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Cyber Forensics: law and practice in India

By
Ramanuj
-
3

Cyber forensics is a very important emerging area of evidence law, but very little is understood by the lawyer community about this. This article was written by Saswati Soumya Sahu, a 4th year student from Symbiosis Law School. Over to Saswati.

digital evidence

Introduction

The surge of technological advances has seemed to challenge the archaic ways of collecting and generating evidence. The intangible nature of digital evidence coupled with the fragile and vulnerable structure of the internet has posed inherent obstacles in collecting and preserving of digital evidence. The dearth of adequate techno-legal skills coupled with lack of expertise in collecting such evidence has undisputedly led to a rise in the cyber-crimes in the nation.

According to the National Crimes Record Bureau, 4,231 cyber-crimes were registered under the IT Act and cyber-crime-related sections of the Indian Penal Code (IPC) during 2009-11. A total of 1,184 people were arrested under the IT Act for cyber-crimes, while 446 people were arrested under IPC sections. At least 157 cases were registered for hacking under the IT Act in 2011, while 65 people were arrested.[1] Although a very large number of cyber-crimes probably go unreported, this statistics give us some idea about prevalence of cyber-crime in the country. This is making cyber forensics increasingly relevant in today’s India.

In strictest legal parlance, the usage of apt forensic tools and technical knowledge to recover the electronic evidence within the contours of the rules of evidence, for it to be admissible before the court of law can be defined as cyber forensics. The electronic evidence so obtained has to satisfy the criteria of crime attribution to the perpetrator by tracing its digital footprints by preservation, extraction, interpretation, and documentation of digital evidence. It encompasses a gamut of overlapping arena, e.g. database forensic, wireless forensic, network forensic, disk forensic, mobile forensic, media forensic, IP Address tracking, cloud computing, e-mail tracking etc.  It seeks to protect the subject computer system, discover all the files on the system, recover the deleted files, reveal the content of hidden and temporary files, access the contents of the protected or encrypted files, analyse the relevant data and provide a testimony on the basis of analysis of the above evidence.

Legal Provisions

The confluence of two legal paradigms, i.e., the law of evidence and that of information technology has made the legal domain at par with the contemporary challenges of the cyber space.

  1. Firstly, the traditional law defining the term “Evidence” has been amended to include electronic evidence in Section 3, The Evidence Act, 1872. The other parallel legal recognition appeared in Section 4, The Information Technology (Amendment) Act, 2008, with the provision for acceptance of matter in electronic form to be treated as “written” if the need arises. These show a prima facie acceptability of digital evidence in any trial.
  2. Further, Section 79A of the IT (Amendment) Act, 2008 has gone aboard to define electronic evidence as any information of probative value that is either stored, or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones and digital fax machines.
  3. With regards to admissibility of electronic records, Section 65-B of the Evidence Act, 1872 enunciates various conditions for the same.
  4. Since digital evidence ought to be collected and preserved in certain form, the admissibility of storage devices imbibing the media content from the crime scene is also an important factor to consider. Reading Section 3 and Section 65-B, The Evidence Act, 1872 cumulatively, it can be inferred that certain computer outputs of the original electronic record, are now made admissible as evidence “without proof or production of the original record. Thus, the matter on computer printouts and floppy disks and CDs become admissible as evidence.”[2]
  5. The other most crucial question in cybercrime investigation regarding the reliability of digital evidence has also been clarified by Section 79A of the IT (Amendment) Act, 2008, which empowers the Central government to appoint any department or agency of Central or State government as Examiner of Electronic Evidence. This agency will play a crucial role in providing expert opinion on electronic form of evidence.

A Brief Overview

Since every law is toothless without an enforcement mechanism, it becomes pertinent to understand the mechanisms as well. In such a scenario, understanding the effect and the nature of the computer-related crime becomes relevant, i.e., whether the computer is used as a means/target for conducting any illegal activity with a dishonest and fraudulent intention under Section 66 of the Information Technology (Amendment) Act, 2008.  It is important to understand that, for an act to be investigated as a cyber-crime under Section 66 of the Information Technology (Amendment) Act, 2008, it has to be an act as defined under Section 43 of the Act coupled with dishonest and fraudulent intentions according to Section 24 and 25 of the Indian Penal Code. If the act falls short of the above criteria, then it falls under the jurisdiction of the Adjudicating Officer and becomes an offence only, and will not be investigated as a cybercrime.

The computer-related crimes wherein computer is used as a target could include hacking, denial of service, virus dissemination, website defacement, spoofing and spamming. Whereas, the crimes wherein computer is used as tool for attack could include financial frauds, data modification, identity theft, cyber stalking, data theft, pornography, theft of trade secret and intellectual property and espionage on protected systems.  In such scenarios, cyber forensic can be used to image, retrieve and analyse the data stored in any digital device which has the probability to relate the crime to the criminal. Be it an answering machine which stores voice messages, or a server which records the contents downloaded, everything needs to be evaluated with caution so that a chain of custody is maintained and the authenticity of the original message is left unaltered.

