Legal analysis : German competition regulator prohibits Facebook to combine user data from WhatsApp and Instagram

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December 7, 2021

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This article is written by Niharika Agrawal, from IFIM Law School. This article analyzes the legal perspective behind the German competition regulator that prohibited Facebook from combining user data from WhatsApp and Instagram.

Table of Contents

Introduction

The German Federal Cartel Office (Bundeskartellamt or FCO) in its landmark judgment delivered on 6th February 2019, has imposed certain restrictions on Facebook from combining the users’ personal data with its owned services such as WhatsApp and Instagram without the voluntary consent of the users. Following this decision, Facebook is under obligation to modify all the terms and conditions of the service for the users who are based in Germany. This has also dimmed the line between data protection laws and competition law. This decision has an important perspective as it focuses on Facebook’s complete mechanism of personal data with respect to both data protection and competition law aspects. This article includes the legal perspective of the entire action taken by the Bundeskartellamt and the consequences of such a decision upon Facebook.

Case summary

In Germany, Facebook.com was first available to its users in 2008. Its user base has been increasing continuously worldwide. In 2018 the number of daily active users in Germany was 23 million, while 32 million users were classified as monthly active users. It blooms and manages different digital products, networked services, and smartphone applications. It has millions of users in the entire world. It also has the provision for private users to access through the website www.facebook.com or via mobile application. Such private Facebook.com use is on the terms of registration by signing into a user profile. With the help of all the personal information that the users have provided, separate personal accounts are created for each user. Based on this account, the user gets access to other private and commercial users. Such order of appearance is based on the user’s interest. Along with private users, business entities, associations, or business individuals can get access to Facebook.com to produce content on the social network in order to increase their organizations. These social networking sites offer a variety of further functionalities, e.g. a job board, an app center, or event organization.

Till date, the individuals were able to access the social network by agreeing to the terms and conditions of services which stated that Facebook is allowed to gather the data even outside the facebook website that is on the internet or on any of the mobile applications and can assign this data to other related Facebook user accounts. Due to this, other Facebook-owned websites, applications, and also third-party websites and smartphones including Facebook were able to merge or combine all the data collected and assign it to the user’s Facebook profile. Such arrangement of data sources in specific enabled Facebook to build a unique database on each individual user.

There are two ways in which third-party sources are generated.

Firstly, if the source is created by utilizing the corporate services owned by Facebook which includes WhatsApp and Instagram.
Secondly, if the user data is generated by the use of third-party websites and applications.

Third-party sources include Facebook-owned services such as WhatsApp and also third-party websites and applications. If the third-party website has fixed “Facebook Business Tools,” such as the “Like” button, “Facebook login,” or the analytical services, like “Facebook Analytics,” then the user’s data gets transmitted to Facebook through “Application Programming Interfaces” (APIs) even when the user calls up or install that third-party website for the very first time. As per the terms and conditions of Facebook, such user data can be used and merged with the data from the user’s Facebook account. This arrangement continues even if users have blocked web tracking in their browser or device settings. According to FCO, these terms and conditions are neither justified under data protection principles nor are they appropriate under competition law standards. Hence millions of such operations were observed on German websites and applications.

These combinations of data sources for building a unique database on each user by Facebook led FCO to initiate proceedings. The FCO commenced its case against Facebook Inc. USA, the Irish subsidiary of the company, and Facebook Germany GmbH, Hamburg. According to the authority speculation, due to particular terms and conditions of service on the operation of users’ data, Facebook has misused its probably dominant position in the market for social media and has violated data protection provisions. Later, however, it was observed that Facebook use of unlawful conditions represents an abusive imposition of unfair conditions on users. Hence the FCO examines the extent of the connection between the possibly dominant position and the use of such clauses. Upon this, the FCO president Andreas Mundt stated that “Dominant companies are subject to special obligations. These include the use of adequate terms of service as far as these are relevant to the market. For advertising-financed internet services such as Facebook, user data are hugely important. For this reason, it is essential to also examine under the aspect of abuse of market power whether the consumers are sufficiently informed about the type and extent of data collected.”

The FCO also observed that if there exists a connection between such infringement and the market dominance and also since data protection boundaries set forth in the General Data Protection Regulation (“GDPR”) were exceeded, then it constitutes a huge violation of competition law.

Legal analysis

Violation of market power based

FCO made a detailed analysis while determining the relevant market. During its analysis, it has examined Facebook’s business model and a unique feature of multi-sided network market service without any monetary fees. On the basis of the concept of demand-side substitutability, the FCO defines the product market as a private social network market that includes private users as the relevant opposite market side. Germany is that one relevant geographic market. Along with this the FCO also found out that Facebook contains a dominant position in the German market for social networks of private users and is consequently subject to abuse control under German competition law.

Violation of dominant position is dependent upon the extent to which Facebook gathers, combines, and utilizes the user’s personal data in their Facebook accounts. The important component of social networks and their business model is the data that is assigned to a particular service user thinks it to be collected and used only to a certain extent. Nonetheless, the users were unaware of the fact that private use of the network is subjected to Facebook, which is able to gather unlimited and any type of user data from the third party source and allocate it to the user’s Facebook personal account. This also enables them to use such data for other numerous data processing processes.

As per the assessment of market share, it is considered that the time spent on the use of social networks is an essential element of the competitors’ actual market position. According to the recent amendment in the German Competition Act, 1958, the company market power is not only based on the assessment of its market share but also depends upon access to competitively relevant data, economies of scale based on network effects, the behavior of users who can use several different services or only one service, and the power of innovation-driven competitive pressure. These direct network effects make it difficult for the users to switch to another social network.

As a result, this geographic Germany-wide market was used predominantly in order to connect peoples in the users’ own country, special nation user habits, and lack of opportunities for supply-side substitution.

Facebook as market-dominant position

In Germany, Facebook.com was first available to its users in 2008. Its user base has been increasing continuously worldwide. In 2018 the number of daily active users in Germany was 23 million, while 32 million users were classified as monthly active users. The market share of Facebook is more than 95% of daily active users and more than 80% of monthly active users. Facebook carries a dominant position in the national market for social networks for private users as per the view of Section 18(1) together with (3) and (3a) GWB. On the basis of an overall assessment of all factors of market power, the scope of action in this market is not completely controlled by the competition.

Services provided by other social networking sites such as Snapchat, Youtube, Twitter, or any professional networks such as LinkedIn and Xing, etc. only provide the party service of a social network and due to this, they are excluded from the relevant market. However, Facebook and its group of subsidiaries which includes Instagram and WhatsApp achieve the highest market shares that ultimately are indicative of a monopolization process. Direct network effects of Facebook’s business model are the strong element of market dominance which also creates difficulties for the users to switch to another social network. Competitors such a StudiVZ and SchülerVZ, Google+ have experienced a continuous decrease in the user-based market shares and hence left the market. The strong identity-based network effects lead to a lock-in effect that attracts the users and prevents them from switching. Recent functionalities do not reduce the consequences of Facebook’s incompatibility with others.

Observing the market dominance position of Facebook, FCO President opined Andreas Mundt that: “As a dominant company Facebook is subject to special obligations under competition law. In the operation of its business model, the company must take into account that Facebook users practically cannot switch to other social networks. In view of Facebook’s superior market power, an obligatory tick on the box to agree to the company’s terms of use is not an adequate basis for such intensive data processing. The only choice the user has is either to accept the comprehensive combination of data or to refrain from using the social network. In such a difficult situation the user’s choice cannot be referred to as voluntary consent.”

Violation of data policy

Utilizing and applying Facebook’s data policy, which enables Facebook to gather user device-related data from third-party sources of Facebook and then to combine it with data collected on Facebook account, leads to violation of a dominant position on the social network market in the form of exploitative business terms under the general clause of Section 19(1) GWB. Considering data protection law in accordance with the General Data Protection Regulation (GDPR), the functioning of Facebook is an inappropriate term that may cause harm to both private users and competitors.

Upon examination by the FCO, it was observed that Facebook data policy needs compulsory voluntary consent of the user to collect and combine the data with the third-party websites and applications, and hence, non-compliance to this has led to abuse of dominant market position. Due to the terms and conditions of Facebook, the users do not have sufficient control over the mechanism of the data and its assignment to their Facebook account. Such violation terms and conditions can be held as abuse under German Competition law, however, such scope of qualitative abuse is not well defined. To deal with this the FCO considered section 19 which applies to the cases where one contractual party has powerful control so that it is able to order the terms of the contract to the other party. It protects the parties from an unbalanced negotiation position against the contract terms that violate constitutional rights or any provisions under civil law.

The FCO further examined that Facebook’s extensive processing of personal data from outside sources and with Facebook-owned tools is a violation of European data protection requirements as it is subjected to the affected user’s consent. It is also derived that Facebook has the dominant market position, the users are obligated to give consent to the terms and conditions, only pursuant to concluding the contract. This process is not considered as the free consent of the user under the GDPR. Therefore, Facebook was asked to no longer merge any data in any comprehensive manner unless there is the voluntary express consent of the user.

GDPR has been in effect since May 2018. The data processing policies under GDPR stated that Facebook has no proper and effective reasoning for collecting data from other sources. The processing of data is neither required to fulfill contractual obligation nor does a balancing interest. Hence, Facebook does not obtain any voluntary consent for its processing of the affected data. The consent of the user would have been only effective if the provisions of the Facebook.com service were not subject to this consent.

Judgment

The Bundeskartellamt has terminated the conduct of the data processing policy that Facebook imposes on its users and its corresponding implementation in accordance with Section 19 (1) GWB.
The termination includes the terms of processing personal data as stated in the terms of service and explained in the data and cookie policies unless they involve the collection of user and device-related data from other corporate services and Facebook Business Tools without the users’ consent and also their combination with Facebook data for purposes related to the social network.
The necessary changes and to adapt its data and cookie policies need to be made accordingly within a period of twelve months. In addition to that Facebook has been given a deadline of four months to present an implementation road map for the adjustments.
The time limits can be suspended by an emergency appeal to the Düsseldorf Higher Regional Court.

Facebook has already appealed against this decision to the Düsseldorf Higher Regional Court and requested that the suspensive effect of the appeal be restored.

Data protection and Competition Law

Social networks are data-driven products. Hence, access to the personal data of users is an essential element for the market position of a company. Along with this, the protection of its users’ personal data is an important factor in terms of data protection authorities and competition authorities. Therefore, FCO is investigating both market positions of the huge data collectors on the data processing side within the scope of the inquiry sector into online advertising. The legislators have considered the fact that in the digital economy the collection and processing of data and the appropriate terms and conditions represent an entrepreneurial activity that is very important for competition. Access to data in all the scenarios related to online platforms and networks is known as a relevant factor for market dominance under Section 18(3a) GWB.

Continuance of access to the data processing activities of dominant position entities is an essential work of competition authority that cannot be carried forward without data protection officers. In such cases, the competition authority takes into account the data protection principle specifically for examining whether the terms and conditions that are framed for the processing of data are appropriate. Hence, in this way, there is a connection between competition law and data protection law.

Consequence

Facebook-owned services such as WhatsApp or Instagram can continue to collect data for their services only in the manner and to the extent of the users’ voluntary consent.
For third-party sources, voluntary consent by the user is required for their collection of data.
Without the consent of the user, Facebook cannot merge the data in a comprehensive manner and data processing must generally take place in an internally separated process.
If Facebook continues to collect the data from outside and combines it without the consent of the user, then the processing of such data would be substantially restricted.

Conclusion

As per the decision given by the FCO, Facebook has to adapt and change the terms and conditions of services that are imposed on its users in Germany and the data processing conditions. This decision has created a significant impact upon the users as well as on the two important laws that are data protection law and competition law. The ultimate aim of this decision is the protection of the personal data of the users and keep them in safe hands. The consumers’ voluntary consent is very important in every aspect and in any field. They carry the right to privacy which needs to be protected by laws.

References

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Whether court can reduce the sentence awarded to the accused if there is a compromise between victim and accused

By

Rachit Garg

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December 7, 2021

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This article, authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab will take you through some relevant judgments wherein the Supreme Court has dealt with the question of whether the court can reduce the sentence awarded to the accused if there is a compromise between the victim and accused.

Table of Contents

Introduction

Section 320 of the Code of Criminal Procedure, 1973 provides a list of compoundable offences and by whom such offences may be compounded. A bonafide compromise entered into between the accused and victim in case of a compoundable offence has the effect of acquittal of the accused. The Supreme Court of India has ruled that Section 320 is not applicable in respect of compromise in case of a non-compoundable offence; but the fact of such compromise can be taken into account in determining the quantum of sentence. It is also pertinent to note that the Supreme Court and High Court can quash the criminal proceedings in non-compoundable offences by exercising their extraordinary power under Article 142 of the Constitution of India and Section 482 of the Cr.P.C. respectively. However, such power can be exercised only in case of offences that are predominantly private in nature and not in the case of heinous offences.

In its judgement dated 20th September 2021, the Supreme Court has held that a compromise entered into between the accused and complainant/victim in a criminal case is one of the mitigating factors in interfering with the sentence of the accused but it cannot be the solitary basis for a reduction in sentence.

This article will talk about some important judgments of the Supreme Court dealing with the question—whether the court can reduce the sentence awarded to the accused if there is a compromise between the victim and accused.

Bhagwan Narayan Gaikwad v. State of Maharashtra (2021)

This is an appeal against the judgment of Bombay High Court wherein the conviction of the accused under Section 326 I.P.C. was confirmed and the victim was given a compensation of Rs. 2 lakhs under Section 357 Cr.P.C.

Facts of the case

The incident happened on 13 December 1993 when the victim was returning to Malegaon from Tembhurni on a bicycle. The accused persons arrived there on a tractor and pelted stone at him. The accused-appellant gave a blow on his right leg with a lethal weapon. The victim was severely injured and there was profuse bleeding. His lower right leg was detached and severed and his right arm was hanging by the skin. He was taken to the hospital and his dying declaration was also recorded. The doctor who examined the victim deposed that his condition was very critical and without immediate medical intervention, the injuries would have resulted in death. As a result of the incident, the victim was crippled for life.

The trial Court convicted 12 accused persons for the offence of causing grievous hurt under Section 326 I.P.C read with Section 149 I.P.C. Each of the accused was sentenced to 7 years of rigorous imprisonment and a fine of Rs. 1000 each.

In appeal, the High Court found the accused A3, A4, A10 and A12 including the present appellant(A1) guilty and the rest were acquitted due to lack of evidence against them. The High Court sentenced the appellant to 5 years of rigorous imprisonment and ordered him to pay Rs. 2 lakhs as monetary compensation to the victim.

In the appeal before the Supreme Court, it was submitted on behalf of the appellant that the offence should be compounded in view of the compromise entered into between the appellant and the victim. A compromise affidavit of the victim was placed on record. It was also submitted that the parties have settled the dispute amicably and cordial relations have developed between the families.

