This article is written by Daksh Ghai, from Symbiosis Law School, Noida. The article provides a critical analysis of the case of Sumed v. Nil, the article further provides a detailed discussion on the several provisions that were used in this case.
Table of Contents
Introduction
The biological parents of a minor child wanted to give their daughter for adoption in the case of Sumed v Nil, but the lower courts ruled that under the Juvenile Justice Act of 2015, the minor child could not be given for adoption because she was not a child in conflict with the law or in need of care and protection. The Juvenile Justice Act of 2015 is India’s primary legal framework for child protection. The Act ensures the safety, security, education, and well-being of children in need in India. The Act suggests making inquiries to see if a child’s vulnerability necessitates his placement in a children’s home.
The case of Sumed v. NIL
Facts
In this case, an application was filed by the applicants who were the biological parents of a minor girl who wanted to give their minor daughter to prospective adoptive parents herein under the provisions of the Juvenile Justice Act, 2015 (JJ Act) and Adoption Regulations, 2017 framed under the said Act.
The application was rejected by the Court of District Judge, Yavatmal, the ground on which the District Magistrate rejected the application was that the child, in this case, was neither a child in conflict with the law, nor a child in need of care and protection, nor an orphan, nor a surrendered/ abandoned child and therefore, provisions of the JJ Act, 2015 would not apply.
Issue
Can adoption of children be restricted only to orphaned, abandoned, or surrendered children or those in conflict with the law or in need of care and protection?
Judgement
The applicants went to High Court, the court-appointed amicus curiae who submitted that if the contents of the JJ Act, 2015 were compared to those of the previous enactment, the Juvenile Justice (Care and Protection of Children) Act, 2000 it is clear that the JJ Act, 2015 has numerous new provisions. As a result, the scope of the legislation expanded, and it now includes a specialised method for child adoption for relatives.
On this basis, it was asserted that the lower court could not have found that the application deserved to be rejected because the kid in question was not in violation of the law or in need of care and protection.
The learned Amicus Curiae cited the Supreme Court’s decision in the matter ofShabnam Hashmi v. Union of India(2014) to argue that a person could adopt a kid under either the applicable personal law or the JJ Act, 2015, which is a secular law aimed at accomplishing the goal expressed in Article 44 of the Indian Constitution about a Uniform Civil Code for citizens.
The Bombay High Court’s Nagpur Bench ruled that under the Juvenile Justice Act, 2015, adoption of children cannot be limited to orphaned, abandoned, or surrendered children, or those in conflict with the law or need of care and protection.
Various provisions applied in the case
Right to the family for an orphan abandoned and surrendered children
Section 56(1) of the Juvenile Justice Act states that adoption should be used to ensure that orphaned, abandoned, and surrendered children have a family. It was held in the case of Lakshmi Kant Pandey vs Union of India (1984) that every child has the right to love and be loved, as well as to grow up in an environment of care and devotion, as well as a moral and material stability, and that this can only be achieved if the child is raised in a family. According to Article 39(f) of the Indian Constitution, the state should guarantee that children have the chance and resources they need to grow up healthy and dignified to prevent childhood and adolescents from exploitation, moral and material abandonment and exploitation. Article 4 of the UN Guidelines for Alternative Care of Children, 2009 states that every child and young person deserves to grow up in a nurturing, protecting, and caring environment that encourages them to reach their best potential.
Adoption by a relative
Earlier, only an orphan, abandoned, or a surrendered child could be adopted. The government has now broadened the criteria of children eligible for adoption in the Juvenile Justice Act to include a kid of a relative as well as a child or children of a spouse from a previous marriage who have been given for adoption by their biological parents. Relatives, as defined by Section 2(52) of the Act, include paternal uncles or aunts, maternal uncles or aunts, paternal grandparent or maternal grandparent, who can adopt children from a relative and have a legal relationship with them. A relative residing abroad who wishes to adopt a child from a relative in India must receive a court order and apply for a No-Objection Certificate from the Administration in the way prescribed by the Authority’s adoption guidelines.
Hindu Adoption and Maintenance Act,1956
Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956. The difference between Juvenile Justice Act and the Hindu Adoption Act is that in the Hindu Adoption and Maintenance Act only Hindu children up to the age of 15 years can be adopted, same-sex children can not be adopted and inter-country adoptions can not be done under HAMA while Juvenile Justice Act is a secular Act and children up to the age of 18 years can be adopted, no such condition as to same-sex adoption and all inter-country adoptions can be done as per the Section 56(4) of the Juvenile Justice Act.
Prospective adoptive parents’ eligibility
Section 57 of the Juvenile Justice Act states that the adoptive parents must be in good bodily, mental, and emotional health, as well as financially capable and free of any life-threatening medical conditions. Any prospective adoptive parents, regardless of marital status or whether or not they have a biological son or daughter, can adopt a child if they meet the following criteria:
In the case of a married couple, both spouses must consent to the adoption;
A single female can adopt a child of any gender;
A single male cannot adopt a girl child.
Duties of specialised adoption authority for adoption procedure for Indian prospective adoptive parents who live in India
A specialised adoption agency under Section 2(57) of the Act should be established and should be given the duty to house orphans, abandoned, and surrendered children who have been placed there by the Committee for adoption.
If an Indian prospective adoptive parent, regardless of religion, wishes to adopt an orphan, abandoned, or surrendered child, he or she must apply to a Specialised Adoption Agency in the manner prescribed by the Authority’s adoption laws.
The Specialised Adoption Agency will start preparing the prospective adoptive parents’ home study report and, if they are found to be eligible, will refer a child who has been declared legally free for adoption to them, along with the child’s child study report and medical report, following the Authority’s adoption regulations.
Upon receipt of the child’s acceptance as well as the child’s child study report and the medical report signed by such parents, the Specialised Adoption Agency shall place the child in pre-adoption foster care and file an application in court for an adoption order, in the manner specified in the adoption regulations.
The Specialised Adoption Agency will provide a certified copy of the court order to the prospective adoptive parents as soon as it receives it.
The progress and well-being of the child in the adoptive family shall be monitored and verified by the Authority’s adoption regulations.
Adoption by a person from a different nation
Section 59 of the Act states that, if despite the joint efforts of the Specialised Adoption Agency and the State Agency, an orphan, neglected, or surrendered child could not be placed with an Indian or Non-Resident Indian prospective adoptive parent within sixty days of the date the child was declared legally free for adoption, the child shall be free for inter-country adoption:
If one is willing to adopt a kid from India, he must be a Non-Resident Indian or an overseas citizen of India, or a person of Indian descent or a foreigner, regardless of one’s religion the person can apply for adoption through a registered foreign adoption agency, the Central Authority, or a concerned Government department in their country of usual residence.
It will be the duty of the foreign adoption agency to prepare the home study report of such prospective adoptive parents if they are found to be eligible, and will support their application to the Authority for the adoption of a child from India in the manner prescribed by the Authority’s adoption regulations.
When the Authority receives an application from such prospective adoptive parents, it will investigate it and, if the applicants are found to be acceptable, it will refer the application to one of the Specialised Adoption Agencies, where children who are legally free for adoption will be available.
Conclusion
The Juvenile Justice Act of 2015 provides a separate new chapter on Adoption to streamline adoption procedures for orphaned, abandoned, and surrendered children.
Also, the Central Adoption Resource Authority (CARA) has now been granted the status of a statutory body to enable it to perform its function more effectively. The Act makes the registration of all children’s homes mandatory, bringing in more transparency and efficiency in the system. Adoption of children cannot be limited to orphaned, abandoned, or surrendered children, or those conflict with the law or in need of care and protection.
The internet was invented in 1960 for the internal purpose of the US military. Development occurred at a quicker pace from 1983, due to the advancements in the associated areas leading to the birth of “Online Technology” which turned the world into its parasite. “The technological growth through ages” is depicted in Figure 1 (UNCTAD-United Nations, 2021).
The online technology allows the users to access information and communicate from all over the world, with the help of the World Wide Web (Web browsers, ftp, e-mail, associated hardware, Internet service providers, etc.,), On the other hand, law enforcement deals with the national security of the country’s ability to protect itself from the threat of anti-national violence or attack, (Council, 2007).
A survey by UNESCO in November 2020 on the knowledge improvement in the – ‘Artificial Intelligence and the Rule of Law in the Online Technology’ area – sees enthusiastic participation from the law enforcement and judicial fraternities across the globe and is depicted as “UNESCO’s November 2020 survey showing the interest in learning AI and the Rule of Law in Judicial Fraternity across the Globe” in Figure 5. (UNESCO, 2021).
Figure 1 – The technological growth through ages.
Figure 2- The world’s crimes trend.
Figure 3- India’s crime trend.
Figure 4- The rule of law making the vicious circle virtuous.
Figure 5 – UNESCO’s November 2020 survey showing the interest in learning AI and the rule of law in the judicial fraternity across the globe.
Figure 6 – Technological revolutions and adaptability gaps.
UNESCO’s survey prompts one to think about the technology gap in law enforcement. The gap can be attributed to the ‘Two-Phase Revolution’. First – the acceptability of new technology in core areas during a situation of the widened gap between the employees in the organisation. Second – the uneven deployment of technology in the same or similar sector. This leads to technological gaps while catching the technological revolution and is depicted as “Technological Revolutions and Adaptability Gaps” in Figure 6. (UNCTAD-United Nations, 2021)
Notwithstanding these s challenging gaps in the world’s ability to adapt to newer technology, the frontier technologies of the developing and the developed countries are advancing to make a huge impact in the fields of artificial intelligence (AI), the Internet of things (IoT), big data, blockchain, 5G, 3D printing, robotics, drones, gene editing, nanotechnology and solar photovoltaic (Solar PV) etc., This can be understood from the allocation of the market size in 2025 by the frontier technologies and is depicted as “Market Size Estimates Of Frontier Technologies, $Billion“ in Figure 7. (UNCTAD-United Nations, 2021).
In the above circumstances if questioned, – “How should law enforcement adapt to online technologies?” – it is vital to understand the essential features like- technology and criminology, the technology used in crime detection, understanding the agency’s needs for technology, agencies decisions in technology acquisition and implementation, existing technology tools and its uses, technology assessment studies- for research, developing scenarios for law enforcement, future scenarios, conclusion, and recommendations.
Technology and criminology
Individuals and groups using the internet, social media, and smartphones are more likely to commit crimes across international borders. Social media may be used to raise terrorist groups which require enforcement agencies to work through national and international jurisdictions and cumbersome bilateral agreements. Private companies should use a Mutual Legal Assistance Treaty (MLAT) which compels them to provide essential digital evidence. The usage of which is time-consuming due to laborious mechanisms that are not fully designed for a proper digital connection to the world as it requires further developments to accommodate the prosecution of transnational crimes. The terrorist group’s ability to adapt the latest technology to the ill-suited international legal mechanisms needs online monitoring.
Technology development should take care of both domestic and international laws. A Few countries want to control their own citizens’ data, including storing data inside their national borders. Today, we need technology tools that conform to international legal standards and integrate the needs of national sovereignty.
Technology used in crime detection
Technologies that need to support public safety are generally categorised into hard and soft types in crime detection. This distinction is detailed in “Technology Categorisation used in crime detection” in Figure 8. (Justin Escamilla; Jessica Reichert, 2019)
Understanding the agency’s need for technology
This can be well understood through continuous ‘Brainstorming’ sessions with the enforcement agencies and this technology pushing is possible only after analysing the details.s This can be seen in “Understanding the agencies need for Technology” in Figure 9.
The Law Enforcement Advisory Panel (LEAP) approach has provided far more depth than the typical “What Are Your Requirements?” interviewing method. . LEAP method addresses
What operational objectives would be if support is met?
How important is the need with respect to solving real-world problems that occur during day-to-day or crisis operations?
Whether it is technically feasible to meet the need?
Whether it is operationally feasible to meet the need?
The overall expected cost of the agencies to meet each need.
Further, if the agency wants the technology to accommodate both the current and future purpose, then it demands the study of two more core elements:
a) Taxonomy – Knowing what the need is,
b) Objectives – Categorizing and understanding the needs for further law enforcement.
