0

Fatwa is not legally binding on parties: Delhi High Court

Blog

Fatwa regarding the transfer and possession of immovable property was cited by one of the parties regarding ownership and possession of a property. The Single judge bench of the Delhi High Court was of the opinion that there can be no legality or validity attached to a ‘Fatwa’ and they cannot be legally binding on the parties. This ration was laid down by J. P.M. Singh in the case of Mohd. Ashraf & Ors. Vs. Abdul Wahid Siddique, [C.R.P. 89/2016].

The brief facts of the case are that a suit for possession and ownership of a property located in the Daryaganj area was filed. The Petitioner alleged that he was the owner of the said property and provided evidence of the same by placing six registered sale deeds that traced back the title to one Mst. Musharraf Begum and a fatwa on record. The Defendants in this case opposed the claim made by the Petitioners and stated that the original owner who is the lady in this case made a declaration that after her death the tenants would be the owners of the property. Further, the Defendant was of the opinion that they have been living at the said property for almost 32 years i.e. since 1971 and no claim of possession has been made in these years hence he was the owner of the property by way of adverse possession. The lower court had dismissed this application and so the appeal was preferred by the Petitioner.

The High Court observed the facts of the case and on the issue of fatwa the court cited the Supreme Court’s verdict in the case of Vishwa Lochan Madan Vs. UOI & Ors. and stated that “fatwa does not satisfy the requirements of a legally binding document and that they do not trace their origin to validly made law.” The court further stated that, “Imposition of a fatwa would itself be illegal and that. The effect of this judgment on the alleged fatwa, which is the basis of the Plaintiffs claim to ownership, would therefore have to be adjudicated by the Trial Court.” Lastly, on the issue of Constitutionality of considering Fatwa legally binding the court stated that, “While a fatwa can be the basis of an amicable settlement of disputes between parties who submit to such a settlement process, binding the same on a third party would be contrary to law.” The Court in this case instructed the lower court to conclude the suit within six months on the basis of the other documentary evidence provided by the parties.

Click here to read the judgment

0

The appeal before the Executive Council must be decided only after hearing to both the parties.: Sikkim High Court

Blog

“An aggrieved party has a statutory right to prefer an appeal within thirty days from the date of recommendation.”, this remarkable stand was forwarded by Hon’ble Sikkim High Court, in a single judge bench chaired by Hon’ble Justice Mr Bhaskar Raj Pradhan, in the writ appeal case of Silajit Guha v. Sikkim University and ors., [WP(C) No. 30 of 2019].

Petitioner, a Professor, in a Department of the respondent no.1 [Sikkim University (University)]. Pursuant to a complaint of sexual harassment filed by respondent no.5 (a student of that Department), the respondent no.4 [the Internal Complaints Committee (ICC)], conducted an inquiry and forwarded the inquiry report dated 08.06.2019 to the Executive Council of the University, i.e., respondent no.3 (Executive Council). On 28.06.2019, the Registrar of the University issued office order bearing no. 201/2019 dated 28.06.2019, in which the petitioner was informed about the 33rd executive council’s meeting, where they concluded that, the petitioner was not fit to be retained in the service of the University and had imposed the major penalty of termination of service with immediate effect.

On 01.07.2019, the petitioner preferred a statutory appeal. It is the petitioner‘s case that the impugned office order was received by him only on 03.07.2019. The writ petition seeks the quashing of the show cause notice dated 10.06.2019, the inquiry report dated 08.06.2019 and the order of termination dated 28.06.2019 and for various other consequential reliefs.

After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “If the Executive Authority took the final step, as was done in the present case, before the expiry of the thirty days period, then prejudice would be writ large. Admittedly, the petitioner had preferred an appeal on 01.07.2019 and the facts disclose that he could have done so on or before 08.07.2019. Thus, the impugned order of termination dated 28.06.2019 could not have been issued. This court is, therefore, of the view that during the pendency of the appeal before the Executive Council, his termination order, bearing no. 201/2019 dated 28.06.2019, shall be kept in abeyance until the final decision in the pending appeal. The appeal before the Executive Council must be decided expeditiously after giving an opportunity of hearing to both the parties.”

The bench further added that, “The observations made on the facts of the case is only for the purpose of addressing the arguments made by the parties and it shall not influence the Executive Council before whom the appeal is pending. All issues and questions which are open to challenge under the law and taken in the appeal shall be decided by the Executive Council in its jurisdiction as the Appellate Authority.”

