Recently, the Supreme Court has in a case of Avitel Post Studioz Limited & Ors. Vs HSBC PI Holdings (Mauritius) Limited passed a Judgment dated 19-08-2020 and upheld the validity of the #arbitration proceedings initiated by the Respondent-#HSBC in a matter of serious allegation of #fraud and #misrepresentation committed by Avitel-Appellant Company.

To read more, please visit the link below:

http://www.theindianlawyer.in/blog/2020/08/25/supreme-court-reiterates-principles-of-arbitrability-of-civil-disputes/

#arbitration #dispute #hsbc #fraud #supremecourt

Hacking is gaining information of the weakness of a computer resources system and there after access into it, without his or her permission. Hacking can be interpreted as unlawful criminal trespass into others’ computer resources.

Word hacking is a fascinating term which inspires curiosities in the mind of the people at large in the society. I can recollect, few years’ earlier, in the Calcutta book fair, one married lady approached me with a question whether there was any book, by reading of which she could hack various chat-apps used by her husband as she had suspicions that her husband might had illicit relationship with any other ladies. Movies capturing the art and life of various hackers have mesmerized us for long. The biggest question is not how to hack but which is ethical and which is not. There are thousands of free tools or opensource software which may allure you to hack others but what will be the aftermath or the consequence of the same. There are thousands of videos or articles in various online platforms which will make you at least half-hackers. But in those articles or videos, everyone will avoid their responsibilities by saying that they are doing for academic purposes. I am not telling every hacking is bad for society. I myself a supporter of whistle-blower. You know in India we have the Whistle Blowers Protection Act which guards the lawful Whistle Blowers in India from all sort of attacks. But not everyone is hacking ethically. Segregation of hackers may be as follows on ethical line:

Ø WHITE HAT HACKERS: A white hat hacker or ethical hacker who hacks ethically.

Ø GREY HAT HACKERS: A Grey Hat Hacker sometime hack for good purpose …..sometimes for bad purpose…. i.e. sometime ethical and sometime unethical.

Ø BLACK HAT HACKERS: A black Hat Hacker hacks for unethical purpose. That means they are purely unethical.

Now the million-dollar (sorry million rupees) question is, who then hacks ethically. What is the yardstick of ethics? What is the authority who judges what is ethical or what is not? In this article and other forthcoming part of this article, I will try to find out the answers. Now let us know various steps of hacking. Definitely hacking is an art, the mechanism or the ways should and would differ from hackers to hackers. The indomitable patience together with creative attitude in the application of in-depth knowledge of how to code ultimately shows the path of success. In my opinion people who uses various tailor-made software or hacking application to trick innocent spectators are not hackers, they are only the followers or copying machines. In my humble opinion, hacker, without creativity or urge to create or apply and design new algorithm of software application is no hacker. Anyway, the following steps are thought to be the broad areas which one hacker has to undergo:

• Reconnaissance: where the Hacker tries to collect information about the target.

• Scanning: Thereafter the hackers scan the collected data and find some vulnerabilities or weakness in the system…….

• Gaining Access: After scanning, it is gain access to the system by using Phishing Attack or Metasploit…or other ways…..

• Maintaining Access: After entering into the system hackers maintain their access for various future exploitation or unlawful activities.

• Covering or Clearing Tracks: Lastly it is clearing various evidences of identifiable information which relate the hacker with the crime.

• The most important preparation before embarking upon hacking for an hacker is to make himself/herself completely anonymous.

As per NITI Aayog Report by 2020 India will going to have 730 million internet users. As per other resources India stands at third position in terms of total netizen in the world. Majority of the cyber catastrophe or incidence of breach results from hacking. Hence the billion-dollar Cyber security industry is actually the brain-child of the hackers, be it ethical or unethical. Is it not to create a problem, find a solution and get a promotion? One might disagree with me, but it is my own humble opinion.

The hygiene of the cyber or virtual ecosystem is in the hands of the hackers be it for creating hazards or disinfect the hazards. Especially in this lockdown period, where the number of Cyber crimes is skyrocketing and which has been supported by the recent INTERPOL report, issuing purple notice to its various member countries.

The relevant laws in India on hacking are as follows:

1) Section 43, 43A of Information Technology Act, 2000 for contravention wherein if you are a victim you can have your relief for upto rupees 5 Crore before Cyber Adjudicator, and

2) Section 66 and 72A Information Technology Act, 2000 for offences wherein if you are a victim you can have your relief before your nearest competent Criminal Court.

Hacker and Cracker (ethical or unethical):

Indian Court In Abhinav vs. State of Haryana, Cr. Misc. No. 9245 of 2008, has defined the term “Hacker” and “Cracker” and made distinction between “ Hacker” and “ “Cracker” on the yardstick of mens rea or intention or motive in adjudicating the offence of hacking. Section 66 of Information Technology Act also supports this view as civil contravention of section 43 of Information Technology Act will be converted into criminal activity if the offender has fraudulent or dishonest motive. This concept of mens of rea in hacking will get further support in a foreign judgement (in DPP vs. Bignell (1998)), wherein the Court observed that mere access to any computer resources is not an offence.

Let me continue with the issue relating to hacking …………………………in the next part of this article……. 

(Everything written in this article are the personal opinion, which someone may agree or disagree)

https://www.cyberchatterjee.com/2020/08/hack-world-lets-us-hack-ethically.html

Definition

Living arrangements where an unmarried couple lives collectively underneath the same house within a long- term relationship that is similar to marriage is known as a LIVE-IN RELATIONSHIP. In this manner, it is a kind of arrangement where a man & woman live together without having getting married. This type of relationship has become an option to marriage in Metropolitan Cities.

Status of live-in-relationship in India

Status of live-in is not clear in India. There is no any particular law regarding the subject of live-in relationships. This type of relationship isn’t acknowledged by Hindu Marriage Act, 1955 or other law. While the institution of marriage encourage adjustment, the basis of live-in is individual freedom. Thus, the protection of women from Domestic Violence Act, 2005 accommodates the protection & maintenance thereby providing the right of alimony to an aggrieved live- in partner. In spite of fact that, such a relationship isn’t bound by the legitimateness of marriage, the Indian courts have supported the rights, of woman along her children who is in a live-in relationship.

