents of an electronic record may be proved in accordance with the provisions in section 65B.

ADMISSIBILITY OF ELECTRONIC RECORDS Section 65B.

Admissibility of electronic records:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether— by a combination of computers operating over that period; or by different computers operating in succession over that period; or by different combinations of computers operating in succession over that period; or in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,— identifying the electronic record containing the statement and describing the manner in which it was produced; giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section: information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

JUDICIAL DICTA ON THE ADMISSIBILITY OF ELECTRONIC EVIDENCE

In Jagjit Singh v State of Haryana the speaker of the Legislative Assembly of the State of Haryana disqualified a member for defection. While hearing the matter the Supreme Court considered the appreciation of digital evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak television channel and the Haryana News of Punjab Today television channel. The court determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action.

In the case of State (NCT of Delhi) v Navjot Sandhu an appeal was preferred against conviction following the attack on Parliament on December 13 2001, in which five heavily armed persons entered the Parliament House Complex and killed nine people, including eight security personnel and one gardener, and injured 16 people, including 13 security men. This case dealt with the proof and admissibility of mobile telephone call records. While considering the appeal against the accused for attacking Parliament, a submission was made on behalf of the accused that no reliance could be placed on the mobile telephone call records, because the prosecution had failed to produce the relevant certificate under Section 65B(4) of the Evidence Act. The Supreme Court concluded that a crossexamination of the competent witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient to prove the call records.

The Court observed that: “According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.”

 Thus the Supreme Court made a remarkable observation when it held that although the requirements of Section 65B cannot be fulfilled, but then secondary evidence can always be given under Section 63 and 65 of the Evidence Act.

State of Maharashtra v Dr Praful B Desai involved the question of whether a witness can be examined by means of a video conference. The Supreme Court observed that video conferencing is an advancement of science and technology which permits seeing, hearing and talking with someone who is not physically present with the same facility and ease as if they were physically present. The legal requirement for the presence of the witness does not mean actual physical presence. The court allowed the examination of a witness through video conferencing and concluded that there is no reason why the examination of a witness by video conferencing should not be an essential part of electronic evidence.

In Dharambir vs. Central Bureau of Investigation, The court arrived at the conclusion that when Section 65-B talks of an electronic record produced by a computer referred to as the computer output, it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. It distinguished as there being two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software program. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image.

Supreme Court in S. Ravindra Bhat and V. Ramasubramanian, vide judgment dated July 14, 2020, overruled the Shafhi Mohammad case for being in teeth of the judgment in Anvar P. V. Further, judgment in Tomaso Bruno was declared per incuriam, for not laying down the law correctly and the legal position was clarified as under:

The certificate required under Section 65B(4) of the Act is a condition precedent to admissibility of evidence by way of electronic record. Oral evidence in place of such certificate cannot possibly suffice as Section 65B(4) of the Act is a mandatory requirement of the law.

The non-obstante provision of Section 65B(1) of the Act makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this regard, Sections 62 to 65 being irrelevant for this purpose.

The law laid down in Anvar P. V. does not need to be revisited. However, last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is to be read without the words “under Section 62 of the Evidence Act…”

The required certificate under Section 65B(4) of the Act is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. Such proof however, cannot be adduced if the device cannot be physically brought to court in cases where the computer happens to be a part of a “computer system” or “computer network”. In such case, the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4) of the Act.

Where the requisite certificate has been sought from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under Section 165 of the Evidence Act, Order XVI of the Code of Civil Procedure or Section 91 and 349 of the Code of Criminal Procedure. Once such an application is made to the court, and the court directs that the requisite certificate be produced by the person to whom it sends a summons in this regard, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.

The court observed that Section 65B is silent with regard to the stage at which such certificate is be furnished to the court. It was observed in  Anvar’s case  that such certificate must accompany the electronic record when the same is produced in evidence. This is when such certificate could be procured by the person seeking to rely upon an electronic record. In cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the judge conducting the trial must summon the person(s) under Section 65B(4) and require that such certificate be given by such person(s) exercising discretion depending upon facts of each case. This ought to be done when the electronic record is produced in evidence without the requisite certificate. In so far as criminal trials are concerned, the requisite certificate can be directed to be produced by the court at any stage, so that information contained in electronic form can be relied upon in evidence.

