Dilution or outright waiver of punishment if a rapist offers to marry his victim is an extra-legal step, one that is not written into law anywhere. But it continues to be entertained because the internalisation of stigmatisation is wide-spread, and even the victims believe it.It is really an important factor to think about..., as sharmila chatterji report for India get together, it is acceptable when we see this circumstance in a different way.
25 April 2007 - In 1991, Bollywood churned out two films that wove their stories around rape victims. The first was Benaam Badshah (1991); starring Juhi Chawla and Anil Kapoor, the film unfolded the story of a pretty young girl in a Mumbai chawl, who is raped by the male lead actor (somehow, the word 'hero' is difficult to use with 'raped'). The victim takes on a determined, if bizarre crusade to get this rapist to marry her. The other film Tejaswini, a Hindi remake of a southern hit, dealt with the struggles of a lady police officer who has to constantly fight against the anti-socials of her area funded by a minister. At the centre of the narrative is her crusade to see that the politician's son is forced to marry a girl he raped. Thankfully, Benaam Badshah sank at the box office without a trace. Not so Tejaswini, which was a thumping box office hit in the southern states.
Fifteen years later, the story of the rapist going scot-free by marrying his victim transcended the celluloid world to step into the ugly reality of life. In 2005, in Charthawal village, Muzaffarnagar district, Uttar Pradesh, Imrana, wife of Noor Elahi, was being forced to separate from her husband and marry Ali Mohammad, her father-in-law, who had raped her. The decision was supported by the local panchayat, which declared her existing marriage null and void. She was commanded to observe a period of seven months to 'purify' herself and then marry Ali Mohammed.
Imrana proved a woman of some courage. With her husband's support, the intervention of the National Commission of Women and other leading women's organisations, and an uprising within the media, she thwarted those who wished to railroad her into further victimhood beyond the rape itself. Recording her statement before the chief judicial magistrate in Muzaffarnagar in Uttar Pradesh on 20 June 2005, Imrana told reporters that she was ready to defy the community panchayat. "I will continue to live with my husband despite the fact that the panchayat has declared that my marriage has been nullified after the rape. My husband supports me and I am ready to defy the panchayat," she said. In August that year, the Indian Supreme Court ordered the Darul-ul-Uloom of Deoband and the All India Muslim Personal Law Board (AIMPLB) the two pillars of Islamic bodies in India, to reply to a petition filed against them. The petition charged these organisations with interfering with the country's legal system and introducing parallel Islamic laws in violation of the Constitution.
Questioning the unilateral, feudal and fascistic approach of the 'community panchayat' in the Imrana case, in a press statement (June 20, 2005), several leading women's organisations said: "How can a system exist parallel to political and executive bodies constituted by the state, manned (they appear to be run exclusively by men) by persons who are ignorant and insensitive and whose judgements are irrational and inhuman? How can their authority supersede that of the state?"
The State however, is party to the same unilateral game. In 2002, the Delhi High Court quashed the rape case against one Manoj Kumar after the victim submitted an affidavit saying that she was willing to marry him. Even when the victim refuses to marry the rapist, as in the case involving the rape of a 23-year-old Delhi nurse of Shanti Mukand Hospital, rapists can resort to this tactic. In this instance, the victim was raped, her right eye was gouged out, and her left eye was badly wounded by a ward boy on September 07, 2003. As she waited in court for the judge to pronounce punishment, in an application to the court, the rapist Bhura proposed marriage to her. His argument was that since no one would be prepared to marry her due to the social stigma, he would like to do so. She turned down the proposal as bogus, horrible and audacious. "He made it sound like a favour. This was more shocking than the proposal itself. The most horrible thing in the whole business was the court having admitted such an application," said the victim. In the end, justice prevailed, and Bhura was awarded life imprisonment.
In other cases, however, rape victims themselves appear to tolerate offers of marriage by rapists. Why? Dr. Manjeet Bhatia, of Womens' Studies and Development Centre, Delhi University, thinks this is just an extension of social attitudes towards the crime itself. "The internalisation of being stigmatised for life is so deeply ingrained in the victim that she actually believes that marrying her rapist is the only way out," Bhatia says. And so the practice continues. Dr. Rajat Mitra, psychologist and director, Swarnchetan, an NGO that counsels victims of such crimes, says it cautions rape victims against marrying their attackers, telling them that such marriages are disastrous and are marked by further violence. But not every victim is willing to heed this advice. "When we tell people, for example, her family members, that she cannot live with somebody who has caused her such trauma, they brush it aside saying that the girl would get over it," says Mitra.
