Author Archives: Law Matters

Served on Facebook

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The law must change with changing times. And so, while the need to serve notices to people involved in litigation remains unchanged, the means with which it can be done has been wildly expanded.

 

Gone are the days when notices had to be served in person or by registered post. The Australian Capital Territory Supreme Court gave permission for a couple to be notified on Facebook that they had lost their home for defaulting on a loan repayment. It’s another matter that by the time, Mark McCormack, the lawyer who obtained the permission tried to do so, the couple’s Facebook Profiles had disappeared.

 

While this kind of issue hasn’t been raised in Indian courts yet, there are areas in the law where the ‘modernisation’ process has begun e.g. with regard to service of summons an amendment to the CPC in 2002 which was aimed at making litigation more speedy and effective, enabled use of information technology (fax, e-mail) and pre-approved private courier services for the purpose of issuing summons. Considering that most delays in procedure occur at the pre-trial stage, the need to modify the procedure on issuing summons was pressing.

 

It is clear that keeping step with the times is necessary for efficiency in the judicial process. Would Indian courts be willing to ‘scrap’ a summons anytime soon?

Legally wise: September 2008

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Is India’s commercial legal market on the verge of opening up?  (Timesonline UK)

With support from several sides for a more liberal regime in the legal services market and with abundant opportunities for transactional work, are India’s Bar Association members finally seeing the brighter side of things? Or will the country’s legal market continue to incur a high opportunity cost? There is hope that a long-awaited judgement of the Mumbai High Court will result in the opening up of the market.

Interpreting the SET Satellite ruling – AZB & Partners (Livemint)

An excellent article for all you tax buffs on the likely impact of the Morgan Stanley and SET Satellite judgments on principles of transfer pricing.

Law on adverse possession antiquated says the Supreme Court (The Hindu)

The Supreme Court has expressed its disappointment over the antiquated law of adverse possession whereby an owner of property can be ousted of his title simply because of inaction on his part within a stipulated time. Calling the right to property a “human right”, the court disallowed a squatter from gaining title to the land despite the existing law of adverse possession.

No alimony if wife sufficiently well-off (DNA)

The Delhi High Court has ruled that a woman earning an amount of money that is sufficient to maintain her living standards is not entitled to maintenance from her estranged husband.

SC hands over Ghaziabad GPF scam case to the CBI (Tribuneindia)

In a shocking case involving allegations of judicial corruption, the SC has acted swiftly by calling for a CBI probe into the delivery of Rs.15 lakhs at a judges doorstep.

Vacant seats not to be carried forward says SC (Indianexpress)

The Supreme Court has clarified its position on the issue of “carrying forward” of unfilled OBC quota seats (in central education institutions) to the subsequent year by ruling that the seats must go to candidates from the General Category in the present year itself.

Non-bailable warrant issued against Raj Thackeray (DNA)

In a Jamshedpur court of 1st class judicial magistrate A K Tiwari, a warrant has been issued against Raj Thackeray directing him to appear before the court on November 17 on account of allegations of his having made derogatory remarks against Bihari’s. A copy of the arrest warrant has been issued to the Mumbai Police Commissioner for its execution.

BMW 2: Bhasin in judicial custody (Headlinesindia)

With his bail plea rejected by the Delhi High Court, Utsav Bhasin – who allegedly rammed his BMW into a motorcyclist thereby killing one person – will remain in judicial custody and is to be produced before court on October 10.

Proposal to make current law for determining a child’s scheduled caste status “gender neutral” (DNA)

Currently, in order to determine the status of a child as scheduled caste, only the father’s community status is relevant, with the mother’s status having no bearing. A proposal by the Ministry of Social Justice and Empowerment seeks to make the mother’s status an equally relevant factor during such determination.

Leprosy patients cannot contest a civic election or hold municipal office in Orissa:  (BBC)

The Orissa high Court had earlier upheld the disqualification of two elected councillors to a civic body as per the Orissa Municipal Act of 1950. The Supreme Court, to the shock of many, has upheld the ruling finding no invalidity or illegality.

MF Hussain: “Dignity of contemporary art” upheld (BBC)

Artist and painter MF Hussain has found vindication through a Supreme Court verdict that upholds a lower court ruling that dropped charges in three legal proceedings against him. The painter, who has faced criticism for his depiction of newd goddesses in paintings and other artistic work, was cleared of obscenity charges.