Furthermore, the court issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defense evidence, or in the event such data is required to cross-examine a particular witness.

Lastly, Supreme Court was of the view that suitable rules and directions should be framed in exercise of the Information Technology Act, 2000, for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption.

Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed after considering the report of the committee constituted by the Chief Justice›s Conference in April 2016.

Siddhant Mishra – Advocate at Lucknow High Court

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Legally Speaking

71st birthday of Indian Constitution

I feel that the Constitution is workable, it is flexible and it is strong enough to hold the country together both in
peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will
not be that we had a bad Constitution. What we will have to say is that Man was vile,’ says Dr B.R. Ambedkar.

MUNEEB RASHID MALIK

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The Ministry of Social Justice and Empowerment on 19th November, 2015, notified the decision of the Government of India to celebrate the 26th day of November every year as the Constitution Day to promote constitutional values among citizens. Before the issuance of the notification, November 26th was celebrated as the National Law Day to honour the 207 members of the Constituent Assembly. Therefore, Constitution Day is celebrated in our country on 26th November every year now to commemorate the adoption of the Constitution of India. The Constituent Assembly of India adopted the Constitution on 26th November, 1949 which came into effect from 26th January, 1950. Justice Krishna Iyer once aptly enunciated that the Indian Constitution is the cornerstone of a liberated nation which lays the grand foundation of a great people’s political edifice of governance and spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character. An independent judiciary, an accountable Parliament at the Centre and like legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller and Auditor General provide a paramountcy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with the adult franchise, accountability, direct and indirect, to the people in several ways, — these are fundamental in the governance of the country. The people, though free, have fundamental duties mandated by Art. 51A of the Constitution to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid.

The Constituent Assembly took a total of two years, eleven months and seventeen days to complete the Constitution. The Constituent Assembly considered a total of 2473 amendments proposed to the Draft Constitution from 9th December, 1946 to 26th November, 1949. Dr. Rajendra Prasad, the President of the Constituent Assembly confirmed the Constitution and fifteen articles were immediately given effect to on 26th November, 1949, which were, the provisions of Citizenship, Oath and affirmation by the President, Election, Definitions, Interpretation, Powers of the President to remove difficulties and the short title of the Constitution. The rest of the provisions came into effect from 26th January, 1950 and the working of the Constituent Assembly came to a stop. The preamble, a part of the Constitution, also came into force on 26th January, 1950, which presents the intention of the framers of the Constitution and the principles of the nation. The President in his address, on 26th November, 1949, talked about the Judiciary and enunciated that we have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Court’s independent of the influence of the Executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of Executive from Judicial functions and placing the magistracy which deals with criminal cases on similar footing as Civil Courts.

The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the object of the fundamental rights is to ensure the inviolability of certain essential rights against political vicissitudes. Fundamental rights are not distinct but are mutually exclusive, as has been held by the Supreme Court in a catena of judgments. Dr. B.R. Ambedkar while highlighting the central importance of Article 32 of the Constitution stated that I am very glad that the majority of those who spoke on this article have realised the importance and significance of this article. If I was asked to name any particular article in this Constitution as the most important – an article without which the Constitution would be a nullity – I could not refer to any other article except this one. It is the very essence of the Constitution and the very heart of it and I am glad that the House has realised its importance. Dr. B.R. Ambedkar, in his speech on November 25, 1949, stated that if we wish to maintain democracy not merely in form, but also in fact, what must we do?

“The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.”