The story of the rapist permitted to go scot-free if he marries the victim is rooted in ancient history, and is more a gender issue than a religious one. Susan N Herman, Professor of Law, Brooklyn Law School, writes: "In some ancient societies, women were treated as a form of property and rape was defined as an offence against the property owner - the woman's father or husband - not against the woman herself." (Crime Control and Civil Liberties in Criminology, A Contemporary Handbook.)
• 'Reality' rape
• More than the letter of the law
Clearly, dilution or outright waiver of punishment if the assaulter offers marriage is an extra-legal step, one that is not written into law anywhere. Nonetheless the legal community appears to be willing to overlook this. Arati Mundkur, of Alternative Law Forum, says, "With regard to rapists marrying their victims, there is no rule or law on this point. This is a personal perception, unfortunately adopted by the judiciary as evinced in the recent Shanti Mukand rape case. The quantum of punishment should in no case be influenced by an offer from the rapist to marry the complainant. In a number of workshops we have conducted across districts in Karnataka, the idea among lawyers and among women is that if the rapist wants to marry the woman raped by him, no FIR/complaint should be filed. This offer to marry her is itself considered atonement."
Ranjita Biswas, journalist, says, "When a rapist offers to marry his victim there is purportedly, a sigh of relief. What a perfect solution! The woman is socially rehabilitated and the rapist is forgiven. After all, he has agreed to marry her, hasn't he? Sadly, even lawyers sometimes consider this not such a bad idea and choose to defer judgement waiting for a 'response' from the victim. But how can the courts entertain such a preposterous proposition in the first place? This is victimisation of the victim all over again. She has already been wronged. The wrongdoer, on the other hand, neatly escapes the consequences of his heinous act." ⊕
Cheers
Sumi
Wednesday, October 31, 2007
Tuesday, October 30, 2007
Consumer forum pays compensation
Consumer plays a major role in the world of business. Any indistry is bound to the demands of them. So the product or services must satisfy the need of the ultimate consumer, when that is not satisfied they have the right for compensation.
Trust me how amny people go for it.. ? People don offend them when there is a bad sevice or when the product did not satisfy their need as mentioned. These factors has to be overcomed and faced. Consumer protection help any individual to face it. This case is a veyr good example for that.... this happened in ahmedabab, the Ahmedabad Consumer Forum asks United India Insurance to pay compensation.
The brief story is
The Consumer Disputes Redressal Forum, Ahmedabad District (Rural), has ordered United India Insurance Company to pay compensation of over 5,000 US dollars to one Smruti Bhasker Patel in an overseas medical claim policy.
The Forum, while hearing the case filed by Consumer Education and Research Society (CERS) and Ms Patel, a resident of the city, ordered the United India Insurance Company Limited (UIIC) to pay Smruti 5,041.65 US dollars compensation for gross negligence, deficiency in service and unfair trade practice case.
The Forum ordered the company to pay Smruti 5,041.65 compensation, i.e 3,632.15 US dollars plus 1,409.50 US dollars with nine per cent cumulative interest, from the date of the complaint until recovery.
The amount should be paid in Indian rupees as per the exchange rate prevailing on the date of the complaint.
The Forum also ordered the company to pay her Rs 10,000 for tension, hardship and inconvenience suffered by her.
Smruti had paid a premium of Rs 3,281 and taken out an overseas mediclaim policy from United India Insurance on April 22, 2002, covering the period from April 27 to June 12, 2002. She renewed the policy from June 12 to June 25, and again up to July 10, 2002, for which she paid the premiums. The policy thus covered her from April 27 to July 10, 2002.
During her stay in the US, Smruti suffered from acidity-related laryngeal lesion illness and was treated at the John Hopkins Hospital on July 1 and 2, 2002, as an outpatient and on the second day underwent a surgery. She paid 3,632.15 US dollars towards the charges for surgery and subsequent hospitalisation up to July 9, 2002.