The Supreme Court has characterized five classifications of live in relationships which can be considered in the court:

•          Domestic relationship between an adult male and an adult female, both unmarried
•          Between a married man and an adult unmarried woman, entered knowingly
•          Between an adult unmarried man and a married woman, entered knowingly
•       Between an unmarried adult female and a married male, entered unknowingly and between same sex partners.

Women’s Rights in Live-in Relationship

1-Maintenance rights

In the year 2003, after the suggestions of the Malimath Committee, Section 125 was fused in the CrPC (Criminal Procedure Code) to adjust the meaning of 'wife' and extend it to include women who were in a live-in relationship. This guaranteed that her Financial Needs were taken care of by the partner if she was not able to maintain herself or if the relationship got alienated. Likewise, protection against all types of abuse is secured under the Domestic Violence Act, 2005 just like married women.

2- Right to Property

After the amendment in 2005, the women’s right to ancestral property is secured by the Hindu Succession Act, 1956. This provides her rights to ancestral and self-acquired property, like son, regardless of her marital status. So, whether woman is married or in live-in- relationship, the right to parental property will accrue to her by birth, while the property acquired by oneself will be divided according to the will.

3-Children’s Inheritance Rights

The Supreme Court (SC) of India had held that if a man and woman living together for a long period of time, would be considered as married and will enjoy all rights also the children born to live-in partners are treated as Legitimate. Such children have the right to self-acquired properties of their parents according to the Section 16 of the Hindu Marriage Act.

CrPC Section 125, provide rights to the children that they can always claim maintenance even if their personal laws doesn’t offer maintenance to them. In case the live-in partners are estranged, still they have obligation to maintain their children.

In Bharata Matha & Ors. Vs. R. Vijaya Renganathan & Ors. Case, the SC has also ruled that Child born out of a live-in-relationship may be permitted to inherit parent’s property, but does not have any right to claim against Hindu Ancestral Coparcenary Property.

REFERENCE

[1]- economictimes.indiatimes.com

[2]- www.helplinelaw.com

[3]-timesofindia.indiatimes.com

Recently, in a landmark judgement, Supreme Court of India ruled that daughters have an equal coparcenary rights to ancestral property like sons, by birth, regardless of whether the father was alive or not on September 9, 2005, when Hindu Succession (Amendment) Act came into force. 

The court concluded that, Hindu Succession (Amendment) Act 2005, which gives daughters equivalent rights to inherit Joint Hindu Family Property, will have a Retrospective Effect.

Declaring the judgement, Justice Arun Mishra, heading a 3-Judge Bench Says, “A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life”.

Despite the fact that, the judgment imagines to redress one of the discriminatory social practices, it would require no less than a change in the attitude of the Indian Society to satisfy the objective of Gender Equality.

Coparcener And Coparcenary Property

According to law, a Hindu Family is a group of individuals, who are the lineal descendants of a common ancestor. This group would incorporate the Eldest member and 3-generations of a family, & every one of these individuals are perceived as Coparceners.

The property which is acquired by a Hindu by a Hindu from his/her Father, Grandfather or Great-Grandfather is known as Coparcenary Property.

Only a Coparcener has right over the Coparcenary Property by birth, while the SHARES in the property varies by Birth and Death in a family.

Before, Hindu Succession (Amendment) Act 2005, women were not considered as Coparceners and thus, they could not inherit father’s property.

Hindu Succession (Amendment) Act, 2005

Hindu Succession (Amendment) Act, 2005 was enacted to evacuate Gender Discriminatory Provisions in the Hindu Succession Act, 1956. Under the amendment, Section 6 of the Act was amended. After this, the daughter of a coparcener will become a coparcener by birth, in her own right like Son. The daughter will now have the similar rights in the ancestral property of the Hindu undivided family (Coparcenary Property) as a son.

It was a progressive step in the field of Indian legislation with respect to the privileges of women in India.

Previous Conflicting Judgements

The requirement for a 3-Judge Bench- Justice Arun Mishra, Justice S.Abdul Nazeer and Justice M.R. Shah to hear this issue emerged as a result of prior conflicting decisions passed by 2-Judge Bench of the Supreme Court.

In the Case of Prakash V. Phulavati (2015), a 2- Judge Bench of SC including Justices Anil R Dave and AK Goel, had held that if the father (coparcener) had died before the date on which the amendment became effective i.e. 9 September 2005, the daughter would reserve no right to the Coparcenary Property.

Although, in the Case of Danamma V. Amar (2018), another 2-Judge Bench headed by Justice A K Sikri held that, the two daughters in this case would get a share in the father’s property regardless of whether their father had died in 2001.

Highlights of the Present Judgement

On 11 August 2020, the 3- Judge Bench comprising Justice Arun Mishra, Justice S.Abdul Nazeer and Justice M.R. Shah of the Supreme Court of India held the following-

That Section 6 of the Hindu Succession Act grants an “Unobstructed Heritage” i.e. a right by birth, to the daughter, considering that a coparcener's father need not be alive on 9 September 2005 when the law enacted.

The Hindu Succession (Amendment) Act, 2005 granted the right to Hindu women to be coparceners or joint legal inheritor in the similar way a male inheritor does. Since the coparcenary is by birth, it isn't important that the father coparcener ought to be living as on 09-09-2005.

On the date of implementation of the amendment act, if a daughter is alive, she turns into a coparcener with impact from the date of the Amendment Act, regardless of the date of birth prior in point of time.

Daughters can't be denied of their RIGHT of EQUALITY gave upon them by Section 6 of The Hindu Succession Act.

The SC additionally noticed that some cases & appeals all over the India were pending in front of high courts and subordinate courts, since it was looking at the issue. It likewise requested these courts to decide all pending issues, quite far, within 6 months.

