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FORMULATION OF SUBSTANTIAL QUESTION OF LAW TO DECIDE SECOND APPEAL IS A MANDATORY REQUIREMENT

Advocate Sushila Ram 29 Aug 2020

Recently, the Hon’ble #SupremeCourt of India in the case of Nazir Mohamed v. J. Kamala, (Civil Appeal Nos. 2843-2844 of 2010), passed a Judgment on 27.08.2020, and held that formulation of #substantialquestionoflaw read more

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Implied Designation of Seat in a Domestic Arbitration

Gunjan Chhabra 28 Aug 2020

-Gunjan Chhabra[1]Arbitration remains one of the preferred dispute resolution mechanisms for commercial disputes globally. It has been said that the reason behind Arbitrations’ global popularity is due read more

-Gunjan Chhabra[1]

Arbitration remains one of the preferred dispute resolution mechanisms for commercial disputes globally. It has been said that the reason behind Arbitrations’ global popularity is due to the bindingness of award passed by arbitral tribunal and autonomy which it provides to parties i.e., to select the laws applicable on the dispute, like law governing the arbitration agreement, substantive law, and curial law.

Generally, arbitration agreement consists of three types of laws which are-

1) law governing the arbitration agreement and the performance of that agreement;

2) law governing the existence and proceedings of the arbitral tribunal (the lex arbitri);

3) law, or the relevant legal rules, governing the substantive issues in dispute (generally described as the ‘applicable law’, the ‘governing law’, ‘the proper law of the contract’, or ‘the substantive law’).[2]

Law governing the arbitration agreement decides the seat of arbitration. The courts located at seat would have supervisory jurisdiction over the arbitration. However, in the case of Aarka Sports Management Pvt. Ltd. Vs. Kalsi Buildcon Pvt. Ltd[3](“Kalsi Buildcon”), arbitration agreement only provided for an exclusive jurisdiction clause, and that too a little ambiguously. It is pertinent to point out that in this case there was no mention of seat or law governing the arbitration.

IMPORTANT ASPECTS OF THE KALSI BUILDCON CASE

In the Kalsi Buildcon case, one party had approached the Delhi High Court for appointment of Arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996. The other party had taken an objection that the Petition was not maintainable as Delhi was neither the seat of the arbitration, nor any cause of action had arisen in New Delhi, as the agreement was drawn at Ranchi and the Agreement was signed at Lucknow. Thus Delhi High Court was required to delve into the issue of, which Court would have jurisdiction to entertain the Petitioner under Section 11, considering the peculiar arbitration clause between the parties.

The parties entered into an operation, maintenance and management Agreement dated 16^th March,2018 (“Agreement”). The Agreement between the parties was entered into at Lucknow and was to be performed at Patna. No party to the contract was located or carried on business within the territory of Delhi. The said contract provided for arbitration as the dispute resolution mechanism. We are reproducing the arbitration clause contained in the Agreement for ease of reference:

“

Arbitration clause

15. Governing Law, Jurisdiction & Dispute Resolution

15.1 This Agreement shall be governed by and construed in accordance with the laws of India and subject to clauses 15.2 and 15.3, the jurisdiction of this Agreement shall be exclusively in the courts of New Delhi, India.

15.2 Negotiation: The Parties shall negotiate in good faith and use reasonable efforts to settle any dispute, difference or claim raised, arising out of or in connection with this Agreement including the construction, validity, execution, performance, termination or breach hereof (hereinafter referred to as 'Dispute'). In the event that the Parties are unable to reach a resolution within 30 (thirty) days of the start of Dispute the same shall be settled by binding arbitration.

15.3 Arbitration: Any Dispute which is not settled by Mediation, shall be determined by Arbitration under the Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015. The Arbitration shall be conducted before a sole arbitrator appointed with the mutual consent of both Parties. If the Parties are unable to reach an agreement on the choice of an arbitrator within 30 days of the Notice of Arbitration by either Party, the Parties shall approach the court of proper jurisdiction for appointment of arbitrator."

