SCIENCE AND TECHNOLOGY: THEIR RELATIONSHIP WITH LAW

SCIENCE AND TECHNOLOGY: THEIR				useful in the prevention and control of crimes and will
RELATIONSHIP WITH LAW				provide required assistance to the parties to civil
The intellectual thinking of man, since time				disputes, as well.
immemorial, has resulted in the development of				IMPACT OF SCIENCE ON THE JUSTICE DELIVERY
science and technology. The principles of science and				SYSTEM
technology have developed in response to differing
objects of interest. Science and technology have had				Common view is that the Indian justice administration
a great impact on the way we live. Law has tried to				system is slow. However, the major question is, is it
regulate the use and abuse of science and the				the primary problem with Indian justice delivery
extent of its application. The major question however				system? The key issue is, is it is delivering justice at
is whether we are well equipped with the laws to				all in majority of cases? If a machine is faulty and
regulate the use of such technologies.				makes bad products, then if one speeds up the
				machine, it will deliver more of those bad products.
The subject Law, Science and Technology is of great				Therefore, if we speed up a malfunctioning Justice
relevance today when Courts have become				Administration System, it will simply toss up more of
''activists'' and there has been a tremendous advance				injustice. Is that the goal of any justice delivery
in science and technology. The need for sharpening				system?
the evidentiary techniques employed in Courts with
the help of science and technology cannot be denied.				In the words of Justice Shayamal Kumar Sen, "The
At the same time, one has to be conscious of the				investigation process needs to be hastened;
limitations. The limitations of both science and the law				otherwise the criminal justice system will suffer".
and the need for both to join hands to strengthen
the court-systems by legally admissible scientific				Justice Sen urged that research and development
evidence must be considered.				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
MEANING AND DEFINITIONS				introduced.

v SCIENCE				According to M P Singh, vice-chancellor, West Bengal
				National University Of Juridical Science, new
The word "Science" comes from the Latin word				techniques should be introduced as it will help in crime
scientia, meaning "knowledge" or "knowing". According				detection and the infrastructure should be developed
to Webster's New Collegiate Dictionary, the definition				in a way that will not only give momentum to
of science is "knowledge attained through study or				effective criminal delivery system but will also hasten
practice," or "knowledge covering general truths of				the entire long drawn process of investigation.
the operation of general laws, esp. as obtained and
tested through scientific method [and] concerned
with the physical world."				IMPACT OF SCIENCE ON COURT AND COURT
				PROCESSES
In other words, science refers to a system of
acquiring knowledge. This system uses observation				Science is not new to the Indian courts. Towards the
and experimentation to describe and explain natural				end of 1989, one low-end computer was installed in
phenomena. The term science also refers to the				Supreme Court of India for caveat matching.
organized body of knowledge that people have				Immediately thereafter, in 1990, Justice GC Bharuka,
gained using that system. Less formally, the word				as a sitting Judge at the Patna High Court initiated
science often describes any systematic field of study				the process of court computerization. On his transfer
or the knowledge gained from it. Perhaps the most				to Karnataka in 1994, he undertook to introduce ICT
general description is that the purpose of science is				(Information and Communucation Tecnologies) in the
to produce useful models of reality. Most scientific				entire judiciary of the state of Karnataka.
investigations use some form of the scientific				Presently all the courts upto the taluka level are
method. Science as defined above is sometimes				computerized. All the judicial officers and court staff
called pure science to differentiate it from applied				are trained. There is complete automation from filing
science, which is the application of research to human				of a case to grant of a certified copy. Digital
needs. Fields of science are commonly classified along				production of under-trial prisoners by
two major lines:				video-conferencing is made possible. Through
-Natural sciences, the study of the natural world, and				website, causelists of the Supreme Court of India,
-Social sciences, the systematic study of human				High Courts, district courts and various Tribunals is
behavior and society.				made available online, a day before.

v TECHNOLOGY
				SCIENCE AND GREY AREAS OF LAWS
The word "technology" comes from the Greek word				v SPACE LAWS
technologia, which means the systematic treatment
of an art, form or skill or a manner of accomplishing a				Simply put, Space law is a part of International
task especially using technical processes, methods or				jurisprudence related to outer space. It follows
knowledge. In other words, the term technology				customary practice in defining outer space, the region
refers to the application of science, especially to				100 km beyond the earth''s surface.
commercial or industrial objects.
				With the advancement of science and technology,
v LAW				things that were once considered impossible are now
				increasingly becoming possible and even fashionable.
