07 12月 11 SCIENCE AND TECHNOLOGY: THEIR RELATIONSHIP WITH LAW

        SCIENCE AND TECHNOLOGY: THEIR RELATIONSHIP WITH LAW

The intellectual thinking of man, since time immemorial, has resulted in the development of science and technology. The principles of science and technology have developed in response to differing objects of interest. Science and technology have had a great impact on the way we live. Law has tried to regulate the use and abuse of science and the extent of its application. The major question however is whether we are well equipped with the laws to regulate the use of such technologies.

 

The subject Law, Science and Technology is of great relevance today when Courts have become ”activists” and there has been a tremendous advance in science and technology. The need for sharpening the evidentiary techniques employed in Courts with the help of science and technology cannot be denied. At the same time, one has to be conscious of the limitations. The limitations of both science and the law and the need for both to join hands to strengthen the court-systems by legally admissible scientific evidence must be considered.

 

 

MEANING AND DEFINITIONS

 

 

v SCIENCE

 

The word “Science” comes from the Latin word scientia, meaning “knowledge” or “knowing”. According to Webster’s New Collegiate Dictionary, the definition of science is “knowledge attained through study or practice,” or “knowledge covering general truths of the operation of general laws, esp. as obtained and tested through scientific method [and] concerned with the physical world.”

 

In other words, science refers to a system of acquiring knowledge. This system uses observation and experimentation to describe and explain natural phenomena. The term science also refers to the organized body of knowledge that people have gained using that system. Less formally, the word science often describes any systematic field of study or the knowledge gained from it. Perhaps the most general description is that the purpose of science is to produce useful models of reality. Most scientific investigations use some form of the scientific method. Science as defined above is sometimes called pure science to differentiate it from applied science, which is the application of research to human needs. Fields of science are commonly classified along two major lines:

-Natural sciences, the study of the natural world, and

-Social sciences, the systematic study of human behavior and society.

 

 

v TECHNOLOGY

 

The word “technology” comes from the Greek word technologia, which means the systematic treatment of an art, form or skill or a manner of accomplishing a task especially using technical processes, methods or knowledge. In other words, the term technology refers to the application of science, especially to commercial or industrial objects.

 

 

v LAW

 

A rule of conduct established and enforced by the authority, legislation, or custom of a given community, State, or nation. In essence, law is the tangible and intangible context that links individuals to the community. In addition, it defines responsibilities of individuals to society as much as it defines and protects individual rights. In short, it is a pillar of good governance.

 

INTER-RELATIONSHIP OF SCIENCE AND LAW

 

Today”s high technology society forces the two professions (law and science) to interact in a wide array of cases. Legal disputes involving patents, product liability, environmental torts, regulatory proceedings and criminal cases are some fields of such interaction. Further, law and science encounter each other in the laboratory through a number of actions governing intellectual property, research misconduct, etc. The fact-finding agendas of the two disciplines have frequently begun to overlap, if not merge. Because there is a general lack of understanding of each culture, these interactions often lead to a cognitive friction that is both disturbing and costly to the society. Scientists are distrustful of the lawyers and legal proceedings and prefer not to venture into the courtroom. The scientific community that believes that its methods and procedures are above legal scrutiny and questioning often frustrates lawyers. Lawyers and scientists seldom speak the same language. Each should develop a better understanding of the principles and methods of the other”s profession. Bridging the gap between the two cultures is a challenge that this conference seeks to address.

Science and technology seek knowledge through an open-ended search for expanded understanding, whose truths are subject to revision. Law, too, conducts an open-ended search for expanded understanding; however, it demands definite findings of fact at given points in time. The meeting of these two disciplines in the courtroom magnifies the differences between the two cultures. Even the search of truth does not serve the same aims and may not be subject to the same constraints and requirements.

 

The Courts today deal with complex cases relating to highly sophisticated crimes where criminals take care to erase all evidence of their involvement. In such cases, modernized, scientific and highly sophisticated methods are required to trace the involvement of criminals. A report published in the New York Times (August 7, 2008) stated that with a new analytical technique, a fingerprint can reveal much more than the identity of a person. It can also identify what the person has been touching: drugs, explosives or poisons, for example. Such a laboratory technique can have a wider application in crime investigation. The chemical signature could also help crime investigators trace out one fingerprint out of the smudges of many overlapping prints if the person had been exposed to a specific chemical.

