Tag: Evidence Law

EMERGENCE AND FUTURE OF E-ARBITRATION IN INDIA

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INTRODUCTION

In the current globalization period of the electronic and IT age where providers, clients, purchasers, and laborers are all at better places and are isolated by various time regions questions which emerge should be settled through electronic intervention so that time and cash both can be saved. This article attempts to harp to a greater degree toward the thrilling fate of e-assertion gave frameworks of checks and equilibrium are kept up with like conventional discretion 1.
The utilization of innovation in debate goals is presently not an uncommon event. The ideas of worldwide exchange and unfamiliar venture are cherished in the crucial idea of global business assertion and online debate goal. 2021, the time of hope, brought a limit with regards to more noteworthy work and global venture. Because of the uncommon dependence on virtual or advanced advances in 2020, substances, for example, organizations, firms, and legal counselors began encountering digital assaults.
While, the innovative progressions have now overcome much enough for everybody to know that, in a limited way, information and security hazards are constantly implied, the highly sensitive situation in 2020 constrained attorneys, customers, and foundations towards remote working frameworks that are intensely reliant upon online innovation and administrations2.
In India, an internet-based mediation statement in customary and e-contracts is substantial under Section 7 of the Arbitration and Conciliation Act of 1996 (the “Act”). This has released Pandora’s container of specialized and lawful intricacies. Law offices have turned into a most loved objective for such exercises. Law offices work in a framework that is dynamic, non-static and various briefs are taken care of all the while by lawyers over messages and online records.

GOING INTO AN ONLINE ARBITRATION AGREEMENT

The different ways by which gatherings go into an internet-based assertion arrangement are by:

  • Commonly consenting to determine any questions through the internet-based discretion instrument, and
  • Consenting to an internet-based assertion proviso via purchasing any item or administration where the terms of purchasing give so. The agreements of each exchange are available by a hyperlink or are given toward the finish of a page. The permeability of the said agreements assumes a vital part in examining the extent of a noteworthy/enforceable web-based discretion understanding.

There are two sorts of sites with regards to deciding if huge consideration of the purchaser was brought towards the state of online intervention or not:

  1. Browse-wrap sites
    These sites are of such nature that they expect to agree to the hyperlinked agreements by the purchaser essentially entering the site. Since the hyperlink is regularly dark and, in some cases, thought to be agreed to, these agreements are without any web-based intervention provisos.
  2. Click-wrap sites
    Click-wrap sites require the purchaser to effectively show that the purchaser is consenting to their agreements for the buy 1.

LEGITIMATE VALIDITY OF ONLINE ARBITRATION IN INDIA

While Section 31 (1) of the Act gives that an intervention arrangement will be recorded as a hard copy, it will be perused with Section 4 of the Information Technology Act, 2000 (“IT Act”) which expresses that where any law gives that any matter will be recorded as a hard copy/type-composed/printed, then, at that point, such prerequisite would be considered fulfilled assuming such matter is: (i) made accessible in an electronic structure; and (ii) available to be usable for ensuing reference1.
In web-based business connections, the issue of checking the character of the restricting gatherings is very normal. One should make certain of the individual’s character with whom they are managing. Section(s) 4 and 5 of the IT Act read with Section 65-B of the Evidence Act explains the legitimate acknowledgment of electronic records and marks. Such online endorsements are crucial in guaranteeing the character, validness, and non-disavowal/legitimacy of information correspondence, along these lines catalyzing trust.
Under the said segments, the Supreme Court, in State of Maharashtra v. Dr. Praful B. Desai, 2003 4 SCC 601, has likewise recognized the execution of video conferencing frameworks to record observer explanations. For consistency, the rules given by the International Chamber of Commerce might be followed.
Online assertion and ADR overall happen under the shadow of the appropriate laws to the topic. The result from the appropriate law where no arrangement is reached (in an internet-based mediation continuing) gives the gatherings included a sensibly solid thought of their negotiating posture in a debate during the period of planning in the intervention procedures. Hence, a steady and all-inclusive methodology in managing the internet-based case the executives’ frameworks for online mediation stay to be in shortfall.
The current law in India can be perceived from two milestone Supreme Court cases, Trimex International FZE Ltd. v. Vedanta Aluminum Ltd., (2010) 3 SCC 1, and Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., AIR 2009 SC 12, wherein the Hon’ble Court has maintained the legitimacy and enforceability of an assertion understanding recorded as a hard copy closed through a trade of messages and electronic archives that were endorsed by the gatherings.

