E-Notes L&T LLB 405 - LAW AND EMERGING TECHNOLOGY NOTES

BBA LLB

Chanderprabhu Jain College of Higher Studies

&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

E-Notes

Class : BA LLB/ BBA LLB ( 7th SEMESTER)

Paper Code :

Subject : LAW & EMERGING TECHNOLOGY

Faculty Name : Ms. SHIVALI RAWAT

UNIT-1
INTRODUCTION: NOTION OF TECHNOLOGY

A. EMERGENCE OF TECHNOLOGY AND INDUSTRIAL REVOLUTION

The term “industrial revolution” is a succinct catchphrase to describe a historical period,

starting in 18th-century Great Britain, where the pace of change appeared to speed up. This
acceleration in the processes of technical innovation brought about an array of new tools and
machines. It also involved more subtle practical improvements in various fields affecting
labor, production, and resource use. The word “technology” (which derives from the Greek
word techne, meaning art or craft) encompasses both of these dimensions of innovation.

The Evolution of the Industrial Revolution

Fueled by the game-changing use of steam power, the Industrial Revolution began in Britain
and spread to the rest of the world, including the United States, by the 1830s and ‘40s.
Modern historians often refer to this period as the First Industrial Revolution, to set it apart

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from a second period of industrialization that took place from the late 19th to early 20th
centuries and saw rapid advances in the steel, electric and automobile industries.

The First Industrial Revolution used water and steam power to mechanize production. It was
the first instance where production shifted from cottage industry to large production houses
or factories.

The Second industrial revolution used electric power for mass production. That is, large
scale machines were brought into the picture. Huge conveyor belts rolling products one after
the other, automobiles and production of electricity, defined this phase.

The discovery of computers laid the path for the third revolution.

The third phase was the most important as the machines which previously were electrically
driven became electronically driven, that is, it used electronics and information technology to
automate production. This came around in the middle of the 20th century.

It is seen that each revolution took about a hundred years to establish and then give way to
the next revolution.

Now a Fourth Industrial Revolution is building on the third revolution, that is, the digital
revolution that has been occurring since the middle of the last century. It is characterized by a
fusion of technologies that is blurring the lines between the physical, digital, and biological
spheres.

India and Industrial Revolution

India was famous for her handicrafts from the pre-British times. In Mughal periods such as
the variety of handicrafts that it became famous in the global market.However, the Industrial

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Revolution came late to India. This was mainly because of India’s complicated political and
economic relations with Britain.

Impact of the revolution:-

 India dominated the cotton textile market in the 18th century. It took a severe hit
when the Industrial Revolution began in England around 1760s.
 The use of steam power in British mills reduced the cost of cotton by 85 %.
 In order to protect its domestic industry, it began to restrict textile imports from
India. On the other hand, it started to import textiles to India.
 British protectionist laws led to deindustrialization in India.
 The new colonial law forced the farmers to grow cash crops like cotton instead of
food crops, leading to famine and poverty.
 The third Industrial Revolution started in India in 1980s. Advancement in this
phase encompasses the spread of personal computers, internet, and ICT.
 In India, the Industrial Revolution 4.0 is mainly based on Big Data and Artificial
Intelligence.

Emergence of technology in India

Science, technology and innovation have had a great impact on economic growth and social
development in India. The Government moved from scientific policy resolution (1958) to the
technology policy statement (1983) to the science and technology policy (2003) and finally
to science, technology and innovation policy (2013). We can look at our 40 year journey, the
pre-liberalised as well as the post-liberalised India.

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 First, India experimented with socialism for more than four decades, which kept
out foreign capital and technologies, but spurred local innovation based on
indigeneous technology.
 Second, the Indian economy didn’t start growing until the 1990s, so local
companies were small. Indian entrepreneurs, therefore, developed a penchant for
undertaking small projects with indigenous (import substituted) technologies but with
huge capital efficiency.
 Third, local companies knew that while India has both rich and poor people,
catering only to the rich limited their market. They were forced to create products that
straddled the whole economic pyramid, from top to bottom. Thus affordable inclusive
innovation was firmly integrated in to the strategy.
 Fourth, the most important driver happened to be India’s innovation mind-set.
Some Indian leaders had the audacity to question the conventional wisdom. The mix
of miniscule research budgets, small size, low prices, but big ambitions translated into
an explosive combination of extreme scarcity and great aspiration, which ignited the
Indian innovation.

Defence: India developed diverse missiles and rocket systems, remotely piloted vehicles,
light combat aircraft, etc. BraHmos Missiles is a great example of Indian prowess in a
strategic technology. None of these technologies were available to India.

Nuclear energy: The entire range of technologies, from the prospecting of raw materials to
the design and construction of large nuclear reactors was developed on a self-reliant basis.
India’s nuclear fast-breeder reactors emerged from its thrust towards techno-nationalism.

Space technology from indigenous development to satellites to launch vehicles, from SLV to
ASLV to PSLV to GSLV. India’s first moon orbiter project Chandrayan-1, Mars Orbiter

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Mission or even the recent simultaneous launch of 20 satellites are brilliant examples. No
wonder, India is now ranked amongst handful of nations of the world that have a credible
capability in space technology.

Strength respects strength. It is the growing technological strength of a nation that increases
its access to technology that has been denied to it. The technology denial regime itself
underwent a change in India. It gave India a strong technological foundation.

For instance, India’s supercomputer journey began, when access to CRAY super computer
was denied to India in mid-eighties. In 1998, C-DAC launched PARAM 10,000, which
demonstrated India’s capacity to build 100-gigaflop machines. In response, the US relaxed its
export controls. During the same year, CRAY, which had denied the licensing of technology,
itself established a subsidiary in India.

In 2008, India signed a key civil nuclear deal with the US, which gave it access to some
nuclear materials and technology. Recently, India become a member of Missile Technology
Control Regime (MTCR), getting access to crucial missile technologies.

A. IMPACT OF TECHNOLOGY ON SOCIETY

Society has always been impacted by technology. Each invention has affected how people
relate to one another and how cultures have expanded or ended.

Technology impacts how cities grow, where people live, and who owns what. Technologies
are the reason a few people are very rich, that people are more social, and that teaching and
learning is changing.

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Technology has improved the general living standards of many people in the last few
decades. Without technology, people would still be living within their geographical confines
of their societies. Examples of technological advancements that have made life easier include
things like the Internet, phones, tablets, TV, PS and movie and video games. However, these
are just the positive attributes of technology; there are also a number of negative effects that
it has brought upon the society in general.

Advantages

 Education has progressed because of advances in computers. Students can learn

globally without having to leave classrooms. Online learning in the future may take
over the primacy completely.
 Medical discoveries occur much faster, thanks to the fact that machines and
computers can assist in the research process; can enable intensive educational
research on medical issues.
 Easy access to information
 Better communication
 Modern transportation technologies make it easy to travel long distances.
Transportation is an important element in the lives of people and the business world.
 Instant remote healthcare: An efficient healthcare alternative during pandemics
and other crises has been the rise of telehealth services by remote video interpreters
and other certified medical translators and interpreters.
 Disadvantages
 Social isolation: This is one of the primary problems. We see children playing in
the parks less and less, and spending more and more time on their computers.

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 Addiction: As society progresses more in the technology field, people begin to

rely more on computers and other forms of technology for their daily existence.
 While technological advances in industry and at work, human workers have
less value. Machines automate processes and can handle ten people with one
computer; companies may not have to hire so many people to do the work.
 Decrease in creativity and change in reasoning: Increased dependence on
modern tools, such as calculators, has reduced creativity.

B. IMPACT OF TECHNOLOGY ON POLITICS

 The combination of politics and technology covers concepts, mechanisms,
personalities, efforts, and social movements including but not necessarily limited to
the Internet and other information and communication technologies (ICTs).
 A growing body of scholarship has begun to explore how internet technologies
are influencing political communication and participation, especially in terms of what
is known as the public sphere.
 An influential and transformational communication and information technology is
the mobile phone or smartphone, which can include: talk, text
messaging, Internet and Web access, electronic mail, faxing, pictures, video, and a
wide variety of apps.
 Mobile devices are proving to increase political participation and are now even
being portrayed as a voting gadget in even the least developed countries.
 Increased availability of the mobile phone and subsequent access to the public
sphere has enhanced the ability of individuals and groups to bring attention to and
organize around specialized issues.

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 More recently, social media has emerged to become one of the main areas of
influence for politics, where millions of users are able to learn about politicians'
policies and statements, interact with political leaders, organize, and voice their own
opinions on political matters.

C. LAW, ETHICS & TECHNOLOGY

Every technological invention has got both positive and negative impacts on the society.
Einstein while giving the nuclear power theory as has never expected that his discovery shall
ever be used for such a devastating destruction at Hiroshima and Nagasaki, it too was not
known during the 19ths that communication technology of late shall have so many alarming
direction associated with it. For example, technology provides easier and efficient means of
storage and retrieval of information but at the same time suffers from piracy of copyrighted
materials, software, data, music, video etc. at large scales.

Internet provides instant access to all sorts of useful information at finger tip but at the same
time suffers from plagiarism, illegal uploading, downloading, copying, stealing and misuse
of intellectual property. Technology has created high-end job opportunities for the techies in
one hand and on the other hand has created sever unemployment among non-tech groups.

Communication Technology has made trade, investment, business simpler and unruffled
through e-commerce and on-line transactions but suffers from cyber crimes, forgery,
sabotage, hacking and loss. Internet has made the whole world a small intellectual village but
at the same time is polluted with horrid contents like pornography, spam, worms and viruses.
Technology has enabled us to do things that we wouldn’t have dreamed of 30 years ago.
Whether it’s choosing your child’s genetic traits, modifying agricultural products to enhance

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insect resistance, or tracking a suspected criminal’s cell phone location for a criminal
investigation.

Digital technology is advancing every day. The vast computational power of the cloud and an
immense accumulation of data have come together. Artificial intelligence (AI) is growing all
around us and computers will behave more and more like humans. As computers start to act
more like humans, there will be societal challenges. We not only need a technology vision
for AI, we need an ethical vision for AI.Therefore, it is high time now for careful inspection
of the legal and ethical aspects of technology as there are not enough guidelines available in
this field as compared to those available in conventional branches of science and technology.

More importantly, now technology is not limited to the scientists and software engineers
alone rather it has become a widespread phenomenon, affecting people at various stages in
their role, as customers, service provider, participants, middlemen etc.With the elevating
identity theft rates in India, the IT Act of 2000 is being tightened. According to IT
amendment Bill 2006, identity theft is made an offence punishable with up to five years of
imprisonment and a fine.

Another most common type of cyber scam of today is phishing in which the crooks send
bogus emails tricking the user into giving up personal information at fake websites that
resemble those of legitimate financial institutions and other commercial outfits.

D. NOTION OF TECHNOLOGICAL SOCIETY

 The expression does not refer to particular society but to the idea or notion of the
society.
 It refer to a technical phenomenon.
 It refer to the mental attitude of postmodern man that influences the life style of
the people at varying degree.

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 It refers to inter-dependency co-dependence, co-influence, and co-production

of technology and society upon one another (technology upon culture, and vice
versa). Evidence for this synergy has been found since humanity first started using
simple tools.
 The inter-relationship has continued as modern technologies such as the printing
press and computers have helped shape society.

UNIT-II

E-COMMERCE

A. MODEL LAW OF E-COMMERCE

In today’s world, a large number of international trade transactions are carried out by electronic
data interchange and other means of communication, commonly known as “electronic
commerce”. It uses alternatives to paper-based methods of communication and storage of
information. The United Nations Commission on International Trade Law (UNCITRAL), by the
means of Model Law on Electronic Commerce (MLEC), sought to provide a set of
internationally acceptable rules with an aim to remove legal obstacles and increase legal
predictability for e-commerce. It has further improved the efficiency in international trade by
providing equal treatment to paper based and electronic information, thus enabling the use of
paperless communication.

The model law is not a comprehensive, code-like articulation of the rules for the electronic
transactions. It does not intend to govern every aspect of electronic contracting. It adopts a
limited framework approach and enables and facilitates e-commerce. It has adopted the
following fundamental principles of the modern electronic-commerce law:

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The principle of non-discrimination – It ensures that any document would not be denied legal
validity, effect, and enforceability solely on the basis that it is in electronic form.

The principle of technological neutrality – It mandates the adoption of such provisions which are
neutral with respect to technology used. This aims at accommodating any future developments
without any further legislative work.

The functional equivalence principle – It sets out the specific requirements that e-communication
ought to meet in order to fulfill the same functions that certain notions ,in traditional paper based
system, seek to achieve, for example, “writing”, “original”, “signed”, and “record”.

All the states have given favourable consideration to the model law while enacting or revising
their laws so that uniformity of the law applicable to the alternatives to the paper-based methods
of communication is facilitated. This article deals with a brief history and key provisions of the
Model Law of E-commerce to better understand the objectives of MLEC and how they are
achieved.

Purpose

The Model Law on Electronic Commerce (MLEC) purports to enable and facilitate commerce
conducted using electronic means by providing national legislators with a set of internationally
acceptable rules aimed at removing legal obstacles and increasing legal predictability for
electronic commerce. In particular, it is intended to overcome obstacles arising from statutory
provisions that may not be varied contractually by providing equal treatment to paper-based and
electronic information. Such equal treatment is essential for enabling the use of paperless
communication, thus fostering efficiency in international trade.

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Key Provisions

General Provisions

Article 2 of the Law provides six definitions, the most important one is of “Data message”. It is
defined as information generated, sent, received, or stored by electronic, optical, or similar
means.This definition has been attributed after taking into consideration the future technological
developments as well, which is the reason for inclusion of the term similar means. This wide
definition includes the notion of a record and even revocation and amendment. The sphere of
application that Article 1 talks about, is for the information in the form of data messages, in the
context of commercial activities.

The Model Laws give the interpretational tools(Article 3) which call for a standard of
international origin and uniformity in application of general principles of law. There can be
variation in the communication of data messages by the agreement of the parties(Article 4).

Application of legal requirement to data messages

The principle of non-discrimination has been enforced by the means of Article 5 which specifies
that the information communicated via electronic mode, i.e., in the form of data messages cannot
be denied legal validity and effect. Information by the way of reference has also been given legal
validity(Article 5) and thus, the application of this law has been considerably widened. This is of
utmost importance in the context of international law.

