Is corporeal property doc a good idea?

Last month, on May 9, the Supreme Court of India in a very high profile case – Priyamvada Birla’s will to Lodha in 1999 – decided one of the intriguing questions related to theft of information from confidential documents. The Supreme Court made a clear shift from the well-established law about theft and held that even information contained in a document can be the subject matter of theft. This is a new development and will possibly have wide ramifications. The case was Birla Corporation versus Adventz Investments.

In the instant case what had happened is almost like a movie story and very often we have watched similar scenes on the screen. One of the scenes fresh in the memory is from the movie “3 Idiots” when the students photocopied the question paper from the principal’s office. Something similar had happened in this case, which has seen long drawn out legal battle for more than 15 years – Priyamvada Birla passed away in 2004, and her 1999 will was executed in favour of her chartered accountant R. S. Lodha. The will had been contested fiercely resulting in legal proceedings in different courts in Kolkata and at some other places.

A number of audit reports, confidential reports, and other papers were being used by the Birla family and trusts for preparing arguments and as evidence in different courts, and most of these documents were available only as limited number of copies. Access to these papers was allowed only to certain specific individuals, and thus it became very obvious that something was amiss when the photocopies of these documents were produced, and also information contained in these documents was used in court proceedings, by some litigants, who were not supposed to be privy to them.

Criminal proceedings were initiated against the accused by invoking different provisions of the law, including the provision for theft. A little bit understanding of the specific law will help us to appreciate the judgment. The Indian Penal Code, 1860 defines theft in section 378. Usually I don’t talk about specific sections in my column, however, “theft” is such a common word and is used so very often in general conversation that I consider it apt to reproduce the section.

“Section 378. Theft.—Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.”

One of the key words in this definition is “moveable property”, and it has been understood that information on its own cannot be said to be moveable property.

Thus, if a person picks up a piece of information from a document that he was not supposed to have access to, it has been interpreted by the Supreme Court to be theft and the relevant section from the Indian Penal Code will apply. If the person even “temporarily” moves a document, takes a photocopy or clicks a photo using his smartphone, and thereafter keeps back the document at its original place, it is considered to be theft. This had been the well-settled law as a document is, without doubt, a moveable property, corporeal and tangible in nature. It is made of atoms and occupies space. What the newer interpretation does is giving corporeal and tangible status to information contained in the document.

This is surely a bold move as in today’s world, information and intellectual property – which are intangible in nature – are at times more valuable than the tangible, corporeal and physical property. Though infringement of intellectual property is taken care of by different laws related to patents, copyright, trademarks, design, etc.; treating documented confidential information as corporeal property will go a long way in making legal action possible and practical at the lowest level of police hierarchy.

Besides the legal intricacies, this judgement will act as a deterrent to rampant use of the ubiquitous mobile phone cameras to capture images of documents which otherwise are confidential, and may be privileged too. The ease of sharing these images through social media has also been quite damaging and must be checked. Hopefully, this move shall have the desired salutary effect.

The author is a professor at IIM-A, akagarwal@iima.ac.in