Click here to read Judgment

0

Defaults prior to Covid-19 Pandemic cannot be covered under RBI’s guidelines granting relief on repayment of loans: Delhi High Court

Blog

RBI guidelines for reliefs to certain debtors for defaults made on loans due to the Covid-19 Pandemic are only applicable to defaults that arose during the Covid-19 Pandemic and not before. The Delhi High Court made the Petitioner liable for defaults of the Respondent that had been made since 2018. The ratio was laid down by the Delhi High Court presided over by J. P.M. Singh in the case of Amit Khaneja & Ors. Vs. IL & FS Financial Services Ltd., [W.P.(C) 3580/2020].

The brief facts of this case are that the Petitioner took multiple loans from IL&FS Financial Services between the years 2006 and 2018. The Petitioner defaulted in repaying the debts and hence his account was declared as a Non-Performing Asset (NPA). The Respondent initiated proceedings against the Petitioner under the SARFESI Act by taking possession of the Petitioner’s assets. There were multiple proceedings under the Debt Recovery Tribunal after which the Petitioner came up with a ‘one-time settlement’ offer in which he agreed to pay Rs. 100 crores, to which the Respondents agreed and directed the Petitioner to pay off the said amount by 27th March 2020 . The Petitioner did not pay off the amount agreed by him as the ‘one-time settlement’ offer and hence in May the respondents revoked the settlement. The Petitioner challenged the revocation of the Respondent in the High Court.

The Petitioner submitted that it was due to the unforeseen circumstances that arose due to the Covid-19 Pandemic and he could not sell off his assets. Further, the RBI circular provided relief to all such debtors who defaulted on repayment of their loans. Hence, the Petitioner seeks some time to sell his assets as he is now making efforts to sell of his assets as soon as possible even if they are getting deflated prices for it.

The Delhi High Court was of the opinion that the default was made by the Petitioner in the year 2018 and he also neglected various order of the Debt Recovery Tribunal. Further, the Petitioner failed to pay off the ‘one-time settlement’ at many instances. The Court also observed that he had a chance to make the payment till November 2020, but he filed to do so, hence no relief was granted to the Petitioner. The Court with respect to the RBI Circular stated that, “The circulars of the RBI and the guidelines thereunder relate to reliefs to be granted for payments of interest and declaration of accounts as NPAs, etc., during the COVID-19 pandemic. These circulars and policy guidelines cannot lend any support to the Petitioners’ case where the defaults are prior to the outbreak of the pandemic itself. The legality of the revocation of the OTS in May 2020 cannot be tested on the benchmark of the recent RBI circulars and the policy guidelines inasmuch as these settlements are independent of the said circulars and guidelines. Moreover, the RBI circular itself makes it clear that the same is for “continuity of viable businesses” and not for accounts which are already declared as NPA, as is in the present case.”

Click here to read the judgment

0

LEGAL PERSONHOOD OF ARTIFICIAL INTELLIGENCE SYSTEM

Articles

INTRODUCTION

With the world-changing and the technology developing at a faster pace, the world is moving towards transformation. The evolving technologies, especially the Artificial Intelligence (AI) and Machine Learning (MI) have travelled a way ahead in their course of transformation. AI and MI, along with other evolving technologies such as speed recognition and natural language, have reached a nexus of capability. However, along with such developments various issues such as ownership, accountability, representation and management with regard to AI have emerged. And such issues have brought us to a point where the major question arises “Whether AI systems be given a legal status or not?”. For obvious reason the debate on this topic is never-ending. But the growing development hints towards incoming legal effects when it comes to AI and in such a case proper adaptation of laws is very important. Giving a legal status to AI also emphasizes on providing Robotics with a legal personality.

The present article deals with the subject of Legal Personhood of AI systems and the arguments for and against the same. The need for introduction of a framework to deal with the AI and MI is of major concern. Following this another concern that arises is about the preconditions that should be established in order to introduce the framework. The author in the present article has made an attempt to provide an insight to these topics.

THE CONCEPT OF LEGAL PERSONHOOD

An entity is said to have a legal personhood when it is a subject of legal rights and duties.[1] Two types of legal personhood are recognised in law, namely, Natural and Judicial.

  • Natural – Those which are recognised because of the simple fact of them being humans.[2]
  • Judicial – Those which are non-human in nature and have been granted certain rights and duties by law.[3]

Under the legal system, Judicial legal status has been provided to corporations, religious entities, governmental and intergovernmental entities, etc. As per some Scholars such status can also be provided to the robotics and to emerging AI system.