(emphasis supplied)

Thus, the question before Delhi High Court in this case was that whether Delhi High Court has power to appoint arbitrator in the present matter under Section 11 of the Indian Arbitration Act, 1996.

The Delhi High Court relied on Section 2(1) (e) of the Indian Arbitration Act, 1996 and held that in cases where parties failed to mention seat, as happened in this case, then only court of competent jurisdiction has authority to entertain the application under section 11 of the Indian Arbitration Act of 1996. Court of competent jurisdiction can be determined with the help of Section 16 to Section 20 of the code of civil procedure. Since Delhi High Court wasn’t court of competent jurisdiction according to Section 16 to Section 20 of the code of civil procedure, thus court dismissed the petition for appointment of arbitrator. In regard to specific jurisdiction clause, court held that the parties cannot confer jurisdiction on a Court which otherwise has no jurisdiction.

MUSINGS ON AN EXCLUSIVE JURISDICTION CLAUSE

As noticed above the clause in the contract mentioned a couple of things:-

(i) No designation or seat or venue in the clause itself.

(ii) Agreement said to be subject to exclusive jurisdiction of Courts at New Delhi, with no other part of cause of action arising in New Delhi.

(iii) Arbitration also mentions a contradiction by saying Parties to approach the court of proper jurisdiction for appointment of arbitrator.

An interesting question which now arises in this case is, that if the third element was missing from the arbitration agreement, and only New Delhi Courts would have exclusive jurisdiction, could it then be said that the parties intended for New Delhi to be the seat of arbitration by conferring it exclusive supervisory jurisdiction?

In other words, although designation of a seat is sufficient to provide jurisdiction to a Court, is the vice versa true, that is, is an exclusive jurisdiction clause sufficient to designate a seat?

Reference can be made to Virgo Softech Ltd. v. National Institute of Electronics and Information Technology,[4](“Virgo”). In this case, arbitration agreement provides for New Delhi as venue and confer exclusive jurisdiction to courts of Chandigarh. Petitioner approached Delhi High Court under Section 11 of Indian Arbitration Act for the appointment of arbitrator. Court denied the application held that “In view of the above specific Clause, the stipulation that the arbitration proceedings shall be held at New Delhi, would make New Delhi only a 'venue' of the arbitration and not the 'seat' of the arbitration and also held that Chandigarh alone had the territorial jurisdiction as New Delhi was not the "seat" but only a "venue" of the arbitration.

Additionally, (emphasis) reference can be made to Hamdard Laboratories (India) Vs. Sterling Electro Enterprises[5] (Hamdard) where arbitration agreement confer compulsory jurisdiction of New Delhi’s court with no mention of seat in the agreement. One of the party to the case reached to Delhi High Court for appointment of arbitrator under Section 11 of the Indian Arbitration Act,1996. Respondent objected the said petition and contend that as agreement not provides Delhi as seat and no cause of action arose in Delhi, so Delhi High Court lacks territorial jurisdiction to decide the matter related to arbitration proceeding. Court denied the contention and relied upon the judgements of this case, Virgo and BALCO v. Kaiser Aluminium Technical Services Inc.,[6] and held that, “it is clear that the parties had envisaged conferment of exclusive jurisdiction upon the courts in Delhi to decide all disputes relating to arbitration, arising out of the Work Order in question. Thus, by necessary implication, the parties also agreed to make Delhi the seat of arbitration, which leaves no merit in the respondent's contention that this Court does not have territorial jurisdiction to adjudicate the present petition.”