Decision of the Supreme Court

Taking note of the permanent injury caused to the victim, the Hon’ble Supreme Court held that the appellant was rightly convicted under Section 326 I.P.C. The Court referred to the case of Ram Pujan and Others(1973) and Murli(2021), wherein the Supreme Court recorded its satisfaction that the compromise entered into by free will and without any coercion could be relied upon while considering the issue of altering the sentence. However, in the present case, the Court was unable to record its satisfaction on the contents of the compromise affidavit as it was obtained overnight after the conviction of the accused-appellant was confirmed by the High Court. The Court observed that the statements made in paragraph 3 of the compromise affidavit are superfluous, stereotyped and nothing can be deduced from it regarding the earlier relations between the parties and what kind of relations have subsequently developed between them.

The Court held that the compromise between the accused and the victim cannot be the solitary basis for reducing the sentence awarded in case of non-compoundable offences and other aggravating and mitigating factors are also to be taken into consideration. It was held that the act of the appellant is unpardonable as the victim had become permanently disabled and is doing his daily chores with a prosthetic arm and leg.

Murali v. State rep. by the Inspector of Police (2021)

Two connected appeals i.e. Murali v. State rep. by the Inspector of Police and Rajavelu v. State rep. by the Inspector of Police came before the Supreme Court from the judgement of High Court of Madras-

upholding the appellant Murali’s conviction under Sections 324 and 341 of the I.P.C
upholding the appellant Rajavelu’s conviction under Sections 307 and 341 of I.P.C.

Facts of the case

During a volleyball match, Senthil(friend of the victim) had a verbal altercation with accused no. 3 and accused no. 5. The victim came forward to help his friend and opposed both accused. Then, a day later, the appellants, Rajavelu and Murali(accused no.1 and 2) along with accused no. 3,4,5 cornered the victim and assaulted him. Murali hit the victim on the head with the hockey stick and Rajavelu tried to kill him by giving a neck blow with a sharp-edged object. The victim was able to block the blow, but in the process, his left hand and thumb and finger of the right hand got severed. Thereafter, the victim escaped. All the 5 accused were arrested for offences under Sections 147, 148, 341, 352, 323, 324, 307 and 34 of the IPC. The Trial court gave the following judgement—

Murali was held guilty of wrongfully restraining the victim and voluntarily causing hurt with a dangerous weapon. He was sentenced to 3 months rigorous imprisonment under Section 324 I.P.C and one-month rigorous imprisonment under Section 341 I.P.C. Both sentences were to run concurrently.
The Court held that Rajavelu had clear intention to murder the victim and he was awarded 5 years rigorous imprisonment under Section 307 I.PC. and one month of rigorous imprisonment under Section 341 I.P.C.

Both the appeal and criminal revision petition filed by the appellants were dismissed. Thereafter, they approached the Supreme Court against the dismissal of their appeal by the High Court. The appellants sought the compounding of their offences on the ground that they had arrived at a peaceful settlement with the victim. The Court, however, issued limited notice only on the quantum of sentence.

Decision of the Supreme Court

The Supreme Court held that an amicable settlement between the accused and appellant can be a relevant factor for reducing the quantum of sentence. The Court observed that the parties have entered into an amicable settlement on the advice of their elders. They have admitted their faults and sought a genuine apology from the victim, which was benevolently acknowledged and accepted by him. Considering the peculiar circumstances of the case as mentioned below, the Court held that this was a fit case to take a sympathetic view and to reconsider the quantum of sentences awarded—

Parties have mutually resolved their differences. It is clear from the affidavit of the victim that the apology has been voluntarily accepted.
There is no question of settlement being obtained by coercion or inducement.
The appellants are now grown up and mature and present little chance of committing the same crime.
Appellants have no other criminal antecedents or previous enmity. They are now married, have children and are the sole bread earners of their family.
Both the appellants have served a significant portion of their sentences.

The Court, thus, reduced the sentence awarded to the appellants to the period already undergone by them.

Ram Pujan v. State of U.P.(1973)

This appeal by special leave preferred by the appellants was restricted to the question of sentence only.

Facts of the case

The four appellants, namely Ram Pujan, Raj Kishore, Rajendra and Ram Brikchh armed with swords and lathis, along with three others went to the house of one Ram Samujh. At the instigation of appellant Ram Pujan, the other three appellants assaulted Ram Samujh. When Ram Samujh raised the alarm, one Ram Sewak came there and he too was assaulted by the appellants. Ram Sewak caused injury to one of the appellants (Ram Brikchh) in self-defence.

The trial court gave the following judgement—

The four appellants along with 3 others were convicted under Sections 326 read with 149 and 323 read with 149 I.P.C. and were sentenced to undergo rigorous imprisonment for four years on the former count and three months on the latter count.
Appellants Rajendra and Raj Kishore were also convicted under Section 452 I.P.C. and were sentenced to undergo rigorous imprisonment for two years.
The four appellants were also convicted under Section 148 I.P.C. and were sentenced to undergo rigorous imprisonment for one year each.

All the sentences were ordered to run concurrently.

In appeal before the High Court, an application for compromise was filed on the behalf of injured persons, in which it was stated that the injured and the appellants belong to the same family and have affected an amicable settlement of their dispute and wanted to live in peace. After getting the compromise verified, the High Court ordered that no permission to compound the offence could be granted as the offence under Section 326 is non-compoundable. However, the Court reduced the sentence under Section 326 from four years to two years.

The High Court gave the following judgement—

The conviction of the appellants was altered to that under Section 326 read with Section 34 and Section 323 read with Section 34 Indian Penal Code and they were sentenced to rigorous imprisonment for two years on the former count and three months on the latter count.
Three others stated to be with the accused were acquitted.
The conviction and sentence awarded to appellants Raj Kishore and Rajendra under Section 452 Indian Penal Code were maintained.

Decision of the Supreme Court

The Supreme Court held that the major offence for which the appellants were convicted is non-compoundable but the fact of compromise can be taken into account for determining the quantum of sentence. The Court held that as parties belong to one family and have settled their dispute it is not necessary to keep the appellants in jail. Considering that the appellants were not released on bail during the pendency of the appeal and had already undergone a sentence of rigorous imprisonment for more than four months, the Court reduced their sentence of imprisonment to the period already undergone provided each of them pays a fine of Rs. 1500.

Other relevant case laws

Ishwar Singh v. State of MP (2008)

In this case, a mutual compromise was entered into between the accused and the complainant. The Supreme Court reiterated that the factum of compromise between the parties is a relevant factor to be considered while imposing substantive sentences. Considering that the offence was committed by the appellant when he was 20 years of age and parties resided in the same village and were also relatives, the Court reduced the sentence of imprisonment awarded to the appellant to the period already undergone.

Shimbhu & Anr v. State Of Haryana(2013)

This is a rape case involving the gang rape of a minor girl. The trial court awarded 10 years of rigorous imprisonment to the appellants, which was confirmed by the Punjab and Haryana High Court. In the present appeal before the Supreme Court, the appellants filed an affidavit from the victim. The affidavit stated that the victim was now married and is leading a peaceful life with four children and that she had settled the matter with the accused and did not want to prosecute the matter further. The affidavit also stated that the victim had had no objection to the sentence of appellants being reduced to the period already undergone.

While rejecting the plea of the accused, the Supreme Court in its judgement held that a compromise entered into between a rape victim and the accused not to prosecute the complaint further cannot be a leading factor based on which lesser punishment can be awarded.

The Court observed that rape is a non-compoundable offence and an offence against society. It is not a matter to be left for the parties to compromise and settle. The Court cannot always be assured that such compromise is genuine and with the free consent of the victim. There is every chance that the victim is being pressurised by the convict or the trauma undergone by her might have compelled her to opt for a compromise.

The Court held that “In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC.” The fact that the rapist has offered to marry the victim, or the social, economic status, religion, race or caste of the accused or victim or the pendency of criminal trial from a long period cannot be a special factor for reducing the sentence prescribed by the statute.

Conclusion

While it is trite that the compromise between the victim and accused can be a relevant factor for reducing the sentence of an accused/convict, it can never be the sole factor to do so. Every case has to be judged according to its own nature, facts and circumstances involved. For instance, in case of heinous offences such as rape, no compromise should ever be permitted by Court or relied upon while considering the question of sentence. The punishment imposed should always be commensurate with the gravity of the offence and crime being an act to the detriment of the whole society should always be dealt with sternly.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Sexual harassment in digital space

By

Diva Rai

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December 7, 2021

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OGBV_1200 — Image source - https://bit.ly/3y0teEy

This article is written by Himanshu Mahmuni, a student of Government Law College, Mumbai. This article analyzes the concept of sexual harassment in digital space and its difference from a physical one, its constitutes need of specialized law and lastly investigation and remedies available.

Table of Contents

Introduction

The widespread use of the internet has led to a tremendous increase in participation in digital space, especially due to the COVID situation. As the space is used to access information, it has equally exposed users to be a victim of sexual harassment. The greatest disadvantage of virtual sexual harassment is the difficulty to trace back the perpetrator because of its feature of being anonymous. The victims often feel powerless and don’t even bother to register a complaint against online sexual harassment and even if they register there is the very little impact that is seen. Out of every ten people, eight experience online harassment of some kind or another.

There are around 41% of women among those who face sexual harassment in the digital space. Major forms of harassment reported are abuse and insults, malicious gossip and rumours, malicious comments or threats on social media, trolling and attacks or abuse from a coordinated group. The Indian laws fail to frame differentiated provisions to combat such harassment and majorly depend on the amendment and current provisions in the various acts.

This article focuses on the discussion of how virtual sexual harassment is different from the physical one, the constituents of sexual harassment, the need for a specialized digital sexual harassment code and what are the investigation and remedies available to the victims.

Difference between physical and virtual sexual harassment

Sexual harassment was defined by the courts in the Vishakha verdict. This case explained the term ‘sexual harassment at the workplace and put forth Vishakha guidelines and norms for the same. The definition was an inclusive definition that includes unwelcome sexually determined behaviour whether directly or by implication as,

Physical contact and advances;
A demand or request for sexual favours;
Sexually coloured remarks;
Showing pornography;
Any other unwelcome physical or non-verbal conduct of sexual nature.

By the above explanation, physical sexual harassment can be defined as unwelcome sexual advances which can be verbally, non-verbally, or physically which includes touch.

Digital sexual harassment is termed as Technology-Facilitated Gender-Based Violence where digital space such as social media is used to cause harm. The 2018 United nations report of the Special Rapporteur on violence against women, its causes and consequences on online violence from a human rights perspective lists out various ways in which women are sexually harassed in online space. The list includes harassment, networked harassment, image-based sexual harassment and doxing. Online harassment may not include the aspect of physical touch of the act but the behaviour of the perpetrator leads to the same intention in both forms.

The difference in physical and virtual sexual harassment only consists of the physical element. The impact of harassment can be mentally the same in both cases. People are now spending more time on digital platforms, consequently, they have become more prone to be harassed online. Where the perpetrator is identifiable in the physical harassment as the presence is necessary to be harassed, it is not the same in digital space. The anonymity in digital space makes it difficult to identify the perpetrator due to its nature.

Constituents of sexual harassment in digital space

A proper set of laws against sexual harassment in digital space is missing in current legal provisions. There is a sudden need for a proper framework for such crimes with an instantaneous increase in the consumer space. Some of the provisions about it are mentioned in the Indian Penal Code, 1908 (IPC) and Information Technology Act, 2000 (IT Act). Some of the important crimes currently present in it are:

Disturbing images of women

Section 345C of IPC punishes offences where disturbing images of women engaged in private acts without consent are taken. It is not a crime if pictures are shared online with the consent of women, but sharing of pictures for which mere consent to take the picture was given constitutes a crime. Such offences under IPC are punishable for imprisonment up to 3 years which can increase up to 7 years and a fine.

Voyeurism

Section 66E of the IT Act punishes the act of voyeurism in cases of violation of privacy. The act shall knowingly or unknowingly, without consent, violate a person’s privacy by:

Taking photos of private areas of a person, or
Sending such photograph to someone else, or
Publishes such photographs,

is considered to be a crime punishable with imprisonment of up to 3 years and a fine which may extend to two lakh rupees.

Section 67A of the IT Act punishes the crime of publishing or transmission sexually explicit material online with imprisonment of up to 5 years and a fine which may extend to ten lakh rupees. The punishment for repeated or subsequent convictions for such offences is punishable with imprisonment of up to 7 years and a fine which may extend to ten lakh rupees.

Section 67B of the IT Act punishes publishing or transmission of material depicting children in sexually explicit acts, etc. in online mode is punishable with imprisonment of up to 3 years and a fine which may extend to two lakh rupees.

Circumstances, where a person’s privacy is violated, include the circumstances in which the person is ensured that his disrobing will not be captured or at least expected that their private areas will not be seen by the public.

Sharing obscene messages

Section 354A of IPC deals with the sharing of obscene pornographic or sexually explicit material to a woman without consent. Such an act is considered sexual harassment through social media and punishable under IPC. The perpetrator of such crime shall be punishable with imprisonment of up to 3 years, or fine or both.

Section 292 of IPC punishes the offence of sell, distribution, public exhibition or in any manner puts into circulation or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever. Such offence is punishable with an imprisonment of a term of 2 years and a fine which may extend up to two thousand rupees. Committing similar repeated or subsequent offences is punishable with imprisonment of 5 years and a fine which may extend up to five thousand rupees.

Section 294 of IPC punishes offences of any obscene act in any public place, or sings, recites or utters any obscene song, ballad or words, in or near any public place. Such offences are punishable with imprisonment of 3 months or a fine or both.

Online stalking

Unlike physical stalking, online stalking usually goes undetected due to anonymity in the digital space. That makes it difficult to catch the perpetrators. There are no dedicated legal provisions to nab online stalking in any of the laws. Section 72 of the IT Act deals with the penalty for breach of confidentiality or privacy. It punishes the release of another person’s information online without his permission with imprisonment up to 2 years or a fine of one lakh rupees or both.

Recent cases of sexual harassment in the digital space

Recently a software engineer based in Hyderabad was arrested by the cyber wing of Mumbai Police based on a complaint of Indian cricketer, Virat Kohli’s manager. The arrest was made because of the rape threat given by the perpetrator to the 10-month daughter of Virat as an outrage against Team India’s loss in a cricket match against Pakistan in the T-20 world cup. The person was booked under the following sections:

Section 354A (IPC)- Outraging modesty,
Section 506 (IPC)- Criminal Intimidation,
Section 500 (IPC)- Defamation,
Section 67 (IT Act)- publishing or transmission of obscene material, and
Section 67B (IT Act)- Sexually explicit material against children in e-form. If the person is convicted under the IT Act, he may face an imprisonment of up to 5 years and/or a fine which may extend up to ten lakh rupees.