The nations required the documents to be in writing and validation was only given to the hand
written signature as a form of authentication. By the means of provisions in Articles 6 & 7, the
Model has done away with both of the above obstacles. Accessibility of data messages does not

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require the document to be in writing, and recognition of digital signature marks the approval of
the full structure of the contract. This provision is termed relevant for every circumstance
including a relevant agreement.

The notion of originality is defined in Article 8 which provides that data messages can fulfill the
legal requirement of presentation and retention of information in its original form subject to the
assurance of integrity and presentability of data messages. Presentability meaning the ability to
display the information where required. Article 9 specifies that the data messages cannot be
denied admissibility in the court of law solely on the basis that the information is in the form of a
data message. Thus, evidentiary value has been granted to data messages. The requirement of
retention of information is also met by retention of information in the form of data messages
subject to the accessibility, accuracy and originality of format and identity of origin(Article 10).

Communication of data messages

 Offer and acceptance of offer, when communicated in the form of data messages, cannot
be denied legal validity and enforceability solely on the grounds that they are in the form
of data messages. Thus, the formation of a valid contract was made possible through the
means of data messages.(Article 11)

 Acknowledgement in the form of receipt of data messages has also been granted legal
validity.(Article 12)

 The data message is attributed to the originator if it is sent by him or by a person

authorized by him(Article 13).

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 Article 14 provides that the receipt of the data message and its acknowledgement can also
be agreed upon by the parties beforehand. The transaction ensues when the information
goes out of control of the sender.

 The place of dispatch is the place of business and the time is when the acceptance enters
the system of the addressee (Article 15).

Specific provisions

Articles 16 & 17 talk about carriage of goods and transport documents. They enforce the ability
to achieve carriage of goods by the means of data messages and fulfillment of the requirement of
transport documents through the same as well. It is imperative for the objective of furtherance of
international trade. This part has been complemented by other legislative texts such as the
Rotterdam Rules and it may be the object of additional work of UNCITRAL in the future.

Implementation & Judicial Interpretations across the globe

The Model Law of Electronic Commerce was adopted to facilitate the international trade through
electronic modes of communication. It aimed at encouraging national legislators to adopt a set of
internationally acceptable rules regulating e-commerce. Thus, Model Law is accompanied with a
guide which provides background and explanatory information to assist the states in preparing
the necessary legislative provisions.

Different states enacted laws based on the principles of this Model Law. Thus, the courts have
interpreted the provisions of their domestic laws according to the Model Law.

Khoury v. Tomlinson is a landmark case decided by the Texas Court of Appeal. The facts of
this case are such that an agreement was entered via e-mail which was not signed but only the
name of the originator appeared in the ‘from’ section. Referring to the principles in Article 7 of

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the Model Law, the court found sufficient evidence that the name in the ‘from’ section
establishes the identity of the sender.

Chwee Kin Keong and others is a case dealt with by the Singapore High Court. There was the
issue of unilateral mistake in this case as the wrong price was quoted on the seller’s website for a
product. The server of the seller automatically sent a confirmation mail when the buyers placed
an order. All the elements of the contract were established but with a mistake which eliminated
consensus ad idem. Referring to the Singapore Electronic Transactions Act based on Model
Laws, the court found that human errors, system errors, and transmission errors could vitiate a
contract.

Martha Helena Pilonieta v Gabriel Humberto Pulido Casas is a case dealt with by the
Supreme Court of Justice of Columbia. The court found that the electronic message by a spouse
was not relevant on the ground of evidential thresholds.

Thus, the Model Laws became the basis for a number of legislative texts enacted by various
governments across the globe and it gave a uniformity to the laws concerning the information
communicated by the electronic mode of communication.

B. ONLINE CONTRACT
With the advance use of internet and electronic commerce, online contracts have assumed
importance mainly in terms of reach and multiplicity. Online contract or an electronic contract is
an agreement modelled, signed and executed electronically, usually over internet. An Online
contract is conceptually very similar and is drafted in the same manner in which a traditional
paper-based contract is drafted. In case of an online contract, the seller who intends to sell their
products, present their products, prices and terms for buying such products to the prospective
buyers. In turn, the buyers who are interested in buying the products either consider or click on

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the ‘I Agree’ or ‘Click to Agree’ option for indicating the acceptance of the terms presented by
the seller or they can sign electronically. Electronic signatures can be done in different ways like
typing the name of the signer’s in the specific signature space, copying and pasting the scanned
version of the signature or clicking an option meant for that purpose. Once the terms are
accepted and the payment is made, the transaction can be completed. The communication is
basically made between two computers through servers. The online contract is brought to the
scenario to help people in the way of formulating and implementing policies of commercial
contracts within business directed over internet. Online Contract is modelled for the sale,
purchase and supply of products and services to both consumers and business associates.
Online can be categorized into three types mainly i.e. browse or web wrap contracts, shrink wrap
contracts and clickwrap contracts. Other kinds of online contracts include employment contract,
contractor agreement, consultant agreement, Sale re-sale and distributor agreements, non-
disclosure agreements, software development and licensing agreements, source code escrow
agreements. Though these online contracts are witnessed in our everyday life, most of us are not
aware of the legal complexities connected to it; the use of online contract faces many technical
and legal challenges.
Types of Online Contract
Online contracts can be of three types mainly i.e. shrink-wrap agreements, click or web-wrap
agreements and browse-wrap agreements. In our everyday life, we usually witness these types of
online contracts. Other types of online contracts include employment contract, contractor
agreement, consultant agreement, Sale re-sale and distributor agreements, non-disclosure
agreements, software development and licensing agreements, source code escrow agreements.
Shrink-wrap agreements are usually the licensed agreement applicable in case of software
products buying. In case of shrink-wrap agreements, with opening of the packaging of the
software product, the terms and conditions to access such software product are enforced upon the

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person who buys it. Shrink-wrap agreements are simply those which are accepted by user at the
time of installation of software from a CD-ROM, for example, Nokia pc-suite. Sometimes
additional terms can be observed only after loading the product on the computer and then if the
buyer does not agree to those additional terms, then he has an option of returning the software
product. As soon as the purchaser tears the packaging or the cover for accessing the software
product, shrink-wrap agreement gives protection by indemnifying the manufacturer of the
product for any copyright or intellectual property rights violation. Though, in India, there is no
stable judicial decision or precedent on the validity of shrink-wrap agreements.
Click- wrap agreements are web based agreements which require the assent or consent of the
user by way of clicking “I Agree’ or “I Accept” or “Ok” button on the dialog box. In click –wrap
agreements, the user basically have to agree to the terms and conditions for usage of the
particular software. Users who disagree to the terms and conditions will not be able to use or buy
the product upon cancellation or rejection. A person witnesses web-wrap agreements almost
regularly. The terms and conditions for usage are exposed to the users prior to acceptance. For
agreement of an online shopping site etc.
An agreement made intended to be binding on two or more parties by the use of website can be
called a browse wrap agreement. In case of browse wrap agreement a regular user of a particular
website deemed to accept the terms of use and other policies of the website for continuous use.
Though these online contracts have become common in our daily, there are no precise judicial
precedents on the validity and enforceability of shrink-wrap and click-wrap agreements. Other
countries have dealt with these online agreements such as courts in the United States have held
that as far as the general principles of contract are not violated, both shrink-wrap agreements and
click- wrap agreements are enforceable.
Essential Elements Of Online Contract
The essential elements of online contract is discussed below:

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Offer – Just like paper made or conventional contract, one of the most essential elements of
online contract is the requirement of an offer to be made. There must be a lawful proposal or
offer made by one party known as the proposer and it is the starting point of a contract. By
browsing and choosing the goods and services available on the website of the seller, the
consumer makes an offer to purchase such in relation with the invitation to offer made by the
seller. A proposal must be distinguished from the invitation to offer or treat and must be made
with an intention to create legal relationship. An offer or proposal is revocable and can be
withdrawn at any time before it is accepted because once it is accepted by the other party, it
becomes a promise.
Acceptance – When a proposal or offer is made is accepted by the person to whom the offer is
made, it becomes a promise. The acceptance of the proposal must be unconditional and absolute
and must be communicated to the proposer or the offeror. In case of an online contract, offer and
acceptance can be made through e-mails or by filing requisite form provided in the website. They
may also need to take an online agreement by clicking on ‘I Agree’ or ‘I Accept’ for availing the
services offered.
Intention to create legal relationship – If there is no intention of creating legal relationship on
the part of the parties to contract, there is no contract between them. It is an essential element of
valid contract that parties to the contract must have intention to create legal relationships. The
intention of the parties is to be considered by the Court in each case and must be ascertained
from the terms of the agreement and surrounding consequences. Agreement of social or domestic
nature do not create legal relationship, hence they are not contracts and are not enforceable by
law. In the case of arrangements regulating social relations, it follows as a matter of course that
parties do not intend legal consequences to follow. For example, an invitation for marriage to a

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friend or family through e- mails or fax or through any means of telecommunication is not a
contract.
There must be a lawful object – Parties to the agreement must contract for a legal object. A
contract is only enforceable by law only when it is made for a lawful purpose. It must not defeat
any provision of law and must not be fraudulent in nature. Thus a contract on a website designed
for the purpose of selling illegal substances online is a void contract. If an agreement is made to
cause injury to any person or his property, such agreement is not lawful and therefore to be
considered as void. If any competent Court regards any agreement as opposed to public policy, it
is a void contract.
There must be a legal or lawful consideration – Consideration is one of most important
element of a contract. The basic rule is that when a party to a contract promises to perform his
promise he must get something in return for the performance of his promise. Consideration is
something of some value in the eyes of law. It may be of some benefit, right, interest or profit
given to the party as inducement of promise. An act constituting consideration must be moved at
the desire of the promisor and must be legal, real and not imaginary. Promises that are physically
impossible to perform cannot have real consideration. For eg. an online site that offers purchase
of land in moon.
Capacity of parties – Parties to a contract must be capable of entering into a contract. He must
attain the age of majority and must be of sound mind. He must not be disqualified from
contracting by any law for the time being in force. In our country an agreement where either
party is a minor has no significance. It is considered as void ab-initio. As per Section 12 of the
Indian Contract Act, 1872, any person who is in a position to judge and safeguard his own
interest is of sound mind and capable enough to enter into a contract. When a person is declared
insolvent by any competent Court, he cannot enter into a contract relating to his property. In the

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old age foundation case of Mohori Bibee vs. Dharmodas Ghose, it was held by the Privy
Council that an agreement by a minor is void.
There must be free and unaffected consent – Consent which is defined under Section 13 of the
Indian Contract Act, 1872 is an essential requirement of a contract. It is basically the meeting of
minds of the parties. When both agree upon the same thing in the same manner, they are said to
consent. In case consent is caused by coercion, it is voidable at the option of the party whose
consent was so caused. Coercion includes physical compulsion, threat, and violence. Consent has
to be free and genuine and not induced by misrepresentation, undue influence i.e a case where
one person is in a position to dominate the will of another. But in case of online contract there is
a narrow scope of physical communication between the website and the customer availing their
service, they just give consent by clicking the option that ensures free and genuine consent.
Possibility of performance – The terms and conditions of agreement must be certain and not
vague and must also be such as are capable of performance. An agreement to do an act
impossible in itself cannot be enforced as per section 29 of the Indian Contract Act, 1872. It is
the general rule that the promisors of the contract to perform the promise but there other persons
also who may perform under certain circumstances such as an agent if appointed by the promisor
for this purpose, legal representative in case of death of a promisor. The time, place and manner
of the performance of contract are fixed generally at the desire and conveniences of the parties.
Various rules regarding the time and place of contract are laid down under section 46 to 50 and
section 55. When the time is the essence of contract, a promisor is expected to perform his
promise with the stipulated time period and if he fails to do so, the contract becomes voidable at
the option of the promisee.
Formation of Online Contract
The Indian Contract Act, 1872 gives a lawful status to the common contractual rule. A valid
contract is formed by free consent of competent parties for a lawful object and consideration.

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This Act does not prescribe any specific provision for communicating offer and acceptance. It
may be made in writing or by word of mouth or inferred from the conduct of the parties and the
circumstances. Express contract is said to be expressed and entered into by words spoken or
written where the offer and acceptance are expressly agreed upon at the time of formation of the
contract. When the contract is inferred from the conduct of the parties, a contract is said to be
implied. Such contract comes into existence on account of conduct or act of the parties.
The Information Technology Act, 2000 has made certain provisions for the validity and the
formation of online contracts but no specific legislation has been incorporated for the validity of
online contracts in India. Even if no specific provision is made for the validity of online
contracts, it cannot be challenged based on technical grounds.
There are few processes available for forming an electronic contract such as e-mail by which
offers and acceptances can be exchanged. An online contract can be formed by completing the
website form provided for availing good or services offered by the seller in the website for
example air tickets. The person who intends to avail the good or services offered in the website
can place an order on the website by filling the concerned form and communicating such. The
goods offered can be delivered directly through electronic means for eg. e- tickets or may be
later for eg. clothes. Another process available for the formation of an online contract is through
online agreements by clicking on the button that says ‘ I Accept’ while connecting to a software
and by clicking on ‘I Agree’ button while signing up for an e-mail account.
Online contract is formed through new modes of communication such as e-mail, internet, fax and
telephone. The requirement of essential element such as offer and acceptance in online contract
formation is as much essential as it is for the formation of paper based traditional contract.
Contract formation over websites is quite different from the earlier ways of contract formation.
Online contract formation mainly raises issues in relation to the applicability of the offer and
acceptance rule. It is the website which acts as the retailer and responds as per the consumer’s

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action. When a consumer is interested in downloading songs, videos or movies from a retailer
website in lieu of payment, the consumer will have to agree to the standard terms of the retailer’s
website by clicking the particular option button. Once the terms are agreed by the consumer and
the acceptance is expressed, it is the responsibility of the website to deliver the service to the
consumer. And lastly, on making the appropriate payment, the contract is completed between the
consumer and the retailer’s website for the particular transaction.