At the initial level, the complainant can approach the cyber-crime police stations, or to a police station in its absence. Once the information reveals the commission of a cognisable offence under the IT (Amendment) Act, 2000, the details regarding the nature/modus operandi of the cyber- crime is recorded in the complaint, e.g., , profile name in case of social networking abuse, with the allied documents like, server logs, copy of defaced web page in soft copy and hard copy etc. Subsequent to this, a preliminary review of the entire scene of the offence is done to identify and evaluate the potential evidences. A pre-investigation technical assessment is also conducted to make the Investigating Officer fully aware about the scope of the crime, following which a preservation notice is sent to all the affected parties for preserving the evidence.[3] To ensure the integrity of the evidence, containment steps are taken to block access to the affected machines. For instance, the Investigating Officer could ask the bank to freeze the suspect`s bank account in case of financial frauds. When it comes to collection of evidence, the procedure for gathering evidences from switched-off systems and live systems have to be complied with the search and seizure mandate under Section 165, CrPC and Section 80 of the IT (Amendment) Act, 2008 and should be reflected in the Panchanama. Another indispensable part of the investigation would be to avert the fabrication and tampering of the digital evidence by maintaining the chain of custody of the evidence since the time it is seized, transferred, analysed and presented before the court of law to ensure its integrity. Hashing is one of the most common methods used to ensure the integrity of the digital evidence and the media content. It encompasses “cryptographic hash function algorithm” and is a kind of mathematical method which is “based on an algorithm which creates a digital representation, or compressed form of the message, often referred to as a “message digest” or “finger print” of the message, in the form of a “hash value” or “hash result” of a standard length that is usually much smaller than the message but nevertheless substantially unique to it”.[4] With regards to documentation recording the digital evidence collection, the Investigating Officer needs to record it in Digital Evidence Collection Form. This shall succinctly include the process, the tools used, the hash value acquired from the forensic images of the evidences, and the hashing algorithm used for hashing. Apart from being crucial factors in affecting the evidentiary value of the digital evidence, maintaining the chain of custody and a documentation record of the same is in the nature of a mandate on the Investigating Officer, since its non-observance might expose the IO to criminal liability under Section 72 of the IT (Amendment) Act, 2008.

After collecting and documenting the evidence either by forensic imaging or by storing it in other devices like USBs, hard drives etc., the evidence is packaged, labelled, tagged and is updated in the evidence database. Once the digital evidence is seized, orders of the competent court may be sought to retain the seized properties or send the digital evidence for forensic analysis. In cases where the owners of the property approach the court for the release of the impounding properties, the IO should send a forensic imaged copy of the seized property rather than the original material seized for smoother investigation.

Apart from these procedural compliances, a cyber-crime investigation would be incomplete without analysing other external information. For instance, time zone conversions are used to assess the exact time of the offence especially when targeted at a system beyond the local jurisdiction with a different time zone. Other external data gathered from ISPs, mobile service providers, social networking websites, financial institutions, web-site domain etc. is collated and co-related with the lab findings for reconstructing the case in totality.

Cyber Crime Investigation by CBI

The CBI also can be approached for any serious economic offence, which is not of a general and routine nature. It has Economic Offences Division for the investigation of major financial scams and serious economic frauds, including crimes relating to fake Indian currency notes, bank frauds and cyber-crimes.[5] For the purpose of combating such crimes, CBI has certain specialised structures, namely, Cyber Crimes Research and Development Unit (CCRDU), Cyber Crime Investigation Cell (CCIC), Cyber Forensics Laboratory; and Network Monitoring Centre.

  1. The CCRDU is mainly entrusted with the task of collecting information on cyber-crime cases reported for further investigation in liaison with the State Police Forces. On a larger parlance, it plays a pivotal role in the collection and dissemination of information on cyber-crimes in consonance with the Ministry of IT,   Government   of   India and other organizations/Institutions and Interpol   Headquarters.
  2. The CCIC has the power to investigate the criminal offences envisaged under the Information Technology (Amendment)  Act, 2008 and is also the point of contact for Interpol to report the cyber-crimes in India.
  3. The third organ, i.e., CFL, is the one which provides consultations and conducts criminal investigation for various law enforcement agencies. It not only provides on-site assistance for computer search and seizure upon request, but also is the one which provides expert testimony in the court of law. It is pertinent to note that, the CFL must also adhere to all the legal formalities during the seizure of the media for making the media analysis admissible. The analysis should be based on the image of the media, rather than the media itself and the chain of custody should be maintained.
  4. Keeping the possibility of remote access from an isolated location across the globe into consideration, the data storage in another jurisdiction cannot be ruled out all-together. In situations involving the storage location of the data in another country, the Interpol ought to be informed and Section 166, Cr PC needs to be complied.
  5. Last but not the least, the Network Monitoring Centre is entrusted to monitor the Internet by the usage of various tools.

Recently, CBI has signed a memorandum of understanding (MoU) with Data Security Council of India (DSCI) with a view to seek expert services from the latter in managing the new challenges in cybercrimes and updating officials with the latest technology.[6] This shows a novel collaborative approach between the law enforcement agencies and IT Industry for strengthening the security measures.

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The appointment of private investigators is not a preferable practice

Apart from these law enforcement agencies, the question of the validity of the appointment of private forensic investigators by HDFC Bank for inspecting the accusations of money laundering and benami transactions by the RBI has thrown upon numerous questions. It is quite certain that, an assumption of adverse inference could be drawn leading to a dubious conclusion and thereby raising a finger on the integrity of the evidence. Thus, for the purpose of adducing the digital evidence before the court of law, it is wise to seek the assistance of a forensic expert by various law enforcement agencies.

Conclusion

The dearth of best cyber-crime investigation practices can be seen by the recent instances of cyber forensic blunder in Aarushi murder case and its importance can be gauged by the need for e-discovery practices in Bitcoin websites. This gap can only be filled with a sound techno-legal framework in this area. The PIL before the Honourable Supreme Court in the case of Dilipkumar Tulsidas v. Union of India,[7] is pressing for a regulatory framework for the effective investigation of the cyber-crimes, the need for uniformity in cyber security control and enforcement practices. Thus, cyber forensics, being a part of the wider enforcement mechanism needs to encapsulate the best practices to give meaning to every fair trial.