A Karnataka High Court senior advocate, Indira Jaisingh, filed a contempt of court and sexual harassment case against a man who allegedly appeared semi-naked during a virtual hearing of Karnataka HC.
In another incident, a class XI boy was booked under harassment for flashing in an online coding class. On asking the motive of his actions to the boy he replied “just for the heck of it,”. The boy was well versed in coding and took necessary precautions to not get caught. However, a screenshot by the instructor of his background helped the police to catch the boy and he was later booked under sections of the POCSO Act.
The online consultation services of doctors are not safe from harassment either. Women doctors working on the online websites that provide 24X7 consultation services such as Practo and Dhani have been facing sexual harassment from patients. Inappropriate actions such as groups of men calling women doctors, stalking on social media, asking for personal numbers are being constantly carried by the perpetrators. The telemedicine consultation regulations need the patient and the registered medical practitioner (RPM) to know each other’s identity.
According to an Amnesty report, a woman politician in India receives on an average 113 problematic or abusive tweets per day. Online abuse belittles, demean, intimidates women, which as result silences them. Muslim women politicians face abusive online threats more frequently and severely, which accounts for 55% of most aggressive trolling towards Muslim women politicians.
Let’s look at the prominent case of State of West Bengal v. Animesh Boxi (2018) where the defendant, Animesh Boxi, was accused of uploading intimate photos and videos of his former girlfriend on pornographic websites. He was found guilty under Section 66E, Section 67 and 67A, Section 66C of the IT Act along with sections 44, 354 and 509 of the IPC. He was sentenced to imprisonment for a period of five years and charged with a fine of Rs. 9000. The court observed that the victim has suffered injury to her reputation and any physical injury was necessary to charge with sexual harassment, voyeurism, stalking and criminal intimidation. The case holds historic significance because it is the first of its kind to convict a case of revenge porn and be punished with harsh punishment.
Next is the judgement of Shubham Bansal v. The State (Govt of NCT Delhi) (2019), where the accused created a fake Facebook profile under the name ‘Nidhi Taneja’ and shared the number of the victim through it. An FIR was lodged against the accused under the provision of annoyance, insult, and harassment. The accused made an application to drop the proceedings against him under Section 66A of the IT Act and Section 509 of IPC. Delhi High Court refused the application and ordered to refrain from accepting further applications till the magistrate issues any directions.

In a similar case of Jitender Singh Grewal v. The State of West Bengal (2018), the accused created a fake Facebook account and uploaded the victim’s obscene pictures from it. The accused filed for a bail application after charges were filed against him. The trial court rejected the application and Calcutta High Court also upheld its decision. The above attitude of courts in both cases show the seriousness of the crime.

In another horrifying incident, popularly known as the ‘Boys Locker Room’, images of girls were shared by the boys without their consent and objectified them with sexist comments on an Instagram group named ‘Bois Locker Room’. Apparently, the girls on whom comments were passed were minor and this reflects the rape culture in our society. The Delhi Commission of Women (DCW) issued a notice to Instagram and Delhi High Court under the complaint of sharing objectionable pictures of minor girls and planning illegal acts such as rape. Further, a PIL was filed in Delhi High Court to seek a Special Investigation Team (SIT) or Central Bureau of Investigation (CBI) into the matter.

Role of POSH

The Vishakha guidelines acted as a base to formulate the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The POSH rules make it mandatory to bring in measures that prevent and redress such harassment at the workplace. A working place where the number of employees crosses over 10, an Internal Committee (IC) shall be formed to deal with sexual harassment complaints. The IC is responsible to conduct enquiry and funding the guilt or innocence of the accused. The workplace has an inclusive definition which also includes online platforms such as zoom and other online meeting instruments.

As the pandemic has moved the office to Work From Home (WFH), the role of POSH has also adapted to protect the victims from distant workplace harassment through digital mediums. The changing nature of harassment may include being on videos at odd hours, unwanted advances through chats, emails, and other platforms that constitute sexual harassment. TCS received 27 complaints, Infosys reported 25 complaints, Wipro reported 43 complaints in FY21 in spite of the WFH feature. There needs to be awareness training for the employees to raise the complaints and report them through the POSH act.

The terms defined in the POSH Act have broad meaning to protect and empower women from sexual abuse. The definition of the terms ‘workplace’’ and ‘sexual harassment have the words included to make the Act more inclusive and interpret broadly. In the case of Apparel Export Promotion Council v. A.K. Chopra (1999), the Supreme Court enlarged the definition of sexual harassment from traditional understanding to unreasonable interference in the work performed to create an intimidating or hostile work environment. The policies of all the companies are made by themselves in line with the act to protect their employees. The FMCG major launched a refreshed POSH policy in September quarter 2020 that is gender-neutral and LGBTQ+ inclusive.

The concept of Sexual Harassment electronic Box (SHe-Box) is also provided by the government to provide single window access to every woman for registration of complaints. There needs to be a sexual tone to the online advances to be included in the POSH guidelines. In the case of Prasad Pannian v. The Central University of Kerala and Ors, (2020), the Kerala High Court (HC) upheld that sexual harassment at the workplace shall start from an express or implied sexual advance or unwelcome behaviour with the sexual tone behind it. In the case of Jahid Ali v. Union of India, (2017) the Delhi High Court held that the messages sent in the online mode that of sexual overtones or derogatory nature by the employer to co-worker amounts to sexual harassment. The legal provisions in the POSH Act and the liberal interpretation of the courts are successful in protecting people from sexual harassment in digital space. Thus the POSH guidelines protect the victims from harassment at the workplace in digital space or WFH scenarios.

Need of a specialized digital sexual harassment code

There is no specialized code for digital sexual harassment. The Information Technology (Amendment) Act, 2018 made certain cybercrimes punishable. The IT Act as a whole fails to introduce any deterrent provisions for the prevention of crimes and only punishes certain crimes after its commitment. There is an increase in digital harassment cases but a very low conviction rate. The following can be considered as reasons for the need for a new code.

Scarcity of existent laws

Digital harassment has become a trend in this updated world and increased complexity. However, lawmakers are unable to keep up with the ever-increasing scope of digital crimes. The punishment for certain digital sexual harassment doesn’t even exist for conviction. The current laws are outdated and need constant updates on the laws on current as well as future aspects of crimes.

The existing laws fail to consider digital harassment to be equally harmful to the harassment done in a protected setting. The current statutes provide deterrent remedies for harassment taking place at a workplace or such protected settings, but harassment done by an unknown person on a digital space such as social media lacks any remedy from separate statutes.

Evidence admissibility

The new technical issues and obstacles in digital space are left unaddressed. The evidence in the case of digital harassment is always in electronic form. The evidence should be judged and scrutinized by an expert. The digital evidence must go through tests to be labelled as authentic and admissible in the courts. This process makes evidence collection difficult. There is a high possibility of a technical malfunction of digital software and also its fabrication.

Thus to deal with the digital sexual harassment cases, there needs to be more improvement in the technology which processes such cases. The provisions related to evidence must be covered by the current or new law, if enacted, according to the modern technological aspects.

The conflict between IPC and IT Act

The number of provisions is scattered over different Acts and not inclusive of all possible atrocities. The crimes are prosecuted based on the provisions given under the IPC and IT Act. The provisions are not sufficient to give justice to all the victims of a crime of such dynamic nature. The breach of privacy and stalking provisions have been used by victims of revenge porn in India. Our current legal framework lacks the statute to prosecute the crime of revenge porn and no legal remedies or provisions have been presented to remove images published online like revenge porn. The provisions overlap each other in both Acts and create a conflict of enforceability. Some of them are listed below.

Sections 67, 67A, and 67B of the IT Act prescribe punishment for publishing or transmitting obscene material in electronic form. The punishment varies from imprisonment up to 3 years to 7years and a fine from Rs. 5 lakh to Rs. 10 lakh, as discussed above. Similarly, Sections 292 and 294 of the IPC are applicable on selling, distributing, publicly exhibits or in any manner circulating or possessing any obscene book, pamphlet, paper, drawing, painting, representation or figure and punishes the offences from a range of imprisonment of a period from 2 years to 5 years and fine from Rs. two thousand to Rs. five thousand.

Section 66B of the IT Act prescribes punishment for dishonestly receiving any stolen computer resource or communication device, that is imprisonment of up to 3 years and a fine of up to Rs. 1 lakh. Section 411 of IPC punishes the crime of dishonestly receiving stolen property for a term of imprisonment of up to 3 years or fine or both. No maximum limit of fine is provided.

As observed some of the provisions overlap the other in both the acts and it is difficult to settle on a period of punishment since both provisions give separate punishments. These differences also bring out the question of whether the offences should be categorized as compoundable, cognizable, and bailable or not.

Investigation and remedy

Most digital sexual harassment goes unregistered because the victims are usually women who are sceptical or ignorant to initiate complaints against it. The various places to lodge a complaint are:

Cyber Cells– It can be an alternative to filing an FIR at a police station. These cells are specialised in the investigation of cybercrimes. In case there is no cyber cell, an aggrieved person can register the complaint at the local police station.
The National Commission for Women– This body does not register a complaint but helps the victim of online harassment to deal with the police. The commission can catalyze the inquiry by conducting spot inquiries, collecting evidence, interrogating witnesses and summoning the accused to expedite the investigation.

Even after setting up commissions, people do not opt to register the complaint because of the high cost for investigation or lack of time to invest in it. Moreover, it is also reported that investigating agencies are unable to solve 80% of the cybercrime due to lack of equipment. There are certain quick remedies offered by social media sites themselves. The action plan is based on three basic actions as a part of the initial strategy to reduce exposure to unwelcome messages. It includes:

Identify- The crimes need to be identified at the nascent stage and not ignored. No reaction or response is advisable to such material.
Block- The strongest action that can be taken to stop the person is the action to block the person.
Report- The user may report the message to a social media platform that investigates the messages and may even delete or suspend the account.

The victim can further choose to file a complaint against the perpetrator to the legal authority. If the victim is still sceptical about the complaint, the option of filing a Public Interest Litigation (PIL) is open to the victim. PIL is a method to secure public interest by the availability of justice to socially-disadvantaged parties.

Conclusion

The rise of internet usage has bought its risk with it, one of them is sexual harassment in the digital space. Sexual harassment only lacks physical touch or sense in virtual mode, otherwise, it has the same mental impact on the victim to traumatise. This has created hostility towards strangers and ignorance among victims to speak against the crimes. This gives a chance of escape to the perpetrators without conviction. The legal provisions have more room for improvement for the addition of rights of people which can be more inclusive. There is a need for a separate law to govern the ethical behaviour in the digital platforms too.

People are also seen as hesitant to complain against such crimes whose primary reason is a lack of awareness to do so. This ignorance encourages the abuser to misuse his freedom of speech to commit even horrible crimes if not stopped at the initial stages. The investigation and remedy suggested are not satisfactory but enough to start an initiative towards an inclusive set of laws and must seek justice through various means, one of which suggested is through PIL. Consumers are needed to be made aware of their rights to fight against such perpetrators and avoid being a victim of sexual harassment in digital space.

Resources

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Magecart attack : all you need to know

By

Diva Rai

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December 7, 2021

0

online-shopping-cart_magecart_hackers_shopping-online-100798500-large — Image source - https://bit.ly/3duW2eR

This article has been authored by Gurrashmeet Singh, a law student at Dr. B.R. Ambedkar National Law University, Sonipat, Haryana. This article provides you with insight into the growing data skimming attacks of Magecart.

Table of Contents

Introduction

With the evolution of the internet and everything being just one click away, online skimmers have also evolved with it. They try to find new and new gigs to manipulate innocent consumers and try to steal their sensitive information. They try to insert viruses, bugs, and other malware which infect the processing line of the big companies and make it difficult for them as well as the consumer to contract with one another. Cybercrime and Magecart assaults are increasing in tandem with the growth of online commerce. Magecart, a loosely coordinated collection of cybercriminals, compromised more than 12 third-party software manufacturers between 2017 and 2018, resulting in supply chain assaults.

Digital skimming is the new normal for today’s e-commerce businesses. This sort of attack nets hackers a lot of money with very little work. In one scenario, a single line of JavaSc r ipt was used to load a malicious script that was used to carry out a card skimming attack on thousands of websites. The bulk of digital skimming attacks are directed at third-party content management systems and online shopping cart platforms. Companies rely on them to improve the efficiency and usability of their e-commerce platforms. However, digital skimmers are constantly targeting these third-party programs in order to exploit their security flaws. Since 2015, the Magecart actors have been active and have never shied away from their chosen criminal activities. Instead, they’ve been refining their techniques and goals to get the most out of their work. They’ve refined their methods over time, resulting in successful breaches of third-party companies including Inbenta, SociaPlus, PushAssist, Annex Cloud, and others.

What is Magecart

Magecart is the form of online data skimming that steals the data and information from the payment cards, they usually target the shopping apps and attack the client-side browser as the front-door for consumer interactions. It is not an organization or association of hackers, rather is a categorical name given to the certain type of data skimming that attacks the online payment transactional information of the customers. There are a plethora of groups or individuals, who tend to use this kind of style to get into the system of high-profile companies and compromise with their payment forms.

In general, Skimming is the method of stealing and thieving sensitive information, which comprises email addresses, credit card numbers, passwords, PINs, and other online payment forms. Talking specifically about the syndicate of Magecart, the skimmers embed a wicked code into the website to steal the credit card and payment information. These hackers try to eavesdrop on these transactions and steal the data from the rightful owners of the information. These e-commerce websites are ready to go hi-jack for the hackers because all these websites use online payment options and don’t properly vet the codes into the website and use third-party pieces, when consumers tend to fill the credit card credentials, they steadily steal the data. The core idea behind these attacks is to compromise third-party software from the VAR or systems integrators or affect the processing of the industry.

How does Magecart work

These types of data skimming work step by step. Magecart operates as the collaborator with the website and gains access to the website, and then skim the data to their own servers. They embed the code or bug and can send the information to wherever they want to.

Gaining the access to the website

To gain access to the website, there are mainly two ways by which these hackers can get direct access to the inside of the software. The hackers can either directly break into the setup codes or server and implant their codes and bugs inside the original and ethical coding of the software used by the online retailers. The other way is to collaborate with one of the third-party vendors that work with the online retailers to better and smoothen the functioning of the website, as they are also the easy targets and will infect the third-party tag that will run a malicious code on your website when called in the browser.

Skimming the information from the credentials

There are numerous ways by which these skimmers can steal your data, but the most common way to steal and imprison the data is through embedding the malicious code into the JavaScript that garners your personal information and credentials. The attackers do it by a certain approach where they monitor every keypress on the sensitive pages or some that intercept into some specific parts of the webforms like the credit, debit cards, PINs, and CVV credentials. They innuendo the code inside some other code that looks naïve to avoid the detection.

Transferring the information back to their servers

After they have implanted the code or bug, there is no way to stop them. Once they gain access to the website and insert the malicious code, they can send the data and credentials to wherever they want in the world. They end sending the sensitive information from the end-user browser to almost any location or place on the internet to any server in the world.

