Techno Legal Aspects of Forensic Engineering

Interview: Jidesh Kumar, managing partner, King Stubb & Kasiva, advocates & attorneys

1. As one of the leading techno-legal consultants, what in your opinion is forensic civil engineering? How far is it adopted in India?

Forensic Civil Engineering is the latest and modern techno legal process of techniques involved in investigating a failure in civil engineering projects, resulting in monetary loss or personal injury. It is an evolving process and we are still at the tip of the iceberg when it comes to its formation. One of the greatest advantages of using forensics for investigation will be to get into microscopic details of the nature of differential facts and events that led to the failure and assisting in arriving at an evaluated and informed decision.

In India, there has been a very slow but positive movement towards forensic civil engineering. Unlike in the developed countries and a few countries in the middle east and the south east Asia, there have been very limited number of cases, which reach the dispute resolution stage, where forensics have been used and have been accepted by the judges. Non adaptation; awareness; moving away from the existent system and its stakeholders; lack of expertise; very low investment in education, training and standardised certification; reliability and judicial validity of the parameters and processes; illogical assumptions and non evolution of certain regulatory environment have contributed to the delay in including the same as a definitive process of investigation in civil engineering disputes. India is a perfect market for synthesis of forensic civil engineering relevant for developing economies.

2. How is intellectual propriety viewed in Indian context?

India has one of the best legal systems covering Intellectual Property. Our laws have been framed keeping in mind our constitutional principles, Indian situations, an international business environment, international best practices and the rule of law. When it comes to civil engineering contracts, we have an evolved system of copyrights, patents, designs and trademarks. These are governed by specific legislations namely the Copyrights Act, 1957, The Patents Act, 1970, Designs Act, 2000 and the Trade Marks Act, 1999.  There are numerous instances when the Courts of law have intervened and awarded penalties and jail terms, jointly and severally, for infringers and passers-off of Intellectual Property Rights.  However, when it comes to confidentiality, non compete, technology transfer, know-how, trade secret, developed Intellectual Property, etc., it is important to have strong and clear clauses, understandings or agreements, since these are governed exclusively by the agreement between concerned parties. 

3. What happens in legal terms after the failure of a structure is noticed/ reported?

At the event of a failure of a structure, the dispute is initiated. The first action to be performed in the event of such failure will be to initiate safety and emergency mechanism and protocols. Once the safety of person and property is sufficiently ensured, the next process will be to preserve evidence. In the process of preserving evidence, it is important to identify what is perishable evidence, followed by preservation of samples. It is also important to have clear documentation of the conditions and conduct interview with people on site and interact with engineers. Once this is complete, a preliminary evaluation can take place followed by a detailed report and closure of preliminary investigation.