Prejudice

Recent Posts: Prejudice

Is altering signature on cheque a material alteration of the cheque?

Is altering signature on cheque a material alteration of the cheque?

In Aldons v. Cornwall, a material alteration to a negotiable instrument was defined as “an alteration, which alters the business effect of the instrument if used for any business purpose. Example: Date, The time of payment, The place of payment, The sum of payment, The number of parties, The relationship between the parties, Legal character […]

Liability associated with Personally Identifiable Information (PII) in organizational and Business setup

Liability associated with Personally Identifiable Information (PII) in organizational and Business setup

Lately we have been analysing issues related to management of Personally Identifiable Information (hereinafter PII), in an organizational and business setup. There are a lot of PII issues involved in running a business or organization that are not even considered while dealing with the idea of PII in Law. Here are some of the things […]

Understanding section 24 an 25 of Hindu Marriage Act, 1955.

Understanding section 24 an 25 of Hindu Marriage Act, 1955.

This may be by far the most legal prejudice we have posted. But it deliberates upon important aspect of law relating to maintenance of spouse and child during the pendency of trial. We hope you enjoy reading this and god forbid, but if need ever be, you could use this for furtherance of your cause. […]

Rationalizing proliferation with respect to net neutrality

Rationalizing proliferation with respect to net neutrality

Net neutrality is the principle that Internet service providers should enable access to all content and applications regardless of the source, and without favouring or blocking particular products or websites. The principle objective of net neutrality is that “all the Internet traffic has to be treated equally without any discrimination”; but this has had different […]

North Korea’s Nuclear Test (Prejudice)

North Korea’s Nuclear Test (Prejudice)

On Friday, 9th of September North Korea conducted a nuclear test for the fifth time on the country’s National Day. The only difference is that this time it was successful and much more powerful. This had led to outrage all over the world, with many leaders reacting angrily. China opposed the test, with South Korea […]

Is altering signature on cheque a material alteration of the cheque?

poeple-signing.jpg

In Aldons v. Cornwall, a material alteration to a negotiable instrument was defined as “an alteration, which alters the business effect of the instrument if used for any business purpose. Example:

  1. Date,
  2. The time of payment,
  3. The place of payment,
  4. The sum of payment,
  5. The number of parties,
  6. The relationship between the parties,
  7. Legal character of the instrument,
  8. Opening a crossed cheque and,
  9. Converting an order cheque into a bearer cheque.

Here we are interested in knowing whether altering signature be termed as material alteration to a cheque? However, we are more consecrated with judicial opinion with respect to the same. So, lets go!

Section 87 of Negotiable Instruments Act (hereinafter NIA) reads as follows:

Section 87 in The Negotiable Instruments Act, 1881

  1. Effect of material alteration.—Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee.—And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125.”

This section provides little insight into meaning of material alteration of a negotiable instrument in general and cheque in particular. This is perhaps due to the fact that NIA only defines effect of material alteration to a negotiable instrument and not the meaning of material alteration to a negotiable instrument.

However, in a case Delhi HC had made a tangential observation with respect to signature, its alteration and whether or not, it is a material alteration.

Delhi HC observed in Ravi Chopra vs State and Anr.[1]

“…There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a ‘material alteration’ for the purposes of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of Section 87 NI Act…”

Other than this, there is perhaps no other reported case (to the best of my knowledge) that deals with alteration of signature on a cheque as being equivalent to material alteration of a negotiable instrument.

However, an alternate method to prove ‘material alteration due to altering signature’ could be to exploit definition of material alteration, which in turn has been given in multiple judicial opinions. This definition of material alteration could then be run against meaning of cheque under section 6 of NIA to conclude that signature forms a material part of cheque. Hence, under such circumstances alteration of signature will constitute material alteration of the cheque and obvious implications under section 87 will follow. (However, the same hasn’t been considered here).

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[1] Para 20, Available at https://indiankanoon.org/doc/692276/.

Liability associated with Personally Identifiable Information (PII) in organizational and Business setup

personal_info.jpg
Lately we have been analysing issues related to management of Personally Identifiable Information (hereinafter PII), in an organizational and business setup. There are a lot of PII issues involved in running a business or organization that are not even considered while dealing with the idea of PII in Law. Here are some of the things that are to be considered by an organization while dealing with issues pertaining to PII:
 
• Level of assessment of PII is important in any organizational setup. Data field and its relevance in PII terms can be used for the same.
 