 

Then there are serious cases of medical negligence and related torts where rival parties seek to rely on expert evidence. Even in the field of environmental pollution involving toxic substances, there is serious difficulty in finding out the levels of danger, the extent of actual and latent damage to humans and environment, and there are uncertainties in accepting the technology installed by the polluter to conform to environmental standards. In some civil cases where handwriting, forgery, or paternity issues are involved there is extensive use of scientific techniques. The Courts are thus dependent and, in fact, compelled to analyse evidence of experts examined on each side. There is again the difficulty of evaluating the conflicting expert evidence adduced by the contesting parties in an adversarial judicial process. However, none can deny that expert witnesses retained by parties often are partisan. In such cases, the technique of “Hot Tubbing” must be embraced. The Australians discovered the technique of “Hot Tubbing” to improve expert evidence. In this procedure, also called concurrent evidence, parties still choose experts, but they testify together at trial-discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. According to UCLA law professor Jennifer Mnookin, “‘Hot Tubbing is much more interesting than neutral experts.”

 

DEVELOPMENTS TILL DATE AND THE RECENT TREND

 

 

In this era of genomics, of crime prevention and of conviction the following questions need special attention:

 

 

Is the legal profession ready for this new information?

 

How would these techniques benefit the justice delivery system?

 

Is our society ready for the implications that genomics brings to every facet of our lives?

 

Is our society struggling with the ethical and social issues thrown up by the new biology such as human cloning, use of animals in biomedical research, etc.?

 

With the rapid progress in science, are laws in their present form really able to deliver justice efficiently or is some rethinking in the form of new laws or amendments to existing laws required?

 

 

Before any major changes can be effected, all stakeholders have to sit together and look for the answers to these unsolved problems. This contact which was missing in India became a reality when the first ever conference of this kind was held. This conference, who”s Chairman was the erstwhile President of India; Dr. A.P.J. Abdul Kalam formed the basis of the ”Hyderabad Declaration on Impact of New Biology on Justice Delivery System”. These deliberations of law were co-organised by the Centre for DNA Fingerprinting and Diagnostics (CDFD) and NALSAR University of law. The deliberations brought together the Judges of the Supreme Court and the High Courts, representatives from various Commissions like the Law Commission and the Human Rights Commission, Directors of the National Law Schools and other legal luminaries, lawyers, scientists, doctors, bio-industrialists, NGO”s, police investigators, journalists and a couple of participants from abroad. Inter alia the meeting emphasized the following:

 

To establish a Human Genetics Commission to provide technical and strategic advice about the current and emerging issues in Human Genetics, and a consultative mechanism for development oh National Genetics Policy and guidelines in that area;

 

To establish an Ethics Committee to assess ethical, legal and social issues raised by research on human genome and use of DNA databases;

 

To statutorily define status of human embryo so that research on embryonic cells is done under statutory control and regulations;

 

To devise a mechanism to establish links with the International Community of Dispute for resolution of new issues in new biology;

 

To suitably amend the Patents law to strike a fair balance between public and private interests in case of patents that assert property rights over genetic material.

 

IMPACT OF SCIENCE ON INVESTIGATION

 

Science is a compelling and commanding weapon in the armoury of administration of justice. Forensic Science is a science pertaining to law. In particular, it works as the branch, which is used mainly in criminal investigation and findings of which can lead to arrests and convictions. Undoubtedly, scientific investigations generate evidence in favour of the victims and against the accused. Forensic Science helps in providing the identity of the culprit or the accused who willingly or unwillingly, in most of the cases, leaves the mark of his crime, thereby making the job of the investigator much easier in proving the culpability with the aid of Forensic Science.

 

Forensic Science provides scientific study for investigation of crime. The growth, development and use of Forensic Science in detection of crime in developed countries are tremendous and increasing with new techniques. The area of Forensic Science in India has not been properly looked into, as it ought to have been and more so when the average acquittal rate is alarmingly high. Therefore, in our country, also, the necessity and importance of Forensic Science hardly needs any emphasis. The lack of understanding and appreciation of the importance of specialists in general, by non-specialists, in all fields, cannot be denied. The field of Forensic Science is no exception. Many a time, neither the judge, nor the lawyer nor even the police appreciate fully, the advances or the extensive, promising potentialities of the science and the fusion of new technologies, methodologies, modalities and research. Multitask and multi-professional nature of Forensic Science needs an inter-professional approach, which is, many a time, lacking. Therefore, sincere and serious efforts are required to be made to eliminate personal and professional bias of the involved personnel and professionals.