C. JURISDICTIONAL CHALLENGES IN ONLINE TRANSACTIONS

The advancement in technology has brought with it a new wave of advanced communication,
and transactions through virtual mediums have replaced face to face transactions. Today, e-
commerce plays a vital role in nearly every sphere of life- with simply just a click of the mouse
we can pay our electricity/telephone bills, do online shopping, transfer money to persons in
different parts of the globe, conduct business deals etc. An online transaction may be explained
as a way of conducting business by utilizing computer and telecommunication technology to
exchange data or conduct business. However, this boom in internet transactions has brought a
host of issues regarding jurisdiction of such transactions to the forefront. The primary question
that needs to be addressed is “when a transaction takes place online, where is the contract
concluded?” Justice S. Muralidhar has stated that the traditional approach to jurisdiction invites a
court to ask whether it has the territorial, pecuniary, or subject matter jurisdiction to entertain the
case brought before it. With the internet, the question of ‘territorial’ jurisdiction gets complicated
largely on account of the fact that the internet is borderless.

U.S. Courts follow the “minimum contract rule” for determining territorial jurisdiction of online
transactions as laid down in the leading judgment of International Shoe Co v. Washington. It is a
requirement that must be satisfied before a defendant can be sued in a particular state. In order

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for the suit to go forward in the chosen state, the defendant must have some connections with
that state. For example, advertising or having business offices within a state may provide
minimum contacts between a company and the state. This test allows for jurisdiction over a non
resident when such contract exists between the defendant and the forum state so long as
maintenance of the suit does not offend the traditional; notions of fair play and substantial
justice.

The Indian position theoretically matches with the US rule of minimum contracts. For civil
matters, the Code of Civil Procedure, 1908 governs the jurisdiction aspect. Section 19 of the Act
states that where a suit is instituted for compensation on account of wrong done, if such a wrong
was committed within the local limits of the jurisdiction on one court and the defendant resides
in or carries on business, within the local limits of the jurisdiction of another court, the suit may
be instituted at the option of the plaintiff in either of the courts. Thus, for instance, if Mr. X
residing in Bangalore publishes on his website in Chennai defamatory statements against Mr. Y.
Mr. Y may sue Mr. X either in Bangalore or Chennai.

Section 20 of the CPC further provides that the suit shall be instituted within the local limits of
whose jurisdiction the defendant resides or the cause of action arises. For example, A is a
tradesman in Calcutta. B carries on business in Delhi. B buys goods of A online and requests A
to deliver them to the East Indian Railway Company. A delivers the goods accordingly in
Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has
arisen, or in Delhi, where B carries on business.

Further, Section 13 of CPC provides that a foreign judgment is to be conclusive as to any matter
which has been directly adjudicated upon between the same parties or between parties under

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whom they or any of them claim litigating under the same title except under certain specified
conditions. Talking about the presumption as to foreign judgments the provisions of the Act
states that the Court shall presume upon the production of any document purporting to be a
certified copy of a foreign judgment that such judgment was pronounced by a Court of
competent jurisdiction, unless the contrary appears on the record; but such presumption may be
displaced by proving want of jurisdiction.
For instance: A is a tradesman who maintains his website from USA; B is a resident of India. B
buys goods of A, online and requests A to deliver them to his address in India. A, fails to deliver
the goods on time, B suffers a heavy loss. B sued A in an American Court, court decided in favor
of B orders A to compensate B for the same. B filed a petition in Delhi HC for the enforcement
of the same. The Delhi HC will consider the American Judgment as a conclusive as to any matter
thereby.
In the case of Casio India Co. Ltd. vs Ashita Tele Systems Pvt. Ltd. [2003 (3) RAJ 506] there
was a passing-off action where the Defendant was carrying on business from Bombay. The
Defendant had managed to get a registration of domain name www.casioindia.com and
Defendant no. 2 was the Registrar with whom the domain name had been registered. The
Plaintiff, on the other hand, claimed to be a 100% subsidiary of Casio Computer Ltd., Japan
(Casio Japan) which was the registered owner of the trade mark Casio in India used for a large
number of electronic and other products. He had also obtained the registration of large number of
domain names in India like CasioIndia Company.com, CasioIndia.org, CasioIndia.net as well as
Casio India.info, CasioIndia. Defendant no. 1 had managed to get the registration of the these
domain names during the time when it held a distributorship agreement with the Plaintiff. The
H’ble Delhi High Court has observed that once access to the Defendants website could be had
from anywhere else, jurisdiction could not be confined to the territorial limits of the place where

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the Defendant resided and the fact that the Defendants website could be accessed from Delhi was
sufficient to invoke the territorial jurisdiction of a court in Delhi.
Another leading judgment is of (India TV) Independent News vs India Broadcast Live (2007
(35) PTC 177 Del). Here the Delhi High Court differed with its earlier judgment in Casio India.
The Court holds that jurisdiction of the forum court does not get attracted merely on the basis of
interactivity of the website which is accessible in the forum state but yet held that if the
Defendants website is interactive, permitting browsers not only to access the contents thereof but
also to subscribe to the services provided by the owners/operators, then courts jurisdiction at the
place where the website is accessed from is permissible. The High Court of Delhi ruled that it did
not have jurisdiction over the domain name www.indiatvlive.com, because the defendant was
based in Arizona. The court relied on the US circuit case Compuserve Inc. v. Patterson, which
referred to a three-part test for deciding jurisdiction:
 The defendant must purposefully avail itself of acting in the forum state or causing a
consequence in the forum state
 The cause of action must arise from the defendant’s activities there
 The acts of the defendant or consequences caused by the defendant must have a
substantial enough connection with the forum to make exercise of jurisdiction over the
defendant reasonable.

In Banyan Tree Holding (P) Ltd v. A. Murali Krishna Reddy and Anr, the Delhi High Court
stated that in order to establish the jurisdiction in forum court, even when a long arm statute
exits, the Plaintiff would have to show that the Defendant purposefully availed of the jurisdiction
of the forum state by specifically targeting customers within the forum state. A mere hosting of
an interactive website without any commercial activity being shown as having been conducted

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within the forum state would not enable the forum court to have jurisdiction. The law as laid
down in the case may be summarised as follows:
 Some commercial transaction must have taken place as a result of the site
 The defendant must have specifically targeted the forum state
 Some injury must have resulted to the plaintiff due to the actions of the defendant
 The plaintiff must have a presence in the forum state, and not merely the
possibility of a presence
A mere hosting of a website accessible in the forum state, or a posting of an advertisement or a
passive website that does not result in a commercial transaction with a viewer in the forum state,
cannot give rise to a cause of action and therefore the court does not have jurisdiction.

D. Digital Signature/Electronic Signature

Electronic signature and digital signature are often used interchangeably but the truth is that
these two concepts are different. The main difference between the two is that digital signature is
mainly used to secure documents and is authorized by certification authorities while electronic
signature is often associated with a contract where the signer has got the intention to do so. More
details about the difference between the two are provided below.
Key features of Digital Signature
A digital signature is characterized by a unique feature that is in digital form like fingerprint that
is embedded in a document. The signer is required to have a digital certificate so that he or she
can be linked to the document. Digital signature is often authorized by certification authorities
that are responsible for providing digital certificates that can be compared to licenses or
passports. A digital certificate is used to validate the document to ascertain its authenticity if it
has not been forged. This plays a pivotal role in verifying the identity of the original person with
the signature.

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The other key feature of a digital signature is that it is used to secure digital documents. There
are some people who have a tendency of tempering with digital documents obtained online but
with a digital signature, this can be impossible. The document is secured and can only be
accessed by the authorized person for any alterations or amendments.
When a digital signature is applied to a certain document, the digital certificate is bound to the
data being signed into one unique fingerprint. These two components of the digital signature are
unique and this makes it more viable than wet signatures since its origins can be authenticated.
This cryptographic operation helps to perform the following functions:
 Prove the authenticity of the document and its source
 Make sure that the document has not been tempered with
 Personal identity has been verified.
 The other notable aspect about digital signature is that it is comprised of different types
that are supported by mainly two document processing platforms that are adobe and
Microsoft.

Key Features of Electronic signature

An electronic signature is described as any electronic symbol, process or sound that is associated
with a record or contract where there is intention to sign the document by the party involved. The
major feature of an electronic signature is thus the intention to sign the document or the contract.
The other notable aspect that makes an electronic signature different from a digital signature is
that an electronic signature can be verbal, a simple click of the box or any electronically signed
authorization.

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The main feature of an electronic signature is that it reveals the intent by the signer to sign the
document. This is usually applicable to contracts or other related agreements that are entered into
by two parties. As noted, there are different types of electronic signatures and these are legally
binding once all parties have shown their commitment and intent to enter into a certain contract.
The other aspect about an electronic signature is that it helps to verify the document. If it has
been signed, its authenticity can be verified where the parties involved can be identified.
However, an electronic document can be difficult to verify given that a digital certificate similar
to the one given for digital signature is not provided.
The other notable feature of an electronic signature is that it is used to execute an agreement. For
instance, in a contract, two people usually agree to fulfill certain duties and this agreement can
only become legally binding when it has been signed by both parties. This is when an electronic
signature can be used. On top of that, it can be observed that electronic signatures are commonly
used in contracts by virtue of the fact that they are easy to use.

E. E-PAYMENT
E-commerce sites use electronic payment, where electronic payment refers to paperless monetary
transactions. Electronic payment has revolutionized the business processing by reducing the
paperwork, transaction costs, and labor cost. Being user friendly and less time-consuming than
manual processing, it helps business organization to expand its market reach/expansion. Listed
below are some of the modes of electronic payments −
 Credit Card
 Debit Card
 Smart Card
 E-Money

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Electronic Fund Transfer (EFT)An electronic payment is any kind of non-cash payment that
doesn't involve a paper check. Methods of electronic payments include credit cards, debit cards
and the ACH (Automated Clearing House) network. The ACH system comprises direct deposit,
direct debit and electronic checks (e-checks).
For all these methods of electronic payment, there are three main types of transactions:
A one-time customer-to-vendor payment is commonly used when you shop online at an e-
commmerce site, such as Amazon. You click on the shopping cart icon, type in your credit card
information and click on the checkout button. The site processes your credit card information
and sends you an e-mail notifiying you that your payment was received. On some Web sites, you
can use an e-check instead of a credit card. To pay by e-check, you type in your account number
and your bank's routing number. The vendor authorizes payment through the customer's bank,
which then either initiates an electronic funds transfer (EFT) or prints a check and mails it to the
vendor.
You make a recurring customer-to-vendor payment when you pay a bill through a regularly
scheduled direct debit from your checking account or an automatic charge to your credit card.
This type of payment plan is commonly offered by car insurance companies, phone companies
and loan management companies. Some long-term contracts (like those at gyms or fitness
centers) require this type of automated payment schedule.
To use automatic bank-to-vendor payment, your bank must offer a service called online bill pay.
You log on to your bank's Web site, enter the vendor's information and authorize your bank to
electronically transfer money from your account to pay your bill. In most cases, you can choose
whether to do this manually for each billing cycle or have your bills automatically paid on the
same day each month.

F.E-BANKING

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E-banking refers to electronic banking. It’s like e-business in the banking industry. Electronic
banking is also known as “Virtual Banking” or “Online Banking”. Electronic banking is based
on banking based on information technology. Under this I.T system, banking services are
delivered through a computer-controlled system. This system involves a direct interface with
customers. Customers do not have to visit the bank’s facilities.
Popular services covered under E-banking include : –
 ATMs,
 Credit cards,
 Debit Cards,
 Smart Cards,
 Electronic Funds Transfer System (EFT)
 Check the truncation payment system,
 Mobile Banking,
 Internet Banking,
 Telephone Banking, etc.
Advantages of E-Banking : –
 The cost of operation per unit of services is lower for banks.
 Offers convenience to customers since they are not required to go to the bank’s facilities.
 There is a very low incidence of errors.
 The customer can obtain funds at any time from ATMs.
 Credit cards and debit cards allow customers to get discounts at points of sale.
 The customer can easily transfer the funds from one place to another place electronically.
Disadvantages:-
 Savings and credit cooperatives, and in particular small local cooperatives, strive to
match the level of convenience (ATMs and branches) that many banks offer their

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customers, although many are part of shared networks that increase channels available to
its members.
 Some Credit Units are limited in their product offerings
 One must qualify for membership
 One must pay a membership fee to join

UNIT -3

Cybercrimes are criminal offenses committed via the Internet or otherwise aided by various
forms of computer technology, such as the use of online social networks to bully others or
sending sexually explicit digital photos with a smart phone. But while cybercrime is a relatively
new phenomenon, many of the same offenses that can be committed with a computer or smart
phone, including theft or child pornography, were committed in person prior to the computer
age. This sub-section includes articles on cyber bullying, sexting, and a whole host of other
crimes commonly committed online or with the help of computer networking technology.

1. Hacking: - Hacking means unauthorized access to a computer system. As defined in Section

66 of the Information Technology Act, 2000, hacking is ―whoever with the intent to cause or
knowing that he is likely to cause wrongful loss or damage to the public or any person destroys
or deletes or alters any information residing in a computer resource or diminishes its value or
utility or affects it injuriously by means commits hacking‖

2. Virus, Trojans and Worms: - A Computer virus is a program designed to affect the health of
the computer. They destroy or hampers the computer systems. Trojan is defined as a
―maliciously, security breaking program that is disguised as something benign‖ such as a
directory lister, archive, game, or a program to find and destroy viruses.

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3. Cyber Pornography: - Cyber pornography is pornography‘s which is distributed via the

internet, primarily websites, peer-to peer file sharing or Usenet newsgroups. This is a crime that
is clearly illegal, both on and off the internet

4. Cyber Stalking: - Cyber Stalking is defined as the repeated acts of harassment or threatening
behaviour of the cybercriminal towards the victims by using internet services.

5. Cyber Terrorism: - Cyber terrorism may be defined to be ― the premeditated use of disruptive
activities, or the threat thereof, in cyber space, with the intention to further social, ideological,
religious, political or similar objectives, or to intimate any person in furtherance of such
objectives

6. Cyber Crimes related to Finance: - Crimes over internet for earning financial or monetary gain
thorough illegal means. It may occur in many forms, but the most recognized technique is online
fraud and spoofing. This would include cheating, credit card frauds, money laundering, etc.