Hari Puttar gets the nod (Economic Times)

Warner Brother’s allegation that the film-makers of “Hari Puttar” sought to confuse movie-goers and take unfair advantage of the Harry Potter brand was not accepted by the Delhi High Court.

Scrabulously fabulous – Going strong with Wordscraper and Lexulous in light of the Delhi HC judgement (The Inquirer)

The Delhi High Court has disallowed the use of the word Scrabulous or any Scrabble like name but has held Scrabble to be “incapable of copyright protection”. The internet version of Scrabble (which is extremely popular on Facebook) now goes under the name Wordscraper.

Legal innovation (times online)

 How arbitration law has enabled Sharia courts to deliver valid rulings in Britain.

National Law School in Delhi (Timesofindia) 

With a government grant of Rs. 110 crore for a law school, a judicial academy and a national centre for mediation on a 13 acre plot of land, NLS Delhi looks all set to make a flourishing start.

Smokers beware (Expressindia)

With the Supreme Court refusing to stay the government notification of a ban on public smoking beginning October 2nd, cigarette manufacturers and active smokers won’t be able to light-up as and when it pleases them.

Condom ads obscene? (Outlook)

The Supreme Court has stayed a Madras High Court order which prohibited the marketing of condoms with explicit visuals on wrappers or in advertisements and which also directed condom manufacturers to seek prior permission from the Advertising Standards Council of India (ASCI).

Hindu seeks open-air cremation in Britain: judgement awaited (Guardian)

In 2006, Rajpal Mehat was cremated on a wooden pyre in a secluded location in Northumberland: the Newcastle city council deemed this as an illegal act. Come 2008 and another Hindu has challenged the council’s decision to disallow an open-air cremation for him. A high court verdict is awaited on the matter.

Sign Only What You Mean

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When was the last time you signed a contract without reading it?

If you think you’ve never done that, have you ever read the terms and conditions which are in a little scrolly box before you’ve signed up for an eMail account? Do you know what Orkuts terms of service are? Or for that matter Facebook’s or Twitter’s are?

Whether or not one thinks of it, they are legally binding contracts. One recent example where such a contract was used against someone was in Megan Meier’s suicide case. Megan killed herself at the age of thirteen after being rejected online by a person she thought was a sixteen year old boy. That person, however, turned out to be Lori Drew, the mother of one of her friends.

Strangely enough, there were no laws which could readily be applied to prosecute the woman so she was ultimately charged with violating MySpace’s terms of use which, among other things, do not allow ‘promoting information users know to be false or misleading, or soliciting personal information from anyone under the age of 18 or using information gathered from the Web site to ‘harass, abuse or harm other people’.’

Presumably Ms Drew had no idea of what the terms of service were although in all probability, knowing them would not have stopped her from acting in the way she did.

The point, though, is not merely that she didn’t know what she signed up for but that the contract was treated as being binding on her and was given the ‘force of law’.

This is, by no stretch of the imagination, the only case in which a contract has been given such force. In the recent case of the overweight air hostesses the single judge bench of the Delhi High Court described the employment contract the air hostesses has signed as their nemesis. And in that case, it appears that the air hostesses did in fact know what they had signed.

Nonetheless, despite knowing what the pitfalls of signing agreements without knowing what their contents are or signing agreements without wanting to be bound by them, it’s something most people do without thinking twice.

Think of all the times people have signed loan agreements which say that they will repay money at 20% interest just because their money lender says, “But I’ll charge you only 14%, just let this be there on paper.”

The problem with just letting things be on paper is that if you sign them, they will bind you. It doesn’t matter if you have a separate oral agreement with different terms. It doesn’t matter if the other party claims that he won’t enforce the terms on paper.

The law of evidence very clearly says that oral evidence is excluded by the existence of documentary evidence. There are a few exceptions and provisos but they apply so rarely that it’s hardly worth taking them into consideration at all. For example, if you do not write your whole agreement down, while interpreting it and deciding whether or not you can give oral evidence about a supplementary oral agreement which you have not written down and which does not go against anything you have written down, the court will take into consideration ‘the degree of formality’ of the contract i.e. basically, who drafted it. And the contract will be interpreted differently depending on whether it was drafted by two laymen over coffee or by two dozen overpaid lawyers.

As a general rule, the only thing which a court will take into consideration is your written contract.

The moral of the story: sign what you mean, and mean what you sign.

