Mentoassociates.com – Legal Articles

The internet is an oft praised platform with plenty of opportunities for people to explore options, and more importantly, voice their opinions. It is the platform where anybody who wants to express an opinion about anything may do so- your age, sex, nationality, country of residence, etc, are irrelevant. All you really need is a social networking website, a registered ID, a workable internet connection, and obviously, a mode to carry out the task (be it the old fashioned net cafe desktops, or even just cell phones given technologies recent ascent).

While much of these opinions are awe-inspiring, exhilarating even, certain others may find these opinions offensive- maybe even frightening. Take for instance, the arrest of the two users in Maharashtra who questioned the Bandh following the death of Bal Thackeray, former leader of the Shiv Sena. The state home minister R.R. Patil, at that point, announced a high level probe into the matter. He said the police targeted the girls because of the ambiguity in the Information Technology (IT) Act, 2000.

Of recent events is the highlight of Jaya Vindhyala, a PUCL activist who allegedly posted derogatory comments on her Facebook ‘timeline’ on Chirala legislator, Amanchi Krishna Mohan and the Tamil Nadu Governor, K Rosaiah. Subsequently, Amanchi Mohan filed a complaint and the police invoked provisions of Section 66A of the IT Act, and Section 120 B of the IPC (Criminal Conspiracy). Jaya Vindhyala was arrested on the 12th of May, 2013.

Section 66A of the Information Technology Act deals with punishment for sending offensive messages through communication service, which cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will. For the purpose of this section, “electronic mail message” and “electronic mail” cover messages or information transmitted or received on a computer, computer resource, and communication device and include attachments whether in text, images, audio, video or any other electronic records which may be transmitted via messages. The real question, however, is what constituted electronic messages to be offensive or menacing? Going by the English language, it would depend from person to person; a subjectively skewed outlook with its own threats of ambiguity overriding liberty.

What’s worrisome about the case of Vindhyalaya is that she had been opposing the local legislator on several issues and brought out a fact- finding committees report accusing the legislator of malpractices.

India is a Democratic country which holds dear its constitutionally prescribed Fundamental Rights of which Article 19(1) (a) epitomizes the freedom of speech and expression. Are people no longer permitted to voice their opinions, be it via paper medium, or even the internet? The internet has a far greater reach than most paper medium would- what with users constantly overusing the infamous search engines of Google and Bing and posting whatever thoughts flow through the innards of their brains on public forums, like Facebook and Twitter, sparking off heated debates. Yet, several times, as has been observed, the ambit of this right is required to be contained.

The phraseology of Section 66A of the IT Act is wide and vague; incapable of being judged on objective standards, thus far susceptible to reckless abuse. Earlier in the year, as per the Centre’s January 9th Advisory, “State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of Inspector General of Police (IGP) in metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police (DCP) or Superintendent of Police (SP) at district level, as the case may be.”

Justices B.S. Chauhan and Dipak Misra, comprising the Apex Court vacation bench, on the 16th of May 2013 refused to pass an order for a blanket ban on arresting persons for posting objectionable comments on website. In lieu with the Centre’s January 9 advisory, the Supreme Court reiterated that no person should be arrested for posting “objectionable comments” on social networking platforms without taking prior permission from senior police officials. The order was passed based on an interim application which sought the release of Smt. Jaya Vindhyala. This application was filed by Shreya Singhal (CRL.MP nos. 11600 & 11601/2013) in a writ petition [Article 32] in Shreya Singhal v. Union of India [WP (Crl) 167/2012]..