 

Forensic Science in criminal investigation and trial is principally concerned with materials and circuitously through materials, with men, places and time. It embraces all branches of science and applies them to the purposes of law. The scientific examination by Forensic Scientists adjoins a missing link or strengthens a weak chain of investigation.

 

Systematic uses of Forensic Science provide significant assistance in answering the following questions:

 

(i) How was the crime committed?

(ii) When was the crime committed?

(iii) Who committed the crime?

 

Law-enforcement agencies refer to Forensic Experts to help solve mysterious situations concerning human life and thereby, provide help and useful contribution to the criminal courts in the journey for search of truth in criminal trials. Forensic Science deals with various aspects, including routine post-mortem to sophisticated tracking piece like DNA analysis.

 

Unfortunately, techniques and methodology with necessary materials used extensively in Western countries has not successfully clicked in India because of a variety of reasons, the major one being the investment of huge finance. This science is also, at times, useful in finding out the truth in some of the civil cases.

 

The prosecution mainly calls Forensic Scientists as expert witnesses. The practice of the defense producing Forensic Scientists or the courts consulting on their own listed experts is not very much in vogue. In fact, there is an acute need to bridge the communication gap that presently exists between lawyers, judges and Forensic Scientists. An independent analysis and evaluation of the scientist”s data and any subsequent testimony that may follow again depends on the judges” familiarity and understanding of the principles of Forensic Science.

 

In Western countries DNA test and profile is widely employed. In a country like ours, the need of such a test and profile may, hardly, be emphasized. In many developed countries, DNA test, genetic testing techniques and “racmization” — testing based on systematic examination of teeth and bite-marks has proved to be very useful. “Racmization” technique is currently used in Japan and Germany. It has potential to replace the traditional method that took into account the eruption and/or fusion and falling sequence of teeth. A fusion of such knowledge of Forensic Science and newly developed techniques will, undoubtedly, not only provide proper perspective and dimensions, but will also lead to detection of crime, and be a great help in search of the truth. It will be useful in the prevention and control of crimes and will provide required assistance to the parties to civil disputes, as well.

IMPACT OF SCIENCE ON THE JUSTICE DELIVERY SYSTEM

 

Common view is that the Indian justice administration system is slow. However, the major question is, is it the primary problem with Indian justice delivery system? The key issue is, is it is delivering justice at all in majority of cases? If a machine is faulty and makes bad products, then if one speeds up the machine, it will deliver more of those bad products. Therefore, if we speed up a malfunctioning Justice Administration System, it will simply toss up more of injustice. Is that the goal of any justice delivery system?

 

In the words of Justice Shayamal Kumar Sen, “The investigation process needs to be hastened; otherwise the criminal justice system will suffer”.

 

Justice Sen urged that research and development should be initiated in a way that would ensure that crime at the grassroots level is detected immediately and an effective management system should be introduced.

 

According to M P Singh, vice-chancellor, West Bengal National University Of Juridical Science, new techniques should be introduced as it will help in crime detection and the infrastructure should be developed in a way that will not only give momentum to effective criminal delivery system but will also hasten the entire long drawn process of investigation.

 

 

IMPACT OF SCIENCE ON COURT AND COURT PROCESSES

 

Science is not new to the Indian courts. Towards the end of 1989, one low-end computer was installed in Supreme Court of India for caveat matching. Immediately thereafter, in 1990, Justice GC Bharuka, as a sitting Judge at the Patna High Court initiated the process of court computerization. On his transfer to Karnataka in 1994, he undertook to introduce ICT (Information and Communucation Tecnologies) in the entire judiciary of the state of Karnataka.

Presently all the courts upto the taluka level are computerized. All the judicial officers and court staff are trained. There is complete automation from filing of a case to grant of a certified copy. Digital production of under-trial prisoners by video-conferencing is made possible. Through website, causelists of the Supreme Court of India, High Courts, district courts and various Tribunals is made available online, a day before.

 

 

SCIENCE AND GREY AREAS OF LAWS

 

v SPACE LAWS

 

Simply put, Space law is a part of International jurisprudence related to outer space. It follows customary practice in defining outer space, the region 100 km beyond the earth”s surface.

 

With the advancement of science and technology, things that were once considered impossible are now increasingly becoming possible and even fashionable. No one, some six decades back would have thought of going to space, let alone marrying in space. Thanks to science, this has now become a reality. For .3 million, a person can cement bonds from 62 miles straight up. Japanese company First Advantage, along with former X-Prize contender Rocketplane Global, is teaming up to offer weddings in space.