Legally wise: July 2008

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Architecture

  • The Municipal Corporation of Delhi launched a website dedicated to the Jama Masjid precinct redevelopment plan to make the whole process transparent and informative. (ToI)

Drugs and Alcohol

  • The Cigarettes and Other Tobacco Products (Prohibition of Advertising and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 prohibits the sale of tobacco and other such products near educational institutions. However, the Maharashtra Government plans to crack down on all hookah joints in public interest. (DNA)

Education

  • The Karnataka Government found that a State Government cannot decide on what the medium of education in a private school should be. (Merinews)

Employment

  • The Delhi High Court held that an employee can be dismissed for acting beyond his authority as it amounts to breach of discipline and misconduct in a case involving Chaman Lal, an SBI Branch Manager. (Trade Matters)
  • The Armed Forces Tribunal which is to ‘adjudicate disputes and complaints of armed forces officers and personnel relating to appointments, conditions of service and punishments handed down by military courts’ is scheduled to begin functioning in August. Currently, the Supreme Court and the High Courts have the jurisdiction to hear these matters. (ThaiIndian)
  • The Supreme Court has held that unexplained and inordinate delay in the initiation of disciplinary action against a an employee is a ground for quashing the inquiry in a case involving Ranjeet Singh, clerk in the Haryana Health department. (The Hindu)
  • The High Court of Madras held that both legitimate and illegitimate children are entitled to ‘compassionate appointments’ on the death of a parent. (ToI)

Environment and Wildlife

  • The global maritime regulator, the International Maritime Organization, is working on a code for the ship recycling industry. Within the country, India has decided not to allow new ship-breaking yards to be built. (Livemint)
  • The Supreme Court has reportedly ordered amusement parks and mini zoos in India to be derecognised if they are not sanctioned by the Central Zoo, New Delhi. The report seems incomplete. (The Statesman)
  • The Bangalore Lake Development Authority has signed contracts with companies allowing them to take over the management of various like in the area. Permanent damage has been done to wildlife habitats as a result. (Tehelka)
  • A Bench of the Bombay High Court comprising Chief Justice Swatanter Kumar and Justice V M Kanade directed the State government and the municipal corporation to provide a site for dumping bio-medical waste. Rules dealing with the disposal of such waste had come into force in 1998. (ToI)
  • The Supreme Court has the power to denotify areas of wildlife sanctuaries. The Maharashtra Government wants it to use this power to limit the area of the Great Indian Bustard sanctuary in Amhadnagar and Solapur districts from the 8500 sq km proposed in 1985 to about 350 sq km. (Economic Times)

Family

 

  • A Muslim girl can legally get married without parental consent after attaining puberty even if she is below the age of eighteen years since Muslim personal / religious law allows her to do so held a Bench of the Delhi High Court comprising Justices Vikramjit Sen and V K Shali in the case of a girl named Afsana. Her mother Nihal had claimed that her husband had kidnapped her. (Indian Express)

Food

  • Just in case you were wondering, Pringles are not crisps. Or so a British tax court has ruled. (WSJ Law Blog)

Freedom

  • In ‘Thou Shalt Not Annoy’, Rick Garnett says that local authorities in Sydney have enacted a new, temporary set of regulations that “will allow police to arrest and fine people for ‘causing annoyance’ to World Youth Day participants.” (PrawfsBlog)
  • Justice Sikri of the Delhi High Court said that there was nothing unusual in the holding of the Gay Pride Parade (on June 29) and dismissed objections raised by anti-gay rights activists including B P Singhal of the RSS. (DNA)

Health

  • A 2007 High Court ruling held that government hopitals in Delhi provide patients suffering from haemophilia with not only timely treatment but also with Anti-Hemophilic Factor free if they fell below the poverty line, and at 50 per cent to 80 per cent if they did not. However, this ruling does not seem to have been followed. (CNN IBN)

Inflation

  • Why is it not surprising that Karsten Ottenberg, Giesecke & Devrient, the firm which hellped create hyper inflation in the Weimar Republic in the 1920s is now doing the same in Zimbabwe. (The Big Picture through WSJ)

Intellectual Property

  • Suggesting that Tropical Law could be defined as “the branch of law that deals with clear legal provisions which are rarely, never, or sporadically employed, and other unusual legal problems that occur most often but not uniquely in tropical regions,” Richard N. Brown says that he is not aware of any Venezuelan court which has upheld a Venezuelan patent even though the country’s patent law is over 165 years old. (IP Tango)
  • Manisha Nair mentions the jurisdictional issues the Supreme Court dealt with in the case of Laxman Prasad v. Prodigy Electronics Ltd. & Anr. [2008 (37) PTC 209 (SC)]. (Lex Orbis)
  • The Delhi High Court passed an in Dabur India and Shree Baidyanath Ayurved Bhawan can use the words ‘sugar free’ in relation to their products. Cadila which produces the sugar substitute ‘Sugar Free’ had tried to stop them from doing so. (Business Standard)