• Context is to be considered while dealing with PII. Say for instance leakage of Law enforcement data and data with respect to subscribers will have two very different legal and social implications. Accordingly steps have to be taken and protocols designed to deal with crisis.
 
• Individual case to case approach should be taken. Assessing the level of PII loss and contextual implications of the same differ on a case to case basis.
 
• Either there is release of information by the organization itself or there is a leakage of information. In both the cases modifying method of usage and kind of information to be release can be determined by some methods such as context if usage, data field sensitivity, identifiability, quantity of PII, obligation to protect confidentiality and access to and location of PII.
 
• De-identification algorithms, controlling Access to information, separation of duties, remote access etc. can be used to secure PII.
 
• How to calculate losses due to leakage or release of PII? – depends on multiple factors and basically on context. Harm caused is to be measured on three thresholds i.e. Low, Medium or High?
 
This is a very basic introduction to the various aspects of our research in this field. For more, keep following us!

Understanding section 24 an 25 of Hindu Marriage Act, 1955.

o-custody-battle-facebookThis may be by far the most legal prejudice we have posted. But it deliberates upon important aspect of law relating to maintenance of spouse and child during the pendency of trial. We hope you enjoy reading this and god forbid, but if need ever be, you could use this for furtherance of your cause.

So the question is whether an application under section 24 will in itself include a claim under section 26? Subsequently, can a court pass order for maintenance of a child without application under section 26?

Different High Courts have differed on this point. Some are of the opinion that child’s maintenance can be claimed under section 24, without any specific application under section 26 and others say otherwise. Law commission considered this point in its 98th report. It was of the opinion that the then existing provisions of section 24 and section 26 clearly state that different applications have to be filed under the two and application under s. 24 cannot mean to contain a request for maintenance of child. However there is no legal clarity for the Supreme Court has never deliberated expressly upon the point.

Judgments of the HC w.r.t. the matter are:

The view that the court cannot grant maintenance of child without a formal application under section 26 has been taken by the following High Courts:-

(i)                Jammu & Kashmir; [Puran Chand v. Kamala Devi, AIR 1981 J & K 5, [Overruled in Amrit Lal Nehru Vs. Usha Nehru Civil First Appeal No. 21 of 1981 in J&K HC]

(ii)             Orissa [Akasam Chinna Babu v. Akasam Parvati, AIR 1967 Orissa 163];

(iii)           Patna [Bankim Chandra v. Anjali, AIR 1972 Pat. 80].

To the contrary, following HCs say that even where there is no separate application for the grant of maintenance to children under section 26, the court should, in a proceeding initiated by the wife under section 24, exercise its discretion and award maintenance to the children:-

(i)                 Andhra Pradesh; [Narendra Kumar v.Suraj Mehta, AIR 1982 A.P. 100]

(ii)               Delhi; [Damodar v. Bimla, (1974) P.L.R. (Del.) 33]

(iii)             Karnataka; [D.Thimmappa v. Nagaveni, AIR 1976 Karn. 215; Subhashini v. Umakanth, AIR 1982 Karn. 115]

(iv)             Kerala; [Radha Kumar v. K.M.K.Nair, (1981) K.L.T. 417 (Sukumaran.J.)]

(v)               Punjab & Haryana; [Balbir Kaur v. Raghubir, AIR 1974 P & H 225] and

(vi)             Rajasthan [Baboo Lal v. Prem Lata, AIR 1974 Raj. 93] 3.3

Supreme Court gave a judgment in this regard in Jasbir Kaur Sehgal v. District Judge, Dehradun (AIR 1997 SC 3397). It said “..Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that section operates in its own field.”

Thereafter amendments were brought about in section 24 and 25 of HMA (proviso wrt judgement being delivered within 60 days). Madras HC considered these amendments important in the latest judgment of S. Sumathi vs R. Sharavanakumar[1] (decided in 2013) and said that proviso to Section 26 removes doubt, if any, that pending disposal of the main proceeding between the husband and wife, an interim order in respect of maintenance of the minor children can be made by the court only under section 26 of the HM Act.