 

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References:
[1] http://www.dnaindia.com/scitech/report-indias-information-technology-act-has-not-been-effective-in-checking-cyber-crime-expert-1818328

[2] T. Vikram, “Cyber Crimes- A Study with a Case”, July-September 2002, Indian Police Journal 78.

[3] Data Security Council of India, Cyber Crime Investigation Manual . Accessible at http://uppolice.up.nic.in/All%20Rules/Cyber%20crime/4-Cyber_Crime_Investigation_Manual.pdf

[4] Chap 1, “Introduction to the Model Law: Purpose and origin of the Model Law: Purpose” in UNCITRAL Model Law on Electronic Signatures with Guide to Enactment 2001.

[5] Central Bureau of Investigation, Frequently Asked Questions. Accessible at  http://cbi.nic.in/faq.php

[6]The Times of India, CBI signs MoU with Data Security Council of India for managing cybercrime, Mar 6, 2014, 03.54 PM IST. Accessible at http://timesofindia.indiatimes.com/india/CBI-signs-MoU-with-Data-Security-Council-of-India-for-managing-cybercrime/articleshow/31537939.cms

[7] [W.P.(C).No. 97 of 2013].

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One Person Company- A New Age Concept

By
Amartya Bag
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2

one-person-business-pop_4015

This article was written by Madhurima Dutta, a student of  RMLNLU, Lucknow.

The innovative new concept of ‘One Person Company’ (OPC) was first recommended by the expert committee of Dr. J.J. Irani in 2005 and has been introduced by the Companies Act, 2013. As the name suggests, a one person’s company is formed with only one person as its member, these companies enjoy certain privileges or exemptions as compared to other companies.

 

Why one should start a One Person Company?

OPC will enable a whole new range of opportunities for those who look forward to start their own ventures with a configuration of organized business. OPC will give an entrepreneur all benefits of a private limited company which essentially means they will have access to credits, bank loans, limited liability, legal protection for business, access to market etc all in the name of a separate legal entity. It is a substantial shift from existing concept where at least two persons were required to incorporate a private company. OPC is best suited for start-up ventures, propriety businesses etc. since it offers a business platform which allows absolute control over all business affairs with limited liability.

 

What is the impact of OPC in Indian Entrepreneurship?

However the concept of an OPC is still very new in Indian entrepreneurship and will require few years for this concept to be accepted amongst the public. However, with passage of time, OPC will be embraced as a most successful business structure due to its benefits and features. Some of the main features of an OPC are, less paper work, ability to form a company without any additional shareholder, and if the member is keen to add shareholders, all he needs to do is to alter the Memorandum of Association and file it before RoC (Registrar of Companies). Small entrepreneurs will grow in Indian entrepreneurship, be it weaver, traders, artisans, small to mid level entrepreneurs, OPC is a brilliant future for them to grow and to get recognition globally. Foreign investors will be dealing with one member to establish a corporate relationship and not with a score of shareholders/directors where there are further chances for discrepancy in ideas, concepts etc for a business to nurture. Any foreign company who desires to set up in India through an investment, through a merger or through a joint venture will have to lock the deal with the member of an OPC, and the venture will be likely to start quicker with more effective results. In upcoming years the impact of an OPC will be remarkable and it is a promising future for Indian entrepreneurship. Expectedly, there will be good foreign investments, joint ventures, and mergers etc. OPC, as a business entity, is doing well in European countries, in United States, and Australia, and the same is resulting in strengthening the economy of the countries. In India an OPC, is solely aimed for the structured organized business, with a different legal entity altogether and to organize the private sector of the entrepreneurship, which indeed is expected to be done, along with a significant growth in Indian economy benefiting the country on the global stage.

 

What are the Benefits & Drawbacks of an OPC?

The biggest advantage of a one person company is that its identity is distinct from that of its owner. Therefore, if the firm is involved in a legal controversy, the owner might not be personally liable.

Another advantage is limited liability. Since the company is discrete from that of its owner, the personal assets of the shareholders and directors remain protected in case of a credit default. However, a proprietorship offers no such advantage.

OPC will bring the unorganised sector of proprietorship into the organised version of a private limited company. A range of small and medium enterprises, doing business as sole proprietors, might enter into the corporate domain. The organised version of OPC will open the avenues for more encouraging banking facilities. Proprietors will always have unlimited liability. If such a proprietor does business through an OPC, then liability of the member will be limited.

On the other hand, an OPC is not easy to set up. For one, it requires a lot of paperwork and is a time-consuming process. You also need to factor in the cost of establishing such a firm. For instance, you need to get a lawyer or company secretary to help you draft the memorandum and articles of association.

Though you can draft them yourself, it is advisable to take professional help as these are the by-laws that govern your company. The process may cost upwards of Rs 2 lakh.

Apart from this, you need to consider the tax implications. The company will be taxed at 30%, which may be higher than the 10-30% for a business that is not incorporated. Other types of taxes, such as the minimum alternate tax and dividend distribution tax, may also be applicable.

OPC will give greater flexibility to an individual or a professional to manage his business efficiently and at the same time enjoy the benefits of a company. The concept of OPC will also help many foreign companies, which need to appoint a minimum of two nominees now when they form a wholly-owned subsidiary. OPC will open the avenues for more favourable banking facilities, particularly loans, to such proprietors.

Besides, the concept will boost flow of foreign funds in India as the requirement of nominee shareholder would be done away with. Therefore an OPC gives you all the benefits that come with a private limited company. However, if legal compliances don’t go well with you, your business still has the option of being run as a sole proprietorship.

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Collective Bargaining in India: Laws and Realities

By
Amartya Bag
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1

collective-banner-594x300

This article was written by Madhurima Dutta, a student of  RMLNLU, Lucknow.