Reference:

[1] theprint.in

[2] www.drishtiias.com 

[3] evawglobaldatabase.unwomen.org

In a recent Judgment dated 19-08-2020 that was passed by the Hon’ble Supreme Court of India by J. Rishikesh Roy in a Transfer Petition (Crl) No. 225 of 2020 titled Rhea Chakraborty vs State of Bihar was filed by Actress, Rhea Chakraborty. The matter before the Supreme Court was whether the FIR filed by Mr. Krishan Kishore Singh (the Complainant), father of Late Sushant Singh Rajput (the Deceased) was maintainable in view of the fact that police investigations were underway in Mumbai.

To read more, please find the link below:

http://www.theindianlawyer.in/blog/2020/08/21/supreme-court-upholds-fir-filed-by-father-of-sushant-singh-rajput-in-bihar/

#sushantsinghrajput #ssr #supremecourt #fir #crpc #rheachakraborty #biharpolice #mumbaipolice

Difference between Revision, Review and Appeal

Article 21 of the Constitution expresses that, "no individual will be denied of his life or individual freedom with the exception of as indicated by strategy built up by law." 

 In this manner each individual merits the option to at any rate one appeal with the goal that equity is dispensed reasonably in any lawful system, characteristic equity wins and the privilege to life and freedom might be safeguarded. The force given to residents, of revision and appeal, hold jurisprudential, philosophical and handy noteworthiness. This privilege might be utilized by anybody, the blamed or vindicated just as the one asserting the violations. Here, we will talk about the arrangement of appeal, review and revision

 Review is the intensity of exploring of its own judgment is given on the court. Section 114 and Order 47 of Civil procedure Code gives the option to audit the judgment. Section 114 gives just option to audit the judgment and order 47 of CPC gives restrictions and conditions. Article 137 of the Indian Constitution permitted the Supreme Court to audit its own requests and judgment. The target behind this force is to guarantee equity. It is properly said that Law needs to twist before equity. The dictionary meaning of Review is a conventional evaluation of something with the aim of founding change if vital. A) No Right of appeal is permitted 

Where no right of appeal is permitted to a wronged party, he can record a review application. At the point when an appeal is excused on the ground that it was inept or was time – banished, the arrangements of review would get pulled in. 

B) Right of appeal lies however not profited. 

A review request is additionally viable in situations where appeal is given yet no such appeal is favoured by the oppressed party. An application for review can be introduced insofar as no appeal is favoured against the request. 

Reason for review 

(I) Discovery of new and significant issue or proof. 

(ii) Mistake or blunder 

(iii) Other adequate explanation. 

The other adequate explanation has not been characterized in the Code. There are the reasons which has been seen in the quantity of cases are following;-

(a) Where the announcement of the appointed authority isn't right. 

(b) The declaration or request has been passed under a misunderstanding of the genuine condition of conditions. 

(c) Where a gathering had no notification or reasonable chance to create his proof.

Revision is the demonstration of looking again so as to expel any imperfection or award help against unpredictable or inappropriate exercise or non-exercise of locale by a lower court. Update resembles re-working and re-composing. Modification implies the activity of overhauling, particularly basic or cautious assessment or scrutiny with the end goal of remedying or improving. 

 In Criminal Procedure Code (Cr.P.C.), the arrangements identifying with bid are contained in Sections 372 to 394, while arrangements identifying with correction are contained in Sections 397 to 405. 

 In Civil Procedure Code (CPC), the arrangements identifying with bid are contained in Sections 96 to 112, while arrangements identifying with amendment are contained in Section 115. 

 Section 115 approves the High Court to fulfil on three issues: 

 (I) That the request for the subordinate court is inside ward. 

 (ii) That the case is one in which the court should practices its purview; 

 (iii) that in practicing locale the court has not acted unlawfully, that is, in penetrate of some arrangement of the law, or with material inconsistency, that is, by submitting some blunder of system over the span of the preliminary which is material in that it might have influenced a definitive choice. 

Appeal An intrigue happens when an appealing party resorts to a prevalent (redrafting) court to audit the choice of a second rate (preliminary) court or authoritative office. A grievance to a higher court of a blunder or shamefulness submitted by a lower court may right or opposite that mistake or bad form. A litigant is the gathering who takes an intrigue starting with one court purview then onto the next. 

 On claim, no new proof is presented. The higher court is restricted to thinking about whether the lower court failed on an issue of law or gave a choice doubtlessly in opposition to the proof introduced during preliminary. Regular legitimate mistakes that might be justification for offer incorporate the accompanying: 

  If a litigant's sacred rights were abused while proof was being acquired, and that proof was permitted during the preliminary procedure, this is viewed as unacceptable proof. Permitting prohibited proof in a preliminary is a lawful mistake and reason for bid. 

 Absence of persuading proof to help a blameworthy decision. 

 Mistakes made in the appointed authority's directions to the jury previously or during a preliminary. 

There are two phases of an intrigue in the government and many state court frameworks. These stages incorporate intrigue from preliminary court to middle of the road re-appraising court, and afterward from transitional investigative court to Supreme Court. Except if exceptional authorization is allowed by the higher court to hear an interlocutory (temporary) claim, an intrigue can't be made until the lower court renders last judgment.

The support of equity which is significant for each general public in a majority rules system is conceivable because of the nearness of the Constitution. The standards of majority rules system have been protected by the arrangements of review. 

The arrangements have been utilized by the investigative courts while conveying decisions. The primary guideline behind review is to secure the holiness of complete equity and ensure the rights of the person through the legitimate procedure that is territory over the republic of India. Review ensures the right as well as the poise of the individual and ensures that there is no unsuccessful labour of equity. 

Equity versus legal executive is a theme that has been a century-long discussion yet the review framework goes about as an undetectable extension and guarantees congruity between both by the due technique of law. The arrangement evacuates the chance of human mistake while conveying decisions and guarantees that the rights of each individual are ensured according to law. 