It was also observed regarding Kalsi Buildcon, that, “A reading of Clause 15.3, which provided for arbitration in the aforesaid decision, makes it clear that the parties, in Aarka Sports (supra), did not provide for exclusive jurisdiction of the Courts at Delhi in respect of arbitration. Rather, the petitioner, in that case, had relied upon the jurisdiction conferred in clause 15.1 of the dispute resolution clause titled Governing Law, Jurisdiction & Dispute Resolution, which was in fact a general stipulation on dispute resolution, not a part of the arbitration clause like the present case. When the parties herein have specifically provided, within the arbitration clause itself, that the Courts at Delhi will have jurisdiction over all arbitration proceedings arising out of the Work Order dated 01.03.2018, I find that the facts of Aarka Sports (supra) cannot be equated to that of the present case in any respect. In view of the aforesaid, it is clear that the parties had envisaged conferment of exclusive jurisdiction upon the courts in Delhi to decide all disputes relating to arbitration, arising out of the Work Order in question. Thus, by necessary implication, the parties also agreed to make Delhi the seat of arbitration, which leaves no merit in the respondent’s contention that this Court does not have territorial jurisdiction to adjudicate the present petition.”

DENOUMENT

Thus, it can be concluded that if parties in their arbitration agreement confer exclusive jurisdiction on the particular court and failed to mention seat, then that court would be designated as court of seat and can supervise the parties in matter of arbitration. In effect it is possible to impliedly designate a seat of arbitration, by merely granting exclusive jurisdiction to a Court by agreement.

[1] Working with Adwitya Legal LLP, as their Partner, Arbitration & Dispute Resolution, email: gunjan@adwlegal.co.in, Grateful to Mr. Akash Kishore, who is currently interning with Adwitya Legal LLP for his research inputs.

[2] Nigel Blackaby et al., Redfern and Hunter on international arbitration 3 (Sixth edition ed. 2015).

[3] Delhi High Court (Single Judge), Arb. P. 662 of 2019, decided on 06.07.2020.

[4] Delhi High Court (Single Judge), Arb. P. 754-755/2018, decided on 30.11.2018.

[5] Delhi High Court (Division Bench), Arb. P. 218/2020, decided on 21.07.2020.

[6] (2012) 9 SCC 552

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Laws governing a Knife

Kishan Dutt Kalaskar 27 Aug 2020

Laws governing a Knife According to the case reports published by different authors, it is an understanding that knives or arms, in general, have its origin in the process of human evolution, the read more

Laws governing a Knife

According to the case reports published by different authors, it is an understanding that knives or arms, in general, have its origin in the process of human evolution, the invention of these arms were made by humans for the purpose of hunting and self-defence. Knives from a long time have been part of the country’s culture it has been in the country in various sects or groups as the country now limited by the boundaries geographically but once was the land divided into the various kingdom.

Introduction

As the speedy progress of humanity and the growth of civilization, it became necessary to introduce laws regulating actions of the human being in society. The laws introduced in the societies by various scholars understanding the righteousness to be practised by the mankind made some action void or illegal, such actions were against the mankind, and it would result in disrupting the harmony of the society. The early end of kingships led into different revolution altogether resulting in the forming of the government. This administration was based on different philosophies and ideologies, realizing the contemplation of the world to make a better place. These authorities were formed according to the legislation for its incorporation and also derived their powers from such legislations.

The authorities were further subdivided into three parts forming the pillars on which the harmony and progress of the state will rely on, and the pillars were given authorities to make rules and regulation, to implement and watch the rules and regulation with nexus sought to be achieved for the state. It became a priority for the authorities to implement laws that were to be followed obediently, violating those would incur punishment for the person committing such an act. Many rules were written in terms of heinous crimes against mankind and were made punishable, and it came to the state’s attention that there is a need to invent legislation controlling the roots of this tree whose branches culminated into fruits of violation and brutality.

The ingredients involved- arms and ammunition to such brutality, the government understanding an urgent need to legislate the arms and its use by people or citizens of the land. Various countries made rules in this behalf according to the nature and objective the state wants to achieve through these rules. In India, as the country’s origin from the times of the British rules, modernization and literacy found its right characters in the land of scholars who decided to regulate brutal actions against mankind to be a punishable crime and legislated a charter of law enforceable by the authority to be known as Arms Act, 1959.