Evolution of Magecart

Over the past few years, the Magecart attacks are expanding their roots to the whole internet. They are becoming more and more common and hackers have evolved with them. In the initial years, when the Magecart came into existence, it was far easier to detect the Magecart attack than it is now. Now, these skimmers are used to embed and modify the malicious and unethical codes in a hideous way within the naïve codes that seem not at all obnoxious and that makes it nearly impossible to detect the threats looking at just a third-party code. Now, they get access to the main servers of the companies and implant the bugs or codes by changing the whole Javascript of the website and then try to transfer the whole data to their own servers.

Usage of Ad Servers

The skimmers use the ad servers to get into your computer. They tend to use an infected advertising banner, and the ad servers will place the Magecart code into a web server. When the user clicks on that ad in the browser, the code gets embedded into your computer. These malware codes can also be hosted by an already compromised server.

Usage of targeted and elaborate attacks

This demonstrates a shift away from widely disseminating malware in favor of spending time with potential victims to examine their coding and infrastructure. This is exactly what occurred to British Airways when hackers exploited the logic flow of its internal systems. Magecart was able to access information that was not even stored on British Airways’ servers.

Prominent Magecart attacks

Ticketmaster

The first notable magecart payment stealing theft was reported, when the Ticketmaster, a ticket sales, and distribution company, made the news official on June 27. 2018 that the information of the consumers had been compromised. It was not just a minuscule breach but a huge hacking scandal involving 800 e-commerce websites. The Magecart skimmers, illegitimately, entered the server of these e-commerce websites and stole the payment information of the consumers. The hackers were able to execute the theft by the method of hacking the third-party pieces shared by many of the most used e-commerce websites. The hackers did not directly break into the servers of Ticketmaster, but rather through the third-party vendor of the site, Inbenta. But the vendor, Inbenta has eluded stating directly that they were compromised.

British Airways

On September 6, 2018, British Airways announced that their website and mobile app has been compromised and a massive amount of payment information of the customers has been stolen by the hackers. They were able to take the control of both the website and mobile app and transfer the information to their own server. Approximately, 380,000 people got affected by the surge and their information got breached. But fortunately, the hackers were only able to get access to payment credentials only and were not able to steal the passport information of the customers. Payments were affected from August 21, 2018 to September 5, 2018 from both the website and Mobile app. Magecart inserted the malicious script into the payment forms of the British airways from where they were able to skim all the data to their own servers and take the advantage of the payment information of the consumers.

British Airways (BA) has now opted for the option of out-of-court settlement with the victims of a data breach that exposed over 420,000 customers’ personal information. The airline has agreed to pay an undisclosed sum to thousands of claims as part of a settlement with PGMBM, the court-appointed law firm representing victims. There is no acknowledgment of culpability on the side of the operator in the resolution.

Amazon S3 Buckets

This Magecart attack occurred in July 2019. The skimmers behind the breach automated the process of breaching sites by directly scanning for misconfigured Amazon S3 buckets, managing to break into the large database of S3 buckets to impact over 17,000 domains of e-commerce retailers. This list included websites in the top rankings websites of the Alexa ranking index.

Filters fast

As a consequence of a breach that lasted between July 2019 and July 2020, when the problem was ultimately found, Filters Fast joined the expanding list of online businesses that have been hit by a Magecart-style credit card skimmer assault. After 324,000 US persons were harmed by the hack, the Attorney General of New York (NYAG) filed a lawsuit.

Now, Filters Fast agreed to pay $200,000 to settle a data breach inquiry originating from a cyber-attack in 2019 that exposed the credit card information of an estimated 320,000 customers. The US air and water filtration company agreed to pay the fine to the New York Attorney General’s Office and to establish a robust information security programme to prevent future breaches. The first half of the $200,000 payment will be forfeited, with the remaining suspended.

Warner Music Company

Warner Music Group (WMG) has also been the victim of a three-month Magecart cyberattack that exposed its customers’ personal and financial information. Between April 25 and August 5,2020 the hack, which targeted US-based e-commerce services hosted by third parties, took place. Although the firm recognised the compromise, it did not specify how many consumers were affected.

To resolve the problem, the business said it has begun a forensic investigation with cybersecurity specialists and law enforcement officials. It also warned credit card companies that transactions using credit cards impacted by the Magecart attack would be subject to enhanced security procedures.Individuals affected by the attack were also provided a free year of Kroll identity monitoring from the recording studio company.The music label, on the other hand, refused to disclose a list of websites that were hacked by Magecart or the number of clients who were affected by the incident. Similarly, WMG did not say which external service provider was affected or whether it had contacted the consumers who were affected. Many people who were impacted may not be aware that their payment information has been compromised.

How to prevent Magecart attacks

The greatest protection against Magecart is to prevent access to third-party vendors. Online businesses require a solution that can intercept all APT calls made by the website to the browser and prevent access to sensitive data that has not been previously approved. As a result, we can prohibit non-critical third-party scripts or harmful scripts from accessing important client information. When an attacker tries to get access to sensitive data, this system will detect it and notify the organizations or companies.

Attacks against websites that collect and handle payment information from end-users are on the rise. Not only are we seeing attacks like these that steal data directly from end-users, but we’re also seeing sophisticated bot attacks that exploit stolen user passwords and credit card details to perpetrate fraud using data from other sites.

Brands must go beyond the edge and implement end-to-end online security protection that can neutralize Magecart assaults in the browser, secure backend infrastructure, and prevent sophisticated botnet attacks.

Many customers place their faith in the online businesses and websites where they purchase. Smaller websites are best avoided since they are unlikely to have the same level of protection as larger, more established companies. End users should maintain track of any changes made to their credit cards. Before more widespread fraud, minor test transactions are frequently done to confirm that a credit card number is still active. End users should also think about utilizing payment methods like Apple Pay, which creates unique numbers for each transaction, guaranteeing that if an attacker gets a number, they won’t be able to use it again. Finally, credit monitoring tools have become a must-have in recent years to guarantee that personal information is not used to register new accounts in your name.

Magecart skimming and other data robbery is punishable according to their own law of the land. In India, the Information Technology Act, 2000 deals with these kinds of theft. For unlawful access to a computer system or network and providing aid to support such a criminal act, Section 43 of the Act might be invoked to impose civil liability of up to one crore in compensation. Section 66 of the Act applies to cybercrime, such as Magecart hackings, in which the destruction, deletion, change, or reduction in the value of a computer resource resulted in criminal penalties. In relation to Section 43 of the same Act, Section 66 makes any false or dishonest activity illegal. Similar to this Act is the Computer Misuse Act, 1990 that criminalises these types of theft in the country of the United Kingdom. It also deals with the unauthorized access to computer materials, access with the aim to conduct or assist in the commission of illegal offences and alteration of the data in the computer.

Unveiling the attackers

Over the last three years or so, Magecart has been a plague of internet security, with several threat organisations employing it to break into e-commerce websites and steal payment card information. The arrest was made by the local police as part of INTERPOL‘s Investigation called Night Fury, an intelligence-led operation centred on Southeast Asia. C2 servers and hijacked websites were discovered in six nations throughout the region of Association of Southeast Asian Nations (ASEAN).

The Indonesian suspects, aged 23, 37, and 35, were detained in December 2020 and were charged with data theft. Authorities in Singapore have discovered and shut down two Magecart-linked C2 servers as part of an ongoing investigation into cybercrime infrastructure and other suspected cybercriminalsWhile the arrests in Indonesia are great, they will scarcely make a dent in the rampant corruption. “In recent years, this organisation has had a significant influence on worldwide e-commerce security, skimming at least 571 compromised shops.” According to payment security firm Sanguine Security, “they were responsible for just 1% of all Magecart instances since 2017,” estimating that 40 to 50 additional competent cybercriminals are participating in web-skimming activities.

Conclusion

Magecart built up specialized, tailored infrastructure to blend in with the e-commerce website especially and evade discovery for as long as possible, as we’ve seen in this assault. While we’ll never know how much access the attackers had to the servers, the fact that they were able to change a resource for the attacked site suggests they had a lot of it, and the fact that they probably had it long before the attacks even began serving as a stark reminder of the vulnerability of web-facing assets. In order to escape discovery, attackers would bury harmful code within legitimate code.

In certain circumstances, merchants and consumers may be ignorant of the virus or data breach for days or even months. Businesses’ lack of insight into their web-facing attack surface is part of what makes supply chain hacks so easily. They often have no notion that the third-party code on their online assets is dangerous—or that they’re even executing it. Credit card skimming organizations like Magecart itself, are becoming more efficient, so consumers are seeing their data stolen in less time than ever before. Consumers don’t care if this happens as a result of a traditional breach or a web-based supply chain assault in the end. The reputation of companies that manage online payment forms, as well as the trust of online customers, is on the line.

References

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Can animosity affect the credibility of a witness : analysing inimical witnesses

By

Shoronya Banerjee

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December 7, 2021

0

Witness — Image Source: https://bit.ly/2rmYiju

This article is written by Ajay Singh Rathore, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Zigishu Singh (Associate, LawSikho).

Table of Contents

Introduction

The word evidence is borrowed from a Latin word ‘evidere’ which in its literal sense refers to discover clearly, to ascertain, or to prove. The Indian Evidence Act was passed in India by the Imperial Legislative Council in 1872 during British Rule. The Act was to provide for rules related to the admissibility of evidence in Indian courts. A Commission was established under the chairmanship of Sir Henry Mayne in 1868. He submitted the draft, however, this draft was found as nonsuitable to Indian situations. Later in 1871, the Stephen Commission was formed under James Stephen to draft and codify the law of evidence. Stephen presented the draft of the bill to the council on 31st March 1871 which was sent to the select committee and also to Local Governments, High courts, and Advocates to elicit their opinion. After receiving their opinions, the select committee made the appropriate amendments and then presented the same to the council which promulgated it as the “Indian Evidence Act, 1872 (Act No. 1 of 1872). Thus, Sir James Stephen is rightly considered the founding father of this comprehensive piece of legislation.

According to Stephen, legal usage of the term “evidence” is ambiguous. It can sometimes mean statements made and items presented for consideration by witnesses before the court of law. At other times, it means the facts proved to exist by those words or things and regarded as grand work of inference as to other facts not so proved. Again, it is sometimes used as a means to assert that a specific fact is relevant or necessary to the matter of inquiry. One can see that this meaning of evidence is aptly reflected in the definition clause of the Indian Evidence Act. The law of evidence is, therefore, based on three core principles:

1. Evidence must be confined or be limited to the matters in question,

2. Hearsay evidence must not be admitted,

3. Best evidence must be given.

When appreciating different forms of evidence, the role of a witness cannot be disregarded. A Witness through time and age has been an important player in helping the court in rendering justice. The principles of justice emphasize the fact that truth and unbiasedness must form the very basis of justice. This introduces the role of a third party as a witness to the scene of the incident and confirms the correctness of evidence. In basic terms, a witness can be defined as a person who has witnessed or witnessed any act or series of acts or a scene or an incident taking place.

A witness may be any person who has the ability to perceive a fact through his senses. A competent witness may perceive any act from his eyes or ears or smell or sensation or touch or any other reasonable mode. When there is nothing in the law that prevents a witness from appearing in court and giving evidence, in such a situation a witness is deemed to be competent. The capacity of a witness to understand the questions put to him and his capacity to give rational answers to such questions determines whether a witness can be considered competent or not. In the Indian Evidence Act, Section 118 to 121 and Section 133 deal with the competency of different types of witnesses.

Whether a witness is independent or not depends on the facts and circumstances of the case. Basically, the term independent witness refers to a witness who is not interested in the result of a case be it success or failure, and is not closely related or associated with any party to the case. Thus, a witness is considered to be independent unless he or she springs from sources that are likely to be tainted and some kind of animosity with the accused and due to which they wish to implicate the accused falsely or wants him behind bars for the crime he has not committed. These witnesses who have some kind of animosity with the accused are referred to as inimical witnesses.

Credibility of inimical witness

The Supreme Court has repeatedly held in a plethora of cases that the testimony of witnesses cannot be rejected solely on the ground that the witness is inimical to the accused. Such a finding is erroneous and results in a grave miscarriage of justice. However, since the reliability of inimical witnesses is tainted by bias and interest, their testimony must be carefully evaluated in light of other evidence. Their testimony must be corroborated with other evidence and should be judged with great caution and diligence and after Court conclusively determines that it is creditworthy then only it has to be admitted. If such reassuring factors are absent, the evidence fails to fulfill one of the basic principles of evidence law that best evidence should be given.

Following the same reasoning in another case, it was held in the case of Piara Singh v. State of Punjab that it is a well-settled principle that the evidence of inimical or interested witnesses is to be scrutinized with due care, however the same cannot be rejected merely on the ground of being partisan evidence. If on a perusal of the evidence and its corroboration with others, the Court determines that the evidence is cogent and creditworthy then there is no bar in relying on the said evidence.

Further in Hari Obula Reddy v. the State of A.P. the court reiterated the same principle and held that it is settled law that interested evidence is not necessarily unreliable evidence. Partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that the testimony of an interested witness can never shape the premise of conviction of an accused unless it is sufficiently corroborated by other independent evidence. All that is required is that the evidence of interested or inimical witnesses must be scrutinized with due care and accepted with caution. If on such scrutiny, the evidence of an interested witness is found to be cogent, credible, or trustworthy, it may, by itself be enough in the particular circumstances of a case, form the basis of conviction.

Thus it can be very well summed up that the evidence of a related/ interested or inimical witness should be subjected to careful scrutiny and carefully examined. In a case where it appears that the related and interested witness may have some animosity with the accused, the bar of scrutiny would need to be raised and the evidence of such witness would have to be examined by applying a standard of due care and scrutiny. However, this standard of due care and scrutiny in accepting the evidence of inimical/interested witnesses is only a rule of prudence and not one of law.

However, there are certain instances when the testimony of inimical witnesses is held unreliable. One particular instance is when it fails to stand the test of stricter scrutiny or when it is not corroborated with any other evidence or is inconsistent with other evidence. In the case of Ganesh Datt v. the State of Uttrakhand, the evidence of inimical witnesses was considered unreliable because of two main points, firstly, the testimony was very inconsistent with the medical evidence which came before the court. The eye-witnesses had given testimony that the accused fired shots with a pistol however it became clear in the medical evidence that there was no gunshot injury found on the body of the deceased. Secondly, the accused had suffered injuries during the incident but the witness denied the very fact the accused had sustained any injuries. Thus, it became clear that they were lying on the most material point, making their evidence unreliable and untrustworthy.

In fact, when a witness is a person related to the deceased with deep-rooted enmity against the accused, it is extremely important to have some other eye witness or ocular evidence and when the testimony of a witness contradicts medical reports, a case for benefit of the doubt has to be made out.