 

According to a LiveScience article, Rocketplane Global “is developing the XP Spaceplane for private suborbital spaceflights. The four-seat spaceship is slated to be about the size of a fighter jet and designed to carry two jet engines and a rocket engine to reach space.”

 

Besides shelling out .3 million, a person has to undergo four day”s worth of training for the one-hour ceremony. Training includes safety procedures, weightless maneuvering, and to explain to one”s family why they were not invited.

 

Not only this, Sapporo Breweries, the Japanese beer maker established in 1876, is brewing beer from barley descended from seeds that spent five months on the International Space Station ( ISS).

 

According to a CNN article, “The project is part of biological studies of the adaptability of plants to environmental changes and the impact from stresses such as space travel.”

If successful, the study will bring the world one-step closer to growing crops in space. In addition, fortunately, right now, scientists cannot tell the difference between the ISS grains and homegrown barley.

 

However, in order for commercial space activities to grow, there must be an attractive legal environment. Unfortunately existing space law consists mostly of some inter-governmental treaties that are quite inappropriate for business.

 

Space is just another place where humans are going to live. In addition, because space is almost limitless humans are going to live there in vast numbers in the future. In other words, it will become a completely new habitat. Today most activities in space are government ones because getting to and from space is so expensive. Once travel from orbit is cheap enough, as on earth, individuals, private companies and organizations will carry on most activities in space. At that time space activities will involve almost every industry, be it catering and drinks, fashion and entertainment, or law.

 

An attractive legal environment is needed to enable operating companies to plan passenger services and place orders for the vehicles that they require, and for manufacturers to finalize vehicle design details and raise the investment that they need in order to put the vehicles into production.

 

Sovereignty over outer space is another debatable issue that needs to be resolved.

 

 

 

CYBER LAWS AND JURISDICTIONAL ISSUES

 

 

With the advent of internet, a whole new category of crime that includes fraud, theft of services and data, copyright infringement, destruction of data through computer sabotage (viruses) and acts causing inconvenience to agencies comprising sensitive, secret or confidential functions has come up. Chances of use of the web as a forum for publication of defamatory content has increased multifold and there is a need for a clear, coherent expression of the law in this area.

 

Hacking time theft (stealing someone else”s internet time) pornography, sending threatening e-mail, defamatory e-mail, hacking e-mail, e-mail bombs, etc. are the main areas of cyber crime.

 

The people who commit cyber crimes are mostly those who have white-collar jobs, unlike usual criminals. They can even be high school kids. The territory that a cyber crime can stretch across is immense. It can go over continents

 

The principles that govern the exercise of criminal jurisdiction are based on the assumption that “crime” is a territorial phenomenon. Cyber crime makes these principles problematic in varying ways and in varying degrees. Unlike real-world crime, it is not physically grounded; it increasingly tends not to occur in a single sovereign territory.

 

 

 

The perpetrator of a cyber crime may physically be in Country A, while his victim is in Country B, or his victims are in Countries B, C, and D and so on. The perpetrator may further complicate matters by routing his attack on the victim in Country B through computers in Countries F and G. The result of these and other cyber crime scenarios is that the cyber crime is not committed “in” the territory of a single sovereign state; instead, “pieces” of the cyber crime occur in territory claimed by several different sovereigns.

 

Cyber crime is a primary example of cross-border crime, and so, it raises the issue of jurisdiction. This is a tricky issue. Acts on the Internet that are legal in the state where they are initiated may be illegal in other states, even though the act is not particularly targeted at that state. Jurisdiction conflicts abound, both negative (no state claims jurisdiction) and positive (several states claim jurisdiction at the same time). Above all, it is unclear just what constitutes jurisdiction: is it the place of the act, the country of residence of the perpetrator, the location of the effect, or the nationality of the owner of the computer that is under attack? Or all of these at once? It turns out that countries think quite differently on this issue. The cyber crime statutes of numerous countries show varying and diverging jurisdiction clauses. Since internet allows transactions between persons of various jurisdictions, an international agreement (to be crystallized into a convention, later) is required for any regulation. However, in arriving at a uniform law, varying standards adopted by jurisdictions across the world and the point of balance adopted by them have to be kept in mind.

 

 

Jurisdiction is a highly debatable issue as to the maintainability of any suit that has been filed. Today with the growing arms of cyberspace the territorial boundaries seems to vanish thus the concept of territorial jurisdiction as envisaged under S.16 of C.P.C. and S.2.of the I.P.C. will have to give way to alternative method of dispute resolution.