Collective bargaining is a procedure by which employment related disputes are resolved cordially, peacefully and voluntarily by settlement between labour unions and managements.

The collective bargaining in India remained limited in its scope and restricted in its coverage by a well defined legal structure. In reality, the labour laws systematically promoted and keep in existence a duality of labour-formal sector workers enjoying better space for collective bargaining and informal ones with no scope for collective bargaining. To understand this, I will discuss about the labour legislations in India and their scope and coverage.

  • The Factories Act, 1948 provides for the health, safety, welfare and other aspects of workers while at work in the factories. Under this Act, an establishment where the manufacturing process is carried on with the help of power and employs 10 workers or an establishment where the manufacturing process runs without power and employs 20 workers is considered to be a factory. However, the following provisions of the Act are not applicable to all factories; provision of a rest room will be applicable only if there are 150 or more workers. Provision of canteen will be applicable only if there are 250 or more workers; provisions for ambulance, dispensary, and medical and para-medical staff: applicable only if there are 500 or more workers.
  • Employees Provident and Miscellaneous Provisions Act, Maternity Benefit Act and Payment of Gratuity Act apply to all establishments with 10 or more workers. Though Employees State Insurance Act applies to only those establishments with 20 or more workers. Minimum Wages Act applies to all establishments and all workers, but the Payment of Wages Act applies only to those establishments with 10 or more workers, and also only to those workers getting wages less than Rs 1600 per month. On the other hand, the Payment of Bonus Act is applicable to only those enterprises employing 20 or more workers and only to those workers getting wages less than Rs 3500 per month.
  • Industrial Disputes Act, 1947 lays down the procedures for the settlement of industrial disputes. Its procedural aspects are applicable to all enterprises for the settlement of industrial disputes. However, actually protective clauses for the workers pertaining to closures, layoffs and retrenchment are contained in Chapter VA and Chapter VB, having limited applicability. Chapter V B does not apply to any establishment employing less than one hundred workers, and Chapter VA does not apply to any establishment employing less than 50 workers. Industrial Employment (Standing Orders) Act makes it compulsory to have Standing Orders in each enterprise to describe misconducts and other service conditions, and also entails that for any misconduct no worker will be punished without due process of law using the principles of natural justice. But this law does not apply to those enterprises employing less than 100 workers (only in few states like Uttar Pradesh, it is made applicable to all factories (i.e. employing 10 or more workers). Trade Union Act applies to all establishments with 7 or more workers, since a minimum of 7 members are necessary in order to register a trade union.

Precisely, if we have a look at the general picture, only a small section of workforce is protected by the labour laws and has assured space for collective bargaining in well defined legal boundaries. Therefore, protective labour laws apply to only less than three percent of the enterprises; and in rest of the 97 percent enterprises only Industrial Disputes Act (minus its protective sections like section V-A, V-B), Minimum Wages Act, the Workmen’s Compensation Act, Equal remuneration Act, and the Shops and Establishments Act (enacted by each state separately) and some pieces of labour legislation enacted for specific occupations are applicable.

Trade Union Act of India provides right to association only with a very limited scope and limited coverage. The Trade Union Act 1926 was amended in 2001 and subsequent to the amendment it became more difficult to form the trade unions. In the Act of 1926, only seven members were required to register a trade union, but after amendment at least 10% or 100, whichever is less, subject to a minimum of 7 workmen engaged or employed in the establishment are required to be the members of the union prior to its registration. The amendment moreover introduces a limitation on the number of outsiders among the office bearers. Collective bargaining is limited within the scope provided in Industrial Disputes Act 1947.

It is also important to mention that only when the unions are recognized by the management then only they get the full-fledged rights as bargaining agent on behalf of workers. But there is no legal obligation on employers to recognize a union or engage in collective bargaining. The statutes of only few states of India like Maharashtra, Gujarat, Madhya Pradesh and Rajasthan have made some provisions for recognition of unions with a definite percentage of the workforce.

 

Legal Boundaries for Collective Bargaining:

  • No ratification of ILO Convention –C-87 and C-98.
  • Limited scope and coverage of collective bargaining within legal boundaries of Trade Union Act and Industrial Dispute Act.
  • Trade Union Act and Industrial Dispute Act are silent on recognition of trade unions.
  • Right to strike is not a fundamental right but a legal right governed by Industrial Dispute Act, 1947.
  • Section 10K: can be imposed to prohibit strikes or lock outs.
  • Section 22: In public utility services there must be a notice atleast 6 weeks before strike.
  •  Section 23: Prohibition of strikes during the pendency of conciliation, arbitration and court proceedings.
  • Trade Union activities are granted immunity from the applicability of CRPC but nor in case of illegal strikes.
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New Trends in Collective Bargaining

Decentralised and Individualized Bargaining

The collective bargaining in India remained mostly decentralized, i.e. company or unit level bargaining rather than Industry level bargaining. But in few sectors (mainly public sector industries) the industry level bargaining was dominant. However, privatization of public sector changed the industry level bargaining to company level bargaining. On the other hand, due to severe infomalisation of workforce and downsizing in the industries, the strength and power of the trade unions have been heavily reduced. The trade unions mainly represented the interests of formal workers. Increasing number of informal workers in the companies soon changed the structure of the workforce in such a way that the formal workers became a minority. As a result of various reasons informal workers could not form their own trade unions, and on the other hand they are not represented by the trade unions of the formal workers. These situations resulted in spurt of individualized bargaining.