7. with mobile and Wireless Technology: - due to the development in mobile and wireless
technology, much work can be carried out on mobiles phones, which was earlier possible only on
computers. Emergence of mobile money, telephone banking, etc. has raised the threat of crimes
committed through this medium.

Unit-III:

CYBER CRIME

A. Cyber Crime under Information Technology Act: National Perspective

Statuary Provisions (Information Technology Act, 2000)

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The first step in the field of cyber law was the Model Law which was drafted under the United
Nations Commissions on International Trade law, 1986. Then, the United Nations general
assembly on 30th January, 1999 passed a resolution to regulate e-commerce through uniform set
of laws applicable to its member‘s countries. Being a signatory to the resolution, Parliament of
India has a passed the Information Technology Act, 2000 on 17th may, 2000.

The preamble of the Act states that the objectives of the act is to legalise e-commerce and further
amend the Indian penal Code, 1860, the India Evidence Act,182, the Banker‘s Book Evidence
Act, 1891and the Reserve Bank of India Act, 1934 to make compatible with this Act. The Act
consists of 13 Chapters and governs laws relating to Electronic Contract, Electronic Record,
Digital Signature and the use of the electronic records and signature in Government records. It
also regulates the activities of the Network Service Providers, Internet Service Providers (ISPs).

Punishments and Offences

The main aim of the act is to legalize the digital language so that people can easily and without
fear use the electronic devices for their own purposes like doing business or for entertainment. It
prescribes certain offences and penalties to keep a check on the cyber crime, the main of them
are:

· Section 65: Tampering with Computer Source Documents

· Section 66: Hacking with Computer System

· Section 67: Publishing of obscene information which is obscene in electronic form.

· Section 70: breach of confidentially and privacy.

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In addition to above, Section 77 of the Act states that “No penalty imposed or confiscation made
under this Act shall prevent the imposition of any other punishment to which the person affected
thereby is liable under any other law for the time being in force.” which means the civil crimes
can also be made as Criminal Act, as

· Computer Network Breaking and Hacking: - S. 66(2) of I.T. Act and S. 441 of IPC

· Child Pornography: - S. 67 of I.T. Act and S. 294 of IPC

· Email- bo mbing: - S. 43(e) of I.T. Act and S. 425-441 read with S447 of IPC

· Password Sniffing: - S. 43(a), (g) of I.T. Act and S. 419 of IPC

· Credit Card Fraud: - I.T. Act and S. 443 (a) and (g) read with 426, 427 and 447 of IPC.

Jurisdiction Issues

Jurisdiction is one of the debatable issues in the case of cyber crime due to the very universal
nature of the cyber crime. With the ever-growing arm of the cyber space the territorial concept
seems to vanish. New Methods dispute resolution should give way to the conventional methods.
Thus, the Information Technology Act, 2000 is silent on these issues. Though S. 75 provides for
extra-territorial operations of this law, but they could be meaningful only when backed with
provisions recognizing orders and warrants for Information issued by competent authorities
outside their jurisdiction and measure for cooperation‘s for exchange of material and evidence of
computers crimes between law enforcement agencies.

B. CYBER JURISDICTION

The internet can be seen as a multi jurisdictional because of the ease which a user can access of
website anywhere in the world. It can be even viewed as a jurisdictional in the sense that from

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the user‘s perspective that the state and national borders are essentially transparent. For courts
determining jurisdiction situation is more problematic. The court in Zippo mfg. v. Zippo dot
com inc said that there is a global revolution looming on the horizon and the development of the
law in dealing with the allowable scope of personal jurisdiction based on internet use in its
infancy.

The developing law of jurisdiction must addressed whether a particular event in cyber space is
controlled by the law of state or country where the website is located, by the law of the state or
the country where the internet service provider is located. A number of commentators have
voiced their opinion that cyber space should be treated as separate jurisdiction. In practice this
view has not been supported or addressed by the law makers

Cyber jurisdictional cases have been dealt with primarily in civil courts. Since the advent of US
v. Thomas, infra and Minnesota v. Granite gate resort, Cyber jurisdictions issues have been
began to be examined in criminal courts as well.

Liability Of Internet Service Providers

Internet service Providers acts a link for the activities that takes place on the internet. He runs the
risk of being liable for information that is transmitted over the information system provide by his
services. S.79 of I.T. Ct, 200 provides the network service providers is not subject to any civil or
criminal liability under this act for any third party information or data made available by him, if,
he proves that the offence was committed without his knowledge., or that he had exercised all
due diligence to prevent the commissioning of such offence. NSPs will be held liable for their
consent or third party consent that they adopt or approve of. With transactions occurring over an
open network environment, questions are raised as to the liability of the carriers of their
transactions, disputes and problems arise. In the physical world, intermediaries such as

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publishers for the content published by the authors. However, in the electronic there are some
classes of intermediaries who carry the data and do not exercise the direct control over the
content. For promoting the electronic transaction it is important to clarify the liability if such
NSPs. It is proposed that intermediaries who are ISPs are not responsible for thirds party content
for which they mere provide access to. It is necessary to insure that providers do not shirk their
responsibilities under the licensing scheme to regulate the undesirable content. The provision
therefore makes it clears that it will absolve ISPs from their licensing obligations.

The Information Technology Act, 2000.

The ITAct-2000 defines 'computer' as any electronic magnetic, optical or other highspeed data
processing device or system which performs logical, arithmetic, and memory functions by
manipulations of electronic, magnetic or optical impulses, and includes all input, output,
processing, storage, computer software, or communication facilities which are connected or
related to the computer in a computer system or computer network. The word 'computer' and
'computer system' have been so widely defined and therefore, any high-end programmable
gadgets like even a washing machine or switches and routers used in a network can all be
brought under the definition.
The Information Technology Act, 2000 (IT Act- 2000) was enacted by Parliament of India to
protect the field of e-commerce, e-governance, e-banking as well as to provide for penalties and
punishments in the field of cybercrimes. The above Act was further amended by the Information
Technology (Amendment) Act, 2008 (ITAAct2008). The word 'communication devices' was
inserted in the definition, to include into its coverage cell phones, personal digital assistance or
such other devices used to transmit any text, video etc. like those which were later being
marketed as iPad or other similar devices on Wi-fi and cellular models.
IT Act- 2000 defined 'digital signature', but the said definition was incapable to cater to needs of
the hour and therefore, the term 'Electronic signature' was introduced and defined in the IT Act -

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2008 as a legally valid mode of executing signatures. This includes digital signatures as one of
the modes of signatures and is far broader in ambit covering biometrics and other new forms of
creating electronic signatures. The new amendment has replaced Section 43 by Section 66. The
word "hacking" used in Section 66 of earlier Act of 2000 was removed and named as "data theft"
and consequently widened in the form of Sections 66A to 66F. The section covers the offences
such as the sending of offensive messages through communication service, misleading the
recipient of the origin of such messages, dishonestly receiving stolen computers or other
communication device, stealing electronic signature or identity such as using another person’s
password or electronic signature, cheating by personation through computer resource or a
communication device, publicly publishing the information about any person's location without
prior permission or consent, cyber terrorism, the acts of access to a computer resource without
authorization, such acts which can lead to any injury to any person or result in damage or
destruction of any property, while trying to contaminate the computer through any virus like
Trojan etc. The offences covered under Section 66 are cognizable and nonbailable. It may be
pointed here that the consequence of Section 43 of earlier Act was civil in nature having its
remedy in the form of damages and compensation only Under Section 66 of the Amendment Act,
2008 if an act is done with mens rea i.e. criminal intention, it will attract criminal liability
resulting in imprisonment or fine or both. The law of defamation under Section 499 got extended
to "Speech" and "Documents" in electronic form with the enactment of the Information
Technology Act, 2000. Section 66A of the Information Technology Act, 2000. Any person who
sends, by means of a computer resource or a communication device:- (i) any information that is
grossly offensive or has menacing character; or (ii) any content information which he knows to
be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult,
injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of
such computer resource or a communication device, or (iii) any electronic mail or electronic mail

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message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such messages, shall be punishable with imprisonment
for a term which may extend to three years and with fine. Section 66A of the Information Act,
2000 does not specifically deal with the offence of cyber defamation but it makes punishable the
act of sending grossly offensive material for causing insult, injury or criminal intimidation.

C. CRIME UNDER INFORMATION TECHNOLOGY ACT: INTERNATIONAL

PERSPECTIVE
 USA:
 The Computer Fraud and Abuse Act, deals with the issue of unauthorized
access in the U S legal system. The legislation was first enacted in 1984, revised in 1994,
and last amended made in late 1996. 85 Thus, USA has passed several enactments, which
cover various aspect of cyber crime. The States of USA also pass various federal laws for
the protection of cyber crime. These Federal Acts, however either are to introduced or
amend existing provisions in U.S. Federal Code.
The major provisions of U.S. codes governing criminal activities can broadly discussed in
the following heads:
 Federal Criminal Code Concerning computer crimes
 Federal Statutes Governing Intellectual property Rights:
 Copyright Offences
 Copyright Management offences
 Trademark offences.
 Bootlegging offences
 Trade Secret Offences
 Offences concerning the integrity of IP System

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 Offences concerning the Misuse of Dissemination system

 Cyber Stalking
 Search and seizure of Computers
 Guidelines concerning sentences

U.S.A. has successfully enacted provisions relating to offences, there investigation and
sentencing. The country is leading in the field of checking cybercrime along through
effective police forces, particularly F.B.I., and people cooperation. The numbers of cyber
criminals are also greater in the country because of predominance of internet and cyber
technology in day-to-day life.
 The Counterfeit Access Device and Computer Fraud and Abuse Act of 1984
prohibits various attacks on federal computer systems and on those used by banks and in
interstate and foreign commerce.
 The Electronic Communications Privacy Act of 1986 (ECPA) prohibits
unauthorized electronic eavesdropping.
 The Federal Information Security Management Act of 2002 (FISMA).
 United States has a specific CAN-Spam Act 2003, which came into force in
January 2004. Major provisions are:
 False and misleading header information is banned
 Deceptive subject lines are prohibited
 Opt-out methods must be provided
 Commercial email must be identified as an advertisement and it must include the
sender's valid physical postal address
 Receivers must be warned of sexually explicit material 133 Penalties include fine
up to USD 11000 and also imprisonment in specific circumstances.

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 UK:
 The Computer Misuse Act 1990, 'an Act to make provision for securing
computer material against unauthorized access or modification; and for connected
purposes', set out three computer misuse offences.
 Unauthorized access to computer material
 Unauthorized access with intent to commit or facilitate commission of
further offences.
 Unauthorized modification of computer material.
 The maximum prison sentences specified by the act for each offence were
six months and five years respectively.

 The Police and Justice Act 2006 : The British Police and Justice (2006) bill was
granted Royal Assent this week with some interesting changes being introduced to the
Computer Misuse Act (1990) under Part 5 (Miscellaneous) which could have serious
implications for those on the murkier side of computing. The Computer Misuse Act
obviously needed updating, as most of the threats in existence today were not possible 16
years ago. Maximum sentencing for unauthorized access to computer.

D. INTERNATIONAL CONVENTION ON CYBER CRIME

 Budapest Convention
Budapest Convention on cybercrime provides for the criminalisation of conduct, ranging from
illegal access, data and systems interference to computer-related fraud and child pornography;
procedural law tools to make the investigation of cybercrime and the securing of e-evidence in
relation to any crime more effective and international police and judicial cooperation on

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cybercrime and e-evidence. The Budapest Convention is supplemented by a Protocol on

Xenophobia and Racism committed through computer systems.

In 2014, the Council of Europe established a dedicated Programme Office on Cybercrime (C-
PROC) in Bucharest, Romania.
This triangle of common standards (Budapest Convention), follow-up and assessments
(Cybercrime Convention Committee) and capacity building (C-PROC) represents a dynamic
framework under the convention.
Members: 67 states — together with 10 international organisations (such as the Commonwealth
Secretariat, INTERPOL, International Telecommunication Union and the UN Office on Drugs
and Crime) participate as members or observers in the Cybercrime Convention Committee.
Significance: Securing e-evidence for criminal justice purposes is particularly challenging in the
context of cloud computing where data is distributed over different services, providers, locations
and often jurisdictions, and where mutual legal assistance is often not feasible.
India and the Budapest Convention: While membership in the Budapest Convention more
than doubled since then, India is yet to join this treaty.
India's concern:
 As India did not participate in the negotiation of the Convention and thus should
not sign it. India can become a member but we cannot participate in making or changing
the law.
 The Budapest Convention allows for transborder access to data and thus infringes
on national sovereignty.
 It is a criminal justice treaty and thus does not cover state actors or that some of
the states from which most attacks affecting India emanate have not signed the
Convention.

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 India should promote a treaty at the UN level: India wants a treaty to focus on
terrorism, or to address state-to-state relations and matters of international security.
 The Budapest Convention has been validly criticized for its lack of human rights
and legal safeguards.

 Russia-led Resolution
The Russian proposal entitled “Countering the use of information and communications
technologies for criminal purposes” was recently put forth in the United Nations General
Assembly (UNGA).
 The Russian proposal entitled “Countering the use of information and
communications technologies for criminal purposes” passed in the United Nations
General Assembly (UNGA) The proposal, which India voted in favour of, creates a
committee to convene in August 2020 in New York to establish a new treaty through
which nation-states can coordinate and share data to prevent cybercrime.
 India maintained its status as a non-member of the Europe-led Budapest
Convention, even as it voted in favour of a Russian-led UN resolution to set up a separate
convention
 This recent UN proposal follows previous Russian initiatives, including the “Draft
United Nations Convention on Cooperation in Combating Cybercrime” in 2017 to
develop a UN convention on cybercrime.
India’s Stand
India maintained its status as a non-member of the Europe-led Budapest Convention. Although,
India voted in favour of a Russian-led UN resolution to set up a separate convention.

E. MOBILE PHONES CRIMES

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Telecommunications in India have evolved up to a great extent starting from its introduction in
1882 to the introduction of mobile technology in 1995 and then to the emerging trend of
Smartphone’s post 2005 period. Similarly, with the advancement of technology, crimes over
technological grounds have also evolved.
Mobile technology over the years has evolved upto a large extent be it on grounds of flexibility
or portability. Security measures too have improved, but not at the desired expected rate to
absolutely curb crime rates. The fact that tops the list is that people fail to believe that they can
be victims to such crimes.
Crime committed using modern technological tools are generally known as cyber crimes. The
broadest way to deliver the true meaning of cyber crime is “any crime wherein computer is either
used as a tool or a weapon.” On general lines, computers are considered to be of laptop or
desktop in form. However, as Wikipedia defines it, “a computer is a general purpose device that
can be programmed to carry out a finest set of arithmetic or logical operation.”