Current opinion after S. Sumathi vs R. Sharavanakumar stands that filing an application under the said part is procedurally incorrect and a new application has to be filed under section 26. Court gave following order in S. Sumathi vs R. Sharavanakumar:

 “…As I have concluded above, this is procedurally incorrect. When this was pointed out, the learned counsel for the petitioners submitted that the minor child may be deleted from the array of parties in I.A.No.1924 of 2010 with liberty to the 1st petitioner to make a separate application for maintenance under Section 26 of The HM Act for the minor child…”

Conclusion: S. Sumathi case may be used to say that filing an application for maintenance of child U/s 24 is procedurally incorrect (though not substantively so). Hence, a fresh application may be instituted u/s 26 for maintenance of child.

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[1] https://indiankanoon.org/doc/26407098/

Rationalizing proliferation with respect to net neutrality

Net neutrality is the principle that Internet service providers should enable access to all content and applications regardless of the source, and without favouring or blocking particular products or websites. The principle objective of net neutrality is that “all the Internet traffic has to be treated equally without any discrimination”; but this has had different interpretations over varied contexts. The explicit arrangement has been that private owner access to the publicly owned spectrum and rights of way necessary to exploit the technology is exchanged for public access and speech rights. Similarly, the telephone company monopoly’s use of public rights of way came with common carrier non-discrimination obligations. The broadcaster’s receipt of exclusive use of a coveted radio spectrum license came with public trustee obligations; and a cable operator’s essentially exclusive local franchise came with obligations to provide public, educational and government access channels. Except under very limited circumstances (violation of criminal law), the telephone company could not deny service based on content. And, while the broadcaster’s programming choices were largely insulated from government oversight, the broadcaster was still responsible for providing public access to news, public affairs and political speech. Finally, the cable operator could exercise substantial editorial control over most channels, but larger cable systems had to set aside channel capacity for the public.[1]

Considering the above principles of net neutrality, proliferation of broadband by public Wi-Fi networks will basically raise two net neutrality issues:

  • Localization of certain data for cheaper and faster accessibility inherently violates the basic principles on net neutrality. This is because in a non-discriminatory internet all the traffic has to be treated equally without any discrimination. However, in this approach specific nature of data is being given priority over the rest of the data.
  • There are arguments stating that raising required infrastructure for proliferation of broadband through public Wi-Fi networks requires substantial investment over long period of time. Under such circumstances opening up access to entire web with a partially developed infrastructure is highly problematic. Content requiring high bandwidth, like streaming a video, may result in multiple users being unable to access internet due to reduced speed or no access to internet at all. Considering the fact that substantial investment cannot be raised overnight, selective content access may be used to make access of internet a pleasing experience for the users. Overtime selective access will yield profits that can be re-invested in the development of physical infrastructure. Further, it is also argued that selective access will ensure development of freely available Wi-Fi at public places like airports, cafes etc. This is perhaps due to the fact that investment requirements for a selective access web will be low and can be covered by product sales for cafes, shops etc.[2]

Researcher is of the opinion that despite of all the infrastructure and policy considerations, selective access is against the core principles of net neutrality. Telecom Regulatory Authority of India’s ruling dated February 8, 2016, rules against this approach. However, regulation 6[3]may be used by the authority to relax norms in this case. Further, if above mentioned guidelines with respect to determining nature of data of community interest are considered, relaxations can be granted considering that it is the government and the local community that discriminates data, and not the ISPs or the content developers. While the same might not be true in case of arguments with respect to infrastructural development requiring substantial investment, initial incentives have to be provided. Lastly, free public Wi-Fi should not be brought under the ambit of net neutrality. However, the same can be limited to only small stores and cafes, and content developers or ISPs may not be allowed to do the same.

[1] Available at https://hbr.org/2016/06/net-neutrality-rules-will-make-winners-and-losers-out-of-businesses

[2] Available at http://www.cisco.com/c/en/us/about/government-affairs/government-policy-issues/net-neutrality.html

[3] PROHIBITION OF DISCRIMINATORY TARIFFS FOR DATA SERVICES REGULATIONS, 2016.