TRUST IN ONLINE ARBITRATION

The capacity of trust and equity in web-based assertion is intricate and incorporates a few variables which need due thought. Because online intervention procedures are virtual, it is hard for the authority to build up trust in and among the gatherings. In internet-based mediation, parties frequently host not met the contradicting get-together, not to mention the judge. This forces a constraint on the comprehension of the referee concerning the gatherings in question, their relationship, and their foundation. The referee passes up the different social signals and a chance to peruse the gatherings’ body language.

CONCLUSION

With the coming of innovation in the developing internet business time, e-mediation are the future anyway the equivalent must be effective on the off chance that there are laws, computerized security, digitization of courts and online paperless legal executive ought to be set up in India, which are followed in any case there will be ascending in more questions and the premise motivation behind discretion will be foiled and shoppers will be denied evenhanded equity.

References

  1. Scope of Online Arbitration and its Future in India. usllsadrblog.com. [Online] https://usllsadrblog.com/scope-of-online-arbitration/.
  2. Future of arbitration : everything you need to know about e-arbitration . blog.ipleaders.in. [Online] https://blog.ipleaders.in/future-arbitration-everything-need-know-about-e-arbitration/.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.

AN OVERVIEW ON TEST IDENTIFICATION PARADE

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This post is written by Anushree Tadge, 3rd year law student of ILS Law College, Pune, she tries to explain briefly what a test identification parade is and how it makes a significant contribution in the criminal law system in India.

INTRODUCTION TO TEST IDENTIFICATION PARADE

In Criminal trials, the most important step to follow as soon as the accused is arrested is confirming whether the accused is really the ‘accused’ as far as the crime scene is concerned. This test is extremely popular and is used as a means to examine the accuracy of the witness’s ability to identify the suspect amongst other unknown persons. Test identification parade is an effective tool in the investigation and with the correct procedure, it can be made admissible as evidence in the courts (corroborative evidence), the purpose is mainly to test and improve the credibility of existing substantial evidence in the case.

PROVISIONS AND ADMISSIBILITY

Section 9 of the Indian Evidence Act allows identification of the accused by the process of Test Identification Parade as well as the proofs to be all admissible in the courtroom, now it has to be understood that this ‘test’ is not compulsory to be conducted, the section 54 (a) of The Code of Criminal Procedure grants the process to allow the suspected to be presented for a test identification parade.

Very interestingly, Article 20(3) of the Constitution of India states that no person should be forced to be a witness against his own self, such principle is not violated with the test identification parade, this means that appearing for a test identification parade does not necessarily mean giving testimony in the Court of Law.

Such type of parade conducted for the purpose of identification in the investigation cannot be considered as substantial evidence it rather is taken up as corroborative evidence to support other facts and circumstances found in the case and used in the arguments to frame the ‘accused’

PROCEDURE AND PRECAUTIONS 

Procedures: Most importantly, the parade should be held as soon as possible, so that the victim or the witness doesn’t forget about the details essential for identification, as soon as the suspect is arrested the parade should be conducted. Delays are not taken positively in such cases by the courts of law. The magistrate should accompany the police when a test identification parade is carried on. The identifier should identify in both, the test identification parade as well as in the court. Also, the procedure should also take into account that the accused does not know the witness or victim before the commission of the crime, and the identifier must have observed the person for some time so as to identify him/her later on and in a sufficiently lit area.