Kinds of Mobile Crimes

Mobile Hacking
Hacking in simple terms means an illegal intrusion into a computer system and/or network.
There is an equivalent term to hacking i.e. cracking. Every act committed towards breaking into
a mobile, communication devices, computer and/or network is hacking. Hackers write or use
ready-made computer programs to attack the target computer, mobile and/or communication
devices.
Mobile Cyber Defamation
This kind of crime has become widely prevalent across the world today. Criminals send
derogatory, humiliative and obscene SMS or email by using their mobiles, cell pones and

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communication devices, so as to defame others and lower their reputation in the eyes of those
who hold them in high esteem.
Mobile Pornography
The Internet is being highly used by its abusers to reach and abuse children sexually, worldwide.
The internet is very fast becoming a household commodity. As more homes have access to
internet, more children would be using the mobiles, communications devices, internet and more
are the chances of falling victim to the aggression of pedophiles.
Mobile Pornography using mobile phone could be brought specifically within the ambit of
section 67B of the amended Indian Information Technology Act 2000. The said act is a crime,
punishable with imprisonment of either description for a term which may extend to 5 years and
with fine which may extend to 10 lakh rupees.
Identity Theft:
Mobile phone is used for the identity theft and criminals commit the crimes such as subscription
fraud etc. using various communication devices.
Cloning or re-chapping of mobile:
A clone is an analogue mobile phone which has been programmed to impersonate one owned by
a legitimate subscriber by using its ESN and telephone number (these numbers are usually
obtained by interception with a ‘scanner’ radio, theft of a dealer’s or service provider’s records
or directly from the impersonated phone). New types of cloned phones are coming to the UK
from the USA and Hong Kong: ‘tumbling’ phones automatically seek an identity from a pre-
programmed list, and the most recent ‘magic’ phones act as their own scanners copying identities
from nearby phones in use.
Mobile Cyber Stalking
Cyber Stalking can be defined as the repeated acts harassment or threatening behavior of the
cyber-criminal towards the victim by using mobiles internet services. Stalking in General terms

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can be referred to as the repeated acts of harassment targeting the victim such as following the
victim, making harassing phone calls, killing the victims pet, vandalizing victims property,
leaving written messages or objects. Stalking may be followed by serious violent acts such as
physical harm to the victim and the same has to be treated and viewed seriously. It all depends
on the course of conduct of the stalker.
Denial of service Attack
This is an act by the criminal, who floods the bandwidth of the victim’s network or fills his e-
mail box with spam mail depriving him of the services he is entitled to access or provide.
Mobiles Virus Dissemination
A mobile virus is an electronic virus that targets mobile phones or other communication devices.
In typical mobile virus dissemination malicious software attaches itself to other software.
Mobile Software Piracy
Theft of mobile software through the illegal copying of genuine programs or the counterfeiting
and distribution of products intended to pass for the original.
Mobile Credit Card Fraud
The unauthorized and illegal use of a credit card through mobile to purchase products and /or
services.
Mobile Phishing
This refers to the act of targeting mobile phone users by phishing emails that appear to come
from mobile service providers. This further includes the act of sending an e-mail to a user falsely
claiming to be an established legitimate enterprise in an attempt to scam the user into
surrendering private information that will be used for identity theft.

UNIT – IV

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GENETIC AND MEDICAL TECHNOLOGIES

i. Genetic Technologies
A. Environment Effect: Environment Protection Act
What Are GMOs?
A GMOs (genetically modified organism) is the result of a laboratory process where genes from
the DNA of one species are extracted and artificially forced into the genes of an unrelated plant
or animal. The foreign genes may come from bacteria, viruses, insects, animals or even humans.
Because this involves the transfer of genes, GMOs are also known as “transgenic―
organisms.
Genetic Engineering - means the technique by which heritable materials which do not usually
occur or will not occur naturally in the organism or cell concerned generated outside the
organism of the cell is inserted into said cell or organism. It also means the formation of new
combinations of genetic material by incorporation of a cell into a host cell, where they occur
naturally as well as an modification of an organism or in a cell by delegation and removal of
parts of the heritable material.
For centuries crop plants and livestock have been crossbred such that the genetic make-up of
offspring has been altered to select for desired traits and or qualities. Traditional plant and animal
breeding techniques require that the individual species involved are the same or closely related.
However the discovery of genetic engineering techniques have made it possible to introduce,
delete or enhance particular traits in an organism either by inserting genes from another organism
or by otherwise altering its genetic make-up. Genetically Modified Organisms are defined in EU
Legislation as those in which the genetic material is altered in a way that does not occur naturally
by mating or natural recombination.
Where GMOs comprise bacteria, viruses, viroids and animal and plant cells in culture they are
referred to as Genetically Modified Micro-Organisms or GMMs. Where GMOs comprise GM

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plants or GM animals otherwise known as transgenic plants or transgenic animals, they are
referred to as GMOs.
The Environment (Protection) Act, 1986 as an umbrella legislation that provides a holistic
framework for the protection and improvement to the environment. Thereafter a series of rules
were notified to address various problems such as hazardous wastes, hazardous chemicals,
biomedical wastes, municipal solid wastes etc. Along with these, rules were notified for
hazardous microorganisms. The genetically engineered (GE) organisms were included as part of
these rules along with hazardous microorganisms. Hence, these Rules, 1989 are applicable to the
manufacture, import and storage of micro-organisms and Gene-Technological products. These
rules shall also apply to any substances, products and food stuffs, etc., of which such cells,
organisms or tissues hereof form part. New gene technologies apart from genetic engineering
have also been covered.
Environment Protection Act (1986) and Environment (Protection) Rules (1986)
The Act relates to the protection and improvement of environment and the prevention of hazards
to human beings, other living creatures, plants and property. The Act mainly covers the rules to
regulate environmental pollution and the prevention, control, and abatement of environmental
pollution. The Environment (Protection) Rules cover management and handling of hazardous
wastes, manufacture, storage and import of hazardous chemicals and rules for the manufacture,
use, import, export and storage of hazardous micro-organisms, genetically engineered organisms
or cells.
Rules for the Manufacture, Use/Import/Export and Storage of Hazardous
Microorganisms/Genetically Engineered Organisms or Cells. (notified under the EP Act,
1986) (1989)
These Rules include the rules for pharmaceuticals, transit and contained use of genetically
engineered organisms micro-organisms and cells and substances/products and food stuffs of

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which such cells, organisms or tissues form a part, LMOs for intentional introduction into the
environment, handling, transport, packaging and identification. These rules are applicable to the
manufacture, import and storage of micro-organisms and gene technology products. The rules
are specifically applicable to: (a) Sale, storage and handling (b) Exportation and importation of
genetically engineered cells or organisms (c) Production, manufacturing, processing, storage,
import, drawing off, packaging and repackaging of genetically engineered products that make
use of genetically engineered microorganisms in any way.

B. Genetic Engineering and Plant Variety Act

The Protection of Plant Varieties and Farmers’ Rights Act 2001 was enacted in India to protect
the new plant varieties. Rules for the same were notified in 2003. The Act has now come into
force. The Protection of Plant Varieties and Farmers’ Rights Authority has been set up and is
responsible to administer the Act. The office of the Registrar has started receiving applications
for registration of twelve notified crops viz. rice, lentil, maize, green gram, kidney bean, black
gram, chickpea, pearl millet, pigeon pea, sorghum, field pea, bread wheat. Under the TRIPS
agreement it is obligatory on part of a Member to provide protection to new plant variety either
through patent or an effective sui generis system or a combination of these two systems. India
was therefore under an obligation to introduce a system for protecting new plant variety. India
opted for sui generis system and enacted The Protection of Plant Varieties and Farmers’ Rights
Act 2001. However, in many countries such plants can be protected through Breeders’ Rights,
patents and UPOV Convention.
Objectives of Protection of Plant Varieties and Farmers’ Rights Act in India
The objectives of the Protection of Plant Varieties and Farmers’ Rights Act are:

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 to stimulate investments for research and development both in the public

and the private sectors for the developments of new plant varieties by ensuring
appropriate returns on such investments;
 to facilitate the growth of the seed industry in the country through
domestic and foreign investment which will ensure the availability of high quality
seeds and planting material to Indian farmers; and
 to recognize the role of farmers as cultivators and conservers and the
contribution of traditional, rural and tribal communities to the country’s agro
biodiversity by rewarding them for their contribution through benefit sharing and
protecting the traditional right of the farmers. More importantly this act provides
safeguards to farmers by giving farmers’ rights while providing for an effective
system of protection of plant breeders’ rights. The Act seeks to safeguard researchers’
rights as well. It also contains provisions for safeguarding the larger public interest.
The farmer’s rights include his traditional rights to save, use, share or sell his farm
produce of a variety protected under this Act provided the sale is not for the purpose
of reproduction under a commercial marketing arrangement.
What kind of varieties are registerable under the plant variety Act?
1. A new variety if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.
2. An extant variety if it conforms to criteria of distinctiveness, uniformity and stability.
“Extant Variety” defined in PPVFR Act, 2001
An “Extant Variety” means a variety, which is–
(i) notified under section 5 of the Seeds Act, 1966 (54 of 1966); or
(ii) a farmers’ variety; or
(iii) a variety about which there is common knowledge; or
(iv) any other variety which is in the public domain.

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Farmers’ Variety as per PPVFR Act, 2001

“Farmers’ Variety” means a variety which-
(i) has been traditionally cultivated and evolved by the farmers in their fields; or
(ii) is a wild relative or land race of a variety about which the farmers possess the common
knowledge; where farmer means any person who (i) cultivates crops by cultivating the land
himself; or (ii) cultivates crop by directly supervising the cultivation of land through any other
person; or (iii) conserves and preserves, severely or jointly, with any person any wild species or
traditional varieties or adds value to such wild species or traditional varieties through selection
and identification of their useful properties.
“Essentially Derived Variety” as per PPVFR Act, 2001
“Essentially Derived Variety” is a variety which is predominantly derived from another variety
(protected or otherwise) and conforms to the initial variety in all aspects except for the
differences which result from the act of derivation, and yet is clearly distinguishable from such
initial variety.
The first attempt to bring the biodiversity into the legal framework was made by way of the
biodiversity bill 2000 which was passed by the Lok Sabha on 2nd December 2002 and by Rajya
Sabha on December 2002.
Objectives of the act:
1. To conserve the Biological Diversity.
2. Sustainable use of the components of biodiversity.
3. Fair and equitable sharing of benefits arising out of the use of the B.D.
Novelty, distinctiveness, uniformity & stability have been defined in the Protection of Plant
Varieties and Farmers’ Rights Act
A) Novelty – Plant variety is novel if at the date of filing of the application for registration for
protection, the propagating or harvested material of such variety has not been sold or otherwise

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disposed of by or with the consent of breeder or his successor for the purpose of exploitation of
such variety-
(i) in India earlier than one year or
(ii) outside India , in the case of trees or vines earlier than six years or in any other case, earlier
than four years, before the date of filing such application:
Provided that a trial of a new variety which has not been sold otherwise disposed of shall not
affect the right to protection. Provided further that the fact that on the date of filing the
application for registration, propagating or harvested material of such variety has become a
matter of common knowledge other than through the aforesaid manner shall not affect the
criteria of novelty for such variety.
B) Distinctiveness – New plant variety will be considered distinct if it is clearly distinguishable
by at least one essential characteristic from any other variety whose existence is a matter of
common knowledge in any country at the time of filing of the application.
C) Uniformity – New plant variety will pass uniformity test, if subject to the variation that may
be expected from the particular features of its propagation, it is sufficiently uniform in its
essential characteristics.
D) Stability – New plant variety will be considered stable if its essential characteristics remain
unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the
end of each such cycle. Compulsory Plant Variety denomination: After satisfying the above four
essential criteria every applicant shall assign a single and distinct denomination to a variety with
respect to which he is seeking registration.
What are farmers’ rights?
The farmers’ rights as defined in the Act are:

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(i) a farmer who has bred or developed a new variety shall be entitled for
registration and other protection in like manner as a breeder of a variety under this
Act;
(ii) the farmers’ variety shall be entitled for registration if the application contains
declaration as specified in clause (h) or sub-section (1) of section 18;
(iii) a farmer who is engaged in the conservation of genetic resources of land races
and wild relatives of economic plants and their improvement through selection and
preservation shall be entitled in the prescribed manner for recognition and reward
from the Gene Fund. Provided that material so selected and preserved has been used
as donors of genes in varieties registrable under this Act;
(iv) a farmer shall be deemed to be entitled to save, use, sow, resow, exchange,
share or sell his farm produce including seed of a variety protected under this Act in
the same manner as he was entitled before the coming into force of this Act.
Which plant varieties can not be protected under this Act?
A plant variety which is :-
 not capable of identifying such variety; or
 consists solely of figures; or
 is liable to mislead or to cause confusion concerning the characteristics, value,
variety, or the identity of breeder of such variety;
 is likely to deceive the public or cause confusion in the public regarding the
identity of such variety;
 is comprised of nay matter likely to hurt the religious sentiments respectively of
any class or section of the citizens of India;
 is prohibited for use as a name or emblem for any of the purposes;
 is comprised of solely or partly of geographical name.

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What is the term of plant variety protection?

 in the case of trees and vines, eighteen years from the date of registration of the
variety;
 in the case of extant varieties, fifteen years from the date of the notification of that
variety by the Central Government under section 5 of the Seeds Act,1966.
 in the other cases, fifteen years from the date of registration of the variety.
Initially the certificate of registration shall be valid for nine years in the case of trees and
vines and six years in the case of other crops and may be revived and renewed for the
remaining period on payment of fees as may be fixed by the rules.