Recommendations

It is important that the inimical witness’s testimony should be subjected to careful scrutiny. It must be borne in mind that corroboration by other material evidence or independent witnesses should be made an indispensable rule in cases where the prosecution is solely based on the evidence of a witness who appears to be inimical. However, it is not suggested that evidence of inimical witness should be completely discredited or discarded because of the existing animosity, All that is necessary is careful scrutiny of such evidence and if on such scrutiny, the interested testimony is found to be cogent, credible or trustworthy, it may, by itself be enough in the particular circumstances of a case, form the basis of conviction.

Conclusion

It can be appropriately put that the justice system followed in India profoundly depends on the witness and his conduct. The witness has the power to alter the course of the entire case. Thus there is no denying in saying that a witness has an important role in bringing the offender to justice. Their testimony can be relied upon and by itself be enough in the particular circumstances of a case to form the basis of conviction if they appear to be unbiased and their testimony is cogent, credible, or trustworthy and clearly convey that the accused is the perpetrator of the crime and no one else.

However, this becomes slightly difficult in the case of inimical/interested witnesses as their evidence is driven by some ulterior motive and they are in some way or other are interested in the result of the case. It is very important that in such scenarios their testimony must be scrutinized with due care and accepted with caution. If on such scrutiny, it appears that the evidence of such a witness is clear, creditworthy, and unambiguous then it can be accepted and can form the basis of conviction.

References

Stephen, Introduction to the Law of Evidence
Evidence in Civil and Criminal Cases: The Best Evidence (Original Documents) Rule; available at https://lawshelf.com/shortvideoscontentview/best-evidence-original-documents-rule/

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Women centric laws in India : beneficial or detrimental

By

Sneha Mahawar

-

December 7, 2021

0

This article is written by Amulya Bhatia from Symbiosis Law School, NOIDA. This article talks about whether laws made for women in India are beneficial or detrimental.

Table of Contents

Introduction

India so proudly calls itself a progressive country but fails to treat and protect all its citizens equally. Patriarchy is a social structure where men are considered to have the primary power and this system prevails in India, resulting in women being treated as the “weaker” sex. The female population is less than the male population in India due to which discrimination and violence against women have unfortunately become an inevitable part of the characteristics of Indian society. From fighting to be treated equally within their own houses, to stepping out of their houses every day despite the fear of not returning, the struggles that women overcome every single day of their lives have been so normalized, that we fail to understand its impact on their well-being. Women in this country are called ‘India’s daughters’ but are treated far from how any daughter would be treated. The state of women has come down to the point that it becomes important to question if anybody even wants to be India’s daughter anymore. It is nothing but unfortunate that we still have to dwell upon the sufficiency of laws to protect women in the 21st century.

There have been attempts on behalf of the government to safeguard women by way of laws and regulations which circle the well-being of women. However, how effective are these laws, and have these laws even been able to bring a change in the general approach of the entire society towards women will be discussed in this article.

Need for women centric laws

Every human being deserves to be granted certain basic human rights. Unfortunately, not all people can enjoy and exercise these human rights equally, one such group being women and girls. All around the world, women are subjected to humiliation and violence, forcing them to fight a struggle that should have never existed in the first place. Whether it is a girl child being killed as soon as they are born, or the horrific incidents of sexual abuse we hear every single day, the state of women in India is beyond dreadful.

There exists a dialectical relationship between the law of the land and the ideology that prevails in society. Women need to stop being looked at as objects who are simply meant to please men and should be looked at as unique individuals with their passion, desires, and most importantly as having an agency of choice which is constantly snatched from them. The first step towards creating a society where a woman does not need to worry about others making decisions for her or violating her privacy and space would be through the legal structure in the country. Proper enactment followed by diligent implementation of women-centric laws is a prerequisite to creating a safer and just atmosphere for women in India and the only way through which these laws would prove to be beneficial.

Prohibition of Child Marriage Act, 2006

Child Marriage in India is a prevalent social evil that refers to the marriage of a person below the age of 18 without their consent. India is a country where daughters are not considered as family, but actually as someone’s property. This is a primary reason for a lot of young girls being married off. A lot of it also has to do with poverty and illiteracy which exists in the country. One example of where traditions of child marriage are followed is Rabari tribespeople who live in the Kutch region in the western state of Gujarat. While change is required at the grass-root level and traditional norms are required to be challenged, the government of India has enacted the Prohibition of Child Marriage Act, 2006.

The objective behind the implementation of this Act is to initiate necessary action in case of receiving information of the solemnization of any child marriage. The legislation gives our support in the form of medical aid, legal aid, counseling, etc. to support children who are victims of child marriage. The persons who can be punished under this legislation include anyone who conducts or abets child marriage, any male adult marrying a child, or any person who is in charge of a child like a parent or a guardian who has actively participated in the process of the marriage of a child.

Merits

It is no surprise that women often become victims of child marriage because of the patriarchal structure of the society where daughters are looked at as nothing but burdens who are to be disposed of as soon as possible by way of marriage. However, this Act has particularly been praised as it is gender-neutral. It takes into consideration the possibility of both genders being manipulated into this evil. This law does not hold the parties to child marriage accountable who did not give their consent, but their parents or guardian who cannot make such callous decisions for their children. This law also provides for counseling and maintenance of the girl child who is stuck in the web of child marriage.

Demerits

India is a country with myriad religions, each religion having its laws which govern them. As a result, it is observed that the personal laws regarding child marriage are somewhat inconsistent with the general law, which is this particular legislature. There are inconsistencies in terms of when a person could be married. For example, Hindu law does not completely prohibit it, while there is a general provision for the same. In P. Venkataramana vs. State(1976), the Andhra Pradesh High Court observed that because Section 13(2)(iv) of the Hindu Marriage Act, 1955 gives a woman the right to repudiate her marriage which is solemnized before the attainment of the age of 15 years, it is conclusive of the intention of the lawmakers that child marriage is not completely prohibited under Hindu law. This legislature has failed to curb child marriages which are taking place across religions. Child marriage is a very sensitive topic and the government must not let religions make their laws on this as per convenience and all religions must be governed for matters concerning child marriage under the ambit of Prohibition of Child Marriage Act, 2006.

Dowry Prohibition Act, 1961

The practice of dowry is widely spread in India. The essence behind this custom is to honor the groom for accepting his wife in the marriage and is given in the form of gifts like household products, cars, and money. However, this custom has now turned into a way to extract as much money as possible from the family of the bride, the failure of which would lead to harassment of the married woman at the hands of her husband and his family. Dowry deaths are not uncommon in Indian villages and households. The inability to pay dowry is one of the root causes of the occurrence of domestic violence in a marriage. As a result, the Dowry Prohibition Act was enacted on May 1, 1961, to curb the practice of giving or receiving dowry to also avoid acts that are consequences of this malpractice. The Act since its enactment has undergone some amendments and the Domestic Violence Act, 2005 was implemented as another layer of legal protection for women who face violence within their households, the majority of which is related to the practice of dowry.

Merits

The most important benefit of prohibiting the practice of taking dowry is the creation of family harmony. This Act is an attempt to create awareness about the current dowry system that prevails and make people understand the damaging effects of the same. All are not equal in this society and the main objective behind this is to provide emotional and legal support to the innocent who are affected by this practice but are unaware of their rights. The relationship between Indian families is considered to be sacred and this legislation is also an aim to safeguard the integrity of Indian families. Stringent laws regarding this also create an environment of deterrence to discourage the practice of dowry by making sure that people understand the consequences of committing this dishonorable practice in the name of rituals.

Demerits

In the year 2020, there were nearly 7000 dowry deaths which only go to show the inadequacy of the Act in question to curb this custom. For the complete eradication of the dowry system, there is a requirement to fight at the grass-root level. The government might have adopted anti-dowry measures but they have proven to be insufficient and this is a major criticism that this Act has faced. Moreover, the lack of proper implementation of this Act is another critique that leads to the failure of the enactment of the Dowry Prohibition Act, 1961. Along with this, there is also scope for women to misuse this Act and that is also a major concern for those who are dwelling upon the adequacy of this legislature to fulfill the purpose with which it was enacted.

Domestic Violence Act, 2005

More often than not, it is the women and children who are subjected and most vulnerable to domestic violence due to the patriarchal structure of the society we live in. This Domestic Violence Act, 2005 is enforced to ensure that a female victim of domestic violence can receive a four-fold support system, which would include residence orders, custody orders, protection orders, and a defendant’s money supply. In Meenavathi vs. Senthamarai Selvi (2008), it was held that a complaint under this Act cannot be filed against a woman, and women cannot be asked to be removed from the household of the victim, which goes to show that this Act is made for the protection of women.

Some of the main causes for women being subjected to violence, as seen since time immemorial, are trivial arguments with partners, refusal to engage in physical activity with them, non-payment of dowry, or even the inability to provide a male child. The main causes of battering women by their husbands include an argument with the partner, refusing to have sex with him, neglecting children, leaving the house without telling the partner, not cooking properly or on time, etc. In certain cases, female infertility often leads to family members being targeted. The basic idea behind the implementation of the Domestic Violence Act, 2005 is to secure those suffering because of the same.

Merits

Even in the 21st century, live-in relationships are looked down upon due to ancient beliefs. However, the Domestic Violence Act, 2005 provides for violence within a shared household and such a shared household also takes into account live-in relationships between a man and woman through Section 2(f) of the Domestic Violence Act, 2005. It was in the landmark judgment of Lata Singh v. the State of U.P. (2006) where it was recognized that even though a live-in relation between a heterosexual couple may seem immoral, but it is not illegal and thereby must be recognized under the Act. Most importantly, domestic violence is not just physical and has a bearing on the victim’s mental health but mental health is not given enough consideration in India. However, this legislation gives provision for physical abuse, verbal abuse, emotional abuse as well as economical abuse. The Act isn’t just about punishing people for the act of domestic violence but is implemented from a holistic perspective, putting the well-being of the victim first. It provides for counseling of the victim after the occurrence of the incident. In most situations, women are harassed not just by their partners, but also by the families of their partners and the Act also provides for such a situation.

Demerits

The Act assumes that it is only women who can be victims. Moreover, the Act also assumes that there are only two genders, like most women-centric laws in India. As per Section 32(2) of the Act, it is stated that the statement of the woman who is the victim will be considered as true without any need for supporting evidence. This increases the possibility of misuse of this Act.

One of the major concerns that have been expressed regarding this Act is its lack of inclusion of mistresses. Such women too have rights and do not deserve to be harassed. However, unfortunately, in case they face violence by their partners, they cannot seek help under the purview of the Domestic Violence Act, 2005. The major concern is regarding the lack of infrastructure to ensure that the Act is not misused. It has been over 15 years since this legislation came into place and the world has changed a lot since then. Therefore, it is important for the laws of the country to also evolve with time.

Maternity Benefit Amendment Act, 2017

The work culture in today’s time requires the workers to be on top of their game, stay competitive and adhere to all possible deadlines with due diligence. Taking care of a newborn child along with the added pressure of performing the best on the work front can be exhausting and can lead to an inability to create a balance between the professional and personal life of the woman. This further creates inequality in terms of the work dynamic between men and women by way of taking away opportunities from women because of their absence at work as a direct consequence of their obligations. The Maternity Benefit Amendment Act 2017 has been implemented with the idea of safeguarding new mothers and avoiding any kind of backlash that they may face because of becoming a mother. It has also been proven that when the mother takes out time to bond with her infant, it improves her physical and mental health. The amendment made to this Act in 2017 was a progressive one and can be viewed as a step towards creating a more equal and safe workspace for women, doing away with the age-old patriarchal beliefs.

Merits

Maternity leave through the amendment made to this Act has now been stretched out to 26 weeks instead of 12 and provision has been made for women to work from home in those situations where it is possible so that they can properly maintain a balance between their work and personal responsibilities. The woman on maternity leave will receive the average daily wage for the period for which she is on leave. No employee can be terminated while they are on maternity leave as per the rules of this legislation. The Act before the amendment only provided for women who give birth to a child. However, after the amendment, there is a provision for mothers who adopt a child below a certain age. On top of this, the Act also requires the provision of compulsory crèche offices and mothers to be allowed to visit at least four times a day.

Demerits

One of the major disadvantages or fallacies in this Act is the assumption that gender is binary, meaning that there exist only two genders, either men or women. There is no provision for those who do not fit into these two genders and are having a child. Moreover, even for two genders, this Act is not gender-neutral. There is no mention of paternity leave, implying that the duty of taking care of a child is that of a mother, solely. The Act may appear to be progressive on the face of it under the facade of wanting women to be able to manage both work and family and the government helping women to do the same, but this Act is promoting the idea that a woman must maintain a balance between the two, while a man is simply supposed to work. Also that an ideal woman can manage both work and family when that is far from the truth. It is the 21st century, and laws in this time need to be in line with the changing thoughts and beliefs instead of pushing forward the age-old patriarchal ideas, expecting the current generation to follow the same.

Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) – POSH Act, 2013

Sexual harassment has been described as unwelcoming or unwanted behavior by a person which causes discomfort or humiliation. Sexual harassment at a workplace becomes a concern since not only affects the terms and conditions of employment failing to create a safe environment, but also has a huge bearing on the working environment of an organization as it affects the working abilities of the person harassed. Sexual harassment at the workplace is a major problem also because it is a leading reason for fewer women choosing to work.

Women are more vulnerable to sexual harassment because they lack the power due to the societal construct of how a woman should be. Due to this, those harassed in the workplace end up resigning to their fate instead of raising their voice. This also has a lot to do with the fear of being ostracized by others or worse, not being believed. Since women do not have the proper mediums to go and complain, they tend to stay quiet and suffer.

Keeping this in mind, the legislature formulated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The need for such legislation was observed for the first time by the Hon’ble Supreme Court in Vishaka v State of Rajasthan (1997). It was in this case that the Court issued guidelines that were to be followed at all workplaces since there was an absence of any law providing measures to keep a check on the issues of sexual harassment at the workplace. This was a landmark case for the protection of women against sexual harassment at the workplace. The Hon’ble Supreme Court held that sexual harassment of women at the workplace violates her fundamental rights under Articles 14,15,19 and 21 of the Constitution. The guidelines laid down by the Supreme Court were to be treated as the law declared under Article 141 of the Constitution. However, it was only in the year 2013 that these guidelines were given the structure of proper legislation.

Merits

A survey was conducted in 2018, ‘Effectiveness of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’ through which it was observed that more than 75% of the organizations were complying with the regulation of the Act. In addition to this, workers now felt more safe and comfortable in their work environment. This Act is also a positive enhancement of the Vishaka guidelines. It includes within its ambit verbal harassment as well which is seen as a huge advancement. Training of employees has been compulsorily made a part of the organization which helps in educating employees, mitigating risk related to legal liability, and also floats an idea within the organization that indecent behavior will not be tolerated or excused. The Act has most definitely received a lot of support from the public at large which also creates deterrence in the minds of the organizations that the media and public are keeping a close check on their activities. The most important benefit of this Act is that employee productivity increases as no employee is working in fear or avoiding work due to being uncomfortable at work.