This leads to the understanding of technology categorisation like hardware and software, for the use of law enforcement, courts, corrections and overlaps if any. Further breakdown of the broad objectives, decomposing the mission statements and frequent discussions with different expert panels help to pick up the appropriate software and associated solutions which leads to the overview of strategic planning of activities. The “Brainstorming session of Technology” is depicted in Figure 10. (Karsten, 2017) and (Webroot, 2021).
Figure 7 – Market size estimates of frontier technologies, $billion.
Figure 8 – Technology categorisationused in crime detection.
Figure 9 – Understanding the agencies need technology.
Agencies decisions in technology acquisition and implementation
On the whole, for the law enforcement agency, the technology adoption is more ad hoc than anticipated. The tendency of the agencies to purchase and implement technology is seen without a clear strategic plan. Uncleared questions like ‘why and how’ the technology will be used in limited technology integration within the agency. Failure to recognize the primary or secondary benefits of the technology leads to disillusionment and dis-continuation of funding for maintenance or updating particular types of technology.
The adoption and impact of technology are conditional and depend on numerous factors. These factors when combined into three domains (community, agency, and technology) to check the interaction of influence for the adoption disclose the key factor and is depicted as “Factors influencing the agencies decisions in technology acquisition and implementation – Venn diagram” in Figure 11. (Kevin Strom, 2016)
No doubt, community factors influence the adoption of technology. Its success in terms of its outcomes depends on the local laws along with the national sentiment. Community influence might be episodic and topical or it may be structural (e.g., the ability of the community to support expensive technology).
Organisational climate influences people’s willingness to integrate new information into existing processes. Openness to innovation and failure also influences the agency’s approach to new technologies and integration into key work processes.
From the above discussions, in general, one can conclude the requirement of a common person or any agency to adopt a technology. It should have the combination of ‘Five As’ – which are Availability, Affordability, Awareness, Accessibility, and Ability for effective use and is depicted as “5 A’s to adopt a Technology” in Figure 12. (UNCTAD- United Nations, 2021)
Existing technology tools and their uses
The timeline of the technology tools adopted by law enforcement agencies from 1960 to date is depicted as “Timeline Of The Technology Tools Adopted By Law Enforcement Agencies From 1960 To Date” in Figure 13. The existing technology tools being used in law enforcement is depicted as “Technology tools being used in Law Enforcement” in Figure 14. (Fritsvold, 2021)
Figure 10 – Brainstorming session of technology.
Figure 11 – Factors influencing the agency’s decisions in technology acquisition and implementation – Venn diagram.
.
Figure 12 – 5 A’s to adopt a technology.
Figure 13 – Timeline of the technology tools adopted by law enforcement agencies from 1960 to date.
The new technology and adoption of new tools are helping the law enforcement authorities to recognise crime at a faster pace in order to enhance public safety, catch criminals and save lives. The tools in use are:
Facial recognition software
Many individuals and groups were concerned that this software would be used unethically, but eventually, it proved to be an effective investigative tool. The software helps in safety improvement in a number of instances. It helps to find and arrest a rape suspect within a few hours of the attack. This is being used in public places for safety purposes.
Biometrics
In addition, facial recognition and DNA helps in understanding the array of biometric (and behavioural) characteristics. Tools like voice recognition, palmprints, wrist veins, iris recognition, gait analysis, and even heartbeats help in addition. Comprehensive electronic databases using DNA and other biometric data plus fingerprints help to identify suspects.
Voice technology
This empowers authorities in performing the duties during patrolling in highways. Though voice systems vary from vehicle to vehicle, commands run during emergency situations. This technology makes it easier for police to file reports; and officers can dictate their notes which are then logged directly into their agency’s RMS system.
Robots
This refers to the usage of next-generation cameras that help in delivering both visual and audio surveillance in potential crime scenes. This may be too dangerous or too hard for officials to reach. Some devices are even “throwable” (up to 120 feet and capable of withstanding repeated 30-foot drops)and powered by an electric motor. These are equipped with high-tech wheels for movement, climbing, and exploring the most challenging spaces while being operated wirelessly
Video doorbells
These help in enhancing security through surveillance systems and assist law enforcement when it comes to criminal investigations
ShotSpotter
These help in pinpointing the exact location of the gunfire every moment. Today, the sensors help to detect gunfire and assist analysts to track the data and instantly relay it to police, helping them to arrive quickly. It can detect 90% of gunfire incidents with a precise location in less than 60 seconds to significantly improve response times.
Thermal imaging
This is an important police technology which is helpful in dark conditions. Some of the cameras are small hand-held units. They utilise infrared imaging to detect heat emitted by such objects as humans and animals, and deliver a “heat picture” or “heat map” of the environment in question. These are being used to track the motion of suspects in darkened places. This technology has life-saving applications — from firefighting to search-and-rescue missions in storms.
Artificial intelligence
Internet of Things (IoT) means more data is being generated, collected, arrayed and analyzed than ever before.This data helps in law enforcement using tools like ShotSpotter, facial recognition, biometric etc., with the help of artificial intelligence (AI). From the data which is collected, crime mapping and forecasting can be carried out using deep machine learning algorithms.
Smarter cruisers
Smarter cruisers are equipped with a gong for a siren and a cell in the back for prisoners. They are also in the process of getting upgraded to Wi-Fi connected laptops, tablets, and in-dash computers. These facilities give authorities the benefit of instant access to vital information, communication systems and more. The addition of Next-generation officer safety features (for example, armor – piercing bullet proof doors) are also incorporated into some police vehicles. Semi-autonomous operational capabilities help the authorities to act safely and in time.
Automatic License Plate Recognition (ALPR)
This technology allows the toll collectors to automatically scan and collect the registration numbers and charge fines. It is also used by a variety of law enforcement authorities for identifying stolen cars. With AI, ALPR cameras can identify the make, model and colour of cars even in low light and poor weather, distinguish individual characters on license plates, learn new plates as they appear and expand its database to include updated and unfamiliar designs.
Enhanced Body-Worn Cameras
These help in street-level view and are designed for better integration in order to provide synchronised video of an event from multiple points of view. The technology makes a camera capable of issuing an alert when an officer is down. On the horizon are body-worn police cameras equipped with facial recognition capabilities.
Drones
Drones are unmanned aerial vehicles (UAVs).Drones are increasingly being used for crime scene work, search and rescue efforts, accident reconstruction, crowd monitoring and more. Some of the more sophisticated models can be equipped with thermal imaging or 3D mapping software to offer GPS-enhanced precision to the areas being surveyed. The drones and UAVs are also equipped with zoom cameras, making them incredibly valuable for delivering actionable, real-time intel in high-risk, “armed and dangerous” situations.
Technology assessment studies : for research
A detailed assessment of technology areas is a repetitive process that combines literature reviews, market analyses, interviews, focus groups, and site visits. To understand technology enforcement, it is essential to identify the recommendations within the limits of the policymakers, seek the requirements of new needs and use the new future technology. This generates the requirements of new technology needs and can be understood by studying the examination of the use of predictive analytics in policing, usage of geospatial tools, examining both the promise and the pitfalls of information-sharing, examining the market and market gaps for technology.
Examination of the use of predictive analytics in policing
The use of analytical techniques (usually statistical models) help in identifying promising targets for agency intervention which help in preventing crime, solving past crime and identifying the potential offenders and the victims. The resulting guide provides a taxonomy of predictive policing in solving cases by developing, acquiring or using a predictive analytics system.
Usage of geospatial tools
Using a combination of geospatial tools helps in quality assurance of technical solutions of crime-solving, by law enforcement. Identifying the gaps in disseminating tools and the development of usable tools helps in the improvement of the interoperability with the existing systems.
Examining both the promise and the pitfalls of information-sharing
This refers to the examination of the interoperability and cost accessibility of RMS, CAD systems, and other key law enforcement information. It involves sharing systems by creating common policy and request-for-proposal (RFP) language that specifies interoperability requirements, testing compliance, information assurance (cybersecurity) requirements, and privacy and civil rights compliance requirements.
Examining the market and market gaps for technology
This refers to supply and demand analysis data that is to be compared for knowing the market gaps of technology tools in law enforcement and is depicted as ‘Data to be compared for knowing the market gaps of technology tools in law enforcement’ in Figure 15.
This method was adopted for considering alternative future visions, comparing them in devising scenarios of trajectories from the present to the future in which the characteristics were defined for evaluating pathways and alternative scenarios in three-time horizons. The First Horizon is the present time i.e., 2014, the Third Horizon is the future i.e., 2034. The Second Horizon is the intermediate time period. The y-axis represents the extent to which strategies for law enforcement fit and X-axis represents the time. The conflicting positions suggest that period at which law enforcement must operate changes with advances in technology and the evolution of society. The conflicting positions lie in the period 2021 and 2028 and are depicted as “Three Horizons Vision Method” in Figure 17
Future scenarios
Major participants leaned towards “Tough Love” and “Safe Streets’ ‘, but “Safe Streets” was the more preferred one. The study was further refined based on learning and was classified further as ‘Scenarios Leading to Desirable Futures’ and ‘Scenarios Leading to Undesirable Futures’ and discussed below:
Scenarios leading to desirable futures
There are four scenarios leading to desirable futures. Two that initially move into the “Tough Love” quadrant and two that initially move into the “Safe Streets” quadrant.
Scenarios in “Tough Love”
The scenarios are 1A and 2A, in which the initial use of technology by law enforcement is intrusive and erodes public support. In the case of 1A, law enforcement demonstrates and maintains competent use and regains public support, while in 2A community alienation continues and the lack of support for law enforcement grows. Effective communications by establishing a constructive dialogue with the community may lead the pathway towards scenario 1A. This is depicted as Scenarios in “Tough Love” in Figure 18.
Scenarios in “Safe Streets”
The scenarios are 1B and 2B, the law enforcement continues to master and use technology effectively. improper use of technology causes a cascade of negative effects, and public support is lost even though technical expertise continues to grow and the effective use of technology continues to increase. This is depicted as Scenarios in “Safe Streets” in Figure 19. In the view of participants, 1A and 1B was more desirable than 2A and 2B, because they represent futures in which public support for law enforcement is present and growing.
Figure 14 – Technology tools being used in law enforcement.
Figure 15 – Data to be compared for knowing the market gaps of technology tools in law enforcement.
These are categorised into three main scenarios and further divided into five sub undesirable futures.
Undesirable scenario 1
In scenario 3A, law enforcement is unable to use the technology effectively, due to technology advancements or lack of resources or failure in recruitment/training/ implementation/process/policy. Scenario 4A could be due to loss of funding/too intrusive use/ lack of community outreach/poor leadership/a negative feedback loop resulting from outperformance by private police or any combination of these. Another possibility is a response to crises such as scarcity of resources or natural disaster(s). This is depicted as undesirable scenario 1 in Figure 20.
Undesirable scenario 2
Here are two futures in which initial movement is positive, but this is due to the inability to move negatively. Scenario 3B, law enforcement initially continues to master the technology and later on lose public support. This scenario is a catastrophic event and leads to one or more of the problems with a negative feedback loop. This is depicted as undesirable scenario 2 in Figure 21.
Undesirable scenario 3
This scenario was developed by workshop participants, the “do-nothing” scenario, which is Path 4C. Because of technological advancement and the active use of technology by criminals, law enforcement loses both technological capability and public support. This is depicted as undesirable scenario 3 in Figure 22.
Possible pathways to desirable futures
The scenarios show the effective use of technology with increased support from the public (toward “Safe Streets”) or decreased support from the public (toward “Tough Love”). Because of the difficulty of continually increasing public support as technology is used more pervasively, along with the increasing likelihood of social or legal obstacles, the “Safe Streets” path turns toward “Tough Love.” The law enforcement’s response to eroding public support by using technology in a less intrusive and more competent manner, leads to the “Tough Love” path turning toward “Safe Streets.” This type of back-and-forth movement between the upper two quadrants continues, with the possibility of reduced amplitude as law enforcement learns how to use technology effectively in a way that gains public support. Workshop participants hypothesize that this can be accomplished through:
(1) proactive use of information-sharing mechanisms, including social media and other means to establish effective communication both among law enforcement and with the public;
(2) effective training of law enforcement personnel; and
(3) partnerships with public- and private-sector organisations. This is depicted as “Possible Pathways to Desirable Futures” in Figure 23.