The idea of review enables to an individual to uphold his rights to build up equity against bad form. The review framework is likewise fundamental for checking and adjusting the overextending demonstrations that the legislature may act throughout organization. On the off chance that the council makes any law or the legislature plays out any demonstration that repudiates the right of any individual in India and that negation essentially isn't permitted by law, at that point review goes about as an instrument to salvation for that individual, and any such demonstration or law passed will be put aside by the investigative court. 

The review framework establishes the pace for the best possible working of the mainstays of vote based system by deciding the restrictions of each legislative and legal organ and is basic for powerful coordination. The suo moto perception is one of the most powerful apparatuses to upgrade the legal review and the equity procedure. It gives the right to the incomparable court to take insight of the foul play that is going on in any piece of the nation and authorize equity by lawfulness. It consequently gives an answer for the well known lines “injustice anywhere is a threat to justice everywhere”.

Today, the major portion of consumers in India like the other developed and developing countries are purchasing or availing goods or services or attempting to purchase goods or services through the cyber world. On the above score, e-commerce industry has thrived its best in the last few years. Specially, in the present situation of prolonged lockdown, testing the very existence of civilization, when people are hardly going out of their houses or avoiding direct purchase from the physical market or the physical world, the business of the e-commerce industry is reaching its pinnacle. People at large in the society are purchasing goods or services through various online platforms which may be either direct e-commerce entity or market place of e-commerce entity. Everyday majority of contract are made through virtual world wherein some or every part of a valid contract is executed through virtual world. Though, the previous Consumer Protection Act, 1986 and our existing Contract Act does not provide any opportunity to lawfully adjudicate the consumer disputes or disputes relating to an online contract taking place in the virtual world, the Information Technology Act provides the following provision to somehow manage the situation which is as follows – 

Section 10A: Validity of contracts formed through electronic means. -Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose. 


But still, we need a complete and appropriate legislature or statute to address the herculean tasks of proper adjudication of transactions in cyber world where consumers are more vulnerable than the real physical world as there is every bit of possibility in the virtual world that the entity representing themselves as a product seller or service provider may be fake or having false identity. And in the anonymous world it was more difficult to fix up the liability where the address, place of business etc. are absolutely virtual and not physical. In the above backdrop a well codified or a drafted law or statute was the need of the hour and to address the above issue we recently got the following law which is worth mentioning - 

(1) Consumer Protection Act, 2019: 

The following provisions are worth mentioning in light of today’s discussion: 

SECTION 2: Definitions - In this Act, unless the context otherwise requires, 

(1) "advertisement" means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents; 

7) "consumer" means any person who— 

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or 

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose. 

Explanation. —For the purposes of this clause — 

(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment; 

(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing; 

(16) "e-commerce" means buying or selling of goods or services including digital products over digital or electronic network; 

(17) "electronic service provider" means a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites;

(37) "product seller", in relation to a product, means a person who, in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes— 

(i) a manufacturer who is also a product seller; or 

(ii) a service provider, 

but does not include— 

(a) a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats; 

(b) a provider of professional services in any transaction in which, the sale or use of a product is only incidental thereto, but furnishing of opinion, skill or services being the essence of such transaction; 

(c) a person who— 

(I) acts only in a financial capacity with respect to the sale of the product; 

(II) is not a manufacturer, wholesaler, distributor, retailer, direct seller or an electronic service provider; 

…………………………………………………………

(47) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:— 

(i) making any statement, whether orally or in writing or by visible representation including by means of electronic record, which— 

SECTION 17 : Complaints to authorities.- A complaint relating to violation of consumer rights or unfair trade practices or false or misleading advertisements which are prejudicial to the interests of consumers as a class, may be forwarded either in writing or in electronic mode, to any one of the authorities, namely, the District Collector or the Commissioner of regional office or the Central Authority. 

SECTION 35: Manner in which complaint shall be made. – 

………………………………………………………………

(2) Every complaint filed under sub-section (1) shall be accompanied with such fee and payable in such manner, including electronic form, as may be prescribed. 

SECTION 38: Procedure on admission of complaint. – 

(4) For the purposes of sub-sections (2) and (3), the District Commission may, by order, require an electronic service provider to provide such information, documents or records, as may be specified in that order. 

SECTION 65 : Service of notice, etc. - (1) All notices, required by this Act to be served, shall be served by delivering or transmitting a copy thereof by registered post acknowledgment due addressed to opposite party against whom complaint is made or to the complainant by speed post or by such courier service, approved by the District Commission, the State Commission or the National Commission, as the case may be, or by any other mode of transmission of documents including electronic means. 

(2) Without prejudice to the provisions contained in sub-section (1), the notice required by this Act may be served on an electronic service provider at the address provided by it on the electronic platform from where it provides its services as such and for this purpose, the electronic service provider shall designate a nodal officer to accept and process such notices. 

SECTION 94: Measures to prevent unfair trade practices in e-commerce, direct selling, etc. - For the purposes of preventing unfair trade practices in e-commerce, direct selling and also to protect the interest and rights of consumers, the Central Government may take such measures in the manner as may be prescribed. 

SECTION 101: Power of Central Government to make rules. - (1) The Central Government may, by notification, make rules for carrying out any of the provisions contained in this Act. 

(2) Without prejudice to the generality of the foregoing power, such rules may provide for, — 

………………………………………………………………
(q) the fee, electronic form and the manner of payment of fee for filing complaint under sub-section (2) of section 35; 

The above provision in the newly passed Act includes within the ambit of consumer protection law, the transactions by consumer in the virtual world. This statute is also meant to protect the consumers dealing in online world. 