Demerits

It has been observed in the past that while the number of women facing harassment at work is quite high, some men also undergo the same. Unfortunately, men who face sexual harassment at the workplace cannot seek help from authorities by way of this Act since it only provides cover for female workers. A major criticism for this Act is that it is not gender-neutral as it doesn’t just ignore men as victims, but fails to create a safe space for those who do not identify as either a man or a woman. Another criticism that the Act has faced is the time limit on when a victim can file a complaint. Sexual harassment has heavy consequences on the mental health of the victim and the time frame within which a complaint can be made must be extended considering the state of the persons who have suffered. The Act also lacks clarity in terms of the process of making complaints. Moreover, there is no provision in case one wants to make a complaint anonymously. Other than this, it must also provide for laws to make sure that the guidelines of this Act are being properly implemented within organizations.

Equal Remuneration Act, 1976

Women in India have been discriminated against since time immemorial, whether it is in terms of their rights, or what they can wear, or what opportunities they get. Imagine that you are a woman working in a factory, and you know that your work is of great efficiency. What if your male counterpart at work gets paid double for doing half the work that you do? Gender discrimination is not uncommon at the work front and to tackle the same, the Equal Remuneration Act, 1976 was enacted. The basic objective behind the implementation of this Act is the same amount of remuneration for both men and women for the same work done. What must be noted is that this does not mean that any preferential treatment is being given to women, but simply that women and men are at the same pedestal at work and will be treated equally. This provides a legal remedy to women who may not be paid adequately as opposed to the work they are doing simply because of their gender. This legislature is also in line with Article 14 of the Indian Constitution which thrives for equality within the Indian subcontinent.

Merits

This Act is a great way to bridge the economic gap between men and women which has only increased with time and is most certainly a step towards making India a country where men and women are treated equally. Equal treatment is not just limited to equal pay but extends to the way employees are treated, the basis on which they are recruited or promoted and the Act governs all these procedures to ensure a fair and just environment for all employees. If implemented properly, this Act has the power to change the way women are looked at in the professional world.

Demerits

The first problem is the lack of proper execution of this Act which has the potential to change current societal norms. There is no system of checks and balances to ensure that the guidelines laid down through this legislature are followed by employers. More importantly, this Act very conveniently fails to take into account the other backlashes that women have to face to be able to work in the misogynist setup of this society. For example, a man has the liberty to work late till night and earn more money, but the same cannot be said for a woman. Such inequalities are not taken into account under the purview of this Act which shows the narrow-mindedness with which this piece of law was enacted.

Indian Penal Code, 1860

Other than the specific legislatures which have been implemented for the protection and well being of women in India, the legislatures that have been discussed above in detail, there are also various provisions under the purview of the Indian Penal Code, 1860 that provide for heinous crimes against women which women are subjected to every day, like rape, kidnapping, stalking, voyeurism, and the punishment for the same is also specified within the code. These laws must be stringent to create deterrence in the minds of the public and protect the women of this country.

354: Assault or criminal force to woman with intent to outrage her modesty

The Section states that anyone who assaults or uses criminal force on any woman, to outrage the modesty of knowing that their actions would in turn outrage the woman shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

354A: Sexual harassment and Punishment for sexual harassment

This Section lays down the acts which would amount to sexual harassment which are as follows:

1. Any unwelcoming physical contact and advances made

2. A demand made for sexual favors

3. Showing pornography to a woman against her will

4. Making sexual remarks

The Section also states that if a man commits an act mentioned in the first three points mentioned above, they shall be punished with imprisonment that may extend up to three years, or fine, or both. If a man commits the act mentioned in point 4, they shall be punished with imprisonment that may extend up to one year, or fine or both.

354B: Assault or use of criminal force to woman with intent to disrobe

If a man assaults or uses criminal force on any woman or abets any such act to disrobe the woman or compel her to be naked, they shall be punished with imprisonment for a term, not than three years but which may extend to seven years, and shall also be liable to fine.

354C: Voyeurism

According to this Section, if a man watches, or captures the image of a woman engaging in a private act in circumstances when a woman is under the presumption that she is not being observed by any other individual, the man who captures or even disseminates such image shall be punished on first conviction with imprisonment for a term not less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment for a term not less than three years, but which may extend to seven years, and shall also be liable to fine.

354D: Stalking

This Section states that if a man follows a woman, contacts or attempts to contact her for personal interaction irrespective of the woman showing a clear disinterest, or the man monitors a woman through the internet, email, or any other form of electronic communication, it would amount to stalking. However, if such communication is made to investigate a crime but authorization of the State, or in compliance with laws, or if the same is under circumstances considered reasonable, it would not amount to stalking.

On first conviction for the offense, the man would be punished with imprisonment for a term which may extend up to three years and shall also be liable to a fine. On second or subsequent convictions, the punishment shall be imprisonment which may extend up to five years along with a fine.

366A: Procuration of a minor girl

If a person induces a girl who is under eighteen years of age to go or do any act with the intention or knowing this will result in the girl being forced into illicit intercourse shall be punishable with imprisonment which may extend to ten years along with a fine.

366B: Importation of girl from a foreign country

Any person who imports a girl to India from any foreign country, who is under the age of twenty-one years with the intention, or knowing this act will result in forceful intercourse of the girl without her consent shall be punished with imprisonment which may extend up to ten years along with a fine.

375: Rape

There are certain circumstances laid down under this Section that describe instances when the act of ‘rape’ occurs by a man:

When the act is against the will of a woman.
When the act takes place without the consent of the woman.
When consent exists, such consent has been obtained by putting the woman or any person she may be interested in, in fear of death or hurt.
When consent is obtained, however, the man knows that he is not her husband and that the woman has only given her consent as she is under the presumption that the man is her husband.
When the woman provides her consent, however, at the time of giving this consent, the woman is unable to understand the nature and consequences of the act to which she has provided consent due to unsoundness of mind or intoxication of any kind.
When she is under the age of fourteen, irrespective of whether the girl has provided her consent or not.

An exception to this is sexual intercourse between a husband and a wife, where the wife is not under the age of thirteen. Clearly, the definition of rape excludes any sexual activity between a husband and a wife. This means that even in the 21st century, marital rape is still not criminalized. RIT Foundation vs Union of India (2015) started with petitions filed in 2015 and then was heard before the Delhi High Court as an attempt to raise questions about marital rape and criminalize the same. This Section has been defined as patriarchal and ignorant of the harsh realities of the society we live in.

376: Punishment for rape

Section 376(1) lays down the punishment for the offense of rape as rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.

Section 376(2) mentioned cases of aggravated rape where the man is in a dominant position under his position and has authority which plays a vital role in altering the consent of a woman.

376A: Punishment for causing death or resulting in persistent vegetative state of victim

When someone commits an offense which is punishable under Section 376, as mentioned above, due to which it inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term not less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.

376B: Sexual intercourse by husband upon his wife during separation

Sexual intercourse between a man and woman, who is living separately from him by virtue of a decree of separation or under any custom or usage without her consent, shall be punished with imprisonment for a term which may extend to two years and shall also be liable to fine.

376C: Sexual intercourse by a person in authority

This Section states that when a person is in a position of authority or a fiduciary relationship, or a public servant, or a superintendent or manager of a jail, remand home or other places of custody established by or under any law for the time being in force, or a women’s or children’s institution or on the management of a hospital or being on the staff of a hospital, and abuses such position or fiduciary relationship to seduce any woman to have sexual intercourse with him, the same will not amount to rape but shall be punishable with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.

A major criticism of this Section is based on the use of the term ‘sexual intercourse’, implying that both parties involved have provided their consent and the lack of understanding of how a man in authority is in a position to dominate and alter the consent of the woman, in which case it should still amount to rape. This came into the discussion after the Swami Chinmayanand rape case in 2019.

376D: Gang rape

This Section states that when a woman is raped by one or more persons who have a common intention, each person shall be convicted of having committed the offense of rape and thereby shall be punished with rigorous imprisonment for a term not less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine. The fine imposed must be reasonable keeping in mind the medical expenses and rehabilitation of the victim.

498A: Husband or relative of husband of a woman subjecting her to cruelty

If the husband or the relatives of the husband subject a woman to cruelty, they shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine. Cruelty for the purpose of this Section has been defined as any conduct to incite a woman to commit suicide or cause grave danger to herself or harassment regarding coercing her or any person related to her to meet any unlawful demand for property or valuable security.

Section 67 of Information Technology Act, 2000

This Section states that any person who published or transmits or attempts to publish any content or material which is lascivious or appeals to the prurient interest shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to Rs 10 lakh.

Conclusion

Crimes against women essentially mean any direct or indirect physical or mental harassment to women. On average, one woman reports raping every 15 minutes in India. This is disheartening for a country that claims to pay tribute to and pray to women as goddesses as a part of their customs and traditions. The question that arises here is whether just the creation or enactment of laws is enough to call such laws beneficial for women. There is no doubt that women-centric laws are of great need in today’s time and age and are indispensable to protect the interest of women, but what good are those laws if they are not implemented properly. These laws are misused in a two-fold manner; either by not being able to provide justice to women because of poor execution of the laws or women themselves misusing these for their benefit to promote malafide agendas. If they were to be implemented properly, without the possibility of any loopholes, the misuse of the same would be next to impossible. The idea behind these laws is to lift women and not bring down any other gender. Any innocent person being punished is a gross violation of the principles of natural justice and also ruins the sanctity of these laws.

Therefore, along with enactment, the government of India also needs to put focus on the diligent implementation of these women-centric laws for them to truly prove to be beneficial for society.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Challenges faced by cyber insurance and the way out

By

Abanti Bose

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December 7, 2021

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This article has been written by Rishabh Mishra, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho).

Table of Contents

Introduction

Cyber insurance is one of the key components of business security and a must have insurance in the present market scenario as everything and every business model wants to be digitally present. As every new technology in business brings ease of working, it also brings new challenges and risks. These risks encourage the business to be more vigilant, so that they may face these challenges and mitigate the risks. However, in the recent past, we have seen a sudden increase in the dependency on the digital mode of working, mainly due to the pandemic. In this era of pandemics, people have started using their personal computers as they are working from home. This has resulted in a shift from secured computers to probably unsecured computers, thus becoming the target of cyber-attacks. This is one of the recent factors which has become a major concern for the cyber insurers and an add on to their existing market challenges which are discussed further in this article.

Challenges for cyber insurance

Before understanding the market challenges, some basics associated with cyber insurance are discussed herein. The principles of insurability must meet the following general criteria to be economically viable towards risks:

Risk must be quantifiable.
Risk must be diversified among communities in terms of risk exposure.
Risk must occur randomly, or one may say that the occurrence of risk should be unpredictable and such occurrence should be free from the will of the insured.

All the insurances’ premium is quantified based on these general principles. The prices are also affected by the following factors as they also pose a challenge.

Quantifying risks

Its assessment comes with three challenges, firstly, lack of historical data on cyber incidents; secondly dynamic nature of cyber risks as well as relevant legislation; and lastly, access to corporate security information that is necessary for underwriting individual risks. The first challenge is the result of lack of awareness among cyber incident victims, and their inability to report their attacks, which makes it difficult for cyber insurers to understand the threat while underwriting. The cyber-world is dynamic in nature with its threats, thus, it is also a challenge for cyber insurers to identify the possible threats and this makes it hard for insurers to come to a conclusion for coverage on which sorts of threat they should offer and at what price. The last challenge herein is associated with the threat of disclosure of security measures and methods adopted by companies. There is a clear cut issue of trust among the insurers and the insured. Because of this issue, companies do not share their security details with the insurer and this creates the limitation for underwriters of insurance by making them stick to probabilities on threats instead of quantifying actual threats. Quantifying actual threats and risks is much more required than ever before in the present time of pandemic because of work from home culture which has increased the practical notion of “bring your own device”. People have started using their personal devices, and corporations allowing the same is a serious concern for cyber insurers because it is very hard for them to foresee the loss which such devices may bring through data breach.

Accumulation risks

The common accumulation risk includes common software vulnerability, information technology service disruptions, critical infrastructure providers and other far reaching effects associated with the above risks. Common software vulnerability if exploited could result in mass data corruption, the effects of which may extend beyond the boundaries of the nation. A dent in widely used software may give perpetrators access to a huge amount of information. An attack on an information technology service provider may put its various users at risk, and it would be very difficult to assess such loss of data in monetary terms. It is not necessary that a threat posed only through software is a concern for service providers, but a threat to physical infrastructure on which digital technology relies may also expose the entity to a huge risk. A cyber incident to a critical infrastructure provider may also expose an entity or individual to various risks. Far reaching effects of these risks may affect multiple persons and can create chain reactions. For instance, a cyber-incident leads to malfunction of the manufacturing process of a factory which results in loss of property as well as delay in production and defects in final outcome of production.

Reinsurance availability

The above risks and factors governing them also reduces the chances of reinsurance of cyber risks. The companies become reluctant to cover their customers after some catastrophic events. The other factors which reduce reinsurance offerings from cyber insurers are the structural challenges which are a mixture of the first party’s property and liability of coverage to third parties as this is usually included in stand-alone policies.

Astronomical attacks

The astronomical increase in the number of attacks is yet another factor for the increase in the premiums of cyber insurance and lowering risks. We are aware of the far reaching effects of the above factors, which makes higher premiums and lower risks more convincing from the aspects of cyber insurers.

The way out

Looking at the nature of attacks in cyberspace it would not be out of place to mention that there is less expectancy of lowering cyber-attacks through legislation. Though it provides regulatory guidelines, a pivotal role can only be played by cyber security mechanisms to mitigate the effects of cyber risks. Some of the best practices and factors which can be adopted and considered by organisations as well as individuals to negotiate their lower premiums with cyber insurers are as follows:

Regular penetration testing— While negotiating the premiums of cyber security insurance, the organisation must be able to show that they are regularly testing their cyber-security mechanism to expose their system’s vulnerabilities.
Strong passcode control policy— A strong password gives a sense of security and makes the data impenetrable. It is advisable that passwords must contain unique words having alphanumeric content with special characters. This practice shall be considered in premium negotiations.
Encryption of sensitive data— Encrypted data is very hard to penetrate and having such practice is considered one of the best ways of protection. Maintaining such practice with access to limited people creates trust among insurers and entities that can take the advantage of this practice while premium negotiations.
Control on the access of records— A number of records to be dealt with by an organization by way of transfer, storage or access of such records. Accessibility to how many people are yet another criteria for the determination of premium. The lower the number of records the less the premium.
Work with your existing carrier— Whichever carrier insures one property may charge a lower premium for all the additional insurance’s premiums.
Coverage— It is yet another factor that depends on the nature of business and can only be determined according to the needs of such business. It may increase or decrease the premium.