Figure 18 – Scenarios in “Tough Love”
Figure 19 – Scenarios in “Safe Streets”
Figure 20 – Undesirable scenario -1
Figure 21- Undesirable scenario -2
Figure 22 – Undesirable scenario -3
Figure 23 – Possible pathways to desirable futures
Conclusion and recommendations
The technology innovations have been spiking since the last few decades, as well as crimes due the above discussed ‘Online Technologies’. UNESCO’s survey displays law enforcement’s inclination to update knowledge in technology. This is due to the gaps in technological revolutions and adaptability. In the coming days, frontier technologies are advancing and will have a huge part to play in reducing the technological gaps. For any country the ‘National and Public security’ is of prime importance due to the intelligence of criminals in technology adoption. This forces the enforcement agencies to adapt to new technologies to restrain and curb crime in a speedier and effective way.
As of date, twelve major technology tools are in use to analyse and detect crimes. Due to criminals’ intelligence, new essential needs both in hardware and software technologies can be assessed by conducting Brainstorming Sessions. Predictive Analysis and Information sharing with different agencies and tools become more important in crime detection.
In a workshop study on ‘Law Enforcement Technology in the period 2024-2034’, the study recommends the new technology adoptions in the years 2021 and 2028. In different scenarios the majority leaned towards ‘Tough Love’ and ‘Safe Streets’ quadrants and also have public support.
It is recommended that
Proactive use of information sharing mechanisms, including social media and other means to establish effective communication both among law enforcement and with the public is very much essential.
Effective training of law enforcement personnel is the need of the day.
Innovation is a continuous process and the law enforcing agency needs to adopt it effectively.
Partnerships with public- and private-sector organizations will help both in funding and effective law enforcing.
The adoption of the above factors helps the Law enforcement agencies to be in line with the criminal’s technology so as to curb their activities and help in preserving both ‘Public and National Security’ aspects.
List of abbreviations
RDTandE
–
Research, Development, Testing, and Evaluation
RMS
–
Records Management Systems
MLAT
–
Mutual Legal Assistance Treaty
LEAP
–
Law Enforcement Advisory Panel
References
Council, N. R. (2007). Engaging Privacy and Information Technology in a Digital Age. The National Academies Press. https://doi.org/doi:10.17226/11896
Richard Silberglitt; Brian G. Chow; John S. Hollywood; Dulani Woods; Mikhail Zaydman; Brian A. Jackson. (2015). Visions of Law Enforcement Technology in the Period 2024-2034: Report of the Law Enforcement Futuring Workshop. RAND Corporation.
UNCTAD- United Nations. (2021). Technology and Innovation Report 2021. In U. N. Publications, United Nations Conference on trade and development, UNCTAD, New York.
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With advancement in technology, comes increased human dependence on technology. The internet has provided man with quick access to anything from a single location. It is used in practically every aspect of life. As the internet and its associated advantages have gained currency, so did cybercrime. Millions of users’ personal details have been stolen as a result of cybercrime in recent years, posing a serious hazard to web users. Cybercriminals are very adept and difficult to locate on the public and dark web as well. There is no specific definition of “cybercrime” in any legislation or guideline. The term “cyber” refers to computers, information technology, the internet, basically the digital world and all aspects of it. Cybercrime is a crime that requires the application of a computer, mobile or any other gadget. Computer crime is another term for cybercrime. Computer could be used either as an object to attack another device such as Hacking, SQL Injection, Distributed Denial-of-service attack, etc. or as a tool to further real-world-based crime such as infringement of Intellectual Property Rights, Child pornography, financial frauds, etc. Cybercrime can be perpetrated by individuals or organizations with modest technical understanding, as well as highly organized global criminal networks which include competent coders.
Cybercrime investigation is tracking down the perpetrators of the digital crime and learning about their true objectives by investigating, assessing, and retrieving important forensic digital evidence from the attacked network, which might be the Internet or a local area network. Computer science specialists that are conversant with not just software, file systems, and operating systems, but also networks and hardware, are required for cybercrime investigations. They must be competent to figure out how these components interact in order to acquire a complete view of what happened, why it occurred, when it occurred, who committed it, and how people can safeguard themselves from future cyber attacks.
Categories of cybercrime
Individual, property, and government are the three major categories in which cybercrime may be classified.
Property– This is analogous to an actual scenario in which a criminal gains unauthorised access to a person’s bank or credit card information. The hacker takes the user’s bank account information in order to obtain access to cash, make online transactions, or launch phishing schemes to trick individuals into giving over their confidential information. They might even employ malicious programs to get access to a website containing sensitive data. There are several offences that have an impact on a person’s property such as cyber squatting, cyber vandalism, disseminating virus, infringement of Intellectual Property Rights, etc.
Government- Cyber terrorism is a crime committed against the government. It includes cyber warfare, cyber terrorism, pirated software, etc.
Individual- This kind of cybercrime targets and impacts individuals. This includes cyber-stalking, cracking, defamation, e-mail and SMS spoofing, child pornography, hacking, etc.
Methods for investigating cybercrime
The majority of digital crimes are amenable to several standard investigating approaches. Some of these are as follows:
Assessing the background- When dealing with cybercrime complaints, creating and establishing the crime’s backdrop using known facts can assist investigators establish a basic framework for determining what they’re up against and how much data they have.
Getting Information as much as possible- Obtaining information as much as possible about the event is one of the crucial tasks on the part of the cybersecurity investigator. Was it a computer-assisted assault or a human-targeted assault? What is the extent and magnitude of the problem? What kind of cybercrime was perpetrated? What proof is there, and where can it be discovered?
Ethical hackers use a variety of methods and technologies to gather vital information that can be used to set the foundation for further investigation. . The following are some of the most popular strategies for acquiring information:
Social Engineering: This refers to taking advantage of human weaknesses so as to obtain permission to the confidential information and network. The inherent absence of a cybersecurity environment contributes to social engineering assaults being one of the deadliest forms of cybercrimes. Major social Engineering includes phishing, whaling, vishing, Baiting, spear phishing, pretexting, etc. Hackers commonly use phishing emails and other identical strategies to target businesses, therefore, staff must be reinforced. Employees can access the system and networks of the company, and therefore they play a significant role in guaranteeing the company’s strength in the face of attacks. When it comes to cybersecurity, the company’s security management is heavily influenced by working culture. To develop a cybersecurity environment in the organization, it takes more than setting boundaries with no rationale and reminding employees to change their passwords regularly. Employees do not endanger the company intentionally. They require directions and instructions in order to prevent exposing their employer to cyber threats. That is why businesses must endeavour to improve their data security. This entails addressing and raising awareness among employees about cyberattacks and their repercussions and developing and implementing strong cybersecurity rules that are simple to integrate into their everyday work routines.
Social Networking– when approaching specific people, Twitter, LinkedIn, and other social media sites are valuable platforms to get information for constructing a profile.
Names of the Domain– These are basically enrolled by Institutions, governments, public and commercial entities, as well as individuals. Domain names can be used to find confidential information, connected domains, services, and innovations.
Search Engines- Web Crawlers may be used to gather data on any subject. For cybersecurity experts, Google Dorking, often known as Google hacking, is a great tool. Google is a search engine used by the common person to locate information, photos, movies, etc. In the field of information security, however, Google is a powerful hacking device. Although Google cannot actively hack websites, it does have web-crawling skills. Google Dorking is a technique of leveraging Google’s inherent search engine abilities to locate insecure web applications. Cache, Allintext, Allintitle, Allinurl, Inurl,Intitle, etc. are the well known dorks.
Locating the Author– To locate the perpetrators behind the cyber assault, private and public organisations collaborate with ISPs and networking firms to obtain vital log data about their linkages, as well as historical service and websites accessed during the period they were linked.
Digital Forensic- It entails examining the primary data, hard discs, file systems, caching systems, RAM memory, and other sources. The investigator, when a forensic examination commences, will search for fingerprints in file system, network, emails, internet history, and other areas.
Forensic tools for cybercrime investigation
Based on the methods you’re employing and the stage you’re at, cybercrime investigation tools might offer a wide range of features. Some of the major forensic tools are as follows:
SIFT Workstation- SIFT is a suite of forensic tools designed to assist emergency teams and forensic investigators in analysing digital forensic material across many platforms. FAT 12/16/32, NTFS, HFS+, EXT2/3/4, UFS1/2v, vmdk, swap, RAM dta, and RAW data are among the file systems it handles.
Sleuth Kit- The Sleuth Kit is a set of forensic tools for Unix and Windows that aids investigators in examining disk images and retrieving files from them.
X-ways forensics- For Windows-oriented operating systems, it is one of the most comprehensive forensic tools available. It’s convenient and allows you to operate it on a memory card and transfer it effortlessly across computers.
CAINE- It is a whole Linux distro for digital forensic investigation, not only a cybercrime investigation programme. It can retrieve information from a multitude of operating systems, including Linux, Unix, and Windows.
ProDiscover Forensic- It is equipped to undertake any forensic investigation. It assists researchers in swiftly locating files, gathering, processing, preserving, and scrutinizing data, as well as generating the statement of evidence.
Oxygen Forensic Detective- It is one of the greatest multi-platform forensic tools for cybersecurity experts and forensic specialists to access all important information in one location. One can swiftly extract data from a variety of smartphones, drones, and computer operating systems using Oxygen Forensic Detective.
Bulk Extractor-It is a popular tool for obtaining the vital data from digital evidence. It is not only used to retrieve the information, but also to analyse and gather it. One of its biggest features is that it works flawlessly with practically every OS platform, like Linux, Unix, Mac, and Windows.
Exif– It can read, write, and alter metadata from a wide range of media assets, such as images and movies. It permits you to save the findings in text or simple Html form.
Surface Browser– It is the ideal tool for discovering a firm’s whole online infrastructure and extracting useful intelligence information from DNS records, domains, information, and much more.
Conclusion
Cybercriminals have gained control over the network in the present technological world. The majority of users are totally unconcerned about the possibility of being attacked, and they seldom change their passwords. As a result, a large number of individuals are vulnerable to cybercrime, thus it is critical to educate oneself. In today’s environment, we must be alert and vigilant since victimhood does not come with a warning.
Cybercrime investigation is a difficult science to master. To enter the cybercrime scene efficiently and profitably, you’ll need the correct information paired with a variety of approaches and instruments. After you’ve gathered all of this information, you’ll be able to correctly examine the information, research the underlying reason, and discover the perpetrators of various sorts of cybercrime. Therefore, we must ensure that our systems are as safe as possible.
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Project financing is an integral part of infrastructure projects which are generally undertaken either for a specific purpose, or as a result of a public-private partnership agreement. The premise of the infrastructure projects based on public-private partnership is financed by a lender who is also known as a special purpose vehicle. In this type of agreement, the repayment is measured by the income generated by the success of the project rather than the balance sheet of the borrower. It cannot be denied that the public-private partnership agreement also known as the concession agreement has been playing a significant role in the development of various commercial projects across India. Starting from airport reconstructions, highway projects to the maintenance of major forts in India this model has been able to deliver numerous successful and commercially viable projects.
Before delving into the details of a concession agreement, it is important to understand the nuances of the public-private partnership model. The public-private partnership (PPP) model is based on contracts or concession agreements as mentioned above. The parties to the projects are namely the governing authority or any statutory authority on one side and a private sector company on the other side. Due to these kinds of agreements, the private companies take part in infrastructure projects of the government, and the licenses to carry out the projects are granted by the statutory authorities.
Financing of the PPP projects
The PPP projects are largely owned by the government authorities and the money is borrowed from banks and financial institutions. They look into the cash flow generated from the project as a source of funding. Further, the monetization of the asset is for a limited period only and the ownership is retained by the public authority; the private sector is only given constructive possession i.e. “right to use”. Therefore if the agreement is terminated at any given time, then the developer i.e. the private sector company is getting back the “termination payment”. Now, the question may arise as to how this payment is linked in the concession agreement. This “termination payment” is always linked to the debt payment.
Concession agreement and forts in India
History of forts in India
As proof of our glorious past as well as the standard of craftsmanship, the forts of India have become popular attractions for tourists all over the world. Forts are situated in almost every corner of India and are mentioned in chapters of our history books. The Agra fort and the Red fort are among the UNESCO World heritage sites in India. Besides them, there are hill forts, marine forts, forts in jungles that are incredible.