 

In addressing the issues of what problems were posed by cyber-crime, Mr. Corell noted that the scope of international cooperation is limited by international agreements and by the national law of the State from which information has been requested. There are also differing priorities between developed and developing countries. These differences complicate international cooperation and expand the gap between the two groups.

 

There is no authoritative, comprehensive elaboration of the principle of universal jurisdiction concerning cyber-crime, he said. There are different views concerning the offences that constitute crimes under international law that are subject to universal jurisdiction. There are also different opinions with respect to the significance of the obligation to prosecute or extradite, as contained in various treaties, as evidence of universal jurisdiction. Whether States are not only permitted, but also required, to exercise jurisdiction with respect to crimes under international law, is also subject to different opinions.

 

 

 

CONCLUSION

 

The magnetism of science has always captivated members of the legal profession. People look up to science to rescue them from the experience of uncertainty and the discomfort of difficult legal decisions, and are constantly disappointed.

The notion of what constitutes science and what it would take to make law more scientific varies across time. What does not vary is our constant return to the well. We are constantly seduced into believing that some new science will provide an answer to laws dilemmas, and we are constantly disappointed.

 

In the words of Senior Advocate K.T.S. Tulsi — “There is no doubt that [science] is going to overtake the law enforcement agencies by storm. No one will be able to avoid it. It is like standing on the shore and asking the waves of the sea not to come. What is required is a proper debate about the real value of [science] and whether it fits into the overall picture and what use could be made of it by the investigators.”

 

REFERENCES

 

 

v BOOKS AND ARTICLES

 

A Convergence of Science and Law. A Summary Report of the First Meeting of the Science, Technology and Law Panel: National Research Council. Science and law blog: August 8, 2008. Fingerprints” Chemical “Footprints”? Science and law blog: August 11, 2008. “Hot Tubbing”: Old wine in New Bottles for Expert Witnesses. The New York Times: August 7, 2008, Kenneth Chang. Law, science and technology collaboration: Justice M. Jugannadha Rao-Chairman Law Commission of India. Kolkata Newsline, Thursday, February 01, 2007. A profile of forensic science in juristic journey: Justice Jitendra N. Bhatt. Do space laws need to be modified? S Bhatt Space weddings. I do. I really do. Carol Pinchefsky, 7 July 2008. Tara Blake Garfinkel, Jurisdiction Over Communication Torts: Can You Be Pulled into Another Country’s Court System for Making a Defamatory Statement Over the Internet? A Comparison of English and US Law, 9 Transnat’l Law 489, 492 Bryan P. Werley, Aussie Rules: Universal Jurisdiction over Internet Defamation, 18 Temp. Int’l & Comp. L.J. 199, 219 Para 1.16 of the British Law Commission Report on Defamation and the Internet, cited from (visited on 7th August, 2004 1996 US Dist LEXIS 8435 (SDNY 19 June, 1996), cited from R. Matthan: The Law Relating to Computers & the Internet, p. 2 (New Delhi: Butterworths, 2000). In this case, the defendant was an Italian, who had, using an Italian server, set up a website, under the name “Playmen”. The court had earlier issued a permanent injunction against the defendant from using that name in any magazine sold, published or distributed in USA. The court accepted that it could not order the website to be shut down as that would amount to asserting that every court in the world had jurisdiction over all information providers on the internet In info age, time for cyber savvy cops. Uma Karve. October 5, 2002. Learning the law, Indian Express. Karina Sudarsan Beware! Cyber Criminals are on the prowl, Navhind Times,March 17, 2002; by Shaikh Jamaluddin. 10 Myths of Electronic Security, Banking Frontiers September, 2002; Rohas Nagpal, Asian School of Cyber Laws. I”ll be watching you! Times of India, December 19, 2002; Zahra Khan, Times News Network. Approaches to Cybercrime Jurisdiction; Susan W. Brenner, University of Dayton – School of Law, Bert-Jaap Koops Tilburg University – Faculty of Law (TILT). Challenge of borderless ”Cyber Crime” to International Efforts to Combat Transnational Organized Crime Discussed at Symposium, 14 December, 2000. Towards Speedy, Inexpensive, Transparent and Accountable Justice; Justice GC Bharuka, 4th November, 2007.

source : www.thinklegal.co.in (ThinkLegal Resources Pvt Ltd)

           

 

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