The judicial personality is based on three theories, namely,

  • Aggregate theory: Individual members work in a group as a single entity, while establishing individual contractual relations, for cost cutting.
  • Fiction and concession theory: Non-human entities have a personality because the legal system choses to give it to them.
  • Realist theory: Suggests conferment personality to non-human entities as a matter of right.

A closer look at above the three theories makes it very clear that the ‘Aggregate Theory’ is least applicable to AI systems, whereas, ‘Fiction and Concession theory’ can be extended to AI systems.

When it comes to the natural legal personhood, there have been no particular theories. The fact is that the concept of natural legal personality is completely rooted to the legal system, and in such a scenario it is almost impossible to articulate it.

 

GRANTING OF LEGAL PERSONHOOD TO AI SYSTEMS

The question whether AI systems should be given a legal personhood or not, has led to a number of questions. Firstly, they should be subjected to complete legal rights and duties or to a specific set of legal rights and duties. Secondly whether they should be provided with only rights or only duties. 

In the case where specific set of legal rights and duties have been provided, there are chances that they may not be the same for every entity. If only rights are conferred upon the AI systems, it would create problems of standing, as it would enable human individuals to act on behalf of a non-human rights holder, rather than requiring them to establish standing in their own capacity.[4] If only duties are conferred upon them, it would lead to accountability issues, problems of imposition of civil liabilities such as damages, etc.

ARGUMENTS IN FAVOUR OF GRANTING LEGAL PERSONHOOD TO AI SYSTEMS

The arguments in favour of granting legal personhood to AI systems are under the vision wherein they keep the ‘Robotics Rights’ in parallel with the ‘human rights. The individuals in favour of this argue that the rights of robots should also be recognised. The arguments in favour have also listed out various points which will be advantageous to human beings too in the long run.

According to Jurist, if a legal personality is conferred to AI systems, it would ensure that there is someone who could be blamed upon when things go wrong. This is presented as an answer to potential accountability gaps created by their speed, autonomy and opacity.[5] Not only the AI systems can be punished through the ways of retribution, incapacitation, deterrence, and rehabilitation but can also be then compared to corporations. This will further help to bring the AI system under the Jurisdiction of both Civil and Criminal Courts. In cases of extreme default, there would be rights to even destroy the robot completely. If the situation requires, the robots could also be fined or have its property seized, or a license to operate could be suspended or revoked.

Conferring a legal personality which also ensure accountability on the part of the works and actions of the AI system. This will further help in ensuring the ethical principles of AI – Accountability, Responsibility and Transparency, are some ethical principles of AI.[6]

  • Accountability in the AI system requires both the function of guiding action and the function of explanation
  • Responsibility refers not only to the role of people but also the capability of AI systems which not only answers one’s decision but also identifies errors or unexpected results.
  • Transparency further refers to the need to not only describe, inspect and reproduce the mechanisms through which AI systems but also make decisions and learns to adapt to its environment, and to the governance of the data used created.

Gabriel Hallevy, the best-known defender of AI punishment, contends that ‘when an AI entity established all elements of a specific offence, both external and internal, there is no reason to prevent imposition of criminal liability upon that offence.[7] He concludes that ‘there is no substantive legal difference between the idea of criminal liability imposed on corporations and on AI entities.[8]

Conferring legal personality to AI systems would help in ensuring the ownership of work done by the AI system to be with the AI system, as opposed to it being with the parent owner of AI system. In those cases where something has been created by the AI the ownership rights, i.e. the IPR rights will lie with them and the human wouldn’t be able to take the credit. But not to much surprise, in most of the legal systems around the world, the person claiming IP has to be a legal person, and not a judicial person.[9] Due to this, legal personalities other than humans are denied ownership of the IP created by it. As per WHO such a system favours ‘the dignity of human creativity over machine creativity’.

The conferment of legal personality to AI systems would ensure their protection from human manipulation. Since legal personhood would ensure the AI system the ability to sue and to be sued, it would have its own recognition and independent identity. This would ensure lesser chances of it being manipulated for the interests of humans. Additionally, a system of lifting the veil, as it exists for corporations, can also be created for AI systems. This would add to the protection of AI systems from human manipulation.[10] This is in the interests of the AI systems, and is practically possible only if legal personality is conferred upon it.