Types of concession agreements
1. Works and services contracts;
2. Management and maintenance contracts;
3. Operation and maintenance contracts;
4. Build operate transfer contracts;
5. Full privatization.
Anchuthengu Fort vis-à-vis concession agreement
Anchuthengu fort is located 12 kilometers from Varkala and is a coastal town in the district of Thiruvananthapuram known for its old colonial settlement. Although the island is small and is situated between the sea and backwaters it holds a significant place in the history of India. During the Anglo-Mysore war in the 18th century, the fort played an important role as the British used to store ammunition in the fort. The fort does not look like typical forts; it is more of an enclosed stronghold with lateral walls.
As the fort is surrounded by water bodies, hence the concession agreement would be drafted as a management and maintenance agreement between the state tourism department and the private sector company. The main lookout into this agreement shall be to develop the area surrounding the fort and prevent the lateral walls of the fort from damages caused by the sea specifically. So let’s look into the clauses that must be incorporated into this concession agreement.
Concession agreement
THIS AGREEMENT is made on the [DATE]
BETWEEN (1) Kerala State Tourism Authority, (which expression shall include successors and permitted assigns,
And,
Theroux Private Limited, (registered number) whose registered office is at, [address] (the “Concessionaire” whose expression shall include successors and permitted assignees).
Recitals
The recital part would describe in detail the purpose of the concession agreement between the Parties. The Clause would mainly state.
1. The authority is responsible for assisting the concessionaire in carrying out the terms of the agreement
2. The concessionaire is a private sector company, engaged in the restoration, maintenance of major Indian forts as well as the development of the nearby area of the forts and employs in underdeveloped areas of forts.
3. The company has applied for the tender floated by the State of Kerala vide. newspaper advertisement through Kerala State tourism department and the authority has accepted the tender concerning the concession area.
4. The procedure by which the company has been selected as a concessionaire and defines the concession area.
1. Interpretation
a. Company – would mean a subsidiary company, holding company, or a subsidiary of a holding company.
b. Competent Authority – the competent authority of both the parties, its agents, official representatives, any Government, provincial or local government, any agency, authority, body, or standard-setting institution or other person or entity having jurisdiction under any law or Regulatory Provision or organ of the state.
c. Charges – charges means the charges as has been affirmed and agreed between parties that are subject to changes from time to time and the schedule of the charge is annexed hereto [the schedule].
d. Concession Area– the area of the concession includes the area adjacent to the fort and any other area that may be expanded from time to time by the authority including the area demarcated by the municipality of the designated area.
e. Concession fee – means the annual fee to be paid by the concessionaire from time to time to the authority according to the payment schedule [the schedule].
2. Term
The authority transfers the rights to operate, maintain and restore the fort and its nearby area according to the terms of the agreement which includes but is not limited to the fort and the nearby area for ten years.
3. Concessionaire services
The Concessionaire shall along with the authority maintain, restore the damages of the lateral walls of the fort and make the area adjacent as described in the schedule developed.
4. Novation of existing agreements
This agreement shall be deemed to substitute the tender that was floated and any other arrangements or agreement that has taken place between the parties.
5. Condition Precedent
This agreement is subject to the fulfillment by the concessionaire, the approval of the Articles of Association (AOA), and the Shareholder’s agreement.
6. Appointment of the concessionaire
The authority hereby appoints the concessionaire as a private sector company for the maintenance, restoration, operation of the fort, and development of the scheduled area and the concessionaire accepts the same subject to the terms and conditions of the agreement.
7. Fee/Charges
The concession fee shall be payable to the authority according to the payment schedule annexed hereto [schedule].
The fee payable to the council shall be deposited by the concessionaire to the designated account as agreed upon by the parties and shall be utilized for supplying clean water to the adjacent village located near the fort.
8. Duties and responsibilities of the concessionaire
a. Supply of clear water to the villages near the fort through the pipeline under the concession area.
b. To control, operate, maintain and restore the fort and the concession area under the terms of the agreement.
c. To disclose any changes to the Articles of Association of the company that would change or alter the object and purpose of this agreement.
d. To share the details of the annual general meeting (AGM) of shareholders and any minutes of the meeting about the agreement with the authority.
e. Supply, install any hardware or software related to geographical information in respect to the work as well as continuously update the technology for better implementation of the plan as per the terms of the agreement.
9. Assistance by the authority
a. The authority shall assist the concessionaire on the request that would prevent any delay in the execution of the agreement and the plan.
b. The authority would assist the concessionaire in procuring the required permits, licenses, authorizations, consent, and approvals to carry on the operations in the concession area without any delays and disruptions.
c. The authority shall provide all kinds of assistance from time to time promptly and shall not incur any monetary liability whatsoever at any point of time during the term of the agreement.
10. Warranties
The concessionaire warrants and represents that:
a. it is a duly incorporated company under the Companies Act, 2013
b. it has the power and authority to conduct any business as has been agreed in the terms and conditions of this agreement.
c. the agreement does not violate any statute, laws, order, decree, legislation, the judgment of any court, or any award of an arbitrator related to the concessionaire.
d. the agreement is following the Articles of Association, Memorandum, contract or agreement to which the concessionaire is a party or is bound by any obligation thereof.
The Authority warrants and represents that:
a. It is an entity created by statute under delegated legislation by the State of Kerala.
b. It has the power, authority to enter any legally binding contract or agreement as well as undertake any responsibility under the agreement.
c. The authority has the exclusive right to supply clean and potable water to the nearby villages under the concession area and is authorized to delegate this to the concessionaire to undertake the same on its behalf.
d. It enjoys unlimited and unrestricted rights of ownership in respect to the assets of the fort.
e. That the assets in the concession area at the effective date are free from any encumbrances, lien, and right of pre-emption.
11. Inventory
a. Within two months the concessionaire shall prepare an inventory of the assets in the concession area and update on the repairs to be made.
b. The parts which are beyond repair or restoration shall be delivered to the authority and the risk in respect to the same shall pass on to the authority.
12. Termination
On the termination of the agreement, all the assets directly or indirectly in the possession of the concessionaire in the concession area shall be transferred to the authority unencumbered and the authority shall not be liable for any damages that would take place during the term of the agreement.
13. Indemnification
The Concessionaire shall indemnify and shall not hold the Council liable in respect of any claim by a Third Party in respect of such Concession Assets that would come up after the Effective Date and during the term but before the date of return of such Concession Assets.
14. Training and development
The concessionaire shall employ the locals residing within the concession area and the young men and women residing in the adjacent villages after prior training by the company personnel with the assistance of the authority.
15. Force Majeure
In the event of force majeure, the authority shall pay the lenders from its funds and shall hold the concessionaire harmless and not liable at any point of time and the concessionaire shall clear the dues accrued before the event.
16. Assignment
No party shall assign, transfer or delegate any rights and obligations according to this agreement furnishing without prior notice or written consent of the other party.
17. Notice
Each party is liable to send notice by the terms of the agreement and the notice period shall not be less than sixty days and it has to be sent via e-mail or through registered A.D by speed post.
18. Severability
If any part of this agreement becomes illegal, inoperative, or unenforceable, it shall be ineffective to such extent only and severed from the rest of the agreement.
19. Dispute Resolution
In case of any dispute in respect to the whole or any part of the agreement, the same shall be submitted to arbitration. Each party shall appoint an arbitrator and the third arbitrator shall be appointed by both the parties.
20. Governing Laws
The governing law shall be the laws of India and the relevant state laws and any dispute arising from the agreement shall be dealt with under the Indian Contract Act, 1972 and other applicable statutes and state legislations.
Conclusion
Under the “adopt a heritage scheme” the Dalmia group has entered into an MoU with the ministry of tourism to adopt the iconic Red Fort for five years to maintain it for a contract worth Rs. 25 crores. This agreement is also based on the PPP model but it is not binding being an MOU. Nonetheless, a concession agreement serves the purpose of any public-private partnership model as the nature of this kind of agreement is binding and the success rates are maximum. It is pertinent to mention that the clauses of this agreement depend upon the kind of concession agreement the parties are entering into and crafted according to the requirements of the parties.
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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It analyses the recent Kerala High Court judgment regarding the ban of online rummy that was played for stakes.
Table of Contents
Introduction
The case in question isHead Digital Works Private Limited v. State of Kerala (2021). Herein, the Kerala Government vide Notification no. G.O.(P)No.26/2021/HOME had amended the exemption Notification dated 30-09-1976 issued under Section 14A of the Kerala Gaming Act, 1960 (KGA). The Petitioners were companies that engaged in providing services of online gaming that were skill-based. Through this amendment Notification, the Kerala Government had banned online rummy that was played for stakes on the ground that it was not a game of skill since stakes were involved. The Hon’ble High Court of Kerala after observing the various statutory provisions and precedents involved came to the conclusion that online rummy, irrespective of whether or not it is played for stakes, is a game of skill and that the Notification issued by the Government is arbitrary, illegal and in violation of the fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution.
Before moving on towards the case, we need to understand the concept of a game of skill and a game of chance and the distinction between them.
A game of chance is a game in which some device that produces random outcomes, plays and decides the outcome of the game and all the players involved bet or wager on the outcome. These devices include dice, roulette wheels, playing cards etc. On the other hand, a game of skill is a game where the mental or physical skill of the player determines the outcome of a game. The test to be applied to determine whether a game is a game of chance or a game of skill was laid down by the Supreme Court inR. M. D. Chamarbaugwalla v. Union of India (1957). The Court held in a game, if the chance is also a deciding factor in the outcome of a game but at the same time game is mainly dependent on the skill of the player, then the game will be considered as a game of skill.
Case analysis
Statutory provisions involved
Several provisions of the Kerala Gaming Act 1960 (KGA) were considered by the Court. The relevant provisions have been enumerated below:
Gaming: This includes both wagering and betting. Wagering and betting include any activity where there is a collection of bets and distribution of the winnings amongst the winners and any other act that aids/abets wagering and betting.
Exemptions: The Government may exempt any game from the provisions of this Act if it deems that such game is based predominantly on skill.
In light of the powers given to the Government under Section 14A, the Government issued a Notification dated 30-09-1976 exempting certain games from the ambit of this Act subject to the condition that no side betting should be allowed in such games. The exempted games are enumerated below:
Rummy;
Card games;
Dart throw;
Ball throw;
Cup and coin;
Shooting contests.
Arguments by the Petitioners
Section 14A of the KGA gives the Government the power to exempt games that are skill-based from the purview of the Act. The provision does not empower the Government to take away an exemption that was already granted.
The Notification issued by the Government under Section 14A only prohibited side betting but did not prohibit playing a game for stakes.
Online rummy played for stakes is similar to rummy played for stakes in clubhouses and when clubhouse rummy is deemed to be a game of skill, online rummy should also be given the same status.
Section 14 of the KGA exempts any game of mere skill from the provisions of the Act. Online rummy is a game that is predominantly based on the skill of the player. Skills w.r.t holding and discarding cards, memorising the fall of cards etc is an absolute necessity to play and win the game.
The term side betting does not include playing for stakes. Support for this argument was drawn from the definition of side betting given under Merriam Webster’s dictionary.
The Petitioners have a fundamental right to carry on business as provided under Article 19 and thus the Notification that places a ban on continuing the business of providing services w.r.t online rummy is violative of Article 19.
Online rummy is not a game of skill and there is an element of cheating and manipulation involved in the game.
By engaging in playing rummy for stakes, the hard-earned money of the common man is lost thereby leading to lowering his standards of living and driving him into a chronic state of indebtedness.
Therefore, the game of rummy is injurious to the public interest and such trade should be prohibited.
Issues involved
Whether rummy is a game of mere skill?
Whether the element of skill is predominant than the element of chance in rummy?
If rummy is a game of skill, then can online rummy also be treated as a game of skill?
Does the inclusion of stakes for playing online rummy shift the balance of skill towards chance?
Does the Government have the power under Section 14A of the KGA to notify a game as a game of chance?
Whether the Notification issued by the Government is arbitrary, illegal and in violation of Articles 14 and 19(1)(g) of the Constitution?