North Korea’s Nuclear Test (Prejudice)

On Friday, 9th of September North Korea conducted a nuclear test for the fifth time on the country’s National Day. The only difference is that this time it was successful and much more powerful. This had led to outrage all over the world, with many leaders reacting angrily. China opposed the test, with South Korea terming the leader maniac and the US warning the North of serious consequences with further new sanctions. The main question popping out of the entire issues is whether the sanctions have worked in any way to deter the North from raising its nuclear arsenal?

According to North Korea, the rationale behind having its own nuclear arsenal is that otherwise it shall meet the same faith as Saddam Hussein’s Iraq and Gaddafi’s Libya. Despite sanctions against it and with poverty rampant, North Korea says it won’t be deterred as it seeks to protect itself from the United States.

The US has reportedly pressed the UN to impose sanctions against North Korea with five sets of UN sanctions been imposed since 2006, when the North carried out its first test. Talks among the world powers have failed to deter North Korea from discontinuing its nuclear programme.

The US and its allies are in a precarious situation. If they impose tough sanctions like blocking any oil export to the country, block all shipping going in and out of North Korea and to paralyze its finances, they risk many people would starve in the country. Further, there is a risk of this confrontation in Asia escalate to war. However, starting talks with North Korea on Kim Jong-Un’s terms would lead him to be defiant of the Allies and there is no guarantee that he will discontinue his nuclear programme.

With the continuing threat posed by the North, many in South Korea believe that it should develop its own nuclear weapons as it cannot solely rely on the US. In fact Mr. Trump’s suggestion that the South and Japan should pay more to the US to defend it, there has been concern among these nations and it seems that the South wouldn’t be far from developing its own nuclear arsenal. According to experts if South decides to develop its own nuclear arsenal, North Korea would focus more on developing its short range missiles capable for targeting the South. This is perhaps due to the fact that it would consider South Korea as a direct and graver threat than the US.

Mr. Modi raises issue of Brit visa policy

G-20 summit is just concluded in Chinese city of Hangzhou. Headlines had to say much about strategic discussions at the summit. Much of such strategic discussions don’t yield any` feasible results. They happen in a globule of media limelight, hence appearing to be important, yet not being far less relevant than any seasoned call between two random under-secretaries in two governments. What concerns us here are the issues related to India’s participation in the Summit. India offering $500 million line of credit for defence cooperation to Vietnam, India discussion China’s involvement in Pok, Prime Minister Modi slamming Pakistan for spread of terrorism etc. were the ones making headlines. In these headlines, what went unnoticed was the meeting of Prime Minister Narendra Modi with his British counterpart, Mrs. Theresa May. Media reports suggest they discussed a whole range of subjects including British firms’ investments in manufacturing in India, other geo-political and strategically important issues. Mr. Modi focused substantially on UK’s visa policy.

A foreign ministry spokesperson said, “Prime Minister also touched on UK’s visa policy. In particular, he said that the new UK regulations could have negative impact on Indian working professionals wishing to visit UK for short term business visits.”

As per new visa policy, non-EU workers will need to earn at least 35,000 pounds to remain in the UK for longer than six years unless they are working in a PhD-level occupation or a job which is on the UK’s Shortage Occupation List, including nurses. The threshold was raised from the salary requirement of around 21,000 pounds per annum on advice from the Migration Advisory Committee (MAC).

This issue comes at a time when Britain is already burdened with the Brexit and economic implications arising out of the same. At such a time increasing requirements for potential small time investors and highly talented, yet cheap workforce may not be good for the British economy. Further considering that Britain is no longer the only preferred destination for Indians and a number of opportunities lie elsewhere, increased visa requirements should have a negative impact on the British Economy. On the other hand such a requirement are also against the Indians willing to work in UK. Perhaps this along with the fact that repatriation of their earnings forms a large part of India’s foreign exchange earnings, motivates Mr. Modi to bring up this issue at the meeting on the sidelines of G-20.

This meeting and discussion does not mean much, except for initiating some form of dialogue on the issue. It will take a while before any tangible progress can be seen and both British businesses and Indian professionals can benefit from the same.