Conclusion

It would not be out of place to mention that cyber insurance is also driven by the same factors as any other insurance as it contains quantifiable risks, diversification of risks and uncertainty of events. However, it is very hard to assess the loss suffered by an entity because all the insured data is in digital form and its worth can only be predicted. In order to quantify the loss, only assumptions and presumptions can be made against the loss. Another reason why diversification of risk is hard is because of the nature of digital content. Cyber insurers may distribute the loss caused by the risk but they are not ready to compensate the same because they are too rigid to offer stand-alone policies. This means insured persons may recover the loss which they have suffered but they will not be insured against the loss of a third party which such a party has suffered due to their negligence. The third part, that is, the uncertainty of events, is somewhat similar to that of others but events herein are more dynamic than that of others. For instance, in motor accidents, a person is insured in the event of an accident but in case of cyber threats a person has to be insured against an unauthorized online transaction, e-mail spoofing, phishing, identity theft, damage to e-reputation, cyberbullying, social media liabilities, malware attacks, IT theft loss or any other event or act of cyber threat. This last part, which is “any other event or act of cyber threat” with uncertainty brings a lot of unpredictable events because the change in technology also changes the manner and pattern of attacks. Now, the factors which affect the pricing of cyber insurance based on the above governing factors encourage the cyber insurers to prefer high premiums covering lower risks of persons. The major factor of this higher premium is the combination of uncertainty and unpredictability of events. The only way out of lowering the premiums is self-assessment of needs of business and adoption and consideration of best practices because while negotiating the premiums point of self-assessment and consideration and adoption of best practices may not necessarily expand the coverage but shall necessarily help in lowering the premiums offered for the coverage. Thus, the best practices can be considered as a saviour at least from higher premiums.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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An analysis of concept of ‘continuing offence’ under the Code of Criminal Procedure, 1973

By

Sneha Mahawar

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December 7, 2021

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This article is written by Ansruta Debnath, a student of National Law University Odisha. This article explores the intricacies of a ‘continuing offence’ and studies that in light of the various offences.

Table of Contents

Introduction

Continuing offence involves an offence committed over a prolonged period. Although it is not clearly defined in the Code of Criminal Procedure, 1973, its scope has been made clear by various judgments. This article explores the concept of ‘continuing offence’ which is followed by enumerations of some kinds of offences and cases that can come under the category of ‘continuing offence’.

Continuing offence : an overview

Continuing offence is a type of offence that continues again and again over a period of time. To prove its charge, one needs to prove that the offence started from the time of commission and continued till the person gets their liberty restored. An example of a continuing offence is kidnapping where the person’s liberty gets violated the moment they are kidnapped and the moment the offence is over is when the person is rescued.

However, it is important to make a distinction between continuing and repetitive offences. The same was made in the case of Adjudicating Officer Securities and Exchange Board of India vs Bhavesh Pabari (2019) In case of a continuing offence, the liability continues until the rule or its requirement is obeyed or complied with. On the other hand, recurring or successive wrongs are those which occur periodically with each wrong giving rise to a distinct and separate cause of action.

Legal provisions

Continuing offence finds mention in Section 472 of Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) which says that in case of a continuing offence, a fresh period of limitation begins to run at every moment of time during which the offence continues.

Period of limitation is the period within which the charges for an offence must be initiated after the commission of an offence. This was incorporated within the Code of Criminal Procedure, 1973 to ensure that the credibility of witnesses remains and to prevent unnecessary harassment of the accused (given the presumption of innocence). Chapter XXXVI of CrPC talks about the period of limitation. Under Section 468 of the CrPC, the limitation period of offences with a punishment of fine is six months, with that of term not more than one year is one year as well, and when punishment prescribed is more than one year but less than three years of imprisonment, the limitation period is three years. There is no limitation for taking cognisance of other, more serious offences.

Thus the entire point of adding Section 472 was to ensure that, in case the offence occurred over days or even months, the time available for the aggrieved party to acquire justice did not get reduced.

Relevant judgements

In Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath (1991) the Supreme Court held that whether an offence constitutes a ‘continuing offence’ depends on the language of the statute that creates the offence, the nature of the offence and the purpose intended to be achieved by making a particular act an offence by law. Moreover, it was also held that the last act of the offence controls the period of the commencement of the limitation period
In Udai Shankar Awasthi v. State of U.P. (2013), the Supreme Court observed that ‘continuing offence’ is not described in the CrPC because it cannot be given a fixed connotation. The court held that for a continuing offence to take place, the ingredients of the offence must continue even after the period of consummation. However, the Court held that continuing offence does not occur when damages from the injury continue.
In Mukesh and Ors. vs. State for NCT of Delhi and Ors. (2017) the Supreme Court observed that conspiracy is a continuing offence and it continues to subsist till it is executed or rescinded or frustrated by the choice of necessity.
In another case of V.K. Jain vs. Union of India (2016), the Court held that a continuing offence is one, which is susceptible of continuance and is distinguishable from one which is committed at once. It is one of those offences which arise out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is an offence committed.

The case here was in relation to the Industrial Disputes Act, 1947 and it had been challenged that cognizance of offence could not be done as it was barred by limitation. But the court held that the offence so committed was ‘continuing’ in nature.

In the case of State Of Bihar vs Deokaran Nenshi (1973), the Court held that a continuing offence was one that was susceptible to continuance, as compared to one that got finished, once and for all. The case was related to Section 66 of the Mines Act, 1952 but the Court held that Section 66 was not a continuing offence.
Bhagirath Kanoria & Ors. Etc vs State Of M.P. & Ors. (1984) was a case related to the Employees Provident Funds and Miscellaneous Provisions Act, 1952. It was another important case where the Supreme Court commented on continuing offences. It said that The concept of ‘continuing offence’ did not wipe out the original guilt but kept it alive day by day.
Finally, in Union of India & Anr. v. Tarsem Singh (2008), continuing offence or default in service law was explained as a single wrongful act that causes a continuing injury.

Some applications of continuing offences

Cases of domestic violence

The concept of continuing offence has been applied by the courts in many domestic violence cases. This is because domestic violence cases are generally prolonged and can occur over a large period. Thus to protect the victim it is very ideal that the limitation period starts from the last time the victim was abused. Offences like cruelty (Section 498A of IPC, 1860), assault (Section 351 of IPC) and battery (Section 350 of IPC) are generally involved in cases of domestic violence and thus all three can be considered continuing offences, provided the criteria for it is fulfilled.

In an important and significant judgment of 2020, the Bombay High Court held that obtaining relief under the Protection of Women from Domestic Violence Act, 2005 could not be made equal to the registration of offences and thus limitations prescribed under Section 468 of CrPC did not apply to complaints under this Act. In the given cases, alleged acts of violence took place in 2008 while a complaint was filed in 2013.

This becomes especially important as it is generally observed that in cases of domestic violence, the victim generally does not rush to the police for filing a complaint after being inflicted with physical, mental, and physiological and economic abuse.

In Aruna v. Omprakash (2021), the Bombay High Court held that the definition of ‘domestic violence’ in Section 3 of the Protection of Women from Domestic Violence Act, 2005 indicates that depriving an aggrieved person of not only stridhan but also shared household, maintenance, alienation from assets, banks lockers, etc., and preventing the aggrieved person from entering the aggrieved person’s place of employment would all be covered under the concept of continuing offences. As a result, just because the wife filed a lawsuit after one year, the case cannot be precluded by limitation.
In an older case of Krishna Bhattacharjee v. Sarathi Choudhury (2016), the main issue in contention was whether a wife could make a claim of stridhan under Section 12 of the Protection of Women from Domestic Violence Act, 2005 even after judicial separation. The High Court had answered in the negative but the Apex Court held that stridhan was the exclusive right of the wife and that the husband and family members were mere custodians. Thus the concept of ‘continuing offence’ got attracted the moment of deprivation of stridhan.
In Geeta Kapoor v. State of Haryana (2013), the Punjab and Haryana High Court held that physical and mental harassment was a continuing offence and that a complaint under the Protection of Women from Domestic Violence Act, 2005 could be filed at any time.
Another important case in this regard is Anthony Jose v. State (NCT of Delhi) (2018) which stated that non-providing of maintenance is a continuous cause of action and even if for three years the respondent did not claim the maintenance for herself, the same would not debar her from seeking maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005

Kidnapping

A major example of a continuing offence is kidnapping. Provisions of kidnapping and abduction are mentioned in Article 359 of IPC, 1860.

A relevant case in this matter is Vimal Chadha v. Vikas Choudhary (2008). Here the Supreme Court held that in case of an offence of kidnapping for ransom and subsequent murder where the deceased was first found missing and missing report was lodged but telephone calls demanding ransom continued from time to time even after murder, the offence will be considered a continuing offence.

Another important observation of the Court was that to determine the age of the accused in a continuing offence, age as on the first day when the offence was committed will be considered.

In Vikas Chaudhary v. State (NCT of Delhi) (2010), the Apex Court further held that every time a ransom call was made, even after the death of the victim, a fresh period of limitation commenced.

Companies Act

Continuing offence finds application even in acts like Companies Act, 1956. A major area of contention is Section 630 of the Act which involves wrongfully withholding possession of company property was considered a continuing offence. The same was held true in B.R. Herman and Mohatta India Ltd. v. Ashok Rai (1983). Moreover the same was held in Kannankandi Gopal Krishna Nair vs. Prakash Chunder Juneja and Ors. (1993), where Justice M.F. Saldanha observed that this case was- “…one more of the numerous litigations relating to the non-return of a company flat by an ex-employee…” and that in every scenario, Section 630 applied which was an established continuing offence.

However, Section 630 is not the only continuing offence in the Companies Act, 1956. In the case of Kuldip Singh v. State of Punjab and Ors. (1987), Section 159, 162 and 220 were also considered within the ambit of continuing offences.

Conclusion

Whether an offence is a ‘continuing offence’ has been extensively discussed in the courts. Although courts over the years have given a basic idea of what ‘continuing offence’ is and what are its essentials, proper uniform statutory guidelines do not exist, giving rise to a lot of ambiguities. Putting cases of domestic violence under the ambit of continuing offence has been a recent judicial innovation. This is significant as the fact is that women hardly come forward immediately after suffering domestic abuse. So, even if women come forward later, they will be given proper relief under Indian law.

Continuing offences do not only find application in criminal law. As seen above, it can also apply to acts including but not limited to the Companies Act, 1956 and Industrial Disputes Act, 1947. This varied range of applications is further proof of the need for uniform guidelines defining this category of offence.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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T Sareetha judgment : can two spouses be forced to stay together

By

Oishika Banerji

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December 7, 2021

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This article has been written by Ria Verma, a student at Symbiosis Law School, NOIDA. This article aims to critically analyze the judgment of T Sareetha, examine the constitutional validity of restitution of conjugal rights and why it is currently being challenged in court.

Table of Contents

Introduction

One basic essential of marriage is that both the husband and wife should live with each other and have certain rights and obligations. These rights and duties cannot be disregarded in any circumstances. It is a distinctive feature of a relationship that is conjugal in nature. Conjugal rights broadly signify two ideas- the right for the couple to live together and the right to marital intercourse.

The Hindu Marriage Act, 1955, contains one of the most dreaded sections of the Indian statute books: the rule in Section 9 on the restitution of conjugal rights. This section has been variously interpreted by courts, but it should have no place in a democratic country, especially one that recognizes women as equal citizens. It restricts an individual from breaking free of the chains of marriage. The logic flows throughout the entire statute that the bond between two spouses formed by marriage is eternal. The mere idea of marriage is seen as a sacrament.

The constitutionality of the remedy of conjugal rights is still a debatable issue due to the competing interest between the interest of the State in protecting the marriage and protecting an individual’s basic rights on the other hand.

Restitution of conjugal rights

‘Conjugal’ means relating to the married state or emphasizing the relations between two married individuals. One spouse has an entitlement to receive the society and consortium of the other spouse. ‘Restitution of conjugal rights’ refers to restoring these matrimonial rights to an aggrieved spouse.

Conjugal rights are created by marriage and recognized in personal laws dealing with issues such as divorce, marriage, etc. It is the right given to both the husband as well as the wife to have the society of the other spouse. In criminal law, these rights are recognized when one spouse is obligated to pay alimony and maintenance to the other.

One aspect of conjugal rights is recognized in Section 9 of the Hindu Marriage Act, 1955. The aggrieved spouse is given the right to move the court to compel the other spouse to cohabit with him/her.

The concept of these rights can be traced to ancient times when marriage was treated as an institution giving the husband proprietary rights. There was an obligation for the spouses to reside in the same place. An archaic approach has been adopted by the Indian judiciary, holding that it is the primary duty of the wife to obediently submit herself to the husband and remain under his roof. The value of a wife was equated to that of an asset and therefore, she needed to be in the society of the husband.

Cases dealing with Section 9 often have complicated procedures and legalese, with the lawyers accommodating the accounts of the spouses to fit some legal issues. Narratives of infidelity, violence, and faith are all ignored as they are considered to be non-legal. For example, an aggrieved spouse files a petition to compel the other spouse to reside with them. The onus lies on the spouse to prove that because of a ‘reasonable’ excuse they have omitted from living in the society of the aggrieved. Only the experience that would carry legal significance would be valid and not the hardships that led to one spouse’s withdrawal from the society of the other. The private sphere of an individual has been narrowed down by the intervention of the judiciary in the marital life of a couple.

Essentials of Section 9

The view of the judges is etched with patriarchal notions and the consequences have to be suffered by women. The remedy would then amount to the husband forcefully engaging in sexual intercourse with the wife and the wife would be left with no remedy.

The court can pass a decree in the petitioner’s favor when following three conditions as stated in Surrinder Kaur v. Gurdeep Singh (1973) are fulfilled:

The respondent withdrew from the petitioner’s society without any excuse that can be considered reasonable. Herein ‘society’ could refer to staying together, having intercourse, or discharging any obligations arising in the course of the marriage.
The actions of the petitioner were not responsible for the withdrawal of the respondent.
No legal ground exists that prevents the aggrieved spouse from receiving relief.

A revolutionary judgment – T Sareetha v. Venkata Subbaiah

Facts of the case

In this case, Sareetha, at the age of 16, got married to the respondent, Venkata Subbaiah in 1975. However, they immediately stopped living together and continued to live apart for a duration of five years. As a consequence, Venkata filed a petition for restitution of conjugal rights to compel her to live with him under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”).

Sareetha contended that the petition showcased a lack of jurisdiction of Cuddapah Court. This contention was overruled by the Cuddapah Sub-Court leading to the filing of the current Civil Revision Petition.

Her second claim was that Section 9 of the Act is a sheer violation of the fundamental rights enshrined in the Constitution of India. She claimed that by legally imposing cohabitation between two spouses without their mutual willingness, the Section violates the right to human dignity and decency, personal liberty, and the right to life.

Prominent issues raised

1. Would the Madras residence supersede the Cuddapah residence under Section 19 (iii) of the Hindu Marriage Act, 1955?

2. Can sexual cohabitation be legally imposed between unwilling, opposite wedded spouses by the Court by issuing a decree of restitution of conjugal rights?