(2) Consumer Protection (E-commerce) Rules, 2020: 

The following provisions of the Rule provide the ambit of the Rule and amongst that the most important is the proviso clause which is as follows – 

“2. Scope and Applicability. – (1) Save as otherwise expressly provided by the Central Government by notification, these rules shall apply to: 

(a) all goods and services bought or sold over digital or electronic network including digital products; 

(b) all models of e-commerce, including marketplace and inventory models of e-commerce; 

(c) all e-commerce retail, including multi-channel single brand retailers and single brand retailers in single or multiple formats; and 

(d) all forms of unfair trade practices across all models of e-commerce: 

Provided that these rules shall not apply to any activity of a natural person carried out in a personal capacity not being part of any professional or commercial activity undertaken on a regular or systematic basis. .....................................for details please read as follows:

Latest Consumer Protection Law to Safeguard Online Consumers In Indian

Mobile App on the Consumer Protection Act, 2019 & E-Commerce Law, 2020

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Yes, if men can't bolster themselves monetarily, they can guarantee upkeep from their spouses who are monetarily wealthy than them. This should be possible under Section 24 of the Hindu Marriage Act, 1955, which makes reference to the two married couples as subject to making such a case.

Section 24 in The Hindu Marriage Act, 1955 states that Where in any procedure under this Act it appears to the court that either the spouse or the husband, by and large, has no autonomous salary adequate for her or his help and the vital costs of the procedure, it might, on the use of the wife or the husband, request the respondent to pay to the applicant the costs of the procedure, and month to month during the procedure such aggregate as, having respect to the candidate's own.

     Yes, if men can't bolster themselves monetarily, they can guarantee upkeep from their spouses who are monetarily wealthy than them. This should be possible under Section 24 of the Hindu Marriage Act, 1955, which makes reference to the two married couples as subject to making such a case.

Nivya VM v. Shivaprasad N.K. (Kerala High Court) OP (FC) No. 26 of 2015 (R)

Decided On, 14 February 2017

For this situation, the spouse had looked for Maintenance pendente light from the wife under Section 24 of the Hindu Marriage Act, 1955.

That a spouse looking for support from the wife can be dealt with just as remarkable case as ordinarily he has the risk or commitment to keep up the wife and the other way around is just extraordinary. 

 That a spouse not making any endeavour to gain cash however equipped for landing private position can't guarantee support from the wife who was in Government administration. So it is obvious from the decree referenced over that it's anything but an ordinary act of spouse applying for upkeep from the wife who is utilized however he is equipped for keeping up himself by accomplishing some work. 

 On the off chance that such a mentality has been taken by the Courts, at that point inertness of spouses will be advanced and they will be enticed not to accomplish any work and rely upon the wife for their occupation, and such thing isn't relied upon to be advanced in the general public and that was not the goal of Section 24 of the Act giving support to either gathering to the procedures.

Yashpal Singh Thakur v. Smt. Anjana Rajput (Madhya Pradesh High Court) AIR 2001 MP 67

For the situation the Madhya Pradesh High Court held that the facts demonstrate that Section 24 of the Hindu Marriage Act, 1955 qualifies either party for move an application for support gave such gathering has no methods for resource and the other party is in a situation to give maintenance. In any case, it doesn't imply that the spouse who is generally fit for gaining his living should quit acquiring the living and begin contingent upon the winning of the wife. All things considered the spouse has crippled himself by halting the running the auto cart on enlist. It is entrenched proverb of Anglo Saxion statute that no individual can be permitted to cripple himself. That saying is relevant to the instance of winning spouse. An individual who wilfully debilitates himself from gaining isn't qualified for guarantee upkeep from the other life partner.

      In short it isn't typical for an ordinary practice for a spouse requesting support from an employed wife, however he is fit for looking after himself. The arrangement of law in HMA is proposed to help just such a spouse who is extremely unequipped for looking after himself. Such a meriting spouse is distant from everyone else qualified to get support for his food from his better half. In this way a poor Hindu spouse of no way to live can guarantee upkeep for vocation from his wealthy wife.

No such arrangement which empowers a spouse to guarantee upkeep is there in any personal law implied for the christians or muslims. Keeping the christian and muslim spouse outside the domain of support, which is accessible to Hindu man, because of absence of empowering arrangement is a segregation. It is a grave lacunae in law, it should be redressed so as to guarantee social equity and fairness under the watchful eye of law.

Medical negligence and its Compensation

Medical negligence in India has increased tremendously in the past few years. In recent times, the Indian Society is experiencing a growing awareness regarding the patient’s rights. Since the Consumer Protection Act, 1986, has come into force, patients are able to file legal cases against doctors, by establishing that they were negligent in providing medical service.

Negligence is an act carelessly done by a person resulting in damages to the others. Negligence is an offence under the law of tort, Indian Penal Code, Indian Contracts Act, Consumer Protection Act (CPA), and so on. Medical negligence is basically the misconduct by the medical practitioner by not providing services and hence resulting in a breach of their duties towards patients.

Negligence is the violation of a legal duty to care. Breach of this such duty gives the patient the right to initiate action for injury caused due to negligence.

Recently, a survey was conducted by the National Law School of India University (NLSIU), Bengaluru that stated numbers of reasons that contributed to the growth of medical negligence litigation. According to the guest speaker present in the NLSIU, Sairam Bhat, associate professor and coordinator, Distance education department, and CEERA, NLSIU, Bengaluru, there are four major reasons for the growth of medical litigation which primarily includes greater consumer awareness, the cost involved in medical facilities, a lot more flexible consumer forums, and the mind-set regarding litigation among the population.

Bhat further mentioned, consumers are becoming increasingly aware of their rights as well as their duties and responsibilities and are ready to combat any deficiency in service delivery mechanisms. With the introduction of consumer forums, it has become very flexible for the consumers to lodge complaints and initiate legal proceedings. This is a much simpler process then registering a complaint in a civil court. There have been cases where the consumer has been seen fighting his own case, rather than advocates.

As the cost of healthcare has witnessed a huge jump, expectations from the medical institutions are grown too. Medical negligence cases are filed for the smallest negligence in delivering justice. Research studies suggest that cases of medical negligence have gone up by 400% in the last decade. 

There are different kinds of remedies available to the victim of medical negligence which varies depending on the structure of the case. In some cases, the victim’s family may be awarded a huge amount of Compensation, and in some cases, the doctor is given a warning or the license of the doctor is cancelled.