A rule of conduct established and enforced by the				No one, some six decades back would have thought
authority, legislation, or custom of a given				of going to space, let alone marrying in space. Thanks
community, State, or nation. In essence, law is the				to science, this has now become a reality. For $2.3
tangible and intangible context that links individuals to				million, a person can cement bonds from 62 miles
the community. In addition, it defines responsibilities				straight up. Japanese company First Advantage, along
of individuals to society as much as it defines and				with former X-Prize contender Rocketplane Global, is
protects individual rights. In short, it is a pillar of good				teaming up to offer weddings in space.
governance.
				According to a LiveScience article, Rocketplane Global
INTER-RELATIONSHIP OF SCIENCE AND LAW				"is developing the XP Spaceplane for private
				suborbital spaceflights. The four-seat spaceship is
Today''s high technology society forces the two				slated to be about the size of a fighter jet and
professions (law and science) to interact in a wide				designed to carry two jet engines and a rocket
array of cases. Legal disputes involving patents,				engine to reach space."
product liability, environmental torts, regulatory
proceedings and criminal cases are some fields of				Besides shelling out $2.3 million, a person has to
such interaction. Further, law and science encounter				undergo four day''s worth of training for the
each other in the laboratory through a number of				one-hour ceremony. Training includes safety
actions governing intellectual property, research				procedures, weightless maneuvering, and to explain
misconduct, etc. The fact-finding agendas of the two				to one''s family why they were not invited.
disciplines have frequently begun to overlap, if not
merge. Because there is a general lack of				Not only this, Sapporo Breweries, the Japanese beer
understanding of each culture, these interactions				maker established in 1876, is brewing beer from
often lead to a cognitive friction that is both				barley descended from seeds that spent five months
disturbing and costly to the society. Scientists are				on the International Space Station ( ISS).
distrustful of the lawyers and legal proceedings and
prefer not to venture into the courtroom. The				According to a CNN article, "The project is part of
scientific community that believes that its methods				biological studies of the adaptability of plants to
and procedures are above legal scrutiny and				environmental changes and the impact from stresses
questioning often frustrates lawyers. Lawyers and				such as space travel."
scientists seldom speak the same language. Each				If successful, the study will bring the world one-step
should develop a better understanding of the				closer to growing crops in space. In addition,
principles and methods of the other''s profession.				fortunately, right now, scientists cannot tell the
Bridging the gap between the two cultures is a				difference between the ISS grains and homegrown
challenge that this conference seeks to address.				barley.
Science and technology seek knowledge through an
open-ended search for expanded understanding,				However, in order for commercial space activities to
whose truths are subject to revision. Law, too,				grow, there must be an attractive legal environment.
conducts an open-ended search for expanded				Unfortunately existing space law consists mostly of
understanding; however, it demands definite findings				some inter-governmental treaties that are quite
of fact at given points in time. The meeting of these				inappropriate for business.
two disciplines in the courtroom magnifies the
differences between the two cultures. Even the				Space is just another place where humans are going
search of truth does not serve the same aims and				to live. In addition, because space is almost limitless
may not be subject to the same constraints and				humans are going to live there in vast numbers in the
requirements.				future. In other words, it will become a completely
				new habitat. Today most activities in space are
The Courts today deal with complex cases relating to				government ones because getting to and from space
highly sophisticated crimes where criminals take care				is so expensive. Once travel from orbit is cheap
to erase all evidence of their involvement. In such				enough, as on earth, individuals, private companies
cases, modernized, scientific and highly sophisticated				and organizations will carry on most activities in space.
methods are required to trace the involvement of				At that time space activities will involve almost every
criminals. A report published in the New York Times				industry, be it catering and drinks, fashion and
(August 7, 2008) stated that with a new analytical				entertainment, or law.
technique, a fingerprint can reveal much more than
the identity of a person. It can also identify what the				An attractive legal environment is needed to enable
person has been touching: drugs, explosives or				operating companies to plan passenger services and
poisons, for example. Such a laboratory technique can				place orders for the vehicles that they require, and
have a wider application in crime investigation. The				for manufacturers to finalize vehicle design details and
chemical signature could also help crime investigators				raise the investment that they need in order to put
trace out one fingerprint out of the smudges of				the vehicles into production.
many overlapping prints if the person had been
exposed to a specific chemical.				Sovereignty over outer space is another debatable
				issue that needs to be resolved.