Authored By-
Janhavi R I
II Year
BBA/LLB
Symbiosis Law School, Pune

Adoption, to put in simple terms, is a process whereby a person assumes the parenting of another. Unlike guardianship, where only the responsibility for care and protection are vested with the guardian, adoption implies that the adoptive child and adoptive parents shall have towards each other the relationship of parent-child will all rights and responsibility.
In India, the Central Adoption Resource Authority or CARA- an autonomous body under the Ministry of Women and Child Development acts as the Central Authority in matters concerning in-country and inter-country adoption. CARA is also designated as the Central Authority to deal with inter–country adoptions in accordance with the Hague Convention on Adoption 1993, which was ratified by India in 2003.
Accordingly guidelines for adoption of children have been framed and the procedure has been laid down. Parents of foreign origin desirous of adopting a child must obtain permission of the concerned authority in their home country for adopting a child from India and make an application through an Enlisted Foreign Adoption Agency (EFAA). The EFAA is an adoption agency in the home country of the parents, authorized by and enlisted with the CARA for the purpose of inter-country adoption. Upon receiving an application, the EFAA will prepare a Home Study Report (HSR) detailing marital status, stability of relationship, economic stability, standard of living and other criteria of the adoptive parents before forwarding it to the Recognized Indian Placement Agencies (RIPA), which are Child Welfare Organizations authorized by CARA for placement of Indian children in inter country adoption. The application must be accompanied by other documents mentioned in Annexure 2 of the guidelines.
Upon receiving such an application, the RIPA will make attempts to match a child who is legally free for inter country adoption. A child is legally free for inter country adoption, if within a period of 30 days, the Adoption Coordination Agency or ACA is unable to match such a child with suitable Indian parents and the ACA certifies the same. The RIPA will thereafter forward the application along with the clearance certificate from the ACA and other documents prescribed in Annexure 3 to the CARA for a No Objection Certificate (NOC).
On being satisfied of the application, CARA will issue an NOC within a period of 15 days to the RIPA. After receiving the NOC, the RIPA shall file a petition before the competent court for adoption. The court may thereafter place the child with the Foreign Prospective Adoptive Parents (FPAP). As per the directions of the Supreme Court, such a petition must be disposed off within a period of 2 months. Subsequently the RIPA shall apply to the regional passport authority for the issuance of an Indian Passport. The passport authority may issue the same within a period of 10 days after which Visa/ entry permits shall be obtained from the concerned embassy. The adoptive parents shall thereafter accompany the child to their home country.
Authored by
Naqsha H Biliangady
Advocate
Mento Associates

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 Marriage Laws (Amendment) Bill 2010, proposes certain amendments to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 with a view to make them more in conformity with the changing social conditions.

Following are the major amendments proposed for the Hindu Marriage Act, 1955:

-The waiting period of 6 months for a Section 13-B petition (mutual consent divorce petition) is proposed to be removed.

-New sections 13-C, D, E are proposed to be inserted making irretrievable breakdown of marriage as a ground for divorce. The parties should have lived apart for a minimum continuous period of 3 years before filing the petition, to avail this ground.

Following are the major amendments proposed to the Special Marriage Act, 1954:

-The waiting period of 6 months for a Section 28 petition (mutual consent divorce petition) is proposed to be removed.

-New Sections 28-A and 28-B are proposed to be inserted after Section 28, making irretrievable breakdown of marriage as a ground for divorce. The parties should have lived apart for a minimum continuous period of 3 years before filing the petition, to avail this ground.

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.

IMPORTANT JUDGMENTS OF THE SUPREME COURT AND KARNATAKA HIGH COURT ON CHILD CUSTODY MATTERS

Following are certain leading judgments of the Supreme Court of India and The High Court of Karnataka on matters relating to custody of a child.

1. Rosy Jacob v/s Jacob A Chakaramakkal (1973) 1 SCC 840

The Honourable Supreme Court of India held that children are neither mere chattels nor play things in the hands of the parents. In the modern changed social conditions, absolute right of parents over the destinies and lives of their children has yielded to the consideration of their welfare as human beings, so that they may grow up in a balanced manner to be useful members of society.

In matters of custody of children, factor that the father loves his children and is not otherwise undesirable cannot alone give him an edge over the mother who is equally affectionate towards her children. Courts have to distinguish between right of guardianship and right of custody.

2. Mausami Moitra Ganguly v/s Jayant Ganguly AIR 2001 SC 2179

The Honourable Supreme Court of India held that better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.

The Court further stated that stability and consistency in the affairs and routine of the children is also an important consideration.

In this case, custody was granted to the husband.

3. Nil Ratan Kundu and Anr v/s Abhijit Kundu 2008 AIR SCW 5769=(2008)9 SCC 413

The Supreme Court laid down that while dealing with custody, Courts are neither bound by statutes nor by strict rules of evidence and procedure nor by precedent. Paramount considerations are welfare and well being of the child. Strict parameters governing an interim injunction do not have full play in matters of custody.

4. Gaurav Nagpal v/s Sumetha Nagpal (2009) I SCC 42

In deciding matters of custody, the Supreme Court held that, Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted. The welfare and interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.