Talking about Compensation, it is one of the most common type of remedy available to the patients when they complain regarding medical negligence in the consumer forums. The punitive damages and limitless financial Compensation often imposed for medical errors in developed countries may have some inherent flaws. In India, however, healthcare is assumed to be regulated by a quasi-judicial medical council that has failed to safeguard the patients against the widespread negligent and irrational treatment by the doctors. Therefore, large payouts awarded by the courts of law remains the only way to instill accountability for wayward doctors and save lives. Compensation became a major and hot topic in the country after the Supreme Court of India awarded more than Rs.11 crores in damages including interest against several doctors and a private hospital based in Kolkata for the wrongful death of the patient. This has been the biggest payout in Indian Medico legal history. Till now, the courts have generally been awarding Compensation ranging between INR 3,00,000-6,00,000, and often less, which has failed to have any deterrent on affluent doctors and hospitals.

Let us first understand the Kunal Saha Case:

Kunal Saha Vs. AMRI Case

This complaint was filed by KunalSaha for his wife, AnuradhaSaha, who died at the age of 36 due to the sheer negligence of doctors in Kolkata.

Itis one of the most significant case law pertaining to medical negligence in India.KunalSaha, a doctor by profession himself, filed a case against the doctors of AMRI hospital in Kolkata. However, after his petition was dismissed in Calcutta High Court and West Bengal Medical Council, he went to the Supreme Court of India. After a proper investigation, the Supreme Court directed the hospital and the doctors to pay a compensation of INR 5.94 crores along with interest, i.e. INR 11 crores. This is the maximum amount that has been awarded as Compensation for medical negligence.

For the grant of Compensation as a legal right, which is a tort liability to be curbing in medical negligence, it should be able to serve at least two purposes. Firstly, it must be calculated in such a way that it provides adequate financial support for the victim’s family (Compensation) to fill the irreversible vacuum created by the wrongful death as best as possible. Secondly, perhaps most important, is that the award must act as a brake against future negligent behaviour by other doctors and hospitals.

The Supreme Court of India has recently relaxed the norms for the medical faculty regarding criminal liability for medical negligence with the help of adding the requirement of “gross” medical negligence. However, the court has recognized the culpability of doctors through the process of civil liability in which the victim or the family of the victim is awarded higher compensations.

The emergence of high compensation awards for medical deficiency claims in India has resulted in apprehensive speculation regarding the result that such remedies may have on the manner in which doctors practise medicine within India and how this process translates into rising costs for the patients. While some assume a consequent rise in frivolous litigation, others put forward the point that healthcare sector should be regulated with more stringent laws and that huge amount compensations will push doctors to not be negligent any more towards their patient. The way recent cases are being heard and awarded huge compensations, there certainly lies the uncertainty of whether this encourages the beginning of increasing medical negligence litigation and the practise of defensive medicine, or there is the need to modify the way in which medical negligence issues are currently being addressed in India.

Moreover, India’s healthcare system is accountable for and regulate private which includes individual and corporate, public, and not for profit hospitals within its framework. In addition to these, the Indian government is also responsible to ensure universal and all time access of healthcare to the general public through its public sector. It is therefore, important for the judiciary to balance the interests, rights, and duties of all the concerned parties.

The decision to take a legal action against a medical practitioner is determined by not only the original injury, but also by poor communication and insensitive handling after the original incident. Therefore, the patient who alleges medical negligence can resort to any of the following legal remedies.

a.       A complaint can be made to the State Medical Council.

b.      The patient can file a case before the Consumer Court.

c.       A complaint can be filed before the Civil Court.

d.      The patient who has alleged medical negligence can file a case citing “gross” negligence of the medical practitioner.

Our article talks about the Compensation that can be only avoided by the Consumer Court or by the Civil Court and therefore our discussions shall stick to the same. This article mainly talks about the Compensation awarded to the victim or kin of the victim when a medical negligent act takes place. It further puts forward the points in favour of “larger compensations” and also gives detailed analysis that why Compensation is yet a simpler and easily given through which a victim can live a normal life. Collectively, the article talks about how medical negligent issues are addressed in a country which has the second highest population of the world and one of those countries, which considers the medical faculty as one of the most prominent role models.

In the Indian Common law, the basis of computing compensation for any case lies on the legal principle of “restitutio in integrum,” which when translated means, that the person who is seeking damages due to a wrongful committed him/her is in the position that he/she would have been had the wrong not been committed. This implies that the victim or the family of the victim needs to be compensated for financial loss as well as other loss caused by doctor’s or hospital’s negligence, future medical expenses, and any pain and suffering that is endured by the victim.

The court of USA have a jury system that determines culpability or quantum of Compensation, but unfortunately, the same scenario doesn’t exist in our country. In India, the judge in the civil court or the consumer court has the complete discretion over the compensation amount and hence is bound or forced to consider the impact of the judgment because he/she sets a precedent even in the manner and quantum of damages awarded. The case laws like Dr. Balram Prasad vs. Kunal Saha and Rajesh and Ors. Rajvir Singh V and Ors correctly speaks about how Compensation is inconsistent and is one of the biggest problem that the healthcare sector of India is facing. It is important to consider every case independently because it would be incorrect to not give the facts of every case’s situation due importance. However, this not only increases the unpredictability but also the scope of discretion provided to the judge in such situations.

The Supreme Court noted that, “The lack of uniformity and consistency in awarding Compensation has been a matter of grave concern… If different tribunals calculate Compensation differently on the same facts, the litigant, the claimant, the common man will be perplexed, confused, and bewildered. If there is significant divergence and similarities among tribunals in determining the quantum of Compensation on similar facts, it will lead to distrust and dissatisfaction in the system.”

In most of the medico-legal cases, the defendants have asserted that the method to determine the Compensation ought to be the “multiplier method”. The main and principal argument in favour of using such a method is it at least gives uniformity and predictability. Furthermore, doctors and hospitals will not be compelled and order to pay large sums of money to compensate for negligence.