Observations
InState of Andhra Pradesh v. K. Satyanarayana (1968), the Supreme Court while dealing with Section 14 of the Public Gambling Act, 1867 which is similar to Section 14 of KGA had observed that the game of rummy is not entirely based on chance. This is because building up rummy requires considerable skill and skill is also required for memorising the fall of cards, holding and discarding cards etc. In light of the above observations, the court held that the game of rummy is predominantly a skill-based game and cannot be categorised as a game of chance and protection under Section 14 will be available to the game of rummy.
InDr. K.R. Lakshmanan v. State of Tamil Nadu (1996), the Supreme Court looked into the aspect of gambling in a game of skill. It observed that a competition wherein a substantial degree of skill is involved and the results of the competition are based on the application of such skill, even if there is an element of chance, the competition would not be deemed to be gambling. It further went on to define the term mere skill as an application of a substantial degree or preponderance of skill. It also held that in order to come within the meaning of gaming, there should be gambling on a game of chance and that playing rummy for stakes is not an offence.
InRamachandran K. v. Circle Inspector of Police, Perinthalmanna (2019), the Kerala High Court made several observations regarding whether rummy played in club premises would amount to gambling and therefore be punishable under the KGA. The relevant observations have been enumerated below:
Playing rummy in a clubhouse for stakes amounts to gambling and every person involved in playing the game would be held liable under the KGA.
No notification was issued by the Government under Section 14A exempting a game of rummy played for stakes from the ambit of the KGA.
The definition of a common gaming house under KGA does not exclude rummy for stakes played within the club, even if the club is not making a profit from the business.
Playing rummy as an innocent pastime is not an offence and is a game of skill.
The Hon’ble High Court criticised the observations made in the aforesaid judgment and held that the judgement is not binding because it was rendered per incuriam. Per incuriam means ignorance of statutory provisions or any other authority that is binding on the court while giving the judgement, therefore, making the judgement demonstrably wrong. The reasons for which the Hon’ble High Court declared the judgement per incuriam have been enumerated below:
The Supreme Court had time and again held that the game of rummy is a game of skill.
Gambling on a game of skill does not come under the ambit of gaming as defined under the KGA Act.
Once a game is declared as a game of skill, it is exempt from the provisions of KGA as provided under Section 14. Rummy being a game of skill is therefore exempt.
No special notification under Section 14A is required exempting rummy as it is already exempt under Section 14.
The Supreme Court has held that playing rummy for stakes is not an offence.
Judgment
As decided by the Supreme Court in K. Satyanarayana and Lakshmanan and in light of Sections 3 and 14 of the KGA, the Hon’ble High Court is of the view that rummy is a game of skill as the element of skill is predominant than the element of chance.
Rummy is a game of skill and is therefore exempted under Section 14 and thus, a Notification for exemption under Section 14A is not required in this case.
The term game of skill is not dependent on whether or not the game is played for stakes. As long as the game is being played by using skill, irrespective of the fact that stakes are involved, the game will be exempted under Section 14.
Since rummy is a game of skill, online rummy will also possess the same character and remain a game of skill.
Prohibition of Online Rummy played for stakes is not a reasonable restriction under Article 19(6) of the Constitution.
Since the Notification was issued w.r.t a game that was already exempt and since there is no gambling involved, the Notification shall be deemed to be arbitrary, illegal and in violation of Articles 14 and 19(1)(g) of the Constitution.
Rummy is a game that is predominantly based on the skill of the player.
Conclusion
What can be noted from the aforesaid discussion is that there is a thin line of difference between a game of chance and a game of skill. Any game that involves a considerable degree of skill being employed by the players while playing the game would qualify as a game of skill and on the other hand, any game that is merely based on the chance or luck of the player would be deemed as a game of chance. When it comes to gambling and playing for stakes, it is pertinent to note that when such gambling takes place in a game of skill it will be valid in the eyes of law. However, gambling activities in a game of chance is not valid.
Rummy or online rummy, as the case may be, requires the player to use their skills in different ways. The use of the skill is a predominant factor and therefore rummy is deemed to be a game of skill.
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This article is written by Vanya Verma from O.P. Jindal Global University. This article provides a few tips an IP lawyer must have to get placed in a good law firm and in-house counsel jobs in IPR.
Table of Contents
Introduction
Intellectual property law (IP) is a field that is rapidly expanding. IP lawyers have a massive scope. They are required to deal with creative innovation and work. We’re seeing a trend away from organisations and companies pursuing real assets like land and machines and toward acquiring intellectual assets. This article will discuss some tips that can help a lawyer in getting placed in a good law firm and in-house counsel jobs in IPR.
Tips
These are some of the following tips that a candidate can look forward to while searching for an IP job.
Develop knowledge about the IP field
Find out which companies or firms are looking for IP professionals and what fields they’re looking for. Learn the differences between IP law firms, IP practise groups in general practise law firms, and corporate cultures. Because many IP candidates are willing to relocate, find out where the geographic IP niches are. Investigate what’s going on in the huge world of IP on the internet. If possible, attend seminars and ask pertinent questions.
Demonstrate your enthusiasm and interest
Show your enthusiasm for the IP law. If you’ve ever participated in a moot court competition or enjoyed a trial advocacy class, be sure to talk about it. Use this as evidence of your interest in IP law if you read IP-focused blogs, published a journal article/note on an IP topic, or are a member of an IP-focused student club. Discuss your interests and ambition to work on IP cases enthusiastically.
Know the market
To get a sense of the market and identify their professional ambitions in building an IP practise, speak with managing partners of law firms, in-house counsels, legal administrators, other corporate legal recruiters, and recruiting executives. Discover which IP positions are available and when they must be filled. If a firm or company has an IP opportunity, inquire as to whether or not a specific technical background and amount of experience is necessary. Gather as much information as possible about the position and its requirements. As a result, you’ll be able to focus your prospect search. Inquire about the practice’s aims for expansion, diversification, and direction.
Good communication and listening skills
To grasp legal concerns and cases, lawyers must communicate effectively with their clients. In court, good communication skills are also required for presenting the case and questioning witnesses. You’ll struggle to carry out the tasks effectively if you don’t have strong oral and writing communication abilities. When working with clients, you must be able to create relationships and instil confidence, thus excellent listening skills are essential. Lawyers should be able to listen to their clients’ problems, as listening is the key to any good communication.
You’ll need to write in a convincing, clear, and succinct manner. In the role of a lawyer, public speaking is also essential. Volunteer as a spokesman in group activities or join debate teams to hone this skill while in university. When it comes to creating letters and legal papers, written competence is just as vital. You’ll need to be familiar with technical and legal terminology, as well as the ability to communicate it effectively and concisely. Participate in your university’s law society to develop your written communication skills. For example, take minutes at meetings, create emails, write newsletters, and manage social media profiles.
Current knowledge and awareness
One of the most crucial talents for IP lawyers is current knowledge of local, national, and international business trends, particularly any issues that affect a law company and its clients. Employees are expected to sell their services to potential clients and to build trusted connections with current clients. Lawyers must understand the commercial value of fulfilling deadlines, keeping prices low, and managing information confidentially.
Meanwhile, a client wants their lawyer to have a thorough understanding of their company’s operations as well as the broader social, political, and economic issues that may affect them. Lawyers must consider the short, medium, and long-term ramifications of their client’s business plan, as well as the organization’s strengths, weaknesses, opportunities, and dangers, if appropriate. This enables the lawyer to deliver the best possible pragmatic, business-oriented legal advice.
During the application process, you’ll be expected to demonstrate commercial awareness by displaying a complete understanding of the organisation to which you’re applying. During an assessment day, you’ll almost certainly be tested. One can improve their current knowledge through following ways:
Joining industry-specific forums that allow you to attend seminars and network with business professionals is a great way to get started.
Listening to business-related podcasts or radio broadcasts.
Reading business periodicals like the Financial Times and The Economist, as well as the business pages of daily newspapers like The Times, and viewing business-related television shows like Newsnight and Panorama.
Research skills
When dealing with a case, a lawyer must sift through a significant amount of data and facts. They may need to look at notable case histories in order to come up with ideas for the current cases they’re working on. As a result, research and analysis might help to clarify how to manage instances in various scenarios.
Any law career requires a great deal of reading, digesting facts and numbers, analysing material, and condensing it into something manageable. It’s crucial to be able to pick out what’s important from a sea of data and present it to your client in a clear and straightforward manner. Make five-point bulleted lists of the most significant themes from massive documents or long news pieces to hone this skill.
In a lawyer’s day-to-day work, research is equally crucial. When completing background work on a case, producing legal documents, and counselling clients on complex topics, you’ll need research skills. Make the most of your time at university by becoming familiar with internet and library resources and establishing a network of contacts. Industry connections can be a valuable source of assistance for a newly qualified solicitor or barrister.
Pay attention to details
Accuracy is critical to your law career’s success. Because a single word out of place can change the meaning of a clause or contract, accuracy and clarity concerning instances and law issues are crucial variables in advocating. As a result, the lawyer must pay close attention to the smallest of facts.
A single misspelt or grammatical word can change the meaning of a phrase or contract and misspelt or grammatical emails, letters, or documents make a negative impression on clients, costing your organisation business. Employers examine spelling, punctuation, and grammatical problems when candidates apply for jobs or training contracts. A recruiter may wonder what a potential customer would think of your letter of advice if it is imprecise, too long, or filled with spelling errors.
Organisational skills
Life of an IP lawyer involves researching points of law, creating legal documents and contracts, keeping case files, meeting clients, attending court, and networking with legal experts. It is critical to be able to prioritise and stay focused among competing priorities, which is why organisational skills are so crucial.
Throughout your training and work experience, you’ll have lots of opportunities to perfect this talent. You may demonstrate it to companies by mentioning how you worked part-time or were a member of a society while studying.
Teamwork
You’ll work with a diverse group of people, and winning cases will be a collaborative endeavour. IP lawyers must work together with their firm’s colleagues and partners, as well as communicate with clients. They must maintain a tight working connection with their clerks, and they frequently work on high-profile cases with other barristers. You’ll need to be able to operate as part of a team and communicate with people at all levels of the legal hierarchy, from trainees and students to members of the court. Clients must also trust their legal representatives, therefore you must be approachable, convincing, and kind.
Joining a team is the simplest approach to improve your people skills. This may be anything from a sports team to a theatrical club to a chorus – anything that allows you to collaborate with others. Participate in a debate organisation or volunteer to edit the student newspaper. Another option to improve this skill is to work part-time in a customer service position. Learn how to strike a good work-study balance.
Problem solving skills
Some may believe that the legal profession affords limited opportunity for creative expression, but this is simply not true. Whatever legal field you select, you’ll have to think outside the box on a regular basis to get the job done.
The wisest course of action isn’t always the easiest or most obvious. On a daily basis, you’ll need to use your innovative thinking and problem-solving talents to outmanoeuvre competing parties and get a beneficial outcome for your client.
Participating in student competitions such as mooting, becoming a student representative, or gaining a place on your students’ union are all fantastic ways to build these skills.
Self confidence
When it comes to standing out from the crowd, resilience and self-confidence in your own abilities, go a long way. Don’t get discouraged if obtaining a training contract proves tough. Have the courage to apply (and reapply if required), as well as to seek and act on feedback.
Take initiative
While being able to work well as part of a team is critical, there will be times when you must demonstrate initiative and independence. You’ll have to make hasty decisions without consulting your coworkers on occasion.
Handle work-pressure
Lawyers deal with large workloads and tight deadlines, and the work they do has the potential to have a long-term influence on their clients’ lives. IP lawyers have to deal with a lot of work pressure, being mentally prepared and proper management may help them.
Time management
For a lawyer who is handling multiple cases at once, time management is critical. They may be required to attend and present documents according to the court’s schedule.
Provide information about your qualifications and employment history
Your CV should list your academic and professional qualifications in chronological order, including names of institutions and grades. It’s possible that omitting grades that weren’t as good as expected may bring attention to the omission.
There should be no gaps in your employment or academic history that are more than a few years long. This will once again attract attention to the omission.
These are some of the basic tips that are very crucial for IP lawyers and other lawyers as well. Once they master this they can perform outstandingly well in any law firm and get good placement job offers.