She submitted her claim form with the original documents to Mercury International Assistance and Claims Ltd, the UK-based agent of United India Insurance. She also sent 100 US dollars along with the claim form towards the amount deductible as per the policy.
Later, she received three more bills from John Hopkins Hospital and forwarded them to Mercury International for direct payment.
Mercury International returned some of the documents along with an undated letter to Smruti and asked for some other documents. As she had already sent the originals, she sent copies of the documents on August 23, 2002. After more futile correspondence between Smruti, United India Insurance and Mercury International, she sought the intervention of CERS which, in turn, wrote to the chairman of United India Insurance requesting an early settlement of the claim.
She and CERS submitted that, even after two years, the insurance company had shown clear negligence and that it had neither settled nor repudiated the claim within 30 days of receipt of the claim, as per the IRDA Regulation 8(3) 2002. But the fact that the insurance company had asked Mercury International to arrange for releasing the payment soon indicated that it had acknowledged the claim but was not settling it.
The insurance company argued, among other things, that it had not repudiated the claim and that the complaint was not maintainable as the Forum had earlier dismissed it, and that the complainants had not challenged that order.
cheers
Sumi
Monday, October 29, 2007
Cyber Hacking
Legal Service India.com
Cyber Hacking
Hey friends.., life has changed a lot and computers play an important role in our present situation.., year by year different inventions and hi-tech knowledge's being shared between all. Does the law covers all that.. ?.. Cyber law needs lots of attention more than wat is given now. Each and every term has to be defined well and the way it is applied.so today there is something that i like to share it with u..., this article wa written by Abhishek Jaiswal, Law Student, National Law University, Jodhpur, who gave a good knowledge transfer about CYBER HACKING.., hope u people will enjoy it...,
Whenever the word 'Hacking' or 'Hacker' comes to our mind, the picture or the image which is created is that of an intelligent being who is criminal by nature, who attacks other computer systems, damages it, break codes and passwords, send viruses etc. Their mindset are as if the 'hackers' are the computer criminals. They have a very wrong notion in this regard and have a completely negative attitude and utter dislike for the 'Hackers'.
In this regard, the media has wrongly associated the computer criminals as 'Hackers'. The media has played a major role and has its hands behind this creation of negative connotation of the word 'hacker'. General public may spread rumours but it is hard to believe, someone speaking about completely new term, which is also a totally new concept to him.
But the fact is that the terms 'Hacker' and so called 'Computer Criminal' are absolutely two different terms and are not linked with each other in any respect. They speak what they read and listen from others. For this, whenever any cyber crime occurred, by unauthorised use of other computer systems, the news published and delivered in public was by the use of the term 'hacking'. So we can say that it is because of media why people have hatred or negative feeling for the 'hackers'.
Now if such cyber criminals are not hackers then two major question which arises are:
1. Who are Hackers? And,
2. What are such cyber criminals called?
Actually, 'Hackers' are very intelligent people who use their skill in a constructive and positive manner. They help the government to protect national documents of strategic importance, help organisations to protect documents and company secrets, and even sometimes help justice to meet its end by extracting out electronic evidence. Rather, these are people who help to keep computer criminals on the run.
Now dealing with the second part, i.e., what are such cyber criminals called? The actual word for such criminals is not 'hacker' but 'cracker'.
First I would like to explain the term 'Hacker', because there is a great misconception regarding it. I made a field study by a questionnaire method taking few samples amongst the youths across the country. In that study, for the question regarding explaining the term 'hacking', most of the samples were just beating around the bush. The responses were as follows: -
Knowledge About The Term Hacking
# 30% Do Not Know At All
# 5% Know Exactly What It Is
# 65% have Wrong Idea
Analyzing the above chart, we can see that it is only 5% of people who know exactly, what hacking means. Rest all other either don't know at all or they have a wrong notion about it. 65% of them believe hacking to be of a criminal nature.
So as to eliminate the fallacies in its connotation, I would like to begin with its meaning. Hackers are generally computer programmers who maintain network systems, secure documents, etc. So anyone who has a good hand on computer programming can be termed as 'hacker' in general.