3. Would the decree infringe the fundamental rights of the individual against whom it is issued?

Judgment

The Court addressed the confusion and uncertainty caused by the term ‘resided’ while interpreting the clause. It was held that the matrimonial home of the spouses, that is, the parties to the marriage, would be the place where they last resided together. A place where the parties resided for short sojourns would not fall under the ambit of this clause.

The Court was also of the view that it is a common tradition within agricultural communities for the spouses to go to the husband’s place since the community is attached to the place where their residence and occupation coincide. Sareetha did not deny the averment that they had resided together in Cuddapah nor did she prove that plea to the satisfaction of the Court. Therefore, the Judge agreed with the view taken by the lower court and reiterated that the residency in Madras residence would not supersede the residency in Cuddapah.

To resolve the second and the third issue put forth by the petitioner, the Court scrutinized the validity of the restitution of the conjugal rights by citing several case laws and arguments made by prominent scholars and jurists. The crux of these issues is related to the legal backing of forceful sexual intercourse between two spouses.

The objective of obtaining a decree of restitution of conjugal rights is to compel the unwilling legally wedded spouse to cohabitate with the other spouse. It would transgress the sanctity of the union of marriage by invading the privacy, integrity and suppressing the voice of an individual. The State invades the domestic intimacy of an individual and commits a coercive act.

However, according to Justice Choudhary’s interpretation, it would subsequently lead to forceful intercourse between the two spouses. He emphasizes an unequal balance maintained by the family and the mental, physical pressures that a woman has to bear along; and how she does not even receive any form of protection from her own family. He cast doubts on how Section 9 is in lieu of the fundamental rights enshrined under the Indian Constitution.

A significant point of distinction between human beings and animals as pointed out by the Court is sexual autonomy. It is considered that the sexual relationship between a man and woman is based on the grounds of mutual consent and free will. Nothing can be more degrading for a human to be subjected to forceful intercourse by the ‘long arm of the law’.

Justice Choudhary interprets privacy as an individual right inclusive of bodily autonomy and not merely limited to a space whose doors are closed by the State. He laid emphasis on not suppressing the privacy claims brought by the citizens by outweighing the interests of the State. A woman is totally excluded from the microscope within this Section and stripped of her voice in the most intimate decisions. Her privacy and bodily integrity were not at all considered by the lawmakers.

The connection between cohabitation and forceful intercourse lies in unbalanced rights given to the individual. The husband remains in the same place after the decree is enforced however the wife has to beget and bear a child, killing her future ambitions. If a woman is contemplating divorcing her husband, this Section could bring about forceful intercourse and subsequently, forceful conception. Her mindset, body, life would be ruined and it would be a sheer violation of her dignity. He concludes by calling the remedy “an engine of oppression to be operated by the husband for the benefit of the husband against the wife.” Hence, the Court held that Section 9 of the Act was null and void.

Analysis of the judgment

Holding Section 9 valid would not align with widely accepted principles of human rights because of the following reasons:

Personal laws are subject to the Indian Constitution

The Constitution of India is the suprema lex, that is, the superior law. It cannot be superseded by any laws. It has been seen in prominent cases such as Re:Amina v Unknown, (1991) wherein it was scrutinized by the Court whether personal laws would be subjected to Part III of the Constitution (that deals with fundamental rights) and, the recent case of Shayara Bano v Union of India, (2017) that criminalized triple talaq. H.M. Seervai, an eminent jurist, known for his book ‘Constitutional Law of India’ opined that the Supreme Court incorrectly interpreted the provision several and that personal laws would be subject to fundamental rights.

Violation of privacy

In Shreya Singhal v Union of India (2017) and K.S Puttaswamy v Union of India (2018), the Court opined that the right to privacy is intrinsic to the right to life enshrined under Article 21 of the Constitution of India. A similar stance was taken by the Court in Joseph Shine v Union of India (2018), wherein the Court held that the State should refrain from intruding in the private domain between two spouses hence, protecting the dignity of a woman which does not get engulfed after marriage. Privacy is a part of human dignity intrinsic to Article 21. An archaic decree of restitution of conjugal rights should not trample upon the basic human rights of an individual.

Bias against women

The provision is not gender-specific but the costs are weighed on women disproportionately. They have to suffer the brunt of the law and further live a miserable life with the non-existent dignity of chattel.

Misuse of the provision

The provision is misused as a shield against proceedings initiated for divorce and maintenance. The aggrieved spouse files a divorce petition from their place and the other spouse retaliates by filing for a decree of restitution of conjugal rights. In this way, the spouse is unable to get a divorce and again, has to suffer the brunt of the law.

Its aftermath

In the same year, the Delhi High Court in the case of Harminder Kaur v. Harmander Singh, (1983) upheld the validity of the provision and stated that applying constitutional laws at home would be similar to introducing a bull in a china shop. Introducing the constitutional principles would be a significant factor in weakening the bond between the spouses. The court further pointed out that Justice Chaudhary’s over-emphasis on the aspect of forced intercourse is the logical fallacy in his reasoning. Justice Rohatgi criticised the T Sareetha judgment stating that it is in the interest of the State for the marriage to remain stable and no home should be broken because of the parents dissolving their marriage.

The Supreme Court then intervened as two High Courts had given different rulings on the same matter. In the case of Smt. Saroj Rani vs Sudarshan Kumar Chadha (1984). The Supreme Court opined that the right of the spouse to the company of the other spouse is not just a creature of the statute, but this right is inherently present in the institution of marriage itself. Therefore, the provision ‘serves a social purpose as an aid to the prevention of break-up of marriage’. The view held by the Andhra Pradesh High Court in the T Sareetha judgment was overruled.

Today, Section 9 is currently being challenged in the Supreme Court on the ground that it is a stark violation of the right to privacy. A plea has been made by two law students, contending that the passing of a court-mandated decree of restitution of conjugal rights would be a ‘coercive act’ by the State. Alongside violating the right to privacy and dignity, it would also violate an individual’s sexual and individual autonomy.

Conclusion

The decree would make the body of the unwilling spouse, especially the female, nothing but a ‘joyless vehicle’ for giving birth to a new being in the world. Such a forcible act has never been approved in ancient Hindu society. Hence, a decree of restitution of conjugal rights is a flagrant infringement of the fundamental rights guaranteed to every citizen, under Articles 14,19, and 21. Section 9 of the Act was deemed to be constitutionally void as per the provisions mentioned under Article 13 of the Constitution.

The reasoning given by Justice Choudhary has been a catalyst for initiating change and is applicable even today especially against the non-criminalization of marital rape. It is the need of the hour for India to do away with the restitution of conjugal rights considering it as a blatant infringement of the fundamental right to equality, dignity, life, and freedom of speech and expression. Outdated laws must be replaced with the progressive ideals of modern society.

The decree acts as a noose around their necks who leave their husband’s house after tolerating years of abuse and cruelty. Marriage should not be viewed as a sacred ceremony but by its autonomous aspect- two individuals consenting to live their life together.

References

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Can a person be dispossessed from his property without due process of law : an insight

By

Oishika Banerji

-

December 7, 2021

0

This article is written by Rida Zaidi, a law student of the Faculty of Law, Aligarh Muslim University. The author aims to analyze the question of whether a person can be dispossessed from his property without the sanction of law as the Right to Property ceases to be a fundamental right

Table of Contents

Introduction

Right to Property used to be one of the fundamental rights of the citizens of India until 1978. With the 44th Constitutional Amendment, 1978 it ceased to be a fundamental right. As the Court held in the case of Vimlaben Ajitbhai Patel v Vatslaben Ashokbhai Patel (2008), the Right to Property, though not a fundamental right, remains a human right and constitutional right under Article 300A of the Constitution. According to Article 300A of the Constitution, no person can be deprived of his property except by the authority of law. In the case of Hari Krishna Mandir Trust v State of Maharashtra & Ors (2013) the Court observed that where the executive takes over any private property for the benefit of the public, the state has to compensate the concerned party to compensate for the injury caused- statutory authorities are bound to pay adequate compensation.

The Supreme Court has restated that forced dispossession of a person of his private property without due process of law is a violation of Human Rights. The principal question of whether a person can be dispossessed of his property without the due process of law as the Right to Property ceases to be a fundamental right was decided by the Supreme Court in the case of Vidya Devi v State of Himachal Pradesh & Ors (2020). The Court was of the view that no person can be dispossessed of his property without the Sanction of law or due process of law.

This article shall deal with the case of Vidya Devi v State of Himachal Pradesh & Ors (2020) to answer this question in detail.

Right to property

Right to property was one of the fundamental rights till the year 1950. It was terminated as a basic right and was reintroduced as a constitutional right in 1978. The Right to Property is the second most disputable right and it is the right that has been amended or edited the most amongst all the other rights. The Right to Property is the only right that was withdrawn from the list of fundamental rights by the 44th Constitutional Amendment Act. The Right to Property is now a constitutional right under Article 300A of the Constitution. It is not just a constitutional right but also a human right that was held by the Court in the case of State of Haryana v Mukesh Kumar (2011). The implication of the 44th Amendment Act is that only the High Courts can challenge any legislation that violates the fundamental right of property. After the repeal of Article 31A, the State does not have any obligation to pay compensation to someone whose land has been taken over by an authority that has the backing of a statute that was passed by the Parliament.

Right to property, though now not a fundamental right, still remains a precious constitutional right. The significance of the Right to Property was pointed out in the case of B.K. Ravichandra v Union of India (2020). The precedence of the Right to Property as a fundamental right may have been diminished but is safeguarded by the rule of law. The articulation of Article 300A is important as it along with its resemblance with Article 21 and Article 265 which upholds the supremacy of the law. There have been several judgements of the Supreme Court where it has upheld the sanctity of the Right to Property and has safeguarded the people’s right to their private property as per Article 300A of the Constitution. The Supreme Court has held in the landmark case of Vidya Devi v State of Himachal Pradesh & Ors (2020) that a person cannot be dispossessed from his property without the procedure established by law.

Vidya Devi v. State of Himachal Pradesh & Ors (2020)

Appellant- Vidya Devi

Respondent- State of Himachal Pradesh & Ors

Court- Supreme Court of India

Bench- Honourable Ms Malhotra, Ajay Rastogi

Date of judgement- 8th January 2020

Facts of the Case

The appellant is an 80-year-old illiterate widow who was forcefully disposed of her property.
The appellant was disposed of from her property on account of the construction of a major district road- Nadaun- Sujanpur road.
The construction of the road was completed by the year 1975.
One of the nearby situated persons whose land was also taken over by the state for some public purpose filed a writ petition in 2004 before the High Court of Himachal Pradesh.
The High Court permitted the petition of the neighbouring people and directed the state to acquire the land of the writ petitioners under the Land Acquisition Act, 1894.
The state initiated the acquisition proceedings with respect to the lands of the writ petitioners and not of the other people whose lands were also overtaken.

Appellant’s contentions

The appellant came to know about the writ petitions in 2010 when she along with her two daughters filed a civil writ petition before the Himachal Pradesh High Court to compensate them or to proceed with the acquisition proceedings under the Land Acquisition Act,1894.

Respondent’s contentions

The respondents’ land was overtaken in 1967-68 and 42 years have passed. The title has now been converted into ‘adverse possession’ and the only remedy available to the appellants is a civil suit.
The State also contended that they informed the general public by way of a notification dated in 2008 regarding a neighbourhood land which was similarly taken over from its owners.
The writ petition is barred as there has been a long delay in the filing of a civil writ petition.
The State has occupied the land after taking it over from the appellants. The predecessors of the appellants have given their consent orally for its utilization without any objection.

Analysis of the Court

The Court observed that the appellant was wrongfully disposed of from her property in 1967 when the Right to Property was a fundamental right as guaranteed under Article 31 of Part III of the Constitution. According to Article 31, no person can be disposed of his private property without the procedure established by law. Dispossessing a person from his property is violative of a person’s human right in a welfare State and his constitutional right under Article 300A of the Constitution. A person cannot be dispossessed from his property without paying just compensation and is a violation of his then fundamental right in 1967. The Court rejected the contention of the respondent that it has obtained the consent of the appellant’s predecessors as there was no evidence found which could prove this fact. The Court also pointed out the State cannot perfect its title by invoking the doctrine of ‘adverse possession’ to seize the land of its citizens. The Court also highlighted the point that there is no limitation period prescribed as to the exercise of the powers of the Court to do substantial justice.

The Court laid down that the State is directed to compensate the appellant on the same terms which were given in the order executed for the writ petitioner. The State was directed to pay legal costs of Rs 100,0000 to the appellants. If an appeal is filed within 8 weeks from the date of compensation being paid to the appellant it would be deemed to be filed within the limitation period and would be decided upon its merits.

Judgment

The Court held that the concerned matter has disputed questions of law and fact and the writ petitions cannot be adjudicated keeping in mind the limitation period which has already expired. The Court permitted the appellants to file a civil suit. A review petition was filed which was dismissed and a civil suit was initiated

Previous judgments

Petroleum Corporation Ltd v. Darius Shapur Chenai (2005)

The Court held that the State in the exercise of its ‘eminent domain’ under Article 300A of the Constitution may acquire the private property of a person but it should be acquired for the benefit of the public and reasonable compensation has to be paid for the same.

N Padmamma v. S. Ramakrishna Reddy (2008)

The Court held that the Right to property is a human as well as a constitutional right under Article 300A of the Constitution and the provisions of Article 300A of the Constitution should be construed strictly.

Jilubhai Nanbhai Kachar v. State of Gujarat (1994)

The Court observed that Article 300A of the Constitution only restricts the power of the State to not deprive a person of his property without the sanction of law but the State could do the same through some other mode which shall not amount to acquisition or dispossession under Article 300A of the Constitution.

Tukaram Kana Joshi & Ors v. M.I.D.C & Ors (2012)

The Court held that the State has to comply with the procedure established by law for acquisition, requisition or any other mode provided in the statute. But the State cannot acquire any other status for itself which is beyond what is provided in the Constitution.

State of Haryana v. Mukesh Kumar (2011)

The Court held that the Right to Property is not just a constitutional or statutory right but a human right as well.

Conclusion

The principal question dealt with under this article is whether a person can be dispossessed from his property without due process of law as the Right to Property ceases to be a fundamental right. The landmark case of Vidya Devi v State of Himachal Pradesh & Ors (2020) decided the issue that a person cannot be dispossessed from his property without the due process of law as laid down under Article 300A of the Constitution. The Court held that the State can only take over a person’s property by the sanction of law which is done for the public interest and reasonable compensation is paid to the injured party. The Court also emphasised the point that it cannot perfect its title by invoking the doctrine of adverse possession. The Court observed that dispossessing a person from his private property would be violative of his human rights. The State could only acquire someone’s private property with the authority of law and the State in doing so cannot acquire any other status for itself which is beyond what is prescribed in the Constitution but can do so by any other mode which does not amount to acquisition or dispossession. The court in the exercise of its powers under Article 32 and Article 146 of the Constitution can do substantial justice and there is no limitation period prescribed for the same.

References

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