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				CYBER LAWS AND JURISDICTIONAL ISSUES
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				With the advent of internet, a whole new category
the technology installed by the polluter to conform to				of crime that includes fraud, theft of services and
environmental standards. In some civil cases where				data, copyright infringement, destruction of data
handwriting, forgery, or paternity issues are involved				through computer sabotage (viruses) and acts
there is extensive use of scientific techniques. The				causing inconvenience to agencies comprising
Courts are thus dependent and, in fact, compelled to				sensitive, secret or confidential functions has come
analyse evidence of experts examined on each side.				up. Chances of use of the web as a forum for
There is again the difficulty of evaluating the				publication of defamatory content has increased
conflicting expert evidence adduced by the				multifold and there is a need for a clear, coherent
contesting parties in an adversarial judicial process.				expression of the law in this area.
However, none can deny that expert witnesses
retained by parties often are partisan. In such cases,				Hacking time theft (stealing someone else''s internet
the technique of "Hot Tubbing" must be embraced.				time) pornography, sending threatening e-mail,
The Australians discovered the technique of "Hot				defamatory e-mail, hacking e-mail, e-mail bombs, etc.
Tubbing" to improve expert evidence. In this				are the main areas of cyber crime.
procedure, also called concurrent evidence, parties still
choose experts, but they testify together at				The people who commit cyber crimes are mostly
trial-discussing the case, asking each other questions,				those who have white-collar jobs, unlike usual
responding to inquiries from the judge and the				criminals. They can even be high school kids. The
lawyers, finding common ground and sharpening the				territory that a cyber crime can stretch across is
open issues. According to UCLA law professor				immense. It can go over continents
Jennifer Mnookin, "'Hot Tubbing is much more
interesting than neutral experts."				The principles that govern the exercise of criminal
				jurisdiction are based on the assumption that "crime"
DEVELOPMENTS TILL DATE AND THE RECENT				is a territorial phenomenon. Cyber crime makes these
TREND				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
In this era of genomics, of crime prevention and of				sovereign territory.
conviction the following questions need special
attention:

				The perpetrator of a cyber crime may physically be
1. Is the legal profession ready for this new				in Country A, while his victim is in Country B, or his
information?				victims are in Countries B, C, and D and so on. The
				perpetrator may further complicate matters by
1. How would these techniques benefit the justice				routing his attack on the victim in Country B through
delivery system?				computers in Countries F and G. The result of these
				and other cyber crime scenarios is that the cyber
1. Is our society ready for the implications that				crime is not committed "in" the territory of a single
genomics brings to every facet of our lives?				sovereign state; instead, "pieces" of the cyber crime
				occur in territory claimed by several different
1. Is our society struggling with the ethical and social				sovereigns.
issues thrown up by the new biology such as human
cloning, use of animals in biomedical research, etc.?				Cyber crime is a primary example of cross-border
				crime, and so, it raises the issue of jurisdiction. This is
1. With the rapid progress in science, are laws in their				a tricky issue. Acts on the Internet that are legal in
present form really able to deliver justice efficiently				the state where they are initiated may be illegal in
or is some rethinking in the form of new laws or				other states, even though the act is not particularly
amendments to existing laws required?				targeted at that state. Jurisdiction conflicts abound,
				both negative (no state claims jurisdiction) and
				positive (several states claim jurisdiction at the same
Before any major changes can be effected, all				time). Above all, it is unclear just what constitutes
stakeholders have to sit together and look for the				jurisdiction: is it the place of the act, the country of
answers to these unsolved problems. This contact				residence of the perpetrator, the location of the
which was missing in India became a reality when the				effect, or the nationality of the owner of the
first ever conference of this kind was held. This				computer that is under attack? Or all of these at
conference, who''s Chairman was the erstwhile				once? It turns out that countries think quite
President of India; Dr. A.P.J. Abdul Kalam formed the				differently on this issue. The cyber crime statutes of
basis of the ''Hyderabad Declaration on Impact of				numerous countries show varying and diverging
New Biology on Justice Delivery System''. These				jurisdiction clauses. Since internet allows transactions
deliberations of law were co-organised by the Centre				between persons of various jurisdictions, an
for DNA Fingerprinting and Diagnostics (CDFD) and				international agreement (to be crystallized into a
NALSAR University of law. The deliberations brought				convention, later) is required for any regulation.
together the Judges of the Supreme Court and the				However, in arriving at a uniform law, varying
High Courts, representatives from various				standards adopted by jurisdictions across the world
Commissions like the Law Commission and the Human				and the point of balance adopted by them have to
Rights Commission, Directors of the National Law				be kept in mind.