Talking about the history of the multiplier method, it was first created to facilitate awarding Compensation in relation to motor vehicle accidents to calculate “no-fault” liability. Therefore, it only stands for the loss of income of the victim only. The sum is calculated according to the “multiplicand” that is, victim’s salary minus the amount he spends on himself for the treatment, and the “multiplier”, that is, the total number of years, that the victim would have earned his salary. The multiplier is calculated by taking into account the average life expectancy, the number of years that the victim will be unemployed, the victim’s age and any other factors concerning the victim’s health. The common formula for the calculation of Compensation is ((70-age) x annual income + 30% of for inflation – 1/3 expenses).  Defendants say that this is the figure that will adequately calculate the loss incurred, and therefore this method can be utilized for the calculation of medical negligence cases.  However, the argument here is that, Compensation solely based on the income of the victim is not ethically correct. It simply means that medical negligence causing death or injury to a wealthy person is much more worth when compared to medical negligence that impacted an unemployed individual or homemaker or a child or senior citizen. Therefore, being legally unethical, the Supreme Court declined the dependency of calculation of Compensation on the multiplier method for medical negligence. Addition to these, the Supreme Court, added other dimensions for the calculation of Compensation which included medical costs incurred by the victim during the litigation, cost of any future medical expenses, Compensation towards mental agony and physical pain, and Compensation toward loss of litigation and consortium.

Still, there are few problems, that judges face while awarding Compensation in medical negligence case which includes:

a.       The law is required to protect a patient’s right.

b.      The law is also responsible to provide due autonomy to a profession that by all definitions are an inexact science.

However, the process of calculating Compensation for medical negligence is very uncertain and unpredictable as it varies hugely across different cases, courts and tribunals resulting in loss of faith on the courts, protracted litigation and also the frequent appeals.

A person who has suffered medical negligence has the liberty to decide how they would like to address the problem. If it is the accountability they seek, they can approach the state medical council. But if the victim or the family of the victim is thinking of  compensation, they can lodge a complaint before the Civil or the Consumer Court. However, the Compensation is considered an ideal remedy for medical negligence because it acts as retribution towards the negligent medical faculty, insurance to the victim and as an example or deterrent to other doctors and hospitals.

1.      Coverage of expenses of the Victim

Compensation as a legal remedy to the victim of medical negligence provides with resources as they help to cover medical costs, future medical expenses, cost of litigation, loss of income etc. only when they prove that the doctor or hospital in the case was negligent. This arrangement attempts to ensure that the victims are financially strong for allowing them to bear the consequences of medical negligence, be it injury or wrongful death.

2.      Deterrence

Large compensation amounts penalizes the doctors heavily. Therefore, there are chances that the doctors would be more careful as one case could result in grave losses. Large Compensation which sometimes also includes punitive damages will result in incentivizing allocation of resources towards safety. Moreover, it acts an expression of the community’s indignation toward an abhorrent crime and therefore also imposes a civil action against it. Also, large Compensation could act as a civil enforcement mechanism because it rewards the complainant for initiating litigation and thereby supplements the criminal justice system.

3.      Retribution

The compensation amount that will be imposed by the court for the doctors and hospitals will be based on the determination of the liability and the judge’s discretion or direction regarding the same. This further ensures that parties which are guilty of negligence are made to pay for their actions.

The reason for medical Compensation through medical settlement is done to make the client whole again. It is intended to compensate them for any medical and personal costs occurred due to the injury caused during the process of treatment. In serious cases, the remedy includes compensation to offset the cost of care for the person and lifetime of lost earnings. In some cases, it might include the cost of modifying the client’s home to let them continue to live there, medical assistance from already paid caregivers or someone who quit a job to take care of them, and new vehicles that the disabled person can drive.

There are also cases, where the compensation to the victim or to the victim’s family is awarded only after the claimant is able to gain back the mental function after a negligence case. In a type of case where mental impairment is involved, there are chances that additional damages are also claimed, to support the victim’s family. This also holds true when childbirth injuries occur, or pregnant women suffer from negligence or mistakes from doctors or medical staff or any other third party associated with the healthcare facility.

There is a need to assess the way wherein India decides to address medical negligence. Notwithstanding the dread of protective medication, expanding protection premiums and ascend in costs for patients, it is time we know about the inequity that the current framework sustains. Systemic deficiencies such as heavy litigation costs, delayed and protracted litigation, as well as dependence on judicial discretion, do not give adequate equity justice to victims and could harm doctors and hospitals as well.

In a nation where there is (an) a horrifying interest in wellbeing, (b) the nonappearance of Human Resources, (c) an enormous hole among urban and rustic human services, and (d) poor political will to improve the wellbeing segment, it is shrewd to actualize a no-deficiency risk framework inside the general wellbeing area and furthermore to have tops on the sorts remuneration after exploration and conversation. The administration needs to act and put resources into medicinal services before it is past the point of no return. India needs to upgrade the current arrangement of tending to medical negligence utilizing the entirety of the previously mentioned arrangements successfully.

The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate  having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of  the Supreme Court and High Courts in different Law Journals.  From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .

Author :

Kishan Dutt Kalaskar

Advocate (Retired Judge)

No.74, 1^st Floor, 6^th Cross,

Malleswaram,

Bengaluru-560003

kalaskarnetra@gmail.com

Mob: 9686971935

www.kishanretiredjudge.com

INTRODUCTION

New Education Policy 2020, has finally supplanted the old Education System in India in 21^st century, after a long period of 34 years. This step has been taken by HRD Minister Ramesh Pokhriyal under Ministry of Human Resource Development to bring a change in overall Education System of India. The adoption of New Education Policy is based on the advice of Dr Kasturirangan Committee. The new education standards have various upsides which would end up being productive over the old ongoing policy. It aims for universalisation of education from pre- school to secondary level .

REFORMS MADE IN NEW EDUCATION POLICY 2020:

A-   School Education Reforms

·       ‘10+2’ Board structure is modified.