The conferment of legal personality to AI systems would ensure their entry into contracts.[11] The use of electronic agents in order to conclude binding agreements is hardly new. High-frequency trading, for example, relies on algorithms concluding agreements with other algorithms on behalf of traditional persons.[12] Therefore, granting personhood to such AI systems would ensure better smoothness of work and would improve the potential accountability gaps raised by AI in relation to entry into contracts.

Not only this, if legal personality is conferred upon the system, their legal rights would be recognised. Instead of being treated as slaves, they would be treated as employees.

ARGUMENTS AGAINST GRANTING LEGAL PERSONHOOD TO AI SYSTEMS

The way a coin is two sided similarly, every argument has two approaches. Undoubtedly if many scholars are in the view of providing legal status to AI, many are against the same. According to many, if legal personality is conferred on Robots, it will lead to various problems. If robots are granted legal status, there may come a time when the question of granting the same to every other AI and MI may arise. And this will obviously create unnecessary problems.

It would further pose a huge threat to human owner of the system. Conferring a legal personality to the robots will led to the creation of principle-agent/ Master-servant relationship between the owner and the robot, which will make the owner being charged for the acts of the machine by strict liability.[13]

It is further speculated by various AI experts that if AI systems do eventually match human intelligence, they wouldn’t stop there. They can also go further in doing extra-normal activities, which may be negative. In many cases, there won’t be any way to find out whether AI acted according to the instructions given by the owner, or according to its own recoding of instructions. And this would be decremental to the interests of the owner, thereby asking him liable.

If legal rights are conferred upon them, the option of destroying such AI system would be eliminated, which could be very dangerous for the existence of humanity.[14]

Providing legal rights will further confer IP rights to the Robots. This would not only result in disregarding the owner’s effort in making the AI system but also the credit of all the work done by the AI system will remain with it, and the owner would not even have the moral rights of that work.[15]This would eventually result in lack of motivation, and would not be in the best interests.

Also, there can be instances wherein the owners can misuse the ‘Separate legal entity’ status provided to the Robots, by conferring all responsibility and liability on them and evade their own liability similar to the way the concept of ‘separate legal entity’ lifting provides an advantage to the shareholders of the company, there are chances that the owners may take undue advantage of the same.

Conferring legal personhood to the AI system would also not be in the interest of society. The arguments for granting such a personhood are not sufficient to showcase that such a personhood should be granted in the first place. Hence, conferring legal personality to the AI system is not suggested.

CONCLUSION

The forgoing discussion deals with the fact whether the AI system should be provided a legal status or not. On one hand various individuals suggest conferring the legal status, on the other hand many are against it. Whether conferring legal personality on AI system is desirable or not is a matter of concern. The decision on such a matter is dependent on the on the actual social necessity. Most importantly, it needs to be figured out whether the future society can function without conferring such a status or not. In case they can’t the need is to first set the preconditions and then to provide framework and check if the AI system could fit within such a framework.

The most important parameter in deciding whether the AI system should be granted legal status or not depends on the fact whether it is in the interest of the society. Only if it is the best interest for the society, the question on providing legal status should be considered. That being said, it would be safe to conclude by stating that, “The consideration that an autonomously functioning artificially intelligent robot should have a secure legal subjectivity is dependent on the actual social necessity in a certain legal and social order”.

REFERENCES

[1] Solum, L. B. (1992). ‘Legal personhood for artificial intelligences. North Carolina Law Review, 70(4), 1238–1239.

[2] N Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66 MLR 346.

[3] Ibid.

[4]C Rodgers, ‘A New Approach to Protecting Ecosystems’ (2017) 19 EnvLReev 266.

[5]S Chesterman, ‘Artificial Intelligence and the Problem of Autonomy’ (2020) 1 NotreDame Journal of EmergingTechnologies 210; S Chesterman, ‘Through a Glass, Darkly:Artificial Intelligence and the Problem of Opacity’ (2021) AJCL (forthcoming).

[6]Virginia Dignum, ‘The ART of AI – Accountability, Responsibility, Transparency’– Mar 4, 2018. https://medium.com/@virginiadignum/the-art-of-ai-accountability-responsibility-transparency-48666ec92ea5

[7]Gabriel Hallevy, ‘The Criminal Liability of Artificial Intelligence Entities’ — From Science Fiction to Legal Social Control, 4 AKRON INTELL. PROP. J. 171, 191 (2010).