Advancing of informalisation of workforce combined with the individualized bargaining in fact changed the character of the trade unions also. In related sectors and industrial regions, it converted many trade unions (particularly in sector dominated by informal workers) in to legal consultants (pursuing individual cases and charging fees for their services) rather than collective bargaining agents.

 Declining Wage Share

Declining strength of collective bargaining is also reflected in sharply increasing share of profit and considerably declining the wage share (since 2001-02), resulting in depressing purchasing power.

 

New Wave of Labour Movement for Unionisation

A new wave of workers struggle for unionization is rising from below by and large independent from the central trade unions. This is generally emerging in the formal sector. The workers are realizing by their own experiences that they cannot change their fate without organizing themselves in a trade union. In numerous cases the workers do not get even the legal benefits like minimum wages, premium rate of overtime and holidays and casual leaves. Once the union is formed, at least the minimum benefits guaranteed by law are easily available to all workers. Actually large numbers of informal workers are illegally put in the category of informal, and they can convert their status in to formal workers only by organizing themselves in a trade union. On the other hand, the industrialists are not at all ready to accept trade unions in their factories at any cost. They are unleashing unimaginable suppression on workers and trade union leaders when there are efforts to form trade unions in their factories. Even after the trade unions are created, managements are not ready to recognize them and therefore deny them space for collective bargaining.

There are also new initiatives to organize informal sector workers particularly the agriculture workers. After the implementation of National Rural Employment Guarantee Act, the new possibilities emerged to unionize the rural workers around the NREGA. But, the system of collective bargaining in this sector is very different it is mostly on general issues like appropriate implementation of the act itself, ensuring minimum wages, employment guarantee and workplace facilities. There are also initiatives to organize other informal sector workers also like forest workers, fish workers and other self employed categories. But the movement is still very weak and informal sector workers are by and large not able to realize the right of collective bargaining.

 

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Enforcement of Oral Wills

By
Himanil Raina
-
0

military

A will which is a voluntary posthumous disposition of property needs to fulfill certain requirements so as to be deemed valid in law. These requirements have already been elaborated upon in a post here. The Indian Succession Act is the comprehensive legislation for the law relating to wills in India (except for the Muslim community). However the statutory provisions are silent on the subject of non privileged oral wills which has led to a lot of confusion which this post seeks to address.

A will may be made orally if it is a privileged will (a will which can be made by a member of the armed forces employed in an expedition or engaged in actual warfare). Being placed in exceptional circumstances involving greater uncertainties to life members of the armed forces employed in an expedition or engaged in actual warfare are conferred with the power to make privileged wills. Hence Section 66 of the Indian Succession Act recognizes that they may make a will by word of mouth and declaring their intentions before two witnesses who are present at the same time. The Section also says however that a will made verbally would be null at the expiration of one month after the testator being alive has ceased to be entitled to make a privileged will.

Non privileged wills (all wills that are not privileged wills) are governed by Section 63 of the Act which mandates the need for signatures and attestations thus requiring that wills be in writing. However the distinction made between the ‘execution’ of wills and their ‘making’ in the act indicates something else as well. While Section 63’s title includes the term ‘execution’ Section 66 (which deals with privileged wills) includes ‘mode of making’ and ‘execution’ of wills. Since Section 63 lays down the mode of execution for written wills but isn’t an authority on the creation of wills an argument can be made for the existence of oral wills.

It is highly undesirable to make an oral will and a will should generally be made in writing. On a testator’s death the executor of the will may apply for a probate upon which the court enquires of the heirs of the deceased whether they have objections regarding the same. If there exist no objections then the court can grant a probate (which is essentially a copy of the will certified by the court). The advantage of obtaining a probate is that the genuineness of the will being established all acts of the executor become valid. Amongst the many reasons an oral will should be avoided is that if it is an unprivileged will then it cannot be probated since it cannot comply with Section 63 of the Indian Succession Act.

A person who does want to enforce the will has to prove with the utmost precision the words upon which he relies with every circumstance of time and place. The liberty of action available for mala fide actions by someone propounding an oral will is so obviously evident that the party which relies on the oral will has to bear the burden of proving the legitimacy of the will. The burden of establishing an oral will being a very high one since it needs to be proved strictly on evidence that the court finds satisfactory it is incredibly difficult to establish its contents and get an oral will enforced.

 

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Why is there a copyright battle over Bob Marley’s songs and what musicians should learn from it

By
Ramanuj
-
1

bob marleyThis article was written by Soni Bhola of RMLNLU, Lucknow while she was interning with iPleaders. Over to Soni.

 

Ever thought that the famous melody which our heart embraces, ‘No woman No cry’, can be disputed upon? You heard it right, some of Bob Marley’s most iconic songs, including ‘No Woman, No Cry’, have become embroiled in a copyright dispute.

Blue Mountain Music, who launched Marley’s international career, is being sued by Cayman Music, which represented Marley’s catalogue from 1967 to 1976.

Well, the question of who actually composed Bob Marley’s classic number No Woman, No Cry has fascinated scholars of the reggae legend for 40 years. Originally, Vincent Ford, a soup kitchen-owner and friend of Marley is listed as the composer of No Woman No Cry. But people have always been skeptical about it.

DEABL

Spencer Leigh once wrote that circumstantial evidence suggests that Ford did not actually write No Woman. It is also said that since Marley did not want his new songs to be associated with Cayman so he put them in the names of his close friends and family members as a means of avoiding the contractual restrictions and also providing lasting help to them.

This is in line with Cayman’s claims that Marley attributed different names to his songs to avoid the provisions of his publishing agreement with the music company.

The High Court in London has begun hearing arguments in a copyright dispute over 13 songs by the late Jamaican reggae icon Bob Marley wherein Cayman accuses Blue Mountain of “misattribution and diversion of income” of a number of the Jamaican star’s hits.