·       The new structure of school will be ‘5+3+3+4’

·       Foundational stage- Three years of Pre-school (Ages 3-6) + Two years in Primary school in grade 1-2 (Ages 6-8).

·       Preparatory stage- It covers ages from 8 to 11 years or grades 3-5.

·       Middle stage- It covers ages from 11 to 14 years or grades 6-8.

·       Secondary stage- It covers ages from 14 to 18 years in two phases- grades 9-10 in the first and grades 11-12 in the second.

·       As a medium of instruction, the Policy give more preference to the mother tongue of child. However, NEP only recommends the mother tongue but has not made it compulsory.

·       From 6^th grade Vocational courses will available including internships.

·       The curricular content will be reduced to develop critical thinking, fundamental learning and more prominent spotlight will be on practical learning.

·       Students from class 8^th can select subjects of their choice across streams.

·       All exams of school will be conducted semester wise twice in a year.

·       The new Basic Learning Program will be started by the government for Parents to teach children at home up to 3 years.

B-    Reforms in Colleges & Universities

·       The UG degree will be now either of a 3 or 4 year duration, with Multiple Exit options within this period.

·       For any graduation course, the Colleges will have to give –

A basic certificate- after completion of one year in study

Diploma certificate- after completion of two years in study

Bachelors’ degree- after completion of three year programme.

·       A Major & Minor subject options will given to all graduation courses.

·       MPhil would be discontinued, paving the way for students for Masters’ degree to get PhD.

·       The NTA (National Testing Agency) will take a Common College Entrance Exam twice every year.

·       All university government, open, private, deemed, vocational, etc will have the same norms and grading system.

·       All ‘Higher Education Commissions’ will be governed by only one authority.

·       All India Council for Technical Education (AICTE) & University Grant Commission (UGC) will be merged.

·       The new teacher training board will be set up for all kinds of teachers in India.

·       NEP (New Education Policy) 2020, makes a stride towards the Internationalization of Indian Education proposing a Legislative Framework that permits top rated global universities to operate in India and encourages top Indian universities to set up campuses in other nations.

FOREIGN EDUCATIONAL INSTITUTIONS (REGULATION OF ENTRY AND   OPERATIONS) BILL, 2010

A-   About The Bill

·        The proposed Foreign Educational Institutions Bill, 2010 seeks to permit the operation and entry of foreign educational institutions seeking to impart Higher Education.

·       Each Foreign Educational Institution aiming to work in India must be informed as a foreign educational supplier by the Central Government on the commendation of the Registrar (Secretary of the UGC).

·       Foreign Educational Suppliers need to keep up a corpus fund of at least Rs 50 crore . Up to 75 percent of any income created from the corpus fund will be used for enhancing its institution in India and rest ought to be returned in the fund.

·       The Central Government may exempt any Institution, on the recommendation of the Advisory Board, from conforming to the needs of the Bill except the Penalty Provisions and the Ban on revenue repatriation.

B-    Key Issues and Analysis

·       There are three perspectives on the Issue of Foreign Educational Institutions working in India. Rivals contend that it would restrain access and lead to Commercialisation. Defenders of the Bill contend that it would expand options for student and increase competition in the Sector. There are a few specialists who support restricted entry depends on the Reputation of the Institution.

·       Present rule grant Foreign Universities to work together with Indian associates through different systems. However, some globally renowned Universities team up with India. It isn't clear if the Bill would attract Quality Foreign Universities given the stricter instructions.

·       The Bill needs clearness on what provisions the Foreign Institutions might be given an exemption from since, they have to follow every other laws in force. This effectively implies that they have to conform to principles set by Statutory Authorities on Curriculum, Methodology and Faculty and Mandatory publication of prospectus.

C-   Historical Background

The bill was presented first time in the year 1995, but clearly, it couldn't take off. Another endeavor to permit entry of Foreign Varsities in India was made in the year 2005-06 however, the draft legislation couldn't get the endorsement in the Cabinet.

During the governance of United Progressive Alliance (UPA), the Human Resource Development Ministry brought a Foreign Educational Institutions (Regulation of Entry and Operations) Bill drove by Ex-HRD Minister Kapil Sibal. The Bill gets green flag in Lok Sabha yet neglected to get by in Parliament and in the end got slipped by in 2014 after the expiration of the 5-year term of UPA-II Government.

Prior in 2017, A Strategy Paper shared by the Commerce Ministry with the Ministries of HRD and External Affairs and the NITI Aayog in April 2015 supported for the Internationalization of Indian Education to gain Foreign exchange. The recovery of the “Foreign Educational Institutions Bill” was one of the four activity focuses cited by the commerce ministry in the Strategy Paper.

The NITI Aayog was consequently asked by Narendra Modi to set up a structure to give a straightforward and crystal clear clearance for Foreign Education Suppliers.

After a few month of meetings on the issue, the NITI Aayog freed decks for the inauguration of the Foreign Varsities Campuses in India.

It recommended the Human Resource Development Ministry to either introduce new provisions to direct the entry and functioning of Foreign University Campuses in India under the UGC or amend the University Grants Commission Act of 1956 and its guidelines to empower their establishment as Deemed Universities in the country.

At last, the changes have been made under the NEP (New Education Policy) 2020 and the “Ministry of Human Resource Development” (MHRD) has likewise been renamed as the “Ministry of Education”.

 CONCLUSION

The New Education Policy (NEP), 2020 targets to encourage a comprehensive, holistic and participatory approach, which mulls field understanding, stakeholder, empirical research just as lessons gained from best practices. It’s a developmental move towards a more logical way to deal with education. The suggested framework help to cater the capacity of the student- phases of Cognitive development just as Physical and Social mindfulness. This Education Policy if implemented in its actual vision, the framework can bring India at standard with the leading nations of the world.

REFERENCE:

[1] www-thequint-com.cdn.ampproject.org

[2] wap.business-standard.com

[3] www.prsindia.org

[4] www.legalserviceindia.com