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This judgment arises out of the appeal by the appellant/ defendant against a temporary injunction application allowed in favour of the plaintiff/ respondent restraining the present appellant from distribution, sale etc. of the plaintiff’s fabric print designs and the dismissal of the defendant/ appellant’s application for vacation of the order. The questions for the consideration of court were whether the plaintiff’s garments are designs or copyright; if they are copyright, whether they are compulsorily registrable to claim protection under the Copyright Act, 1957. The plaintiff is a multi-national fabric company having over 100 outlets and the plaintiff has also won several awards throughout the world for their fabric designs including the Milan Fashion Week (Sept. 2003), the 2004 Moet & Chandon Fashion Tribute 2004 etc.
The appellant/defendant contended that plaintiff’s textile designs are not artistic works under the Copyright Act, 1957; rather they are designs under the Designs Act, 2000 and as these designs are not registered, the plaintiff cannot claim protection under the said act. Further, assuming for the sake of argument, that these designs are copyright, even in that case they are unenforceable because they are unregistered. Per Contra, the plaintiff/respondent contended that the drawings made, or patterns printed or embodied are artistic works as distinguished from designs and the defendant has indulged in substantial imitation of the designs. The plaintiff stated in para 3 of his plaint that drawings are artistic works under section 2(c)(i) of the Copyright Act, 1957 and the garments themselves amount to artistic craftsmanship u/s 2(c)(iii) of the Act. These designs are curated by Mr. Tarun Tahiliani assisted by his team of designers. The plaintiff in para 13 of the plaint, demonstrated through a table the marked similarities in plaintiff’s and defendant’s design that was reproduced by the High Court in the judgment:
Plaintiff’s work titled KSJ from the Autumn Winter 2006-07 collection (Filed in the present proceedings under as T-1)
Defendant’s work (Filed in the present proceedings under as M-1)
An Indo-western print having a prominent use of the colours pinkish-orange and yellow.
An Indo-western print characterized by the prominent use of the colours pinkish-orange and yellow with some visible colour smudging.
The central motif is a glittering diamond/ stone necklace with a large fiery-red ruby pendant in an asymmetrical shape in the centre and flanked by two smaller rubies on either side. The three rubies give off a unique impression of flowing into each other.
The central motif is a glittering diamond necklace with a large fiery-red ruby pendant in an asymmetrical shape in the centre and flanked by two smaller rubies on either side. The three rubies give off a unique impression of flowing into each other.
Another string of diamond/ stones follows the one on top, encircling a Mughal miniature painting in an oval, stone-studded frame, followed by a central pear shaped motif encircling a kundan center piece and culminating in a ruby and stone teardrop.
Another string of diamond/ stones follows the one on top, encircling a Mughal Miniature painting in an oval, stone-studded frame, followed by a central pear shaped motif encircling a kundan centerpiece and culminating in a ruby and stone teardrop.
The second string of stones forms the line of demarcation for the two colours with the top one quarter comprising a self embossed yellow and the bottom three-quarters comprising symmetrical vertical columns of an overall orangish-pink hue.
The second string of stones forms the line of demarcation for the two colours with the top one quarter comprising a self embossed yellow and the bottom three-quarters comprising symmetrical vertical columns of an overall orangish-pink hue.
The columns in the bottom three quarters contain intricate patterns of interwoven Indian floral motifs that are repeated in a four-column symmetry.
The columns in the bottom three quarters contain intricate patterns of interwoven Indian floral motifs that are repeated in a four-column symmetry.
Overall impression – A uniquely different image with a number of intricately woven elements fused together with a creative flair and resulting in an overall print that is part-asymmetrical and fanciful and part-systematic and orderly; but wholly new.
Overall impression – An identical, poorly disguised and poorly executed copy with no attempt at originality; with the sole intent of reaping the fruits of the Plaintiff’s creative labour.
The plaintiff averred in para 5 of the plaint in relation to the process from creation to execution of an artwork and averred that the pattern is designed by Mr. Tarun Tahiliani along with his team to make it print-worthy. Thereafter, this “print-worthy design” is preliminarily printed. Further, these preliminary prints are evaluated as to whether they are up to the mark and the designs are accordingly amended to suit the requirements of a marketable garment, till a satisfactory outcome is reproduced. Then samples are dispatched to the buyers and orders are taken accordingly. After the orders are received, they are sent to the Production Department where they are finally printed and sent to the buyers.
Laws involved
Section 2(c) of the Copyright Act, 1957 provides that artistic works shall include, inter alia, a painting, an engraving, a photograph, an architectural work or any other work of artistic craftsmanship.
Observations of the court
The court observed that the plaintiff has made a specific averment in the plaint that he has produced artistic works in the form of designs on garments to which there is no specific denial in the Written Statement except in Para 3 where it is urged that the work in question is not covered under u/s 2(c)(iii) of the Copyright Act.
The High Court in rejected the appellant’s argument that the respondent’s copyright could not be enforced because they are unregistered. The HC relied upon a Bombay HC judgment in Burroughs Wellcome vs Unisole Pvt. Ltd. (1999) 19 PTC 188 wherein the Court observed that registration of copyright is not compulsory to claim protection under the 1957 Act. Section 44 of the 1957 Act read with Section 48 of the Registration Act, 1908 makes registration optional and provides for a rebuttable presumption of the proof of the contents of the copyrighted work. The Bombay HC observed that Copyright is an incorporeal right which lies in the expression of an idea which, when once written down, becomes the subject matter of copyright. Thus, copyright as a negative right of preventing copying of physical material in the field of art, literature etc is granted for a specified term of 60 years after which then copyrightable subject matter falls in public domain. After the work falls in public domain, it is perfectly legal for the public to use that work without any kind of permission from the owner.
The Court observed that registration of a copyright is not a sine qua non for maintaining a suit for damages for copyright infringement. It is pertinent to mention here that the Honorable Supreme Court in AIR 1972 SC 1359 – Parle Products (P) Ltd vs J. P. & Co. Mysore has held, although in relation to a trademark, that to ascertain whether a mark is deceptively similar to another the broad and essential features of the two are to be considered and it is to be ascertained whether one can be mistaken for the other observing very pertinently that “After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes”.
A perusal of the averments in the plaint would make it very clear that the plaintiff’s designs are undoubtedly artistic works and they fulfil the requirement that a copyrightable subject matter must be original to claim protection under the 1957 Act and they also fulfil the requirement that a copyrightable subject matter must involve some creativity, labour, capital, skill etc as enunciated in the “Sweat of the Brow Doctrine”. The plaintiff’s work is at least creative and different if not novel and the defendant has indulged insubstantial reproduction of the plaintiff’s work which ought not to be permitted. The appellant tried to buttress his contention by relying upon a 2006 Delhi High Court judgment but the court distinguished that judgment from the present case and reasoned that there are significant differences in facts of both the cases.
Conclusion
Thus, the High Court dismissed the present appeal while holding that the case at hand is a flagrant example of the piracy of copyright and observing this is not the case where the first appellate court will interfere with the findings of the learned trial court. The court further observed that the facts of the present suit are only tentative observations and are not an expression as regards the issues involved in suit and shall not have any bearing on the merits of the suit and the parties’ submission.
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This article is written by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. The article is an attempt to elucidate the relevant provisions relating to intermediaries under the IT Act, 2000 in light of the new Intermediary Guidelines and Digital Media Ethics Code Rules, 2021.
Introduction
The Internet has become an indispensable part of our lives. Social media platforms such as WhatsApp, Instagram, Facebook, Twitter etc. have become our constant companions as we use them to communicate with our friends, to follow our interests, to give our opinions and for a host of other innumerable activities. Also, many of us prefer to buy our clothes and other stuff online from e-commerce sites such as Myntra and Amazon. The crucial question that arises is, “Whether these e-Commerce websites, social media platforms and search engines and the like (Intermediaries) can be held liable for any unlawful content, hateful remarks, fake news posted on these platforms, websites by a third party?”
In this article, the author will attempt to answer this question while taking you through the important legal provisions and case laws relating to Intermediaries, their liability and the conditions under which they can be exempted from such liability.
Who are intermediaries under the IT Act
Generally speaking, an intermediary is a person or a third party that acts as a link between two parties and facilitates communication between the two. We can also say that an intermediary is someone who facilitates the use of the internet.
The term ‘Intermediary’ is defined in broad terms in the Information Technology Act, 2000. Section 2(1)(w) of the Information Technology Act 2000 defines an intermediary as a person who receives, stores or transmits any electronic record and provides any service relating to such record on the behalf of another person. Intermediary includes network service providers, telecom service providers, internet service providers, search engines, web-hosting service providers, online-auction sites, online payment sites, online-marketplaces and cyber cafes.
Intermediaries perform functions such as hosting content, collecting information and evaluating information, facilitating communication and information exchange, facilitating the use of the internet etc. Examples of intermediaries include social media platforms such as WhatsApp, Twitter, Instagram, Facebook; e-commerce sites such as Myntra, Amazon; search engines, cloud service providers etc.
Exemption from liability of intermediary
An intermediary does not create any information by itself but only receives, stores and transmits the information created or posted by users i.e. third parties. Intermediaries merely act as a middleman between those who create content and those who consume it. Hence, it would be wrong to hold the intermediary liable for everything that is posted by a third party as it would be unreasonable to expect that the intermediary tracks every piece of information posted by millions of users on its platform. This is the reason why intermediaries enjoy some special legal privileges.
India operates on the ‘Safe Harbour model’, under which the intermediaries are provided protection against liability for the acts of third parties who use the infrastructure provided for committing unlawful acts. For example, a social media platform will not be held liable for the defamatory content posted by a user.
Section 79 of the IT Act
Under the IT Act, as originally enacted, only the network service providers were granted protection from liability for illegal acts of third parties. But after the Amendment Act of 2008, the definition of the intermediary under the Act and Section 79 of the Act were amended to provide for a wider scope of protection to intermediaries.
Section 79 of the IT Act provides for ‘Exemption from liability of intermediary in certain cases:
Exemption from liability
Section 79(1) provides for exemption from liability of an intermediary for any third party information, data, or communication link made available or hosted by him. However, this shall be subject to provisions of sub-section (2) and sub-section (3) of Section 79.
When exempted
Section 79 (2) provides for the conditions which must be fulfilled for granting exemption from liability to an intermediary, which are as follows:
The intermediary’s function is limited to providing access to a communication system over which information made available by third parties is transmitted, hosted or stored;
The intermediary does not:
initiate the transmission,
select who receives the transmission, and
select or modify the information contained in the transmission,
The intermediary observes due diligence while performing his duties under this Act and also observes such other guidelines prescribed by the Central Government.
Third-party information
According to the explanation attached to Section 79 of the IT Act, ‘third party information’ means information that is dealt with by an intermediary in his capacity as an intermediary.
When can intermediaries be held liable
Section 79 (3) of the IT Act provides an exception to the immunity granted to intermediaries from liability for third party information and acts under Section 79 (1) of the Act. Intermediaries can be held liable for third party content hosted by them in the following cases:
The intermediary is guilty of conspiring, abetting, aiding or inducing the commission of the unlawful act;
Intermediary fails to expeditiously remove or disable access to any material residing in or connected to a computer resource upon receiving actual knowledge, or on being notified by the Government that any information residing in or connected to such computer resource controlled by the intermediary is being used to commit an unlawful act. Such removal or disabling of access has to be done without vitiating the evidence in any manner.
Thus, the immunity provided to intermediaries is not absolute but is subject to fulfilment of certain duties and following of certain guidelines or rules issued as by the government.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
Code of ethics and procedure and safeguards in relation to digital media
Part II of the rules (Rule 3-7) dealing with ‘Due Diligence by intermediaries and grievance redressal mechanism’ provide for due diligence requirements to be followed by all social media intermediaries and additional due diligence requirements to be followed by significant social media intermediaries. Thus, the rules categorise the digital intermediaries into two categories:
Social Media Intermediaries (SMI);
Significant Social Media Intermediaries (SSMI).
Section 2(1)(v)
Significant social media intermediary means a social media intermediary having such number of registered users (50 lakh or more) in India above such threshold as notified by the central government.
Section 2(1)(w)
Social Media Intermediary means an intermediary which primarily enables online interaction between two or more users and allows creating, uploading, sharing, dissemination, modification or access to information using these services.
Rule 7 of the said rules provides that failure to observe these rules shall disqualify an intermediary from exemption from liability under Section 79(1) of the IT Act and such intermediary shall be punishable under IT Act and the Indian Penal Code 1860.