Publisher Cayman Music is suing Blue Mountain Music in an attempt to retrieve the rights to a collection of Marley’s tracks claiming that the songs weren’t included when it sold some of its rights to Blue Mountain Music in a deal in 1992, as Marley had penned them down under different names.

The attorney for Cayman Music, Hugo Cuddigan, told the High Court in London that Cayman did not receive its share of credits for the songs written between 1973 and 1976, for over 40 years, because Marley had “fraudulently attributed”  them to other people. Cayman also claims that the 13 songs were not transferred under that agreement.

Blue Mountain, which is responsible for administering rights transferred under that agreement, says that the songs were covered under the transfer deal. Ian Mill, a lawyer for Blue Mountain, said on the “straightforward application of ordinary principles of contract law” the claim had to be dismissed because the “plain intention” of the 1992 deal was to “transfer all rights”.

Blue Mountain accepted that Marley had “falsely claimed” that the 13 songs had been composed by other people in an attempt to “escape the automatic assignment of their copyright to Cayman”. But he said it was common ground and as a matter of law the ruse was ineffective.

In addition to the worldwide hit No Woman No Cry, the contested songs include Crazy Baldhead, Johnny Was, Natty Dread, Positive Vibration, Rat Race, Rebel Music, Talking Blues, Them Belly Full, Want More, War, Who The Cap Fit and So Jah Seh.

The judge has reserved the ruling after a two-day hearing in the case where millions of dollars are at stake, and a verdict is expected by the end of this week.

One lessons musicians should take away from this is that contracts are to be taken seriously, and automatic assignment of rights is a dangerous thing! Hire a good lawyer before you sign contracts with a record label!

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Understanding Section 498A of Indian Penal Code, on Domestic Violence

By
Ramanuj
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1
domestic violence

This article is written by Mallika Nigam of RMLNLU, Lucknow, on the topic of domestic violence. It will help you to understand Section 498A of Indian Penal Code.

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Law of Wills in India: What every Indian should know

By
Ramanuj
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5
joint will

Himanil Raina from NALSAR Hyderabad covers a few things about law of wills in India that everyone needs to know. Over to him.

Law of wills India

Want to create a will? Make sure you know this first

This is the first of a series of posts casting a roving look over the Law of Wills as prevalent in India in a simple and concise manner. This particular article deals with the understanding of what a will is and the manner in which a will is made while addressing certain basic questions about who can make a will, the beneficiaries under a will and the kind of property that can be disposed of in a will.

UNDERSTANDING WHAT A WILL IS

A fundamental characteristic of property is that it cannot be without an owner. On a person’s death his property has to vest into someone and the act of transmission of the property is referred to as succession. The law of succession is divisible into two parts testamentary and intestate succession. When a person makes a will disposing of his property it is governed by the law of testamentary succession. In cases where a will has not been made then the law of intestate succession kicks in and his property is acquired by his heirs as per intestate law. This piece is concerned with wills and hence only testamentary succession (which means succession by will) shall be examined.

A will is a legal declaration for a voluntary posthumous disposition of property.The law relating to wills may be found in the Indian Succession Act, (ISA) 1925 where Section 58 states the law therein applies to everyone except Muslims. The essential characteristics of a will are:

  1. There must be an intention for the testament to take effect after the testator’s death;
  2. It is the a legal declaration of intention with respect to property (the declaration is not fulfilled if the forms and formalities prescribed by the law and not fulfilled);
  3. The declaration with respect to the property must involve a disposition of property and not the mere appointment of a successor;
  4. A will can be altered or revoked by the testator at any point of time in his lifetime. This can be done means of an instrument called a codicil (This means that a contract holding a particular will to be a last will or preventing it from being revocable is invalid).

A testator can chose to appoint an executor (a person to whom the responsibility of the execution of the will is assigned) failing which an administrator can be appointed by a competent authority (to administer the deceased persons estate).

WHO CAN MAKE A WILL

Section 59 of the Indian Succession Act provides that any person of sound mind who is not a minor can make a will. The idea is that a person is understood to be capable of being a will if he has the capacity to understand what is written in it and comprehend the nature & effect of the disposition. The burden of proving that the maker of a will did so freely and when capable of making the will is upon the individual who propounds the will. If a person is normally insane but has fits of insanity at times and a will is made when sound of mind then the will would be valid. A minor is any person subject to the Indian Minority Act, 1875.

BENEFICIARIES TO A WILL & PROPERTY CAPABLE OF DISPOSITION

Any person who is capable of holding property can be a will’s beneficiary. This means that even a corporation, a juristic person, minors and someone of unsound mind can be a beneficiary of a will. With regard to property that can be disposed of by a will there are no restrictions save that the testator must be capable of disposing of the property. This means that the property in question must be self acquired property. As concerns ancestral property Section 30 of the Hindu Succession Act allows a Hindu to give away in his will his share in coparcenary property which is something that a Hindu is in other circumstances not permitted to do.

THE MAKING OF A WILL

The Indian Succession Act recognizes two types of wills, unprivileged and privileged wills. Privileged wills are those that can be made my members of the armed forces employed in an expedition or engaged in actual warfare and can be made in oral form as well. A relaxation of formalities has been envisaged for them considering the inherent dangers and possibility of sudden death coupled with the lack of time and means to deliberately frame written wills. Unprivileged wills are the wills that can be created by every person other than those who can create a privileged will. For a privileged will to be executed it is firstly necessary that it be in writing. The law requires no particular form except that the words must be intelligible and clear. The testator is required to sign or affix his mark on the will or have it signed by another person in his presence or on his direction. Two or more witnesses to the fact of the testator’s assent being expressed by placing of a mark on the will are required.  Section 18 of the Registration Act requires that it is not mandatory for a will to be registered neither is there a need for the will to be on a stamp paper. Any attempts by a person propounding a will which was made by oral means has to be strictly proved on very satisfactory evidence as the burden of establishing an oral will is a very high one.