C. Biological Diversity Act, 2002

A national biodiversity authority has been established by the Biodiversity Act, 2002 to regulate
act implementing rules 2004 has been operationalised since coming in to force.
Regulating access well as pushing the officially sponsored, documentation of biological
resources and traditional practices through people’s diversity registers at the local and data bases
at the national levels, respectively. It further probes the extent to which the principles of
conservation have realized.
Provisions of the Act:
1. Prohibition on transfer of Indian genetic material outside the country without specific approval
of the Indian Government.
2. Prohibition of anyone claiming an (IPR) such as a patent over biodiversity or related
knowledge without permission of Indian Government.
3. Regulation of collection and use of biodiversity by Indian national while exempting local
communities from such restrictions.

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4. Measures from sharing of benefits from use of biodiversity including transfer of technology,
monitory returns, joint research and development, joint IPR ownership etc.
5. Measuring to conserve sustainable use of biological resources including habitat and species
protection (EIP) of projects, integration of biodiversity into the plans and policies of various
Departments and Sectors.
6. Provisions for local communities to have a say in the use of their resources and knowledge and
to charge fees for this.
7. Protection of indigenous or tradition laws such as registration of such knowledge.
8. Regulation of the use of the genetically modified organisms.
9. Setting up of National, state and local Biodiversity funds to be used to support conservation
and benefit sharing.
10. Setting up of Biodiversity Management committees (BMC) at local village levels. State
Biodiversity Boards at state level and National Biodiversity Authority.
Functions of Authority:
1. Advise the central Government on any matter concerning conservation of biodiversity
sustainable use of its components and fair and equitable sharing of benefits arising out of the use
of biological resource and knowledge.
2. Coordinate the activities of state biodiversity.
3. Provide the technical assistance and guidance to the state biodiversity boards.
4. Sponsor investigation and research.
5. Engage consultants for a specific period not exceeding 3 years for providing technical
assistance to the Authority in the effective discharges of its functions.
6. Collect, compile and publish technical and statistical data, manuals, codes or guides relating to
conservation of biodiversity, sustainable use of its components and fair and equitable sharing of
benefits arising out of the use of biological resource and knowledge’s.\

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7. Organize through mass media a comprehensive programme regarding conservation of

biodiversity, sustainable use of components and fair and equitable sharing of benefits arising out
of the use of biological resources and knowledge.
8. Plan and organize training of personal engaged or likely to be engaged in programmes for the
conservation of biodiversity and sustainable use of its components.
9. Prepare the annual budget of the authority including its own receipts as also the devaluation
from the central Government provided that the allocation by the central government shall be
operated in accordance with budget provisions approved by the central govt.
10. Recommend creation of posts to the central Government for effective discharge of the
functions by the authority.
11. Approve the method of recruitment to the officers and servants of the authority.
12. Take steps to build up data base and to create information and documentation system for
biological resources and associated traditional knowledge through biodiversity register and
electronic data bases to ensure effective management, promotion and sustainable uses.
13. Give directions to state Biodiversity Boards and the Biodiversity Management Committees in
writing for effective implementation of the act.

II. MEDICAL TECHNOLOGIES

A. Medical Technologies and Forensic Science
i. DNA Profiling
DNA profiling is a technique by which individuals can be identified and compared via their
respective DNA profiles.
 Within the non-coding regions of an individual’s genome there exists satellite
DNA – long stretches of DNA made up of repeating elements called short tandem repeats
(STRs).

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 As individuals will likely have different numbers of repeats at a given satellite

DNA locus, they will generate unique DNA profiles.
DNA profiling is a forensic technique in criminal investigations, comparing criminal suspects'
profiles to DNA evidence so as to assess the likelihood of their involvement in the crime. It is
also used in parentage testing, to establish immigration eligibility, and in genealogical and
medical research. DNA profiling has also been used in the study of animal and plant populations
in the fields of zoology, botany, and agriculture.
DNA profiling can be used in old or unsolved crimes or to identify human remains. The
availability of parental DNA samples might allow identification of a body when conventional
means (physical appearances, dermatoglyphic fingerprints, dental charts) have been
unsuccessful. Dissimilar DNA profiles will exclude a relationship. Teeth are important
evidentiary material in forensic cases, since they are more resistant to post-mortem degradation
and extreme environmental conditions. Teeth are also easy to transport and serve as a good
source of DNA.

ii. Brain Mapping

Brain mapping attempts to relate the brain's structure to its function, or finding what parts give us
certain abilities. For example, what aspect of our brain allows us to be creative or logical? This is
called localization of function.
It examines how our environment changes our brain's structure by studying, for instance, how
the brain changes physically through the learning and aging processes. Brain mapping also
examines what goes wrong physically in the brain during mental illnesses and other brain
diseases.

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Finally, brain mapping aims to give us a thorough picture of our brain's structure. Google Earth
shows us satellite images of our planet and zooms in to continents, countries, states, cities,
highways, streets and buildings. A complete structural map of our brain might be similar.
The Brain Mapping Test is also known as P-300 test. In this test of Brain Mapping the suspect is
first interviewed and interrogated find out whether he is concealing any information. The
activation of brain for the associated memory is carried out by presenting list of words to the
subjects. There are three types of words in the list used for Brain Mapping Test,
Part I consisted of neutral words, which have no direct relationship with the case.
Part II consists of probe words directly related to the case and suspects to elicit concealed
information, which all suspects have had opportunity to come to know during the course of
events related to the case.
Part III consists of target, which are not part of the first two parts.The words in this part are
based on confidential findings which suspect does not know.

The recording of this test is done by acquiring the response through 32 channel EEG-ERP Neuro
Scan cording system. It is carried out by asking the suspect to sit down and close his eyes. The
32 channel electrodes are placed over the scalp directly while conducting this test twice by
presenting each word in three parts randomly. the suspect is instructed to relax and listen to the
words presented in the auditory mode. This test does not expect any oral response from the
witness. The conclusion drawn by the experts after the conduct of the test to indicate the
possession of the knowledge about the relevant subject which is helpful in the investigation and
collecting of evidence. After the administration of the test, what comes out is that, the person
undergoing the test has the knowledge of the crime about which he was questioned (brain
mapping). In the said test there is no way to find out what the lie is or what is the information

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stored in the brain of the person concerned. It can be called the information received of taken out
from the witness.
Performing Brain Mapping Test
Merely conducting of or performing of the Brain Mapping Test on the accused would not take
away the protection guaranteed under Article 20(3) of the Constitution of India and the said
aspect is not required to be considered at the time of performing or conducting the Brain
Mapping Test and only when the statement which has been recorded during the course of the
Narco Analysis test, if it is used against the person as evidence at that stage, the same is required
to be considered. Therefore, the question of consent at the stage of conducting/ performing the
Brain Mapping Test is not required to be considered. As stated hereinabove, conducting
/performing of the Brain Mapping Test is a part of investigation and for the investigation by the
Investigating Agency the consent of the accused is not required, otherwise the Investigating
Agency will not be in a position to further investigate the case, if the consent of the accused is
required. At this stage, it is also required to be noted that the accused has not allegedly come
forward with the truth and therefore, scientific tests are resorted to by the Investigating Agency.
When the accused/person has not told the truth during the investigation, naturally, that accused/
person would not be voluntarily giving consent for the Brain Mapping Tests as he is always
apprehensive that if the Brain Mapping Test is conducted then the same might go against him
therefore, he is bound to not give consent. Even it is not expected from a person/ accused to give
consent for the Brain Mapping Test when he has not come forward with the truth. As stated
above the Brain Mapping Test is a scientific methods of investigation and is the part of
investigation. There is no provision under the Criminal Procedure Code to have the consent of
the accused before or during the investigation. It is also to be noted that before subjecting the
accused to Narco Analysis Test his/her mental fitness will be ascertained and thereafter only
accused will be subjected to Narco Analysis Test. The dosage level required to take a person to

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the hypnotic stage is found to be 3-4 times smaller than those required for stages beyond. Under
the circumstances, the contention on behalf of the petitioner accused that before
conducting/performing the Brain Mapping Test, the consent of the accused person who will be
subjected to the Brain Mapping Tests is required cannot be accepted and the answer to such
question is in negative. (Santokben Sharmanbhai ]adeja v. State of Gujarat, 2009 Cri LJ 68
(Cuj).)
However, certainly he cannot defer hearing of the bail application and the learned Judge has to
take an appropriate decision on the bail application one way or the other on merits, and he might
in appropriate case if satisfied that as the investigation is: pending it is not desirable at that stage
to grant bail, even consider not to grant bail and or even he may consider granting of bail on
certain conditions as he may deemed fit. However, he is not justified in deferring hearing of the
bail application. Bail. Applications are required to be heard and decided as early as possible.
Under the circumstances, the learned Trial Court was not justified in deferring hearing of the bail
application till Narco Analysis Test and Brain Mapping Tests are performed the petitioner.
What does "compelled testimony" Mean- The phrase 'compelled testimony' must be read as
evidence procured not merely by physical threats or violence but by psychic torture, atmospheric
pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory
methods and the like not legal penalty for violation. So, the legal perils following upon refusal to
answer, or answer:- truthfully, cannot be regarded as compulsion within the meaning of Article
20(3). (Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1025).
Powers of High Court in Conducting Brain Mapping Test-
The Court adjourned the matter at the instance of the learned Senior Advocate appearing on
behalf of the petitioner so as to enable the petitioner to move an appropriate application before
the Hon'ble Supreme Court for transfer of the present proceedings and on the last occasion it was
also agreed by the learned counsel appearing on behalf of the petitioner that if no orders are

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obtained he will proceed further with the matter and make submissions on merits. The petitioner
is not desirous of submitting an appropriate application for transfer before the Hon'ble Supreme
Court and that is how this Court has taken up the matter and considered the same on merits. It is
also required to be noted that conducting/performing of the aforesaid two tests are timely
requirement, more particularly during the course of the investigation and even if after the period
of 6 months or so and/ or after a long time, the said test are permitted to be performed, the
purpose for which the said tests are required would be frustrated. If the said tests are not
permitted to be performed at an appropriate time and stage, the same would defeat the purpose
for which the said test is required to be performed i.e. to find out the truth to reach the real culprit
and to further investigate the case. There are so many proceedings pending in the State involving
serious offences like Saurabuddin encounter case and the murder of his wife Kausharbibi and
others. Where the questions with regard to conducting/ performing of the Brain Mapping Test is
involved and in some cases the Investigating Agency have found themselves in dark and
clueless, there is necessity of conducting the Brain Mapping Tests and the proceedings are
pending at different stages before the different Courts i.e. either at the stage of learned
Magistrate and/ or Revisional Court and or before this Court and therefore, this Court has
considered the case on merits. (Santokben Sharmanbhai ]adeja v. State of Gujarat, 2009 Cri L]
68 (Guj)).
The right to direct the accused to undergo scientific tests has been finally determined by the
Court below and thereby the criminal proceedings taken to demystify the grey area of
investigation has culminated. Therefore, the Court finds that the present order impugned which
substantially determines the rights of the parties is a final order challengeable under Section 397
of the Code of Criminal Procedure by way of revision. (Dinesh Dalmia v. State, 2006 Cri LJ
2401 (Mad).
iii. Narco-analysis

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The term Narco-analysis is derived from the Greek word narkç (meaning "anesthesia" or
"torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses
psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with
strong associated affects come to the surface, where they can be exploited by the therapist. The
term Narco-analysis was coined by Horseley .Narco-analysis poses several questions at the
intersection of law, medicine and ethics. Is the procedure for Narco-analysis is violative of the
rights against self-incrimination, guaranteed under Article 20 (3) of Constitution? It figured
prominently in the news recently when it became eye of storm and sparked off the debate when
media played the role of Unnao rape case2,in utter Pradesh. Accused subjected to Narco-analysis
test when he demanded Narco testfor justice and for the faith in criminal justice system.
Constitutional & Legal Provisions on Narco-analysis in India
Like confessions, Narco-analysis tests generally don’t have legal validity as it is made by a semi-
conscious person are not admissible in court. The court may, however, grant limited
admissibility after considering the circumstances under which the test was obtained. Narco-
analysis, brain mapping and lie detector tests against the will of the accused would be violative
of Article 20 (3) of the Constitution. The main provision regarding crime investigation and trial
in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. The
privilege against `self-incrimination is a fundamental canon of Common law criminal
jurisprudence. Art. 20(3) which embodies this privilege says, “No person accused of any offence
shall be compelled to be a witness against himself”. Subjecting the accused to undergo the test,
as has been done by the investigative agencies in India, is considered by many as a blatant
violation of Art.20 (3) of Constitution. The application of Narco-analysis test involves the
fundamental question pertaining to judicial matters and also to Human Rights. The legal position
of applying this technique as an investigative aid raises genuine issues like encroachment of an
individual’s rights, liberties and freedom. In case of State Bombay v. Kathikalu, it was held that

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it must be shown that the accused was compelled to make statement likely to be incriminative of
himself. Compulsion means duress, which includes threatening, beating or imprisonment of wife,
parent or child of person. Thus where the accused makes a confession without any inducement,
threat or promise art 20(3) does not apply. Thus, the privilege against self-incrimination enables
the maintenance of human privacy and observance of civilized standards in the enforcement of
criminal justice.
Admissibility of Narco-analysis in the court
While Narco-analysis yielded an immense amount of information, it also triggered off many
questions as several critics shared profound sense of skepticism over the administration of serum
on the witness to extract truth. Narco-analysis is considered as a tool or aid in collecting and
supporting evidence. However doubts are raised whether it amounted to testimonial compulsion
in judiciary and violation of human right, individual liberty and freedom. Lawyers are divided on
whether the results of Narco-analysis and P300 tests are admissible as evidence in courts, as they
claim that confessions made by a semiconscious person is not admissible in court. A Narco-
analysis test report has some validity but is not totally admissible in court, which considers the
circumstances under which it was obtained and assessed its admissibility. Results of such tests
can be used to get admissible evidence, can be collaborated with other evidence or to support
other evidence. But if the result of this test is not admitted in a court, it cannot be used to support
any other evidence obtained the course of routine investigation.
In India, Narco-analysis was first used in 2002 in the Godhra carnage case. It was also in the
news after the famous Arun Bhatt kidnapping case in Gujarat wherein the accused had appeared
before NHRC and the Supreme Court of India against undergoing the Narco-analysis . It was
again in the news in the Telgi stamp paper scam when Abdul Karim Telgi was taken to the test in
December 2003. Though in the case of Telgi, immense amount of information was yielded, but
doubts were raised about its value as evidence. Narco-analysis was in the limelight in the context

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of infamous Nithari village (Noida) serial killings. The two main accused in the Nithari serial
killings Mohinder Singh Pandher and Surendra Kohli have undergone Narco-analysis tests in
Gandhinagar in Gujarat.
Criticism of Narco-analysis test
Narco-analysis has been criticized on the ground that it is not 100% accurate. It has been found
hat certain subjects made totally false statements.. It is often unsuccessful in eliciting truth as
such it should not been used to compare the statement already given to the police before use of
drug. It has been found that a person who has given false information even after administration
of drug. It is not much help in case of malingers or evasive, untruthful person.9 It is very difficult
to suggest a correct dose of drug for a particular person. The dose of drug will differ according to
will power, mental attitude and physique of the subject. Successful Narco-analysis test is not
dependent on injection. For its success a competent and skilled interviewer is required who is
trained in putting recent and successful questions. Narco-analysis test is a restoration of memory
which the suspect had forgotten. This test result may be doubtful if the test is used for the
purposes of confession of crimes. Suspects of crimes may, under the influence of drugs,
deliberately withhold information or may give untrue account of incident persistely.10Narco-
analysis is not recommended as an aid to criminal investigation. In medical uses like in treatment
of psychiatric disorder the Narco-analysis may be useful. Unless the test is conducted with the
consent of the suspect it should not be used in criminal investigation.

iv. Handwriting
A forensic document examiner conducts an examination of a document to determine it's
authenticity and/or its relationship to a person, thing, event or time. A questioned document is
any document about which some issue has been raised or that is the subject of an investigation.

