Mentoassociates.com – Legal Articles

The era of digitization gave birth to entirely new markets which deal with the collection, organization, and processing of personal information, whether directly or as critical component of business. The outburst of Covid-19 and the lock-down has led to several challenges in various sectors regarding data privacy and protection; hence protection of data and privacy plays a much important role now, as there are several loopholes in which data can be breached and its security is at major risk.

Section 2 (o) of Information Technology Act,2000 defines “data” which means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts, magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.

Data protection is the process of safeguarding important information from corruption, compromise or loss. Through the landmark judgment of Justice K.S Puttaswamy vs Union of India (AIR 2017 SC 4161), the Hon’ble Supreme Court held right to privacy is declared as a fundamental right under Article 21 of Indian Constitution. This judgment made general public realize that their data is intrinsic, important and therefore worthy of protection.

At present India does not have specific legislation in regard to data protections and privacy, although a Personal Data Protection Bill, 2019 was introduced in Lok sabha. There are many ambiguities as to the implementation of this bill, but there are some important enactments which focuses and governs privacy protection and personal data
• Information Technology Act, 2000.
• The Right to Information Act,2005
• Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021

Section 43A of the IT Act 2000 provides that whenever a corporate body possesses or deals with any sensitive personal data or information, and is negligent in maintaining a reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, then such body corporate shall be liable to pay damages to the persons so affected.

Section 72A of the IT Act 2000 provides that any person (including an intermediary) who, while providing services under the terms of a lawful contract, has secured access to any material containing personal information about another person, with the intent of causing or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Section 8 (1)(j) of Right to Information Act – This section provides that the authorities are under no obligation to provide information to citizens regarding inter alia information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.

The Information technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021 have been passed under sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, 2000. Rule 4(2) provides that a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009. This rule is clearly a major threat to the privacy of the users and this was challenged by Whatsapp in Delhi High Court to quash a new government rule which is against right to privacy.

CONCLUSION:
India has gone more digital in this covid-19 pandemic era, than ever before. In this digital era, data is a valuable resource that needs to be protected and regulated. Right to privacy cannot be exercised effectively unless data is protected through a legal regime; therefore implementation of personal data protection bill becomes very important.

Authored by

RAMYA C N
Associate

With a section of the General Public not in a mood to stay indoors and support the governmental initiatives for controlling the deadly Corona virus, the various state and Central governments are resorting to penal provisions to book the offenders. Some of the commonly resorted penal provisions are discussed below:
EPIDEMIC DISEASES ACT, 1897 Section 3 – Penalty- Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code 1860.
INDIAN PENAL CODE, 1860 Section 143 IPC- Punishment for being a member of an unlawful assembly-Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 147 IPC- Punishment for rioting- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 149 – Every member of unlawful assembly is guilty of offence committed in prosecution of common object
INDIAN PENAL CODE, 1860 Section 188 – Disobedience to order duly promulgated by public servant- An offender shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
INDIAN PENAL CODE, 1860 Section 269 – Negligent act likely to spread infection of disease dangerous to life- Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 270 – Malignant act likely to spread infection of disease dangerous to life- Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 283 – Danger or obstruction in public way or line of navigation- Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees.

1. Section 35 of The Karnataka Education Act, 1983 has provisions for the Registration of Tutorial Institutions. Under the above mentioned Act, the Karnataka Tutorial Institutions (Registration & Regulation) Rules, 2001 has been brought about. Rule 3 of the above mentioned rules, lays down the procedure for registration of tutorial institutions which is as follows-

• An application to be made before the registering authority under S.35 of the Karnataka Education Act, 1983.

• Such application must be made along with a prescribed registration fee as per the table mentioned below, either through an account payee cheque or demand draft which shall be non-refundable.

1. Upto lower primary institutions (Class I-VII) Rs.5,000
2. Secondary School Rs.10,000
3. Pre-University Rs.25,000
4. Degree Courses Rs.25,000
5. Other Courses Rs.25,000

• Conditions for registration of Tutorial Institutions are given under Rule 5. Some conditions are suitable building; not more than 30 students per class; 5-7 sq. ft. space per student, adequate number of teachers possessing prescribed qualifications, sanitation facilities with proper ventilation and safe drinking water. A certificate shall be obtained from the appropriate authority of the Municipal Corporation, Municipal Council or Local Authority regarding sanitary conditions of the building and it shall be produced before registering authority along with the application.

Authored by:
RAHUL M
Intern

Bangalore City police has issued a set of guidelines for all schools to follow in the wake of the Vibgyor High School incident. The police commissioner has set August 31 2014 as deadline to comply with the norms. The following are the guidelines:

1) The school buses operated by private players for managements should appoint a male and a female staff to accompany students until they are dropped at their doorsteps. The bus should not ferry more than the number prescribed by the transport department. Every bus should have a global positioning system (GPS) facility, which should be functional always. The managements should verify driving licences of drivers and get more information about antecedents of drivers from jurisdictional police. Every bus should have a CCTV cameras facility, which should be functional always.