 Guest post by: Himanil Raina from NALSAR, Hyderabad.

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The Jalilkattu Judgment: Supreme Court comes to rescue of domestic animals

By
Ramanuj
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0
Cruelty to animals - jalilkattu

It is a crime to hurt wildlife in any way in India – with serious punishments attached to any cruelty to wildlife. However, in case of domestic animals it is quite another thing. There is a law – but the punishment prescribed in it is so ludicrous that no one even bothers to implement it. However, Supreme Court has now used this law to ban a festival globally criticised for animal cruelty, and has laid down some really important findings. Anupam from RMLNLU, Lucknow writes about the Jalilkattu judgment.

Cruelty to animals - jalilkattu
Cruelty to animals – jalilkattu

The Supreme Court on Wednesday gave a judgement banning the sport of Jallikattu (bull racing) which is majorly practised in the states of Tamil Nadu and Maharashtra. It is a key part of the rice harvest festival of Pongal in villages in southern India every January. Some foreign tourists travel to India to watch and take part in the spectacle. Unlike the famous bull running in Pamplona, Spain where participants leap out of the path of the bulls as they thunder by, the Indian participants have to hang on to the bulls. If a man manages to stay on top of the bull for a certain distance he can win prizes.

Jallikattu is a Tamil word which comes from the term “Callikattu”, where “Calli” means coins and “Kattu” means a package. Jallikattu refers to silver or gold coins tied on the bulls’ horns. People, in the earlier time, used to fight to get at the money placed around the bulls’ horns which depicted as an act of bravery. Later, it became a sport conducted for entertainment and was called “Yeruthu Kattu”, in which a fast moving bull was corralled with ropes around its neck. Started as a simple act of bravery, later, assumed different forms and shapes like Jallikattu (in the present form), Bull Race etc., which is based on the concept of flight or fight.

The case in the SC was a culmination of an appeal by Animal Welfare Board of India (AWBI), a statutory Board, established under Section 4 of the Prevention of Cruelty to Animals Act, 1960 (PCA) challenging Madras High Court’s 2007 verdict which allowed bullfights and a petition by PETA challenging the validity of Tamil Nadu Regulation of Jallikattu Act, 2009 (TNRJ). TNRJ was enacted in 2011 with a purpose to regulate the conduct of Jallikattu.

The organisers argued that this practice is going on for last more than 300 years by way of custom and tradition and it also helps the state generate revenue. The state of Tamil Nadu told the court that it shall make every effort to see bulls are not subjected to cruelty and argued that the sport can be regulated by the TNRJ Act. The SC remarked that TNRJ Act is an anthropocentric legislation enacted not for the welfare of the animals but to safeguard the interests of organisers and spectators.

The court also observed that the state of Maharashtra has not challenged an earlier Bombay High Court judgement which banned exhibition and training of bulls and thus concluded that it is in favour of banning this sport.

The Ministry of Environment and Forests in 1991 via a notification had banned the training and exhibition of bears, monkeys, tigers and panthers. In 2011 by another notification it included bulls to the list.

AWBI brought the court’s notice towards the ill treatment meted out to the bulls involved in the sport. Through multiple affidavits AWBI stated that organisers cut the bulls ears, poke them with sharp objects, use irritants and force them to drink liquor in order to anger the bulls. During the fights the bulls tail which consists of 20 small bones and is an extension of their spinal cord and vertebral column is dislocated or amputated. This leads to physiological, neuroendocrine and behavioural changes in the animal. The SC strongly remarked that ancient culture and tradition don’t support the conduct of Jallikattu in the form they are being conducted at present. The court remarked that bulls adopt fight response when they are frightened or threatened and this is what is being exploited by the organisers of Jallikattu.

The SC expressed anguish at the lack of international agreements that ensures the welfare and protection of animals. It classified the evolution of International law on animal rights into three stages.

  1. Human self-interest as a reason for environmental protection.
  2. International equity to meet the needs of future generations
  3. Nature’s own rights where recent international instruments have asserted the intrinsic value of nature.

The court took cue from German constitution that obliges state to respect animal dignity. It also observed that Switzerland, Austria and Slovenia have enacted legislation to include animal welfare in their national constitution. It advanced the guidelines of the World Health Organisation of Animal Health, still known by its French acronym (OIE) that talks of five freedoms for animals to be “healthy, comfortable, well-nourished, safe and free from pain, fear and distress.” These are:

i) Freedom from hunger, thirst and malnutrition;

ii) Freedom from fear and distress;

iii) Freedom from physical and thermal discomfort;

iv) Freedom from pain, injury and disease; and

v)  Freedom to express normal patterns of behaviour.

The Apex Court said it was dealing with “an issue of seminal importance with regard to the rights of animals under our Constitution, laws, culture, tradition, religion and ethology” and went on to strike down the Tamil Nadu Regulation of Jallikattu Act, 2009 on the grounds that it was “constitutionally void” for violating Article 254(1), and asked the Centre to amend the provisions of the PCA Act that prevents cruelty to animals to bring bulls in its ambit. The bench comprised of Justice K.S. Radhakrishnan and Justice Pinaki Chandra Ghose.

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Announcement: Admissions for Diploma in EABL for the Summer 2014 batch is now open

By
Amartya Bag
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0

admission1

In case you were wondering when the enrollment for the Diploma in Entrepreneurship Administration and Business Laws (Summer Batch of 2014) will finally begin – please note that the wait is over. NUJS is taking new enrollments already. The course is starting from June 30, 2014.