Judiciary and Lawyers

  • Puja Trivedi describes the evolution and current status of the eJudiciary in India (Indian Express)
  • When Calcutta’s oldest lawyer, Peston Pedamji Jinwala, died at the age of 89, he asked that a holiday not be declared to mourn his death. In doing so, he may have broken a tradition in the Calcutta High Court which has more holidays than any other High Court. (Khaleej Times)
  • An impromptu lawyers’ strike led to a man who works as a labourer arguing a case in the Madras High Court himself on behalf of his daughter. Their lawyer had told just just a short while before the hearing that he couldn’t argue on their behalf. (The Hindu)

Riots

The Realm of the Bizarre

  • Not sure what death by misadventure is? One example is accidentally killing oneself by drinking too much water, as Andrew Thornton, 44, did. (Daily Mail)

Notes which Self-Destruct

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It may sound Harry Potterish but allowing people to send notes which self destruct is actually a service provided by Privnote.

This seems to be how it works: you write a note and then post it. The note gets stored somewhere — the site doesn’t say where — and you’re given a link where you (or someone you give / mail the link to) can read it. The link works just once after which the note is destroyed. Privnote says the service provides ‘a little extra privacy at zero cost’.

The company also says in a disclaimer which shows up when you click on a link they send you that they ‘store the notes encrypted in a way that only the sender and receiver know how to decrypt’. This means, they say, that they cannot read the notes sent through Privnote. And, obviously, the company does not shoulder ‘any responsibility for the views and opinions expressed in the note’.

However, as Brian Beckham points out, the site does not specify exactly what happens to the data sent through its system. He asks some pretty important questions:

‘Can the company retrieve information which has supposedly been destroyed? Is it compiling a profile on those who use the service? Would it turn the info over to the feds or anyone else armed with a subpoena?’

Privacy Policies are unusual in themselves. They’re common but that’s not the same as being ‘usual’. They are among the few instances where companies and others take it upon themselves to restrict their own freedom by saying that they will use the information they receive only in certain specified ways. The promises contained in Privacy Policies are binding on those who make them, and liability can be incurred if they are broken.

Nonetheless, as Brian says, one would assume that a company which provides a service which is all about privacy would have a clearly defined privacy policy. Privnote, however, doesn’t seem to have one though.

Perhaps the service is best suited to the needs of teenagers who’d like to spice things up a bit by sending each other supposedly private notes. Somehow, one can’t help but think that it isn’t a very bright idea to send confidential professional information across without actually knowing what’s happening to it.

Nasty Comments on Your Blog

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What do you do if someone leaves distasteful comments on your blog?

The law regarding comments is actually a bit dicey: if a blog owner’s Terms of Service clearly say that they allow unmoderated comments, that they bear no responsibility, and if they remove nasty comments once they’re brought to their notice, they generally won’t be held liable for nasty comments made by other people. The picture changes, however, if the comments on a blog are moderated: if a blog’s owner chooses to take on the responsibility of not allowing nasty comments, then they will be liable if any appear. The result is that absurdly enough, the less care you take, the less liable you are. This is, however, drawn from case law in non-Indian jurisdictions; the Indian position is unclear.

The Law Applicable

In the case of a blog, there are two different agreements.

One between the owner of the blog and and WordPress / Blogger / Blogware / whichever service used i.e. the fascinating Terms of Service which hardly anyone ever reads.

In the case of blogs hosted by WordPress / Automattic, that agreement is governed by US law. As far as the choice of forum is concerned, there seem to be three aspects, briefly: (a) that disputes regarding the access to / use of the site are to be settled at a San Francisco court, (b) that disputes regarding the terms of the ToS themselves are to be settled by specified arbitrators and (c) that injunctions can be obtained and IP claims settled at any competent court.

The Automattic ToS does not speak of which law applies to the IP claims and one can only suspect that the issue is arguable since according to the agreement, all IP remains with authors and is not assigned to Automattic. So, the content of a blog may not automatically be treated as a part of the site to which the ToS applies.

However, the ToS is a boilerplate contract so presumably it could be challenged in an Indian Court which probably wouldn’t be too useful since in the absence of unconscionability etc., Indian Courts are not particularly enthusiastic about interfering with contractual choices of law or fora.