2) The managements should enter into written agreements with vehicle owners that the owners would be solely responsible for violation of norms by their drivers. The vehicles should have valid documents and validity cards.

3) The managements should issue strict instructions to drivers to stay in their vehicles and buses. They should be warned not to move on the school premises and try to drag children into conversation unnecessarily. They should be warned not to affect peace and honour of the children.

4) Teachers concerned and super visors alone should be present at grounds, swimming pool, laboratories, library, dancing hall and gym. Other staff should be instructed not to unnecessarily enter those places where they have no work.

5) The managements should appoint a floor vigilance officer (FVO) for every floor including ground floor and top floor. lf possible, woman teacher or senior woman staff should be appointed as FVO. A transparent glass cabin should be set up for them so that they could monitor activities taking place in all directions. The FVO should monitor movement of suspicious persons and take action against them.

6) The managements should prepare a report on the number of locations for installation of CCTV cameras and ensure they are always functional. The footage should be kept for 60 days. Staff should be appointed for monitoring and the local police should be immediately alerted about special and rare incidents. The footage should be handed over to police if need be.

7) Identity cards with photos of students should be given to their parents. The parents should give a specific cellphone number for contacting during emergencies. The teacher should respond to calls or messages originating from such numbers. The management should inform about this to the parents and issue necessary instructions.

8) Identity cards should be given to staff, office-bearers of management, security guards, attenders after verifying their antecedents from the police. Everyone should be directed to display their ID cards while in school.

9) Required number of staff including women security personnel should be appointed for access control room, gates, and night shift besides three security supervisors and one chief supervisor to work between 8 am and 2 pm and between 2pm and 8pm and night patrolling. Security staff should submit a report to their heads once in two hours about latest safety status.

Provident Fund is a fund, plan or scheme to provide retirement income. The Employment Provident Fund and Miscellaneous Provisions Act 1952 and the rules there under provide for the law on Provident Fund and pension benefits. The Act was enacted with a view to provide for compulsory contribution to provident fund, both by the employer and the employee.
It applies to every establishment which is a factory engaged in any industry specified in Schedule-I of the act and in which 20 or more persons are employed. The Central Government by notification can bring in any other establishments employing 20 or more persons or less than 20 persons under the purview of this act. The appropriate government may by notification in official gazette exempt any establishment from the operation of all or any of the provision of any scheme under this act.
An employee, to become eligible to the provisions of the Act is required to be a member, by filing the Form 2. Under the scheme of PF the employer and employee will each contribute 10% or 12% of the basic salary towards the PF. The remittance of the same should be done on or before the 15th of the following month. Accordingly the monthly returns have to be filed before the 25th of every month by filling the Forms 12A, 5 and 10. Annual returns are also to be filed by the employer under Form 3A and Form 6A.
The PF amount is also transferable when the employee upon termination / resignation, joins the services of another employer. The same is done by filling the Form 13, which will be provided by the former employer. Upon the form being filled, the new employer shall forward it to the provident fund organization. The transfer of the PF amount ordinarily takes 40 days.
A member is eligible to apply for withdrawing his provident fund and pension fund only after 2 months from the date of resignation, provided that he / she is not employed during the said 2 months. The member should submit Form 19 to withdraw his provident fund dues on leaving service/retirement/termination. The same has to be signed by the previous employer and submitted to the provident fund office. Ordinarily it takes about 40 days for the PF amount to be credited to the bank account. The withdrawal of PF is not taxable provided the employee has rendered continuous services; else the applicable tax slab for the income would apply.
Members are also entitled to withdraw monies from as advances from the PF account for purposes like marriage, education, medical treatment, purchase of residential property etc.
Contributed by:
Naqsha Biliangady
Advocate

The need for a law on protection of women from sexual harassment at the workplace first came to limelight in the case of Vishaka & Ors v/s State of Rajasthan & Ors AIR 1997 SC3011 (known as the Vishaka Case). The said case was heard in the Supreme Court on a Writ Petition filed by certain social activists and NGOs to bring attention towards the rampant gender bias and need for safety and security of working women.

While India, has ratified the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) adopted by the UN General Assembly, much was left to be done at the ground level. Emphasis on equality and protection of women has also been emphasized in the Fundamental Rights, Directive Principles and State Policy and the Fundament Duties, in the Constitution of India.

Keeping in view the same the Supreme Court framed guidelines for the Protection of Women from Sexual Harassment at the Workplace.

These guidelines have put the onus of taking preventive and redressal measures on the Employer.

Sexual harassment has been explained as any unwelcome sexually determined behavior, whether direct or by implication such as physical contact or advances; a demand or request for sexual favors; sexually coloured remarks, showing pornography and any unwelcome physical, verbal or non verbal conduct of sexual nature.

The guidelines have recommended a redressal mechanism. It provides for the constitution of a Complaints Committee, headed by a woman and having amongst its members an NGO or other body familiar with the issue of sexual harassment.