We invite you to

Join our 800+ students who come from diverse background of IAS officers, CEOs, Project Managers, practicing CA and CS, law firm partners, management professionals, and students from engineering, MBA, commerce, humanities, journalism, CA, CS profile.

Expand your network to professionals from companies like Wipro, Infosys, Larsen and Toubro, ICICI, Accenture, Genpact, Reliance, Ernst and Young, Amarchand and Mangaldas, Khaitan and Co., Nishith Desai and Associates, and more.

Learn practical knowledge and specialized skills from industry experts like bureaucrats, ex-judges, law firm partners, and top litigators.

Reach out to other students from colleges like IIMs, IITs, MIT, Jadavpur University, BITS, TISS, IIFT, JBIMS, NMIMS, all of the NLUs, GLC, Symbiosis Law School, University of Petroleum & Energy Studies and a lot more.

Connect with individuals from 10 countries like China, USA, UK, France, Australia, Ghana, Zimbabwe, Dubai, Oman and more.

Benefit from our job and internship assistance program, iPleaders offline events, networking meetups etc.

If you are interested in the course, I would strongly recommend you that give me a call so that we can discuss whether the course will actually help you. You can call me right now on 09582630056 or send me an email on [email protected] to schedule a call.

Register yourself for free to access the demo version of the diploma course.

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Will and its importance

By
Donnie
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0

A will or testament is a legal declaration which authorizes the testator to name the people who would inherit his estate after his death. He can specify his intentions which he wishes to be fulfilled after his death and clarify all confusion regarding the distribution of his property. A will once made can be revoked by the testator only during his lifetime. It cannot be changed or disregarded after the event of his demise and thus it is the best way to dispose off one’s property. However one thing has to be kept in mind. A testator can only make declarations regarding his self acquired property by way of a will. He cannot give away the joint family property or any other property not solely belonging to him.

 

STATUTORY BACKDROP OF A WILL:

The Indian Succession Act applies to all religious communities across the board. This act however does not apply to Muslims who are governed by their personal laws. The Indian Succession Act, 1925 (S. 5) deals with both intestate and testamentary succession. When a person dies by leaving behind a will it is known as testamentary succession. S. 2(h) of the act defines the term ‘will’ as a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

 

WHO CAN MAKE A WILL?

Any individual who has attained majority and is of sound mind can make a will. In India, a person attains majority at the age of 18 years. This is governed by the Indian Majority Act, 1875. A person of unsound mind can also make a valid will if it is made during his lucid interval. A will made by a minor is void even though a testamentary guardian can dispose off his property. One must be wondering as to whom one can make the beneficiaries of a will. The answer to this question is very simple. S. 112-117 of the Indian Succession Act states that any person who can hold property can be a beneficiary of a will. Thus a minor, a person of unsound mind, a juristic person, a corporation, etc can be a legatee.

 

WHY SHOULD ONE MAKE A WILL?

Writing a will is considered to be a huge hassle as a result of which many people prefer to die intestate. However a will is of immense importance. Let me illustrate this with a simple example. Mr India has three sons Goa, Assam and Punjab. He is extremely close to Goa but is not at all fond of Assam and Punjab. He feels that making a will is an extremely difficult process and hence he decides to not make one. One day, he dies suddenly. His property is divided into three equal parts among the three sons even though Mr India would have loved the entire property to go to Goa. Thus we see the importance of a will. I shall point out 10 reasons as to why every person should have a will of their own.

1)      The most important thing about a will is that it leaves comprehensible and explicit instructions about the deceased’s property and estate.

2)      A will specifies the inheritor of each share of the property and lessens the scope of any confusion that might arise in future. It therefore helps in mitigating family disputes.

3)      A will lets one choose those people whom one would like to inherit their property after their death. In case one dies intestate, the property devolves by intestate succession under the Hindu Succession Act and those people whom one might not like may also inherit the property.

4)      A person making a will creates a safety garb for his minor children. He can appoint a guardian of his choice and also make any financial arrangements for them.

5)      A will can be instrumental in protecting one’s business. One can pass on their company and power of attorney to one’s preferred heirs thereby reducing friction in business ventures.

6)      In case of remarriage, a will helps one to ensure that the children from the first marriage are not left out from inheritance in any manner.

7)      Wills may not only specify the inheritance in favour of friends and family members but may also include a charity or any other organisation.

8)      The best thing about a will is that it is not an irrevocable instrument. A will can be revoked during the lifetime of the testator. A will can also be modified. If circumstances change and the testator become dissatisfied with the behaviour of any of his relatives, he can exclude his name from his will.

9)      If a person dies intestate then laws of inheritance and succession apply. Such laws are extremely complicated and difficult to interpret. They are vague like any other personal laws and people interpret it according to their own interests. This results in a lot of family feuds with respect to the deceased’s property. To add to it all, these laws vary among people of different religion.

10)  Another advantage of will is that one can make one’s own will. There is no legal requirement to get a will made by a lawyer. Thus the pain of visiting the lawyer everyday can be done away with.

A will is so important that it should be the first step taken towards financial matters. It should be clearly written so that the intention of the testator is brought out unequivocally. One should not shy away from writing a will in fear of complicacy. Shankar Pai, the founder of Make a Will Foundation had once said that people are very reluctant to bring up the topic of will. They either feel that the person asking about the will is hinting towards their imminent death or is eyeing their property. Such inhibitions should be done away with and making a will should be every individual’s New Year resolution.

 

This article has been written by Arpita Sengupta

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