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This can be anything from written letters, drivers' licenses, contracts, wills, passports or lottery
tickets! An examiner tries to answer the following questions about the document:
Is the document genuine?
Has the document been changed in anyway and how was it changed?
Which person or machine wrote or produced the document?
The majority of cases that document examiners deal with are fraud related; fraud (65%),
robbery/breaking and entering (8%), threats (8%), mischief (7%), homicide (2%), and other
types of cases (10%).
Before we discuss how the documents are examined, there are five different conclusions that an
examiner can reach that we must learn about.
Positive Identification - suspect's sample matches the evidence found. Excludes all other possible
writers.
Probable Identification - still a strong conclusion, combination of similarities points strongly to
one writer with no fundamental differences, leaves only theoretical possibility of another writer.
Unable to Determine - there is not enough of a writing sample to make any sort of determination.
Probable Elimination - the writing samples most likely to not match, but the suspect cannot be
excluded with extreme certainty.
Positive Elimination - the suspect's sample and the evidence do not match at all, thus excluding
the suspect as the writer.
Handwriting analysis falls into the questioned documents section of forensic science. These
documents are examined by expert questioned documents examiners or QDEs. QDEs look for
forgeries and alterations and make comparisons if there is an original sample of handwriting
available.
Handwriting is an individual characteristic. This means that handwriting is unique for each
person. Each person has their own style. Handwriting analysts say that people could have a few

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writing characteristics that are the same but the likelihood of having any more than that is
impossible. The similarity in handwriting would be due to the style characteristics that we were
taught when we were learning handwriting in school out of a book. Thus, handwriting is as
unique as a fingerprint.
Handwriting analysis is looking for small differences between the writing of a sample where the
writer is known and a writing sample where the writer is unknown. Instead of beginning to look
for similarities in the handwriting a QDE begins to search for differences since it’s the
differences that determine if the document is a forgery. A QDE is looking at three things: letter
form, line form and formatting.
•Letter form– This includes curves, slants, the proportional size of letters (relationship between
size of short and tall letters and between the height and width of a single letter), the slope of
writing and the use and appearance of connecting lines (links) between letters. A person may
form a letter differently depending on where the letter falls in a word – beginning, middle or end.
So an analyst will try to find examples of each letter in each placement.
•Line form– This includes how smooth and dark the lines are, which indicates how much
pressure the writer applies while writing and the speed of the writing.
•Formatting– This includes the spacing between letters, the spacing between words, the
placement of words on a line and the margins a writer leaves empty on a page. It also considers
spacing between lines.

b. Medical Technologies and Drugs

i. Patent Protection
Patent protection is often essential to ensure a successful return on the investments made in an
invention. Therefore, pending or existing patents is one of the key components a potential
investor will look for before investing in a company.

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A patent is the legal protection offered to an invention. A patent gives the proprietor the
exclusive right to produce, sell or import the invention. This means that the holder of a patent
can prohibit others from using the invention. Patentable inventions are not limited to products.
On the contrary, patents can be granted to other inventions as well, such as manufacturing
processes, measuring methods or, in some cases, the use of a certain substance in a specific
manufacturing process. It is therefore important to analyze all aspects of an invention. For
example, a new product often requires a new manufacturing method. Protection can in such
situations be granted for both the product and the method.
The protection offered by a patent is defined by the patent claims, i.e. the wording used in the
patent application to define the invention. It is therefore very important that the patent claims are
worded with care. As mentioned above, patent protection can be granted for many aspects of an
invention. Therefore, it is not unusual for a patent to include several independent patent claims.
The exact wording of the patent claims is something an IP counsel can assist with.
A patent is generally valid for 20 years from the day of the patent application, as long as the
yearly fees are paid. In relation to certain products, for example pharmaceutical products, an
additional five years can be added to the protection. A patent is always limited to the
jurisdiction(s) where it is registered.

ii. Life Saving Drugs

Emergency drugs/life-saving drugs require immediate administration within minutes post or
during a medical emergency or medicines which have the potential to sustain life or prevent
further complications.
Life-saving drugs are emergency drugs that require immediate administration in medical
emergency. Medicines which have the potential to sustain life and / or prevent further
complications.

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List of Drugs are as follows:

(A) Drugs used in Anaplylactic shock :-
(1) Inj. Epinephrine Hydrochloride (Adrenaline)
(2) Inj. Sodabicarb,
(3) Inj. Dexamethazone Sodium phosphate.

(B) Drugs used in Myocardial infarction and cardiogenic shock:-

(4) Inj. Isoprenaline.
(5) Inj. Amino Caproic Acid.
(6) Inj. Streptokinase.
(7) Inj. Morphine sulphate.
(8) Inj. Meperidine Hydrocloride (Pethidine)
(9) Inj. Calcium Chloride
(10) Inj. Dopamine Hydrochloride
(11) Inj. Heparin
(12) Inj. Nitroglycerine
(13) Inj. Propranolol.
(14) Inj. Digoxin.
(15) Inj. Protamine Sulphate.
(16) Inj. Lignocaine Hydrochloride 2 percent
(17) Cap. Nifedipine.

(C) Drugs used in peripheral circulatory collapse:

(18) Inj. Dopamine Hydrochloride.
(19) Inj. Glucose 25 percent.

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(20) Oxygen gas I.P/B.P.

(21) I.V. Ringer Lactate
(22) I.V. Normal Saline

(D) Drugs used in status eplipticus:

(23) Inj. Phenytoin Sodium
(24) Inj. Diazepam.
(25) Inj. Phenobarbitone.

(E) Drugs used in acute respiratory failure:-

(26) Inj. Nikenamide.
(27) Oxygen gas I.P./B.P

A generic drug
A generic drug is a medication that has exactly the same active ingredient as the brand name
drug and yields the same therapeutic effect. It is the same in dosing, safety, strength, quality, the
way it works, the way it is taken, and the way it should be used. Generic drugs do not need to
contain the same inactive ingredients as the brand name product.
The generic drug is bioequivalent to the branded product, meaning there is either no significant
difference between the two drugs in terms of the rate and extent of absorption or if there is a
difference, it is either intended or not medically significant.
So long as the FDA criteria are met, a generic drug may be marketed when the patent protections
ends or the patent owner waives its rights. The competitive nature of the drug market means that
once the generic drug is available, the cost of the drug is substantially lowered for both the
original brand name product and the generic drug.

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However, a generic drug can only be marketed after the brand name drug's patent has expired
and are usually much less expensive than brand name drugs once they reach the market.They
have exactly the same dosage, intended use, effects, side effects, route of administration, risks,
safety, and strength as the original drug. In other words, their pharmacological effects are exactly
the same as those of their brand-name counterparts.
An example of a generic drug, one used for diabetes, is metformin. A brand name for metformin
is Glucophage. (Brand names are usually capitalized while generic names are not.) A generic
drug, one used for hypertension, is metoprolol, whereas a brand name for the same drug is
Lopressor.
Many people become concerned because generic drugs are often substantially cheaper than the
brand-name versions. Although generic drug active ingredients are chemically identical to their
branded counterparts, they are typically sold at a cheaper price than the brand name drug.
Generics are less expensive because the drug manufacturer does not have to duplicate the
original clinical trials for effectiveness and safety, which lowers the cost to bring the drug to
market. Generics are not less expensive because they are lower in quality.
India: The Indian government began encouraging more drug manufacturing by Indian
companies in the early 1960s, and with the Patents Act in 1970. The Patents Act removed
composition patents for foods and drugs, and though it kept process patents, these were
shortened to a period of five to seven years. The resulting lack of patent protection created a
niche in both the Indian and global markets that Indian companies filled by reverse-engineering
new processes for manufacturing low-cost drugs. The code of ethics issued by the Medical
Council of India in 2002 calls for physicians to prescribe drugs by their generic names only.
India is a leading country in the world's generic drugs market, with Sun Pharmaceuticals being
the largest pharmaceutical company in India.

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iv. National Drugs Policies

Narcotic Drugs and Psychotropic Substances Act, 1985
India is a party to the three United Nations drug conventions – the 1961 Single Convention on
Narcotic Drugs (1961 Convention), the 1971 Convention on Psychotropic Substances (1971
Convention) and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances (1988 Convention). Domestic legislation to give effect to these treaties was
introduced only in the 1980s when the ‘grace period’ for abolishing non-medical use of cannabis
and opium under the 1961 Convention expired. Exercising its powers to make law for the
country for implementing “any treaty, agreement or convention or decision made at international
conference”, the Indian Parliament passed the Narcotic Drugs and Psychotropic Substances Act,
1985 (NDPS Act) hastily, without much debate. The NDPS Act came into force on 14 November
1985, replacing the Opium Acts and the Dangerous Drugs Act. The 1940 Drugs and Cosmetics
Act, 1940, however, continues to apply. The official record states that the NDPS Act was
enacted in order to provide adequate penalties for drug trafficking, strengthen enforcement
powers, implement international conventions to which India was a party, and enforce controls
over psychotropic substances. The Act was amended in 1989, 2001 and more recently in 2014.
The NDPS Act prohibits cultivation, production, possession, sale, purchase, trade, import,
export, use and consumption of narcotic drugs and psychotropic substances except for medical
and scientific purposes in accordance with the law. Preparation to commit certain offences is
punishable as is attempt. Accessory crimes of aiding and abetting and criminal conspiracy attract
the same punishment as the principal offence. The Act covers three broad classes of substances:
1) narcotic drugs, that is, those covered under the 1961 Convention;
2) psychotropic substances or those covered under the 1971 Convention as well as other
psychoactive substances such as ketamine which are not yet classified under 3 international
conventions; and

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3) “controlled substances” that are used to manufacture narcotic drugs or psychotropic

substances, for example precursor chemicals such as acetic anhydride, ephedrine and
pseudoephedrine.
Narcotic drugs include:
• Cannabis: plant; resin or charas and its concentrated variant called hashish; dried flowering or
fruiting tops of the plant, that is, ganja and any mixture of charas or ganja. Importantly, bhang or
the cannabis leaf is excluded (in accordance with the 1961 Convention) and regulated through
state excise laws
• Coca: plant: leaf; derivatives include cocaine and any preparation containing 0.1% of cocaine
• Opium: poppy plant; poppy straw; concentrated poppy straw; juice of opium poppy; mixture of
opium poppy juice; preparations with 0.2% morphine; derivatives include heroin, morphine,
codeine, thebaine, etc.
NDPS amendments 1989, 2001&2014.

In 1988, the NDPS Act was supplemented by the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act to provide for preventive detention of people
suspected or accused of involvement in drug trafficking. The Prevention of Illicit Trafficking in
Narcotic Drugs and Psychotropic Substances Act is a drug control law passed in 1988 by the
Parliament of India. It was established to enable the full implementation and enforcement of the
Narcotic Drugs and Psychotropic Substances Act of 1985.

iOrgan Transplantation
Organ transplants include kidney, pancreas, liver, heart, lung, and intestine. Vascularized
composite allografts (VCAs), are now also possible, including face and hand transplantation.
Sometimes, "double" transplants are done, such as kidney/pancreas or heart/lung. Kidney

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transplants are the most common type of transplant surgery; the least common single-organ
transplants are the intestines. Depending on the organ needed, organs are matched using several
characteristics, including blood type and size of the organ needed. Also taken into account is how
long someone has been on the waiting list, how sick they are, and the distance between the donor
and the potential recipient.

Types of organ transplants:

1. Heart transplant
A healthy heart from a donor who has suffered brain death is used to replace a patient’s damaged
or diseased heart. Due to the complexity of this procedure, strict medical criteria is imposed in
assessing whether a donor’s heart is suitable for transplant, and whether a potential recipient is
suitable to receive the transplant.
2. Lung transplant
One lung or both lungs from a recently deceased donor are used to replace a patient’s diseased
lung or lungs.
3. Liver transplant
A patient’s diseased liver is replaced with a healthy liver graft from a donor. Donor livers can be
obtained from deceased donors, or a family member may choose to donate a portion of his liver to
the patient.
4. Pancreas transplant
This type of transplant is commonly done on type 1 diabetics whose pancreas don’t work properly.
5. Cornea transplant

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Corneal donation restores vision to those blinded by corneal disease. A damaged or cloudy cornea
can be replaced surgically with a healthy, normal cornea, donated by another individual , during a
corneal transplantation.
6. Trachea transplant
The windpipe or trachea is a cartilaginous tube descending from the larynx to the bronchi and into
the lungs. A trachea transplant can help patients who suffer from hardening and narrowing of their
windpipe.
7. Kidney transplant
A kidney for transplant can be taken from a living or dead donor.
8. Skin transplant
Donor skin has been found to be an effective treatment option for patients suffering from severe
burn injuries, acting as a temporary dressing and allowing and promote healing until a patient is
ready for grafting using his own skin.
9. Vascular tissues transplant
Transplanting vascular tissues that circulate blood around the body can help relieve symptoms of
breathlessness, tiredness and dizzy spells in patients with severe cardiovascular conditions.
Vascular tisues can be donated up to 24 hours after death.