History of Knives Legislation

The history of knives legislation finds its origin mostly in the southern states of the United States of America, and the regulation introduced was in prohibitive nature to eliminate the use of the knife for dueling and other deadly sports between men for the purpose of entertainment.The rules made thereunder were different according to the type of knives considering the deadly nature. The knives in the early 19^th century were used in the west for much reason including settlement of the dispute and other quarrels regarding land disputes among gang members. To eliminate these casual ways of settling disputes by means of killing increased on a large scale where it became a priority to curb and eliminate this practice, it was made illegal bypassing law in this behalf. This law took a major turn after the Civil War in the USA; the laws were made more stringent with regards to purchasing and possession of the knives and other arms.

The law controlling the possession and use of the arms was first introduced in the year 1878 after the first uprising in the year 1857 but the laws made in the year arbitrarily allowed the sovereign to regulate the use of an arm at their own peril. After independence, it needed to create such rules that would require the government to meet its objective.

In the year 1959, the Government of India passed an Act, i.e. The Arms Act, 1959to legislate the acquisition, possession, use and disposal of arms in India in the late 50’s by studying the use of the arms and its use during the period of the British rule in India. The scholars in the country realized the grievous effects of the use of arm.

Legislation regulating Knives

In India, the arms and ammunition are regulated by the legislation passed by the parliament known as the Arms Act, 1959 and Arms Rule, 1962. According to the provision specified and rules in this behalf states that any person who is a law-abiding citizen will be allowed to have possession of the arms by the procedure established by the law. The provision incorporated was in effect from the year 1962, though such right to possess the firearms was not made the fundamental right but was accepted in the eye of law. This Act was enforced with the aim to regulate the use of arms and eliminate the trade and use of the illegal weapon. The rule states that any person under section 4 of the Arms Act, 1956 read with rules in Arms Rule, 1962 should not by any way acquire, possess, sale and use any arm or firearm whereby such arm is sharp edged and deadly by its very nature such as swords (including sword sticks), Dagger, Bayonets, spears (including lances and javelins), battle-axes, Knives (including Kirpan and khukeris) or any other arms whereby such arm has a blade which 9” longer and has wide breadth up to 2” broader for any purpose other than the purpose of domestic, agricultural, scientific, Industrial purposes, steel baton and all other weapons which are termed as “Life Preservers machinery used for making arms category other than 3 and any other weapon notified by the Central Government under section 4.

The use of knives in the way used or if such knives result in creating a disturbance or ruptures in any way the public tranquility, peace or if such piece of weapon creates an environment of fear would also be charged under the Criminal Procedure Code, 1973.

The use of any other weapon by any person by way of showing it or threatening it or to gain any undue advantage even without the intent of harming such person or group of such persons will be charged under section 425 of the Indian Penal Code.

Such a person will also be held liable under section 268 of the Indian Penal Code under an act of public nuisance if such blade or knives creates such a situation. According to various laws made under the Indian legislatures, such as Indian Penal Code, 1860 and Criminal Procedure Code, 1973.

Types of Knives

There is a list of knives mentioned in the list or schedules under the Arms Rules, 1962 that specifically mentioned and prohibited by the Government following:

1. Swords:The long metal bladeconsists of sharp edges sometimes on the inner and outer edges use of thrusting and attacking with force to cause an injury to someone in the act of war.This head in the rules also prohibits the swords sticks which are basically a walking stick or any stick mainly having a wooden covering from outside and blade or sword inside. Such sticks basically look like a walking stick.

2. Dagger:Dagger is typically a small knife which is used for stabbing some because of its double-edged sharpness on both the side of the metal blade makes a perfect knife for causing serious injury to person or animal.

3. Bayonets: The Bayonets are the type of knives that are typically seen on the rifle, it was majorly used by the armies or land warriors where they used this knife at the time for their defence. Such knives are now prohibited by the government.