Due diligence requirements for social media intermediaries
Publishing of details
The intermediary is required to publish following information on its website, mobile-based application or both:
Rules and regulations,
User agreement, and
Privacy policy.
Such rules and regulations, privacy policy or user agreement must inform the user about the types of objectionable information which they shall not host, display, upload, modify, publish, transmit or store etc. Intermediaries must inform the users at least once a year about the rules and regulations, user agreement, privacy policy or any changes in the same and that the intermediary reserves the right of terminating a user’s access or removing any non-compliant information from its platform.
Disabling access
Intermediaries are prohibited from storing, hosting or publishing any unlawful information which is prohibited by any law in relation to the categories mentioned in Rule 3(1)(d) of the rules. The intermediary must remove such information if it is so hosted, stored or published or disable access to as early as possible but no later than 36 hours from the receipt of the court order or on being notified by the Government under Section 79(3)(b) of the IT Act.
Preservation of information
Intermediaries shall preserve or retain the following information for 180 days:
Information that has been removed or access to which has been disabled
User’s registration information, after cancellation or withdrawal of such registration.
Furnishing of information or assistance to the government agency
Intermediaries must provide information that is under its control or possession or give assistance for verification of identity or for preventing, detecting, investigating, or prosecution, of any offence, or cyber security incidents to any lawfully authorised government agency as soon as possible but within 72 hours of receiving a written order.
Grievance redressal mechanism
The intermediary must publish the following details on its website, mobile-based application or both:
Name and contact details of the Grievance Officer.
Complaint Mechanism by which a user or a victim may file a complaint.
The Grievance Officer shall acknowledge the complaint within 24 hours of receiving it and has to dispose it off within 15 days.
Removal of explicit content
The intermediary shall take all reasonable and practicable measures for removing or disabling access to any content hosted, stored, published or transmitted by it which exposes the private area of any individual, or shows such individual in nudity or in any sexual act etc. within 24 hours of receiving the complaint.
Additional due diligence to be observed by significant social media intermediaries
Rule 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 provides for ‘Additional due diligence to be observed by significant social media intermediaries’. Social media intermediaries with fifty lakh registered users or more have been classified as significant social media intermediaries and are subject to due diligence requirements in addition to those prescribed for intermediaries in general.
Rule 6 provides for the power of the Ministry to extend the additional due diligence obligations to any other social media intermediary which is not a significant social media intermediary in certain cases.
Appointment of certain officers and contact persons
All the significant social media intermediaries shall appoint the following officers:
Chief Compliance Officer: Chief Compliance Officer means key managerial personnel or other senior employee of SSMI who is residing in India. He is responsible for ensuring compliance with the IT Act and rules made thereunder.
Nodal Contact Person: Nodal Contact Person means an employee of a SSMI who is resident in India. He is responsible for 24×7 coordination with law enforcement agencies and officers for ensuring compliance to their orders.
Resident Grievance Officer: He is an employee of the SSMI who is resident in India. He is responsible for performing functions relating to sub-rule (2) of Rule 3 i.e. with regard to the grievance redressal mechanism.
Periodic Compliance Report
SSMIs shall publish a monthly report containing the following:
Complaints received and action taken upon them.
Number of links or parts of information removed or access to which has been disabled.
Identifying the first originator of information
SSMIs providing messaging services are required to enable identification of the first originator of information on being authorised to do so by a court order or an order passed under Section 69 of the IT Act. In case the first originator of any information is located outside the Indian territory, the first originator in India shall be deemed to be the first originator of the information. Also, the SSMI is not required to disclose the contents of any message while disclosing the identity of the first originator.
Active monitoring
A SSMI shall endeavour to make use of appropriate technology-based measures for the purpose of identifying information that depicts:
any act depicting rape, child sexual abuse, or
any information exactly identical in content to the information previously removed or access to which has been disabled.
The measures taken by the significant social media intermediary must be proportionate having regard to the interests of free speech and expression and privacy of users.
Voluntary verification
The significant social media intermediary shall have an appropriate mechanism for enabling voluntary verification by the users registering for their services from India, or using their services in India. Upon such verification, the user will be provided with a demonstrable and visible mark of verification, which shall be visible to all users of the service.
Removal of information or disabling access to information
The rules provide that certain pre-conditions are required to be fulfilled in case of removing or disabling access to any information by the significant social media intermediary of its own accord. The conditions required to be fulfilled are:
Before removing or disabling access to information, the SSMI has to ensure that the user who created, uploaded, shared, disseminated, or modified such information or link is provided with a notification giving reasons and grounds for such action;
Such user who created, modified or shared such information has to be provided with a reasonable opportunity to oppose the action being taken by intermediary;
Appropriate oversight has to be maintained by the Resident Grievance Officer over the mechanism for resolution of any disputes.
Grievance redressal
The significant social media intermediary must have an appropriate complaint redressal mechanism enabling tracking of complaints by assigning a unique ticket number for every complaint received. Also, the SSMI has to provide reasons for any action taken and not taken in pursuance of the complaint to the complainant.
Judicial approach
Shreya Singhal v. Union of India (2015)
In this landmark judgement, the Hon’ble Supreme Court struck down Section 66A of the IT Act 2000 as being violative of Article 19(1)(a) of the Constitution of India. In this case, Section 79(3)(b) of the IT Act was also challenged to the extent that it allows the intermediary to exercise its own judgment upon receiving actual knowledge that any information is being used to commit unlawful acts. It was also contended that the expression “unlawful acts” in the said section goes way beyond the subjects provided in Article 19(2) of the Constitution. The Supreme Court upheld the validity of Section 79(3)(b) by reading it down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. Secondly, the Court order and/or such notification by the government must conform to subjects as provided in Article 19(2).
My Space Inc. v. Super Cassettes Industries Ltd. (2016)
In this case, Super Cassettes India Ltd. filed a suit against myspace.com alleging that it allows its users to share Super Cassette’s copyrighted work without permission. The Court held that Sections 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously. The Court also introduced the concept of ‘actual or specific knowledge’ to hold that the intermediaries could be held liable if they have either actual or specific knowledge of the existence of unlawful content on their website and if they do not take down such content despite notice.
Christian Louboutin SAS v. Nakul Bajaj and Ors. (2018)
In this case, Delhi High Court had to decide on the liability of an e-commerce platform, darveys.com for infringement of trademark rights of Christian Louboutin whose products were being sold on the platform. The court distinguished ‘active’ and ‘passive’ intermediaries and held that Section 79 of the IT Act is to protect genuine intermediaries and cannot be abused by extending it to those persons who are not intermediaries and are active participants in the unlawful act. The Court also laid down certain factors to identify an active intermediary, namely identification of the seller and providing details of the seller; providing quality assurance, authenticity guarantees or storage facilities; assistance for placing a booking of the product; creating a listing of the product; packaging of the product with its own packing; transportation; delivery; and advertising products on the platform, etc. If a large number of elements enumerated above are present, then such intermediary shall be deemed to be an active participant and would not be exempted under Section 79 of the IT Act.
Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. and Ors (2020)
In this landmark case, the Delhi High Court held that there is no distinction between passive and active intermediaries so far as the availability of the safe harbour provisions is concerned and an intermediary shall not be liable for any third-party information, data or communication link made available or posted by it, as long as it complies with Sections 79 (2) or (3) of the IT Act.
Conclusion
Regulating digital intermediaries is not an easy road to tread on as imposing too many obligations without sufficient clarity may have significant economic repercussions and may threaten the effective exercise of the right of freedom of speech and expression. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are under challenge in the Supreme Court and various High Courts as well for being undemocratic and unconstitutional. In September, the Madras High Court has noted that the restrictions imposed on intermediaries under Rule 3(1)(b)(x) go beyond the scheme of Article 19 (2) of the Constitution of India. The Court also observed that there is a genuine apprehension,“ that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen”. Online spaces have become an indispensable, omnipresent part of society and hence the need for their stringent regulation has never been this important. What is thus required, is a clear and fair framework that could achieve the goal of preventing unlawful acts and conduct without unreasonably impinging on the rights of individuals as well as digital players.
With the rise in the commercial availability of AI-enabled devices, the rate of data breaches and losses has also increased manifold. In the first half of the year 2021 alone, India has experienced a loss of around INR 165 million resulting from data loss due to malware attacks. The interesting fact is that the majority of data compromised belonged to big companies like Facebook, Air India and Dominos India.So, what specifically is a data breach and how is it triggered? This article aims to actualize the types of attacks that have already occurred in India this year and to unfold the truth behind this booming industry of malware attacks.
Most common types of electronic data breaches
Although the consequences and the risk involved are the same, there are four types of data breaches from the point-of-view of the mode of execution.
Ransomware attacks,
XSS attacks,
Man-in-the-Middle attacks,
SQL Injection Attacks.
Ransomware may attack a system by either remote platform hacking, an email phishing scheme or a compromised employee credential. The most common type is through email which contains a link to a location that downloads malware to the computer that could affect the whole network and subject it to a ransomware attack. Now, as most systems have malware scanning enabled for all downloadable files, the hackers may protect their files by putting password protection on their files which obviously will be shared with the same email. Once clicked, the encryption of the whole system occurs and access to the system is blocked. If the system is related to a business, the ability to transact would stop. At this point, the hacker notifies the system user of the encryption and may explain how an asymmetric cryptographic algorithm is used to encrypt/ decrypt the data and what amount of ransom needs to be paid in order to obtain the public key to get the files back. The cost is usually in bitcoins and the FBI had even traced a bitcoin wallet this year performing such activities.
Cross-site scripting is another form of attack where malicious code is injected into trusted websites. An unsuspecting user usually clicks on such code and this is how the malicious script gains access to cookies, tokens and other information on the browser.
Man-in-the-middle or MitM attacks are held by an attacker who interrupts an existing conversation or data transfer that is being held between two systems by pretending to be a legitimate participant.
SQL Injection attacks were faced by Sony Pictures and Microsoft. In this type of attack, a hacker manipulates a database by using a piece of a structured query language. It may result in obtaining administrative rights to the entire system.
Some of the most well-known high-risk incidents that occurred in India are discussed below.
Domino’s India incident
In the month of May, 2021, a huge leak of customer data was experienced by the famous pizza brand namely, Dominos, India. The full details exposed included names, addresses, delivery location, cell numbers and email IDs of 1 million customers who had placed orders on their portal either through mobiles or computer systems. The total number of orders was 18 million.
Juspay incident
Juspay is an India-based payment processor that is used to transfer money through various platforms such as Amazon, Swiggy etc. An unidentified breach occurred in 2020 concerning 35 million user accounts of Juspay, India. The same was identified by a cybersecurity researcher in 2021 when he surfed around the dark web and saw the data being sold for USD 5000. The compromised data included masked card data and fingerprints of the card users. The hackers had chosen Telegram App for price negotiation due to its ability to self-destruct the messages within a specified time.
Police Exam Database incident
The data from an exam for the recruitment of Police officers in December 2019 in India was hacked which resulted in a leak of sensitive information of all the 50,000 participants. The bio-data of the candidates including their full names, dates of birth, mobile numbers, email IDs, FIR records, and criminal history were all put up for sale. It was identified by a firm named CloudSEK when a sample was shared with them by the hacker.
COVID-19 Results Database incident
At the beginning of 2021, a database containing the information of at least 1500 Indian citizens was compromised as a result of an attack on government websites. The hackers had made the data publicly available through downloadable PDF files. It was later found that New Delhi-based agencies were involved in the attack.
A similar incident had occurred in 2020 when the database of Delhi State Health Mission was hacked to obtain the information of 80,000 COVID-19 patients. The Kerala Cyber Hackers group had taken responsibility for the attack and stated that the reason for doing so was dissatisfaction with the way the government was dealing with healthcare personnel.
MobiKwik data breach incident
MobiKwik is an India-based digital payment company that offers mobile-based payment options and a digital wallet facility. In February, 2021 the records of 110,000 million users were leaked. The company denied the occurrence of any such data breaches however, two separate and independent researchers had found the data being sold on the dark web.