Where the action or harassment complained of amounts to a specific offence under the Indian Penal Code, the employer shall initiate appropriate action by making complaint with the appropriate authority.

Where the conduct complained of amounts to misconduct in employment as per the relevant service rules, then appropriate disciplinary action shall be initiated against the offender. Whether or not the conduct complained of amounts to an offence under the law, it is mandated that a redressal mechanism is created.

As important as the redressal measures, are preventive steps recommended by the Court. The employers is supposed to take steps such as express prohibition of conduct amounting to sexual harassment, prescribing penalties in the service rules and most importantly creating appropriate working conditions with adequate leisure, hygiene etc and ensuring that there is no hostile environment towards women and ensuring that no woman employee feels or apprehends that she is at a disadvantage because of her gender.

Keeping in mind the same The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by the Union Parliament in February 2013, and is awaiting the President’s Assent.

Author:
Naqsha H Biliangady
Advocate
Mento Associates

The Karnataka Guarantee of Services Act, 2011 or SAKALA was introduced with the aim to guarantee the delivery of citizen services in a definite span of time. While obtaining services like acquiring certificates, land record extracts building plan approvals was highly time consuming, SAKALA aims to curb the same by giving a time frame within which services may be obtained and imposing a penalty for failure. SAKALA, today has over 150 civil services covered under its provisions. Currently applications under the Right to Information (RTI) is also slated to be included under the SAKALA. The BBMP, BWSSB, CMC, Town Planning Authority, Revenue Department etc are all under the SAKALA.

Under the Act, every citizen has a right to obtain the civil services mentioned in the Schedule of the Act within the specified time. The onus of ensuring the same is with Public Officer of the concerned department and his subordinates. The time period begins to run from the date of making a valid and complete application. Every applicant is provided with an application number and he may monitor the status of his application.

The officer in charge or his authorized subordinate shall provide the service or reject it for reasons that have to be recorded in writing. The applicant shall be informed of the rejection of the application, along with details of the Officer to whom he may prefer an appeal against a rejection. Under the Act, the concerned officer is liable to pay compensatory cost for failure to provide the service within the time frame. An aggrieved citizen whose application is rejected or who has not been provided the service within the stipulated tune may appeal to the competent authority within a period of 30 days from rejection or delay. The appellate authority may pass appropriate orders and my also award compensatory costs. A second appeal lies from such order within 60 days. A time frame is also prescribed for disposing off appeals.

For example- under the schedule to the Act, the time frame for obtaining a Khata Extract where all documents are available in electronic form in 3 days and the Designate Officer is the Assistant Revenue Officer. In case of a delay or a rejection, the competent authority to approach is the Assistant or Joint Commissioner for that zone, who shall pass an order within 15 days. If an applicant is still aggrieved he shall appeal to the Commissioner who has to pass an order within 30 days.

The Act does not intend to punish delays and defaults as misconduct by the concerned officer, but is with the intention to create and imbibe a culture of commitment towards duty and responsibility.

Authored by: Naqsha Biliangady, Advocate Mento Associates.

1. After the religious ceremony of change, the individual concerned has to notify the change of religion in one of the local leading newspapers.
2. The individual has to make an affidavit on a non-judicial stamp paper attested by First class Magistrate/ Notary/ Oath Commissioner.
3. A printing matter needs to be prepared in the form of a specimen provided by the department of Publication of the Central Government.
4. The news paper publication (in Original), the Affidavit in Original, two Passport size photographs and the printing matter in original should be sent to the controller of publication, the department of publication, civil lines, Delhi-54, along with applicable fees for publication in Official gazette of India, Part IV.

1. The Father or Mother of the Minor has to notify the name change of the minor in one of the daily leading newspaper.
2. Prepare an original affidavit from the side of the guardian attested by First class Magistrate/ Notary/ Oath Commissioner, showing the details of father’s/husband’s name along with the residential address.
3. A printing matter needs to be prepared in the form of a specimen provided by the department of Publication of the Central Government.
4. The news paper publication (in Original), the Affidavit in Original, two Passport size photographs of the parent and the printing matter in original , along with applicable fee, should be sent to the Controller Of Publication, the Department Of Publication, civil lines, Delhi-54, for publication in Official gazette of India, Part IV.

A person who has attained the age of 18 years of age needs to follow the following procedure for change his name:-
1. The Person has to advertise his change of name in one of the daily local leading newspapers.
2. Person has to prepare an affidavit sworn before a First class Magistrate/ Notary/ Oath Commissioner showing details of father’s name/husband’s name along with residential address.
3. A printing matter needs to be prepared in the form of a specimen provided by the Department of Publication of the Central Government.
4. The news paper publication (in Original), the Affidavit in Original, two Passport size photographs and the printing matter in original, along with applicable fee should be sent to the controller of publication, the department of publication, civil lines, Delhi-54, for publication in Official gazette of India, Part IV.