Schools and other legal luminaries, lawyers, scientists,
doctors, bio-industrialists, NGO''s, police investigators,
journalists and a couple of participants from abroad.				Jurisdiction is a highly debatable issue as to the
Inter alia the meeting emphasized the following:				maintainability of any suit that has been filed. Today
				with the growing arms of cyberspace the territorial
- To establish a Human Genetics Commission to				boundaries seems to vanish thus the concept of
provide technical and strategic advice about the				territorial jurisdiction as envisaged under S.16 of C.P.C.
current and emerging issues in Human Genetics, and a				and S.2.of the I.P.C. will have to give way to
consultative mechanism for development oh National				alternative method of dispute resolution.
Genetics Policy and guidelines in that area;
				In addressing the issues of what problems were
- To establish an Ethics Committee to assess ethical,				posed by cyber-crime, Mr. Corell noted that the
legal and social issues raised by research on human				scope of international cooperation is limited by
genome and use of DNA databases;				international agreements and by the national law of
				the State from which information has been
- To statutorily define status of human embryo so				requested. There are also differing priorities between
that research on embryonic cells is done under				developed and developing countries. These
statutory control and regulations;				differences complicate international cooperation and
				expand the gap between the two groups.
- To devise a mechanism to establish links with the
International Community of Dispute for resolution of				There is no authoritative, comprehensive elaboration
new issues in new biology;				of the principle of universal jurisdiction concerning
				cyber-crime, he said. There are different views
- To suitably amend the Patents law to strike a fair				concerning the offences that constitute crimes under
balance between public and private interests in case				international law that are subject to universal
of patents that assert property rights over genetic				jurisdiction. There are also different opinions with
material.				respect to the significance of the obligation to
				prosecute or extradite, as contained in various
IMPACT OF SCIENCE ON INVESTIGATION				treaties, as evidence of universal jurisdiction. Whether
				States are not only permitted, but also required, to
Science is a compelling and commanding weapon in				exercise jurisdiction with respect to crimes under
the armoury of administration of justice. Forensic				international law, is also subject to different opinions.
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				CONCLUSION
generate evidence in favour of the victims and
against the accused. Forensic Science helps in				The magnetism of science has always captivated
providing the identity of the culprit or the accused				members of the legal profession. People look up to
who willingly or unwillingly, in most of the cases,				science to rescue them from the experience of
leaves the mark of his crime, thereby making the job				uncertainty and the discomfort of difficult legal
of the investigator much easier in proving the				decisions, and are constantly disappointed.
culpability with the aid of Forensic Science.				The notion of what constitutes science and what it
				would take to make law more scientific varies across
Forensic Science provides scientific study for				time. What does not vary is our constant return to
investigation of crime. The growth, development and				the well. We are constantly seduced into believing
use of Forensic Science in detection of crime in				that some new science will provide an answer to
developed countries are tremendous and increasing				laws dilemmas, and we are constantly disappointed.
with new techniques. The area of Forensic Science in
India has not been properly looked into, as it ought				In the words of Senior Advocate K.T.S. Tulsi --
to have been and more so when the average				"There is no doubt that [science] is going to overtake
acquittal rate is alarmingly high. Therefore, in our				the law enforcement agencies by storm. No one will
country, also, the necessity and importance of				be able to avoid it. It is like standing on the shore and
Forensic Science hardly needs any emphasis. The lack				asking the waves of the sea not to come. What is
of understanding and appreciation of the importance				required is a proper debate about the real value of
of specialists in general, by non-specialists, in all fields,				[science] and whether it fits into the overall picture
cannot be denied. The field of Forensic Science is no				and what use could be made of it by the
exception. Many a time, neither the judge, nor the				investigators."
lawyer nor even the police appreciate fully, the
advances or the extensive, promising potentialities of				REFERENCES
the science and the fusion of new technologies,
methodologies, modalities and research. Multitask and				v BOOKS AND ARTICLES
multi-professional nature of Forensic Science needs an
inter-professional approach, which is, many a time,				1. A Convergence of Science and Law. A Summary
lacking. Therefore, sincere and serious efforts are				Report of the First Meeting of the Science,
required to be made to eliminate personal and				Technology and Law Panel: National Research Council.
professional bias of the involved personnel and				2. Science and law blog: August 8, 2008. Fingerprints''
professionals.				Chemical "Footprints"?
				3. Science and law blog: August 11, 2008. "Hot
Forensic Science in criminal investigation and trial is				Tubbing": Old wine in New Bottles for Expert
principally concerned with materials and circuitously				Witnesses.
through materials, with men, places and time. It				4. The New York Times: August 7, 2008, Kenneth
embraces all branches of science and applies them to				Chang.
the purposes of law. The scientific examination by				5. Law, science and technology collaboration: Justice
Forensic Scientists adjoins a missing link or				M. Jugannadha Rao-Chairman Law Commission of
strengthens a weak chain of investigation.				India.