Upstox data breach incident
Upstox is a leading stock trading/ brokerage company where web and mobile-based accounts may be opened for trading in shares, mutual funds and Initial Public Offerings. In April 2021, around 2.5 million records (which is almost 2/3rd of their database) were compromised and later found to be hacked by a threat group who called themselves, “Shiny Hunters”. It was found out later that the hackers had acquired the Amazon Web Service Key through which access to the accounts information was obtained.
Air India data breach incident
Air India, the national Airline of India experienced a data breach in February 2021 when a record of a total of 4.5 million global customers was hacked when its Data Management Service Provider, namely, SITA PSS was accessed unauthorized. The compromised records revealed data ranging from years 2011 to 2021. The company intimated all its users in a timely manner to update their passwords to avoid and misuse. As Star Alliance and One World Airlines also use SITA to manage their databases, their records were also leaked.
CAT data breach incident
In May 2021, the test results and personally identifiable information of 190,000 applicants to the Common Admission Test, conducted for the Indian Institutes of Management, was hacked and put for sale on a cybercrime forum. Other than the admission test, the academic records and past scores were also put in the forum. This was the second incident of leak of CAT admission test results (the first being in 2019) and was identified by CloudSEK.
Money control India’s incident
Moneycontrol India is an app offering investment portfolios and news of the Global Financial Markets. In April 2021, data taken from the servers of Money Control concerning a total of 700,000 users was leaked and sold online for USD 350. As identified by a cybersecurity researcher, other than user names, emails and addresses, the data also included the passwords of such account holders. After this extensive breach, the company had to reset the passwords of all of its account holders at once.
Unacademy data breach incident
Unacademy is an online education platform delivering hundreds of courses to students. In May 2020, the data relating to 22 million users was put up for sale for a payment of USD 2000. As most of these accounts were created by companies to train their employees hence, corporate email IDs were compromised as a result of it. A co-founder of the company later confirmed that no sensitive financial information was leaked in the incident.
Conclusion
It is a sad and shocking revelation that the top ten data breach incidents are not related to startups or small-level companies but to the most trusted and established bodies. If the level of data protection offered by the best entities is so meagre, we can assume that the overall web-security for individuals is zero. On the other hand, hacking can now safely be regarded as a money-generating profession where the identity of the culprit can be easily masked.
With daily advancements in technology, it is becoming increasingly difficult for the legal system to keep track of all the data breaches that occur, let alone bringing the culprits to justice. In this scenario, the best strategy for the companies, government bodies and even individuals is to take security measures to avoid these attacks. Companies have already started using password encryptions, OTP based login systems, and thorough background checks to avoid all sorts of incidents of stealing credentials. Although some measures have already been taken to catch the culprits, it is still a long way before the legal sector catches up with the tech industry.
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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides an overview as to how one can build a practice in trademark law, copyright law, or patent disputes.
Table of Contents
Introduction
Some of the basic steps that are to be adopted in order to build a practice in intellectual property as a whole have been provided hereunder;
Identify your niche: To begin, decide whatever subject of intellectual property law appeals to you. Patent prosecution requires admission to the patent bar. Copyright and trademark prosecution do not require extra certification beyond the entrance to any state bar. Because trademarks are ubiquitous and accessible to all practicing attorneys, many IP lawyers start with them. Whatever path you select, make sure to think about carving out a niche in copyrights, trademarks, or patents. This will enable you to narrow down your market and establish yourself as an authority on certain topics.
Learn the basics: It’s important to educate yourself on the essential concepts of IP practice after you’ve determined your specialization. Fortunately, there is a wealth of free information about trademarks, patents, and copyrights available on the internet as well as by different websites specifically offering courses in intellectual property rights.
For IP lawyers, malpractice insurance is a must. A missing trademark or patent deadline might result in your clients’ rights being revoked and you being held liable for millions of dollars.
As previously stated, failing to meet deadlines can be terrible for an IP practice. When you first start out, it’s simple to manage a few filings for a few clients. Imagine having to track hundreds of filings, receiving updates from IP offices for each of them at different times and with different deadlines as your firm grows. Even for the most organized attorneys, this can become increasingly laborious and prone to errors. Fortunately, contemporary docketing software can update the status of each IP filing automatically.
To handle your back-office tasks, such as creating new issues, managing time, generating invoices, and more, you’ll want to invest in a comprehensive practice management package. Not only will ideal solutions provide enterprise-level protection, but they will also be cloud-based, allowing you to access your company from anywhere.
Find clients: The tried-and-true methods of networking and recommendations are still effective, but social media should be used as well. Using Twitter to interact with your followers might help you spread the word about your practice quickly. Also, by writing insightful blog entries and speaking at events, you can brand yourself as an IP expert.
Building a practice in Trademark Law
Tips and advice for those embarking on or in the early stages of a career in trademark law:
Understand your path
When starting a new job, it’s crucial to have a clear idea of where you want to go and what you want to accomplish. This is especially true in IP law, where practitioners have access to a variety of environments and can take a variety of paths. Is a career as an in-house, in a legal firm, or a combination of the two, for example, the most desirable outcome? Do you wish to focus on management? Is it better to be a specialist or a generalist? Do you work with specific categories of clients? While you may stray from the path over time, it is beneficial to start with a strategy. You must trust in yourself and have the guts to ask for a seat at the table, and if necessary, demand it. It will not happen unless you ask. You must also be willing to make a financial investment in yourself. If your employer refuses to pay for education, you will have to pay for it yourself.
Go beyond the law
The importance of developing a thorough understanding of the law whether by reading, researching, or attending industry events should not be overstated, especially for those just beginning out in trademark law. However, knowing the law isn’t enough for trademark professionals; they also need to understand business and marketing concepts and be able to apply the law to specific situations.
Locating a mentor
Finding a mentor is one way to gain support in creating career goals, obtaining professional support, and measuring success. Formal programs are available in many forward-thinking organizations, but even in the absence of these, an informal mentor-mentee relationship can be sought out. Importantly, these can be time-limited if you have specific goals in mind, or longer-term if the goal is to assist you in navigating a professional path. “I propose getting a position as a paralegal, bonding with a trademark lawyer, and identifying your qualities that you can bring to the profession to people interested in pursuing a career in trademarks” stated Venable’s Andrew Price.
Engage with associations
It’s easy to fall into the habit of ‘desk life’, spending all of your time at the office, in the high-pressure world of trademark law, especially at the start of a career. That’s fine, after all, that work isn’t going to take care of itself. However, you risk missing out on opportunities to advance both your personal and professional development. In short, participation with associations is something to aim for, by all means necessary. “Learning and sharing legal knowledge and experience are the most obvious gains of industry groups,” says Ashwin Julka of Remfry & Sagar. He further adds that “knowledge obtained from such gatherings can often assist you in predicting what the future may bring.”
Adopting a collegial approach
More casual forums can be sought out in the same way association involvement can provide an opportunity to network with and learn from colleagues. Shanghai, for example, has a group of corporate brand protection experts that collaborate and exchange best practices. Professional development is aided by knowledge sharing, which allows you to reflect on your IP enforcement program and technique while motivating you to do better.
Building a practice in Copyright Law
The advice listed hereunder will provide a deep understanding as to how a successful practice can be built-in copyright law.
Know the law and understand its implication
Every law is not the same or similar, so research the demand for the law and the legal stance on copyright in other countries before deciding on a field. It’s possible that you’ll have to deal with a variety of legal issues, not just copyright law, so be prepared. Make sure you have a diverse set of skills so you don’t fall behind.
Need for relevant qualifications
Once you’ve decided to become an expert in copyright, look for the credentials that will offer you an advantage over the competition. Because it is a general LL.B, having a law degree is a prima facie need, although it is not necessarily sufficient. So, someone interested in the copyright field can pursue specialization such as a diploma or certificate degree in the field, or pursue an LL.M in the topic. Though an LL. B degree is the sole qualification, a course, whether online or offline, should be preferable to gain a thorough understanding of the subject.
Market yourself
When it comes to human resource management, the law is no different than any other profession. As a result, a lawyer who is interested in copyright should advertise himself/herself as such, just like other professionals. Attending conferences, obtaining customers through referrals at the outset, establishing a major presence on online social media platforms, and becoming affiliated with a top-tier law firm are all examples of strategies to market oneself.
Skills and aptitude
Skills and aptitude are essential for making a lasting impression on consumers and competition. Drafting, research, and good orator abilities are only a few of the basic criteria when it comes to choosing the greatest skills for oneself. When copyright is submitted, for example, it could be in a variety of sectors such as fashion, music, art, and so on. As a result, having a broad understanding of all fields will help you better grasp the idea, which will help you obtain a copyright for the creation. Negotiation and management skills are essential because they are also involved in safeguarding and advising on the commercial use of copyright. While fighting a case as a copyright infringement litigator, an individual has to be well versed with the possible defences that must be resorted while defending an infringer so as to possibly win the case.
Litigation skills
Lawyers who specialize in copyright are also known as litigators. They devote a significant amount of their time to preparing cases and pursuing them in court. Copyright lawyers must be knowledgeable in all aspects of litigation, from drafting legal documents to preparing discovery. They should feel at ease in court and be prepared to try cases if required. Copyright lawyers might defend clients who are facing allegations of both criminal and civil violations.
Well versed with emerging technologies
Lawyers who practice copyright law must consider how new technology interacts with the law. It is now easier to record a work-related copyright, thanks to modern technology. Copyright infringement is also easier than ever. Copyright lawyers now must devise new methods for detecting and enforcing copyright breaches. Some believe that making music more widely available will help musicians extend their brand and increase sales. Others argue that if copyright violations are not pursued, they set a dangerous precedent. Copyright attorneys may also be called upon to assist clients in defending against copyright infringement.
The recognition and enforcement of patent rights in India are principally governed by the Patents Act 1970 and the rules issued under the Act. The latest amendment to the Patents (Amendment) Rules 2019 came into effect on September 17, 2019, to simplify the procedural rules for e-filing of papers, requiring original documents only when the Patent Office requests them. The modification also broadened the eligibility conditions for accelerated assessment of patent applications under the Patents Act of 1970 to cover small firms, government agencies, government-funded groups, and other applicants. Before practicing a career in patent disputes, the law in hand needs to be understood very well. This will not only help the litigator to argue well before the court of law but also convince the judge with the prayer of his or her client. In India, court decisions are an important source of patent law. As far as patent law is concerned, Indian courts depend on both European and US court decisions. Familiarity with such judgment and citing the same while arguing before the court can help a patent litigator have a smooth win.
Technological knowledge
Technology businesses must have strategic plans in place to vigorously preserve and enforce their intellectual rights in today’s competitive economic environment. Companies that are proactive should also try to prevent being held liable for infringing on the patent rights of others. The patent litigation team assists clients in protecting and leveraging their intellectual rights, defending against third-party infringement claims, establishing a competitive market position, and providing value to owners/investors. Patent attorneys should be experienced at conveying and demonstrating complex technical issues to judges and before juries. Patent attorneys, who represent huge corporations, small enterprises, and individuals, should have in-depth knowledge of their client’s businesses, concerns, and goals, as well as substantial expertise litigating a wide range of patent-related cases.
Understanding client’s needs
While each client’s decision to proceed to trial is based on client- and matter-specific factors, patent attorneys who are ready, willing, and able to take a case to trial if required, serve their clients best. Clients often range from entrepreneurs to Fortune 500 companies across a wide variety of industries, with each having their particular needs. Patent attorney’s representation should be such that a particular client’s needs are addressed which will satisfy them as well.
Ability to explain complex information clearly and concisely
Patents are legal rights granted to inventors of new technical processes and products, granting them exclusive rights to their creations for up to 20 years. This might sound very simple but the process of patent registration followed by the patent infringement (if it takes place) is a complex process altogether. It is extremely necessary for a patent attorney to make their client understand this complex process with simplicity and ease. Only then can the client gain confidence in the patent attorney. Therefore, to build a successful practice in patent disputes, the ability to explain complex information clearly and concisely stands must.
Conclusion
It takes a tremendous amount of time and effort, as well as financial resources, to become an IP lawyer. However, the end result being a meaningful profession in a highly sought-after legal speciality could make it all worthwhile. The potential for lucrative compensation is one of the most tangible advantages of a profession in intellectual property law. The different ways in which you can build a practice in trademark law, copyright law or patent disputes holds importance and should be adopted.
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