4. Spears: A pointed blade used by the warriors that are made in way to cut the pressure of the air so as to hit the target by throwing it from a distance. It also tied or affixed to a wooden bamboo to kill someone at a distance.

Kirpans in India

A kirpan is a sword or knife that has special permission given by the Constitution of India, Article 25(2) (b) of the Constitution of India allows the carriage of Kirpan by the person who identifies himself/herself as Sikhs. As secularism forms an inevitable part of the Indian Constitution that provides to recognize the land will practice no religion symbolically of the country but such every religion will be accorded with the same reverence as to any other religion without any distinct nature of minority or majority. Further, the article also states that every person will be allowed and is free to practice, propagate and profess about his religion and recognizes every religion in its entirety with no modifications unless necessary.

Sikhs is one sect people originally from the northern part of the Indian Subcontinent. As per the Sikhism, tradition is practised, and it is vitally important for the people of this sect to follow the cultural identity in the way they practice, profess and propagate their religion. There is in a total of five articles compulsory as per the Sikh ideology to wear in a way to justice the religious necessity such as:

1. Haircovered by the turban.

2. Kara (a steel bracelet)

3. Kanga (a small wooden comb)

4. Kacchera (undershorts)

5. Kirpan (a small knife or sword)

A Kirpan is basically an article of faith in the Sikhism, and the word Kirpan has derived from two words, i.e. Kirpa and Aan, that literally means an act of kindness and self-respect respectively. This is symbolic of a belief that every person practising Sikhism should be generous and should always be protecting his/her self-respect. In Sikhism, the Kirpan has no specific size or requirement it depends upon the person who carries the Kirpan except it’s should sheathe and worn with a strap.

The Indian legislation, regulates the rules and regulation for the Kirpan, such that the Sikh or by any person without the authority of the Government or by any provision of the law will not be allowed to manufacture and sale the Kirpan. Though the word Kirpan has not been defined in the Arms Act but such arm will be included in the meaning of the sword. Under the precedence set by the Magistrate Court in,The Crown v/s Basta Singh, (1922) I.L.R III Lah. 437 wherein a Sikh was arrested under the charge of manufacturing and sale of Kirpan under section 19 (a) of Arms Act and presented before the Magistrate where the person arrested was released by the Magistrate by stating the reason that as per schedule 2 of the Arms Rules, a person identifying himself as Sikh will be allowed an exemption from prohibition regarding the manufacturing and sale of Kirpan. According to the new rules, any person though allowed to carry Kirpan in as an exception to the rule of carrying a knife in the country has limited and regulated with reference to its and size and shape.

Self- Defense legislation in India

An act of self-defence can be said as an act to protect oneself from any person willing to or by committing such an act which may result in the one’s death. The pardoning for any act where the person seriously injures or sometimes such injuries led to the death of that person came in the society in the medieval period, at such time to pardon such action it was at the sole discretion of the King. This was an attempt made by the administration and scholar who developed a sense of common understanding of the revolt of humanity against such crimes. In the case of the Brown v/s United States of America, Justice Holmes stated that it would more grievous crime committed by the states if such person would in turn for saving his life commits any action or cause any injury to a person willing to kill, would be allowed a pardon by the court of law. The principle of the uplifted knife is to be understood in the context of protection from such attacks but then such decision will be on the sole discretion of the court and might differ depending on the facts of the case.

In India, action of self-defence is considered as rightful action against the crimes that take place against mankind, it is governed by the Indian Penal Code. The IPC under sections 96 -106 covers the act of self-defence, there is various interpretation of a situation where acting to save one’s life would be a timely demand and committing any action pursued immediately in the phases of terror would be allowed a pardon. Such consideration based on the principle of “Necessity Knows No Law” it specifically states that if a situation arises were following a legal procedure to save his/her life would be terrible or delayed choice of action then such person can commit such act to mitigate the loss that will be caused to him/her, in turn, if such situation turns fatal then the court will have sole discretion depending on the facts of the case and evidence presented to recognize the eligibility of the action by an individual for pardon.