Reinforcing the narrative against Islam

From a very western perspective, the narrative against Islam and that of Islamist fundamentalism has been imposed in ways more than we are aware of. And in most cases, this narrative has worked in favor of terrorist groups, mainly, the Islamic State.
Here’s why:

The rhetoric of Donald Trump is the same as the rhetoric of the ISIS. Both sides argue, and rather agree that there is a war waging between the West and Islam.
Ostensibly, the Islamic State wants to destroy the west. But let’s not forget what’s happening in addition to all of that: Jihadi groups don’t just attack Western targets. They target schools and markets in Muslim countries too. And unfortunately, the western media does not care enough about such incidents enough (mostly by virtue of logistical reasons).
The war that is being cast by Donald Trump clearly misses context – And clearly so, because it harms and creates an inconvenience for the propaganda he tries to push. What is not being told to the masses is that the major targets of these terrorist groups – mostly creating terror to prove their power, are people of the Muslim world.
However, blanket statements made against the entire Muslim community, without understanding the troubled nature of those individuals who owe allegiance to the ISIS, work to the alienation of the “gray zone”: The well adjusted Muslims of the Western world. The ISIS wants to eliminate this gray zone. And Trump is doing this for them.
When the world conveniently shrugs its shoulders when terror strikes Bhagdad and Kabul, but is rendered shocked and stunned when the incidents happen in Orlando and Paris, the message sent across is: Muslim lives do not matter as much to us (West). And this is even more problematic because the world sees these cities as war torn. These selective responses, howsoever unintentional, widen the yawning gap between the Muslims and the West, and in doing so, plays into the hands of Jihadi groups.

Scorpene leak 2

In this post I will be looking at answers to one of the three material questions raised in the previous posts. As far as the question of who is responsible for data leak is concerned, there are different theories. Indian authorities and Australian newspaper that published the data, claim that the data is believed to have been “removed” from the firm in Paris in 2011 by a former French Navy officer. The officer, who worked as a subcontractor for DCNS, and a French colleague took the data to a Southeast Asian country where they were employed by a private company run by a Western businessman.

It is also said that after the two Frenchmen were sacked by the Southeast Asian firm, the secret data was sent to the company’s head office in Singapore and chances are that it could have been stolen then. The data was also placed on a server of the same firm on April 18, 2013, and it was “dangerously vulnerable to hacking or interception by a foreign intelligence service. Further, it is not known whether the data stayed on this server for a few days or for a year.”

Another theory suggests a possibility of data being hacked by a hacking group or perhaps a standalone activist hacker. This theory is backed the idea that government agencies, Mazagon Docks in this case, do not have a well-protected cyber defense system. Considering this fact, it is perhaps a possibility that the data could have been stolen from Indian servers.

The most recent revelations by ‘The Australian’ suggest the high probability of data leak by French company’s sub-contractors. In the re-construction of entire events leading to data leak, the Australian daily writes that the data on Scorpene was removed from the server as a reference guide for the former French naval officer’s new job in a Southeast Asian country. However, at a later stage the French naval officer fell out with the Southeast Asian private company. Despite of the fallout, Southeast Asian private firm continued to hold onto the data. Thereafter the data was sent by disk to a man in Sydney. Evidence suggests that data was not even encrypted then. The man in Sydney transferred it to an encrypted disk and “wiped the old disk with special software, grabbed a hammer and smashed it to pieces in his backyard”. The man, who was not identified by The Australian, “placed the new encrypted disk in a locked filing cabinet in his office and there it remained for more than two years”.

When corroborated with other evidence, The Australian’s latest narrative appears to be the most appealing. Rest of the three possibilities appear to be less likely considering the fact that they are mere speculations and no concrete evidence has been found to back the same. Further, The Australians stand that it looks more incompetence than espionage is also well taken. This is in light of the latest revelations with respect to the chain of events involved in the incident and corroborating set of evidence backing the same.

In the next post I will analyse next question, which is whether what will be the implications of this leak and how to prevent them? Keep reading!

Scorpene leak

India’s advanced next generation submarines, Scorpene data leak case has taken a big form. This is detrimental to Indian national security, even though government, navy and a bunch of old navy men think tanks would want to think otherwise. This leak also poses a threat to the commercial interests of French contractor DCNS, the manufacturer of these submarines. This could lead to questions being raised against standards of data protection in the firm. Their contract for manufacture of similar submarines in Australia is under lens as well. Before all, three questions better be answered:

  1. Who was responsible for data leak?
  2. What will be the implications of this leak and how to prevent them?
  3. What steps should be taken to prevent such a leak in future?

We will be answering these questions in our subsequent posts. So stay around!