Precautions: The police should make sure that they leave the place in order to the identifier identifying the person properly without haste, after making the required necessary arrangements, Except for the magistrate and identifier, they are allowed to be in place. For accuracy of results, a similar person to the accused must be made present along with the others and accused in a test identification parade ( Ratio minimum 1:5 and 1:10 ). Other witnesses are not allowed to be present during the process of one parade and are supposed to be kept far away from the identification parade. Also, precautions have to be taken that the accused changes positions after every witness identification takes place. 

WHETHER TEST IDENTIFICATION PARADE IS NECESSARY OR NOT:

Test Identification is usually necessary when the disputes are concerned with that of the identity of the accused, in cases where the victim never saw the accused in his/her life before the incident. When the victim experiences the act of crime and can identify the accused, a test parade is to be conducted, usually, in such cases, victims can observe the criminal but identify him at a later stage. Even keeping this in mind, the parade should be held as soon as possible and that too with the presence of the magistrate.

Test identification is not required in cases where both witness and accused are acquainted with each other as they live nearby or even closer. Test identification is done to support the existing evidence and confirm the genuineness of the same.

Also, if any form of other evidence is brought to the Court’s attention which the court can safely rely on and in doing so no party will have the right to question or even initiate the parade then it will is not be considered as any substantial evidence and even if the test is not performed admissibility of evidence in court in court shall not be affected. 

CRITICAL ANALYSIS

The credibility of this kind of test by the identifier with respect to the test identification parade, the credibility of such test vary from situation to situation and case to case. Many a times if the victim comes in a face to face contact may register a deep scar in the mind of the victim, they might remember the person and the act committed, place and even number of people involved. Factors like if the act was done during the day time? If it was in an open place, was there enough lighting for the identifier? All come into consideration…

In incidents where people covered their faces, the identification is not considered to be suitable as the identifier cannot identify the person, as well as in a situation where there lies a very huge difference in the commission of the act and the test to be conducted, it is generally the view of the court that it will further decide whether the parade should be held or not depending on facts and circumstances of the matter. 

CASE REFERENCE

In Raju Manjhi v. State of Bihar, the landmark case, the court stressed upon how the holding of test identification parade was not mandatory. The judgement was delivered by Hon’ble Mr Justice N. V. Ramana and Hon’ble Mr. Justice Mohan Shantanagoudar. On a regular night of 1999, around twelve people below 26 years committed the act of robbery into the house of Kamdeo Singh After the investigation started, many witnesses were found, although, during the test identification parade, no identification was done by the witnesses. The Court held that the identification test is conducted in a particular case only to help and support the investigation officer in a more accurate way. Now there is no provision mentioned in the Criminal Procedure Code which paves way for the investigating agency to hold or give any right to the ‘accused’ to demand the parade by any chance. Any failure to hold the parade would not make the evidence to be inadmissible for identification in Court. 

IDENTIFICATION BY PHOTOGRAPH?

Section 22 of the TADA- Terrorist and Disruptive Activities (Prevention) Act, 1987 states that: If a particular person is proclaimed to be the offender in any terrorist case, the evidence related to his identification by any witnesses on the basis of a photograph shall be as binding as the evidence of the parade.

IDENTIFICATION BY VOICE?

In the case of, Mohan Singh v. State of Bihar, it was held that identification of the accused by his/her voice was reliable as prior to the happening of the incident, the witness has had some kind of acquaintance with the accused. 

CONCLUSION

Since the procedure of test identification parade in India is already a sidetracked one and it does not even amount to substantive evidence, it’s an effect in the case proceedings is only as much as a ‘dot connector’. But it is strongly recommended to police officers that procedures regarding the parade and the specific course of any action to the investigating authorities must be clearly explained. The government should increase the number of features for more effectively conducting the test identification parade, places should be allotted, tinted windows, better interrogation, and facilities so that concerned persons can see what’s happening instead of only the magistrate, etc. For over a century now, test identification parades have been active in India, and they significantly contribute and help the investigation faster and solve the cases in a better and faster way.

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