Though such action is due for pardon by the court carrying knife for such act is prohibited, the law states that any person carrying any arm or knife for such reason which does not comply with the requirement with regards to its shape and size will not be allowed for any such reason.

The Act states that any person in India will not be allowed to carry a knife which more the 9” long metal blade and 2” wide in size and such knife should be fancy in the way to be threatened by the public at large.

In the case of Malti Devi Singh & Others v/s The State of Uttar Pradesh, whereby the accuser’s conviction of causing injury to the respondent while acting in self-defence was considered by the court under the principle of the uplifted knife, the court set aside the order of the lower court for the appellant’s conviction provided a legal theory by an eminent jurist the Justice Holmes who stated that “a detached reflection cannot be demanded in the presences of an uplifted knife, the appellant.

Conclusion

In India the parliament has enlisted detailed laws regulating the states and action of citizens, in the above article, it was discussed at length various rules formed with due consideration for the use of arms. As the development is a concern, it is important to maintain the harmony of the state as the paramount interest of the administration, where any kind of fatal contemplation has to be avoided by way of legislating its use and other aspects relating to the commodity. The Indian legislature promulgates fairly codified provision enforceable in the country regulating the all the aspects of arms and ammunition. As this article discusses at lengththe permission to carry a knife with due consideration to the laws and provides a brief about the curtailment of the usage of knives. The rationale provided for prohibition suggests the procuring step in understanding the future recourse regarding such arms, as amendment still suggest the adaptability of the Act to limit the use of arms, for any purpose other than the qualified use as recognized by the states.

The article mainly covers the aspect of usage of Knives with its exception in recognizing the need to curb the sale and usage of it in any other illegal ways or for such purpose which is with intent to disrupt the public tranquility. The article also includes the exception provided by the state in this behalf and illustrates the understanding with regards to the case laws emphasizing that every exception has its onus upon the person who pursues such exception or requires the exceptional context to be considered for use that is in violation of the stated provision.

Lastly, it clears the understanding that the use of knives in any way has been prohibited by the Arms Act, 1959 read with Arms Rule, 1962, further the act in itself require a modification many aspects, but it may stay stringent with the rules made regulating the manufacture, sale, possession, use and trade in the way of the knife.

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

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STRANGERS CANNOT FILE AN APPEAL UNLESS THEY SATISFY THE COURT THAT THEY ARE AGGRIEVED PERSONS

Advocate Sushila Ram 25 Aug 2020

Recently, the Hon’ble Supreme Court of India in the case of Sri V. N. Krishna Murthy & Anr. Etc. Etc. v. Sri Ravikumar & Ors. Etc. Etc., [Civil Appeal Nos. 2701-2704/2020], vide its Judgment dated read more

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SUPREME COURT REITERATES PRINCIPLES OF ARBITRABILITY OF CIVIL DISPUTES

Advocate Sushila Ram 25 Aug 2020

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 read more

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Hack the World: Let Us Hack Ethically

Bivas Chatterjee 25 Aug 2020

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 read more

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

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Rights of Women in Live-in Relationship

Prarthana Kumari 24 Aug 2020

DefinitionLiving 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 read more

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

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“ONCE A DAUGHTER, ALWAYS A DAUGHTER”: SC Verdict on Daughter’s Right To Ancestral Property

Prarthana Kumari 24 Aug 2020

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 read more

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

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SUPREME COURT UPHOLDS FIR FILED BY FATHER OF SUSHANT SINGH RAJPUT IN BIHAR

Advocate Sushila Ram 21 Aug 2020

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 read more

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Difference between Revision, Review and Appeal

Kartik Sharma 20 Aug 2020

Difference between Revision, Review and AppealArticle 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 read more

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.

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”.

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