M J Antony: Law in race with science

OUT OF COURT

Judges have to put new meaning into old words to make statutes work.

Technology is moving so fast these days that the words and phrases used in statutes become outdated very soon. Law-makers have always been found to be decades behind science. The Evidence Act of 1872 spoke about "handwriting" when the typewriter was not invented. Therefore, the courts had to interpret the word to include typewriting. When the Telegraph Act was passed in 1885, there was no telephone. Again, the judges stretched the words in the legislation to bring telephone within the legal framework. "Stage carriage" was interpreted to include tram, "steam tricycle" to include locomotive and so on.

The pace of scientific progress has since accelerated and the judges have a harder task now to read into the existing words and definitions new technological concepts. It percolates to the level of sales tax laws, as the recent judgement of the Supreme Court showed in State of Punjab vs Amritsar Beverages Ltd.

The sales tax department conducted a raid in the premises of the company and a large number of documents contained on the hard disk of the computers were seized. The state sales tax law says that the officer seizing the books and registers shall give a receipt to the dealer and the latter shall give a receipt in writing. The officer, before returning them, shall affix his signatures and seal on the pages of the books. The dealer shall mention the pages on which these are done.

The problem here was that all these cannot be done on a computer disk. The dealer did not come to verify the data but instead filed a writ petition asking the high court to order the authorities to return the books and disk. The high court ordered so and imposed a fine personally on the officers concerned for withholding the documents. Therefore, the government appealed to the Supreme Court.

The Supreme Court recognised that in the case of a hard disk, literal compliance of the provision of law was impossible. It said that nothing prevented the authorities from making copies of the hard disk or obtain a hard copy and fix their signatures or official seal in physical form and furnish a copy to the dealer. If the sales tax department could not think of this, at least the high court should have devised the method, as the problem arose for the first time. It called upon the authorities to avoid such controversies in future by adapting the letter of the law to the present situation.

"Creative interpretation has been resorted to by the court so as to achieve a balance between the age-old and rigid laws on the one hand and advanced technology on the other," the judgement said. "Judiciary always responds to the need of the changing scenario in regard to development of technologies. It uses its own interpretative principles to achieve a balance when Parliament has not responded to the need to amend the statute having regard to the developments in the field of science."

Some attempts have been made in recent years to cope with the problem. Section 464 of the Indian Penal Code now recognises digital signatures. Sections 29, 167, 172, 192 and 463 of the code have been amended to include electronic documents within the definition of "documents". Section 63 of the Evidence Act has been amended to include admissibility of computer outputs in the media, paper, optical or magnetic form. Section 73A prescribes procedures for verification of digital signatures. Sections 85A and 85B raise a presumption as regards electronic contracts, electronic records and digital signature certificates and electronic messages.

Some earlier judgements of the Supreme Court have also dealt with this race between law and science. In Liverpool & London Association vs MV Sea Success (2004), it dealt with a case of maritime insurance and the court said that "interpretative changes" must be made, having regard to the ever-changing global scenario, if there is no statutory law. In SIL Import vs Exim Aides (1999), the court dealt with the words "notice in writing" in a cheque-bouncing case under the Negotiable Instruments Act. The notice was faxed in this case. The question arose whether fax amounted to notice in writing. The court stated that if it were to interpret the words as restricted to the customary mode of postal service of personal delivery, the interpretative process would fail to cope up with the change of time. When the law was made in 1988, modern modes of communication like fax and the Internet did exist and Parliament was aware of these methods. Therefore, they should be accepted as valid means of serving notice.

These judgements quote jurist Francis Bennion who seem to have set the trend: "The language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law." This principle makes the task of the judges more onerous as they will have to decide how far situational changes can give rise to new interpretation of statutory provisions.