The Court has not only to look into the issue on legalistic basis, in such matters human angles are relevant for deciding the issues.

Though provisions of special statutes which favour the rights of parents/guardians maybe taken into consideration, Court has to exercise its ‘parens patriae’ jurisdiction.

The Supreme Court further recognised that principles of custody under Section 26 of the Hindu Marriage Act are not different to the principles of custody under the Guardians and Wards Act.

5. Athar Hussain v/s Syed Siraj Ahmed and Ors AIR 2010 SC 1417 (from Karnataka)

In matters of custody, welfare of the children is the sole and single yardstick, by which court shall assess the comparative merits of the parties contesting the custody.

The Court held that question of guardianship can be independent of and distinct from that of custody, in facts and circumstances of each case.

Second marriage of husband, is a factor to be taken into consideration while considering custody of child.

6. S. Anand v/s Smt. Lakshmi ILR 2012 Kar.2334

The Honourable High Court of Karnataka upheld the view of The Supreme Court that that the welfare interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.

The Court further held that the question of welfare needs to be considered in the background of relevant facts and circumstances. Each case has to be decided on its own facts. Better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.

Following the ruling of the Supreme Court, the High Court said that Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted.

In the given case, there was an allegation of immoral life by wife against the husband. The custody was granted to the wife.

Author: Naqsha Biliangady,Advocate, Mento Associates.

Copyrights of works of the countries mentioned in the International Copyright Order are protected in India, as if such works are Indian works. Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order. Copyright as provided by the Indian Copyright Act is valid only within the borders of the country. To secure protection to Indian works in foreign countries, India has become a member of the several international conventions on copyright and related rights.

The central government has the power to extent copy right to foreign works which includes:-
a. Works first published outside India.
b. Unpublished works of authors who are citizen of foreign countries.

The terms (time period) of copy right for various classes are as follows:-
a. For published literary, dramatic, musical and artistic work- until 60 years after the death of the author.
b. For anonymous and pseudonymous works- 60 years from the date of publication.
c. Photographs – 60 years from the date of Photograph.
d. Cinematograph films- 60 years from the date of publishing of film.
e. Sound recording – 60 years from the date of publishing.

The owners of the copy right may grant any interest in the right by licence in writing signed by him to any other person.
If any work in which there is a copy right, is unreasonably withheld by the owner from the Public, the copy right board has the power to give license to a person even against objection from the owner.

In the case of an unpublished Indian work and if the author or the owner of the copy right is dead or unknown, the copy right board can grant licence to an applicant to publish such work.

License for translation: The person may apply to the copy right board for licence to produce and publish a translation of the literary or dramatic work in any language after the period of 7 yrs from the first publication of the work.

Normally the author of the work shall be first owner of the copy right therein.
Author means-
(i) in relation to a literary or dramatic work, the author of the work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
(v) in relation to a cinematograph or sound recording the producer; and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.

Rights in a musical sound recording: There are many right holders in a musical sound recording- the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician who performed the background music and the person or company who produced the sound recording. A sound recording generally comprises various rights. It is necessary to obtain the licences from each and every right owner in the sound recording.

Works by journalists, apprentices etc during the course of their employment:
In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.

In the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

Assignment: The owner of the copyright may either wholly or partially assign the rights to any person. The assignment of the copy right shall be valid only if it is in writing and signed by the assignor. Disputes with respect to assignment of copy right are settled by the copy right board. Where the assignee does not exercise the rights assigned to him within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period. If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment. If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within the whole of India.

Relinquishment of copy work: The author of a work has the right to relinquish the copy right in a work by giving notice to the registrar of copy rights. The notice shall be in Form I.

Broadcaster’s Rights:
As per the act “broadcast” means communication to the public-
(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
(ii) by wire, and includes a re-broadcast;
Every Broadcasting organisation has a special right for its broadcast which is known as broadcast reproduction right. The broadcast reproduction right is valid for 25 years.

Performer’s Rights:
As per the Copyright Act, “performer’ includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance and “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers;

A performer who appears or engages in any performance shall have a special right known as performer’s right which is valid for a period of 50 yrs. The use of reproduction right or performer’s right for the private use of a person or for research or for reporting of current event, is not an infringement of Broadcasting Reproduction right or performer’s right.