The second agreement would be between the owner of the blog and their visitors.

In such a case, the owner of the blog could be the one to impose a standard contract saying that the use of their blog is governed by so-and-so law. Or that all disputes in relation to it are to be settled at such-and-such place.

If the owner of a blog does not have such an agreement, if a case was to be filed, it could be done wherever the cause of action was to arise. Obviously. The country where it was filed would generally apply its own law. Any court could choose to override the ToS of the owner of the blog. The only thing the ToS would do is give them a much firmer ground to stand on while arguing their case.

The bottomline is that there’s nothing to stop anyone from filing anything anywhere. The best the owner of a blog can hope for if that happens is that the case gets thrown out in a hurry.

Consider a case where a third party were to sue for a nasty comment about him. Continuing with the same example, WordPress, if it could be sued, would probably have to be sued in the US because that’s what its ToS mandates. The owner of the blog could theoretically be sued in India. Or the blog service provider and the owner of the blog could be sued wherever the comments were viewed and the damage was done (although an Australian Court refused to allow a plaintiff to sue in such circumstances in Australia a while ago because of a ToS agreement which said that all disputes must exclusively be settled in the US).

In India, case law is still emerging and statutory law is woefully inadequate at the moment.

Defamation

Defamation in India is both a criminal offence and a civil wrong, and there is nothing to stop someone from suing the owner of a blog. And if he / she showed that the actions / inaction of the owner contributed to the defamation, presumably, that person would probably be awarded damages.

As far as defamation as a criminal offence is concerned, the position is somewhat different and only the person who actually makes a defamatory statement can be prosecuted. The Penal Code which was drafted in 1860 obviously has not taken the creation of the Internet into account.

The IT Act

Section 79 of the Information Technology Act, 2000 which deals with the liability of ‘webmasters’ says:

Network service providers not to be liable in certain cases
For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

A ‘network service provider’ means an intermediary, and under Section 2(w) of the Act, an ‘intermediary’ with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message.’Third party information’ means any information dealt with by a network service provider in his capacity as an intermediary.

India and Inflation

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Inflation in Hungary, 1946With the price of virtually everything having gone up, there’s little to be said about the impact of inflation in recent times on the general Indian public that isn’t readily visible.

Inflation in India touched a thirteen-year high of 11.42 per cent in the week which ended on June 14. A far cry from the 4 percent it was at in January 2008.

The issue, as the IMF had recognised in April itself, is a ‘politically hot issue’ with General Elections being scheduled to take place early next year. If not anything else, this isn’t an ideal time for the Government to be forced to deal with popular discontent because of rising prices not just because of the direct effects of inflation but also because of the actions its been forced to take to deal with complementary problems including the rise in fuel prices.

Some of the Government’s measures such as reducing fuel subsidies almost across the board have had a direct adverse impact on individual consumers and have done nothing to create the frame of mind which the Government would presumably like to see in voters.

Individuals are not the only ones to have been affected though. The performance of nearly 38 per cent of Indian companies has deteriorated over the last six months and, for many of them, things are predicted to get quite a bit worse before they get any better.

One of the underlying problems has been the phenomenal global increase in oil prices. No one seems to be entirely certain what caused the increase and there has been little agreement on how it should be dealt with. Even leaving aside the fact that petroleum and other similar products are used to synthesize thousands of modern materials right from plastic to chewing gum, the increase has caused the cost of transporting goods to go up significantly, and consumers have had to bear the brunt of the increase. Although, in the long term, the solution is to decrease dependence on oil, short term solutions which have been suggested involve the grant of tax breaks.

Moving back to India, whether or not imported inflation is influencing the rise in domestic prices, what has become increasingly clear is that India needs to create its own comprehensive policy on how to deal with the issue.

The Raghuram Rajan Committee suggested that the Reserve Bank of India focus on controlling inflation. In Europe, the European Central Bank tried to do this by not slashing interest rates to revive growth. Some experts have, however, warned that this may not work in India considering that inflation (which, for example, in India generally rises after every draught) could well be dependent on far more than the country’s monetary policy alone.

On its part, the Government has banned the export of a number of products including non-basmati rice, pulses, edible oil and cement. However, it has refused the recalibrate the rupee in the interest of maintaining a transparent foreign exchange regime.

Only time will tell if the measures the Government has taken will help ensure that the economy doesn’t sink into a depression. What is almost certain though is that its measures will do little to stimulate any form of growth or help to immediately ease the burden which has been placed on individuals.

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