[8]Ibid.

[9]Copyright, Designs and Patents Act 1988 (UK), section 9(3), Copyright Act 1994 (NZ), section 5(2)(a), Copyright Amendment Act 1994 (India), section 2, Copyright Ordinance 1997 (HK), section 11(3), Copyright and Related Rights Act 2000 (Ireland), section 21(f).

[10]J Turner, ‘Robot Rules: Regulating Artificial Intelligence’ (Palgrave Macmillan 2019) 193.

[11]S Chopra and LF White, A Legal Theory for Autonomous Artificial Agents (Universityof Michigan Press 2011) 160.

[12]T Cuk and A van Waeyenberge, ‘European Legal Framework for Algorithmic and HighFrequency Trading (Mifid 2 and MAR) A Global Approach to Managing the Risks of the ModernTrading Paradigm’ (2018) 9 EJRR 146

[13]Ryan Abbott & Alex Sarch, ‘Punishing Artificial Intelligence: Legal Fiction or Science Fiction’,53 UC Davis Law Review 1, 323 (2019).

[14]N Bostrom, ‘Superintelligence: Paths, Dangers, Strategies’ (Oxford University Press 2014).

[15]Marcelo Corrales& Mark Fenwick, Robotics, AI and the Future of Law -‘Do We Need New Legal Personhood in the Age of Robots and AI’, Perspectives in Law, Business and Innovation.

0
Attorney balance advocate antique beautiful blind

Non-compliance of any procedural requirement is no ground for automatic rejection: Sikkim High Court

Blog

“The State respondents could not have demanded the refund of the excess payment made on account of their illegal promotions”, this remarkable stand was forwarded by Hon’ble Sikkim High Court, in a single judge bench chaired by Hon’ble Justice Mr Bhaskar Raj Pradhan, in the writ appeal case of Ganesh Bhandari & ors. V. State of Sikkim & ors, [WP(C) No. 24 of 2017].

The petitioners were appointed as Graduate Teachers on 04.03.2003 and 01.03.2003 on coterminus basis under HRDD. It is the petitioners’ case that pursuant to an advertisement dated 04.06.2014, published in Sikkim Express on 08.06.2014, they applied for the posts of Post Graduate Teachers through direct recruitment. It is their case that they fulfilled all the criteria required by the advertisement and thus, they applied in the “prescribed application forms” for the said posts. After they received their promotion orders, the petitioners joined their service on 20.05.2015 and they have worked there continuously. However, on 04.07.2017, the impugned office orders issued by the respondent no. 3, were received by them cancelling their promotions with retrospective effect and repatriating them to their respective old posts as Graduate Teachers. They were also directed to refund the excess payment made on account of their promotion.

The writ petition alleging violation of petitioners’ fundamental rights guaranteed under Article 14, 16, 19 and 21 as well as Article 300A of the Constitution of India, has been preferred by the two petitioners who have been issued office orders no. 278/HRDD/ADM and 279/HRDD/ADM by which the Human Resource Development Department, had cancelled their promotion orders both dated 14.05.2015 with retrospective effect. By the impugned office orders, they were also repatriated to their respective schools as Graduate Teachers and directed to refund any excess payment made on account of their promotion. Pursuant thereto, the petitioners were issued show cause notice, directing them to show because why their coterminous service should not be terminated and why inquiry should not be initiated against them for concealing the facts.

After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “Besides the error of judgment of the petitioners, it is also apparent that both the Commission as well as the State respondents have been grossly irresponsible and wanting. It is an admitted fact that the petitioners have rendered their service during the period they served in the promotional posts of Post Graduate Teacher (Hindi) in their respective schools. Had it been a clear case of concealment of facts committed by the petitioners, which although alleged by the State respondents have not been proved, the issue would have been different. The allegation of concealment of facts would in any way not hold much water as the State respondents have thought it fit to regularize the petitioners’ co-terminus service inspite of issuance of the impugned show cause notice.”

The bench further added that, “…the State respondents could not have demanded the refund of the excess payment made on account of their illegal promotions. However, it is apparent that there has been a loss of financial resources from the State exchequer due to the follies of the Commission and the State respondents. This court is of the opinion that it should be left to their wisdom to realize the amount from their erring officers, if found guilty. The writ petition is partly allowed in the above terms and disposed.”

Click here to read Judgment

1 … 1,797 1,798 1,799 1,800 1,801 … 1,854