In India Transplantation of Human Organs Act was passed in 1994. It provides a system to
regulate removal, storage and transplantation of human organs for therapeutic purposes and for
prevention of commercial dealings in human organs. Consequently, this act was amended in 2011.
In pursuance to the amendment Act 2011, Transplantation of Human Organs and Tissues Rules
2014 have been notified in March 2014.

ii. Experiment on Human Beings

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In any field affecting man, research is necessary as it provides data to improve situations for
human beings and this laudable objective demands encouragement and motivation at all levels of
participation. In the healthcare field, research has added complexities as it calls for
experimentation on humans which may expose them to risk. Society permits such experimental
research but demands that members of society who participate in such experiments are protected
from undue harm. However low the degree of risk, society agrees that it cannot be dismissed or
ignored.
In any country, developed or developing, where research involving humans is conducted, the
ethical issue of prime importance is how to achieve fullest protection of clinical trial participants.
Ideally, clinical trials should be associated with altruism and trust- society expects that 1) people
will participate in a clinical trial through altruism and 2) that the other stakeholders in the clinical
trial will be trustworthy enough to ensure that the agreeing participants are treated with dignity,
their well being and rights preserved and safety protected.
Good Clinical Practice norms which contribute to these objectives have evolved and guidelines for
clinical trial professionals have been issued by countries including India. Regulators in all
countries where clinical trials are conducted recognize the importance of these guidelines and their
implementation. That such clinical studies should be transparent is now considered important.
Clinical trials form an integral part of the drug discovery process worldwide. Clinical trials are the
set of practices required to certify a new drug molecule as safe and efficacious for the market.
Medical research, in general, is a good thing and absolutely necessary to cure number of chronic
diseases. At present in India we have 40 million asthmatic patients, about 34 million diabetic
patients, 8-10 million people with HIV, 8 million epileptic patients, 3 million cancer patients,
more than 2 million cardiac-related deaths, 1.5 million people with Alzheimer's disease; 15% of
the population is hypertensive, and 1% suffers from schizophrenia In order to give best treatment
to above diseases research on humans is both necessary and desirable.

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A clinical trial is defined as "any research study that prospectively assigns human participants or
groups of humans to one or more health-related interventions to evaluate the effects on health
outcomes." Interventions include not only drugs but also cells and other biological products,
surgical procedures, radiological procedures, devices, behavioral treatments, process-of-care
changes, preventive care, etc. A set of guidelines are already in place in India for the ethica l
conduct of studies to safeguard the interests of patients or volunteers participating in the study.
Global clinical research is exploring India. Yet, it is certainly not the West that is introducing
clinical research to India. Two ancient scripts, Charaka Samhita (a textbook of medicine) and
Sushruta Samhita (a textbook of surgery), compiled as early as 200 B.C. and 200 A. D.
respectively, show India's age-old proficiency in medical research. However, a lot has changed in
the clinical research scenario since then. Today, clinical trials are conducted through a regulated
approach following certain guidelines laid down by the International Conference on
Harmonization (ICH), which is spearheaded by U.S.A., Europe and Japan. There are number of
laws governing clinical research in India.

Indian Acts/Orders related to Clinical Trials is:

Drugs and Cosmetics Act - 1940
Medical Council of India Act - 1956, (amended in the year2002)
Central Council for Indian Medicine Act - 1970
Guidelines for Exchange of Biological Material (MOH order, 1997)
Right to Information Act - 2005,
The Biomedical Research on Human Subjects (regulation, control and safeguards) Bill – 2005.
Even though we have number of legislations the important one for clinical trials is The Indian
Council of Medical Research (ICMR) - 1947(amended in the year2002) , which was set up in
order to foster a research culture in India, improve and develop infrastructure and foster

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community support. The Drugs and Cosmetics Act, The Medical Council of India (MCI) Act
states that all clinical trials in India should follow the ICMR guidelines of 2000. The ICMR has a
mechanism of review for its own institutions, and so do other government agencies. Every doctor
is governed by the MCI Act. Any doctor doing wrong in a trial or in practice can be prosecuted
and the hospital can be closed. The MCI Act is very strong; the MCI has the power to take
punitive measures.
The Drugs Controller General of India (DCGI) is responsible for regulatory approvals of clinical
trials in India. The DCGI's office depends on external experts and other government agencies for
advice. Additional permissions are required for the export of blood samples to foreign central
laboratories. The ICMR has a Central Ethics Committee on Human Research (CECHR). This
committee audits the functioning of this Institutional Ethics Committee (IEC). The recently
amended Schedule Y of Drugs and Cosmetic Rules order the composition of the IEC as per the
ICMR guidelines. The DCGI's office in collaboration with WHO ICMR and many committed
research professionals, has been conducting training programs for members of the Ethics
Committees across the country.

Regulatory changes in India regarding clinical trials:

Schedule Y of the Drugs and Cosmetics Act -1940 was amended in the year 2005. Earlier, we
required that all foreign drugs be retested at one phase below the highest phase of testing abroad.
Now parallel global clinical trials have come. Schedule Y now permits concomitant phase 2 and
phase 3 trials. India can become part of global trials. But even then phase 1 has to be repeated for
safety. The advantage is that, if we become part of a global trial, a part of a global movement to
develop drugs, we can demand an affordable price. For example if a new anti-malarial drug is
developed by a multinational company, India is part of the global trial; India can have a claim on
it. ICMR should not approve drugs which are not relevant to India.

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iii. Sex Determination Test

Sex determination refers to prenatal or testing the gender of the fetus before birth. With the
centuries-old preference being given to male children in the traditionally patriarchal Indian
society, the birth of a girl child isn’t much of a cause for celebration in most parts of India. Studies
have shown that female infanticide has been an ongoing practice in most parts of the country,
especially the north.
To check this situation of women being pressurized by the family to abort female fetuses, the
Indian Parliament in 1994 passed the ‘Prenatal Diagnostic Techniques (Regulation and Prevention
of Misuse) Act. This Act bans the determination of the gender of the fetus before birth and was
enacted in an effort to narrow down the growing gender gap in numerous states within the country.
The Act was further upgraded in 2003 and called the PC-PNDT Act [Pre-conception and Prenatal
Diagnostic Techniques (Prohibition of Sex Selection)]. This also bans sex determination,
advertisements related to preconception and prenatal determination of sex as well as the use of sex
selection technologies on the unborn child.
Though it has been many years since the Act was put forth, the history of discrimination against
the girl child and women in general still carries on. The good news, however, is that it has reduced
to varying levels in most of the states. According to the Indian Ministry of Health and Welfare, the
sex-selective abortion prevalent illegally in India even today has its roots in the country’s long
history of patriarchal dominance in all aspects of life. Everyone wants a son in India irrespective
of their class, caste or socioeconomic status in life.
However, the Act has been declared to be a sloppy one by radiologists as only about 5% of
ultrasound scans are carried out on pregnant women, the remaining 95% is used for other,
sometimes critical situations; as the Act further dictates that the scanning machines including the
ECG machine cannot be transported out of the diagnostic centre – this poses a big problem as

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some critical patients aren’t ambulant and need these machines to be brought to them for
emergency diagnostic purposes.
The flip side of the coin, however, shows that there are still many fraudulent doctors around who
transport these scanning machines to rural locations for conducting banned prenatal sex
determination, thus making things difficult when formulating laws. But everything said and done,
murder in the womb of innocent females is still going on. According to a study in 2011, around
1.5 lac unborn girls are killed every year in UP alone. The rate of conviction of the culprits is very
low – with only 206 doctors being convicted from 2003-2014; Maharashtra leads the way,
followed by Rajasthan, Punjab and Haryana. More efforts are needed to prevent the murder of the
girl child while in the womb.

iv. Designer Baby

A designer baby is a baby whose genetic makeup has been selected or altered, often to include a
particular gene or to remove genes associated with a disease.[1] This process usually involves
analysing a wide range of human embryos to identify genes associated with particular diseases and
characteristics, and selecting embryos that have the desired genetic makeup; a process known as
preimplantation genetic diagnosis. Other potential methods by which a baby's genetic information
can be altered involve directly editing the genome before birth.
Genetically altered embryos can be achieved by introducing the desired genetic material into the
embryo itself, or into the sperm and/or egg cells of the parents; either by delivering the desired
genes directly into the cell or using the gene-editing technology. This process is known as
germline engineering and performing this on embryos that will be brought to term is not typically
permitted by law. Editing embryos in this manner means that the genetic changes can be carried
down to future generations, and since the technology concerns editing the genes of an unborn
baby, it is considered controversial and is subject to ethical debate. While some scientists condone

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the use of this technology to treat disease, some have raised concerns that this could be translated
into using the technology for cosmetic means and enhancement of human traits, with implications
for the wider society.
In many ways, designer babies—sometimes called genetically modified babies—are the obvious
result of decades of advancing IVF technology. Once scientists discovered how to create babies in
the lab, embryo editing to produce a healthy GMO baby (also referred to as GM baby) was
perhaps a natural next step. Scientists saw the potential to not just optimize genes for disease
prevention, but also to choose aesthetics and personality traits.
There are various technologies involved in the creation of a GM baby. One protocol is
Preimplantation Genetic Diagnosis (PGD), where embryotic genetic defects are identified
preimplantation and only embryos devoid of certain genetic disorders are implanted. Most recently
in the news is CRISPR genetic engineering, which was originally created in the 1980’s. An
evolution of the genetic technology is known as CRISPR-CAS9. CRISPR designer babies are
created by modifying DNA fragments to prevent and correct disease-causing genetic errors. CAS9
is a special technology which can remove or add certain types of genes from a DNA molecule, and
most recently has been used after fertilization for gene-edited embryos.

Abortion
An abortion is a procedure to end a pregnancy. It uses medicine or surgery to remove the embryo
or foetus and placenta from the uterus. The procedure is done by a licensed health care
professional.
Every woman has the recognized human right to decide freely and responsibly without coercion
and violence the number, spacing and timing of their children and to have the information and
means to do so, and the right to attain the highest standard of sexual and reproductive health
(ICPD 1994). Access to legal and safe abortion is essential for the realization of these rights. One

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in four pregnancies ends in abortion. Abortions include various clinical conditions such as
spontaneous and induced abortion (both viable and non-viable pregnancies), incomplete abortion
and intrauterine fetal demise.
Abortions are safe if they are done with a method recommended by WHO that is appropriate to the
pregnancy duration and if the person providing or supporting the abortion is trained. Such
abortions can be done using tablets (medical abortion) or a simple outpatient procedure.
Unsafe abortion occurs when a pregnancy is terminated either by persons lacking the necessary
skills or in an environment that does not conform to minimal medical standards or both. Unsafe
abortion procedures may involve the insertion of an object or substance (root, twig, or catheter or
traditional concoction) into the uterus; dilatation and curettage performed incorrectly by an
unskilled provider; ingestion of harmful substances; and application of external force. In some
settings, traditional practitioners vigorously pummel the woman's lower abdomen to disrupt the
pregnancy, which can cause the uterus to rupture, killing the woman.
Women, including adolescents, with unwanted pregnancies, often resort to unsafe abortion when
they cannot access safe abortion. Barriers to accessing safe abortion include:
 restrictive laws
 poor availability of services
 high cost
 stigma
 the conscientious objection of health-care providers and
 Unnecessary requirements, such as mandatory waiting periods, mandatory counselling, provision
of misleading information, third-party authorization, and medically unnecessary tests that delay
care.

vi. Cloning

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Cloning, the process of generating a genetically identical copy of a cell or an organism. Cloning
happens often in nature—for example, when a cell replicates itself asexually without any genetic
alteration or recombination. Prokaryotic organisms (organisms lacking a cell nucleus) such as
bacteria create genetically identical duplicates of themselves using binary fission or budding. In
eukaryotic organisms (organisms possessing a cell nucleus) such as humans, all the cells that
undergo mitosis, such as skin cells and cells lining the gastrointestinal tract, are clones; the only
exceptions are gametes (eggs and sperm), which undergo meiosis and genetic recombination.
Reproductive cloning is defined as the deliberate production of genetically identical individuals.
Each newly produced individual is a clone of the original. Monozygotic (identical) twins are
natural clones. Clones contain identical sets of genetic material in the nucleus—the compartment
that contains the chromosomes—of every cell in their bodies. Thus, cells from two clones have the
same DNA and the same genes in their nuclei.

All cells, including eggs, also contain some DNA in the energy-generating “factories” called
mitochondria. These structures are in the cytoplasm, the region of a cell outside the nucleus.
Mitochondria contain their own DNA and reproduce independently. True clones have identical
DNA in both the nuclei and mitochondria, although the term clones is also used to refer to
individuals that have identical nuclear DNA but different mitochondrial DNA.

vii. Artificial Reproductive Technologies

Assisted reproductive technology (ART) is used to treat infertility. It includes fertility treatments
that handle both a woman's egg and a man's sperm. It works by removing eggs from a woman's
body. The eggs are then mixed with sperm to make embryos. The embryos are then put back in the
woman's body. In vitro fertilization (IVF) is the most common and effective type of ART.

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ART procedures sometimes use donor eggs, donor sperm, or previously frozen embryos. It may
also involve a surrogate or gestational carrier. A surrogate is a woman who becomes pregnant with
sperm from the male partner of the couple. A gestational carrier becomes pregnant with an egg
from the female partner and the sperm from the male partner. The most common complication of
ART is a multiple pregnancy. It can be prevented or minimized by limiting the number of embryos
that are put into the woman's body.
Types of ART:
 Show Ovulation induction (OI)
 Show Artificial insemination or IUI
 Show In-vitro fertilisation (IVF)
 Show Intracytoplasmic sperm injection (ICSI)
 Show Intracytoplasmic morphologically selected sperm injection (IMSI)
 Show Donor conception
 Show Preimplantation genetic testing (PGT)
 Show Surrogacy

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