As we celebrate the 71st birthday of the Constitution, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention towards the basic principles of law in our society and call to mind the purpose which the law has in view to serve in a country governed by rule of law envisaged by the Constitution. Fundamental rights and fundamental duties have to be given equal importance. Fundamental duties, though non-justiciable, are rules of law. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, the Supreme Court observed that there may be rule which imposes obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of Constitution and even rules of international law would no longer be liable to be regarded as rules of law. It is our duty to abide by the Constitution and carry out our fundamental duties effectively for instilling a sense of obligation and discipline amongst ourselves. We have to fulfil the objectives of law to dispense social justice to the people of our country. The Judiciary has played a magnificent role in upholding the Constitution and must always travel on the same path of delivering justice constructively. Article 51-A (j) obliges us to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. Therefore, on the Constitution Day, let us pledge to uphold the Constitution and also remember the words of Earl Warren, Former Chief Justice of the United States, when he said:- “Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence, we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

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Opinion

Who will step into Ahmed Patel’s shoes?

Priya Sahgal

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Ahmed Patel’s demise has left a crucial gap in the Congress. Apart from his personality, it also has a lot to do with the kind of role he played, that of a trouble shooter and a bridge between various factions of the Congress. Not to mention being a bridge between the allies and 3 Janpath as well. It is this void the Congress will find hard to fill.

Of course, with the rise of Team Rahul he had already begun taking his first few steps backwards. Rahul has his own trio of trouble shooters—K.C. Venugopal, Rajeev Satava and Randeep Surjewala. Will any or all of these be able to fill the gap that Patel has left? We saw them in action during the Ashok Gehlot versus Sachin Pilot crisis and in the end, it was Priyanka Gandhi who stepped in to placate Sachin Pilot and Ahmed Patel had a word with Gehlot to tone down. That’s what the party needs, someone senior who can tell them when to take it down a notch or two. This kind of heft comes with seniority but more than that with credibility.

Sources indicate that many are trying to fill this gap—from Kamal Nath and Digvijaya Singh to Ashok Gehlot himself. Before his revolt, Ghulam Nabi Azad too would have been a strong contender for this role. But I don’t see any of these names being successful for one simple reason: The mantle has also been passed on from Sonia to Rahul. It is now up to Rahul to see whom he would like in the role of both political advisor and troubleshooter. He may very well choose between Venugopal and Surjewala but if you ask me—as someone who has been covering the Congress for nearly three decades—he would be well advised to go with Priyanka Gandhi. For one, she has his complete trust and that is important. In her condolence note, Sonia Gandhi described Ahmed Patel as a “faithful comrade, irreplaceable colleague and friend”. If there was one person within the party whose loyalty she was sure of, it was Ahmed Patel. Her son too needs someone like this and who better than his sister Priyanka. She may lack Patel’s experience and rapport with allies but she has a connect within the party and there are many who see her as a sort of Brand Custodian. Even the 23 leaders who wrote raising concerns about the leadership vacuum within the party would be willing to follow her leadership. 

Whoever the Congress chooses, it has to decide fast. For on the other side, playing the same role for Prime Minister Narendra Modi is Home Minister Amit Shah. If the Congress wants to give itself any kind of a fighting chance against the BJP in the next general elections, it needs to put its house in order. Certainly, Priyanka is no match for Amit Shah. It would be hard to see who is within the Congress, though in his last battle with Shah, it was Ahmed Patel who had the upper hand. The tragedy is that the party doesn’t have another Ahmed, but could Priyanka be groomed to become one? She has the right instincts. 

One has also heard whispers of the party contemplating CWC elections and even elections to the post of the party president. One has also heard an equal number of whispers claiming that this is all a stalling tactic, the CWC has just been nominated and before long, Rahul too will be “nominated” as party chief. Or else he will go in for a proxy, such as either Surjewala or Venugopal. The concern in nominating a proxy is that if the new party chief is not Rahul himself then the G23 would definitely push for elections with one of them putting his or her hat in the ring.

For now, the flux continues. At a time when the party can least afford to waste any time, there are too many vacancies to be filled, too many gaps to be papered over. Perhaps Ahmed Bhai’s demise may give it the push it so badly needed—his last service to the party may well be a wake-up call to stop to start fending for itself. Is the Congress leadership listening?

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