				6. Kolkata Newsline, Thursday, February 01, 2007.
Systematic uses of Forensic Science provide				7. A profile of forensic science in juristic journey:
significant assistance in answering the following				Justice Jitendra N. Bhatt.
questions:				8. Do space laws need to be modified? S Bhatt
				9. Space weddings. I do. I really do. Carol Pinchefsky,
(i) How was the crime committed?				7 July 2008.
(ii) When was the crime committed?				10. Tara Blake Garfinkel, Jurisdiction Over
(iii) Who committed the crime?				Communication Torts: Can You Be Pulled into Another
				Country's Court System for Making a Defamatory
Law-enforcement agencies refer to Forensic Experts				Statement Over the Internet? A Comparison of
to help solve mysterious situations concerning human				English and US Law, 9 Transnat'l Law 489, 492
life and thereby, provide help and useful contribution				11. Bryan P. Werley, Aussie Rules: Universal Jurisdiction
to the criminal courts in the journey for search of				over Internet Defamation, 18 Temp. Int'l &
truth in criminal trials. Forensic Science deals with				Comp. L.J. 199, 219
various aspects, including routine post-mortem to				12. Para 1.16 of the British Law Commission Report on
sophisticated tracking piece like DNA analysis.				Defamation and the Internet, cited from (visited on
				7th August, 2004
Unfortunately, techniques and methodology with				13. 1996 US Dist LEXIS 8435 (SDNY 19 June, 1996),
necessary materials used extensively in Western				cited from R. Matthan: The Law Relating to
countries has not successfully clicked in India because				Computers & the Internet, p. 2 (New Delhi:
of a variety of reasons, the major one being the				Butterworths, 2000). In this case, the defendant was
investment of huge finance. This science is also, at				an Italian, who had, using an Italian server, set up a
times, useful in finding out the truth in some of the				website, under the name "Playmen". The court had
civil cases.				earlier issued a permanent injunction against the
				defendant from using that name in any magazine
The prosecution mainly calls Forensic Scientists as				sold, published or distributed in USA. The court
expert witnesses. The practice of the defense				accepted that it could not order the website to be
producing Forensic Scientists or the courts consulting				shut down as that would amount to asserting that
on their own listed experts is not very much in				every court in the world had jurisdiction over all
vogue. In fact, there is an acute need to bridge the				information providers on the internet
communication gap that presently exists between				14. In info age, time for cyber savvy cops. Uma
lawyers, judges and Forensic Scientists. An				Karve. October 5, 2002.
independent analysis and evaluation of the scientist''s				15. Learning the law, Indian Express. Karina Sudarsan
data and any subsequent testimony that may follow				16. Beware! Cyber Criminals are on the prowl, Navhind
again depends on the judges'' familiarity and				Times,March 17, 2002; by Shaikh Jamaluddin.
understanding of the principles of Forensic Science.				17. 10 Myths of Electronic Security, Banking Frontiers
				September, 2002; Rohas Nagpal, Asian School of
In Western countries DNA test and profile is widely				Cyber Laws.
employed. In a country like ours, the need of such a				18. I''ll be watching you! Times of India, December 19,
test and profile may, hardly, be emphasized. In many				2002; Zahra Khan, Times News Network.
developed countries, DNA test, genetic testing				19. Approaches to Cybercrime Jurisdiction; Susan W.
techniques and "racmization" -- testing based on				Brenner, University of Dayton - School of Law,
systematic examination of teeth and bite-marks has				Bert-Jaap Koops Tilburg University - Faculty of Law
proved to be very useful. "Racmization" technique is				(TILT).
currently used in Japan and Germany. It has potential				20. Challenge of borderless ''Cyber Crime'' to
to replace the traditional method that took into				International Efforts to Combat Transnational
account the eruption and/or fusion and falling				Organized Crime Discussed at Symposium, 14
sequence of teeth. A fusion of such knowledge of				December, 2000.
Forensic Science and newly developed techniques will,				21. Towards Speedy, Inexpensive, Transparent and
undoubtedly, not only provide proper perspective and				Accountable Justice; Justice GC Bharuka, 4th
dimensions, but will also lead to detection of crime,				November, 2007.
and be a great help in search of the truth. It will be

Version Geek

SCIENCE AND TECHNOLOGY: THEIR RELATIONSHIP WITH LAW