Ankit Fadia, who is a great master mind of India in the field of 'Hacking', has said:
"Traditionally, hackers were computer geeks who knew almost everything about computers and were widely respected for their wide array of knowledge. But over the years, the reputation of hackers has been steadily going down. Today, they are feared by most people and are looked upon as icons representing the underground community of our population."
In the light of this general allusion of the term 'hacking', which is generally construed by people, The word 'hacker' can be used to describe all of these: -
1. Code Hackers - They know computers inside out. They can make the computer do nearly anything they want it to.
2. Crackers - They break into computer systems. Circumventing Operating Systems and their security is their favourite past time. It involves breaking the security on software applications.
3. Cyber Punks - They are the masters of cryptography.
4. Phreakers - They combine their in-depth knowledge of the Internet and the mass telecommunications system.
5. Virus Builders - Virus incidents have resulted in significant and data loss at some stage or the other. The loss could be on account of: -
* Viruses - A virus is a programme that mayor may not attach itself to a file and replicate itself. It can attack any area: from corrupting the data of the file that it invades, using the computer's processing resources in attempt to crash the machine and more.
* Worms - Worms may also invade a computer and steal its resources to replicate themselves. They use the network to spread themselves. "Love bug" is a recent example.
* Trojan horse - Trojan horse is dicey. It appears to do one thing but does something else. The system may accept it as one thing. Upon execution, it may release a virus, worm or logic bomb.
* Logic bomb - A logic bomb is an attack triggered by an event, like computer clock reaching a certain date. Chernobyl and Melissa viruses are the recent examples.
Hacking v/s Cracking
The term hacker is a term used by some to mean 'a clever programmer' and by others, especially journalists or their editors, to mean 'someone who tries to break into computer systems'. Programmers who use their skills to cause trouble, crash machines, release computer viruses, steal credit card numbers, make free long distance calls (the phone system is so much like a computer system that it is a common target for computer criminals), remove copy-protection, and distribute pirated software may also call themselves 'hackers', leading to more confusion. Hackers in the original sense of the term, however, look down on these sorts of activities. Hackers generally deplore cracking. Among the programming community, and to a large extent even amongst the illegal programming community, these people are called 'crackers' and their activities known as 'cracking' to distinguish it from hacking.
A cracker is generally someone who breaks into someone else's computer system, often on a network, bypasses passwords or licenses in computer programs or in other ways intentionally breaches computer security. A cracker can be doing this for profit, maliciously, for some altruistic purpose or cause, or because the challenge is there. Some breaking-and-entering has been done ostensibly to point out weaknesses in a site's security system.
Construing the responses of the third question from the questionnaire, the responses I got were: -
Heard The Term "Cracking"
# 15% Yes
# 85% No
And further when I asked to distinguish 'hacking' with 'cracking', it was only 5% of them who did it correctly
Hacking V/s Cracking
# 5% Distinguished Correctly
# 30% Cannot Distinguished At All
# 65 % Distinguished Wrongly
Rest all either cannot distinguish it at all or they distinguished it wrongly. The wrong distinction was seen to be vice-versa of the actual definition. Out of 65% of such people, nearly 75% of them said that cracking is just breaking codes and when it is of an illegal nature, it becomes hacking.
So we can see that even though people have some rough idea about these terms but the way they are employing it to real life, it is completely changing the real meaning and giving a false impression about the hackers. It is rightly said that 'Little knowledge is more dangerous than no knowledge at all.'
When they were asked about the reasons so as why people indulge in 'hacking' (the graph of which is given later) it was seen that 27% of them said that because of 'Social Status'.
I failed to understand what kind of 'social status', they were talking about. But when I analyzed the next question and saw that 75% of them says that 'hacking' is not socially justified, I came to know that they were talking about the negative status, which is not of respect but of hatred.
Hacking Socially Justified Or Not
# 15% YES
# 75% NO
# 10% DON'T KNOW
Perceiving the text of FN1, we see that Ankit Fadia talks about the underground community of our population. So this social status can only be amongst that small part of our population, i.e., the underground world. Whereas, a hacker who is popular among the normal people is also desired and respected by crackers.
Sending Viruses v/s Hacking
Even though hacking is not at all an offence but if construed in a manner which is generally used by he public the question comes up is that whether sending viruses can be termed as hacking.
For this, again in the survey there was a question for which the correct answers were only 15%. Rest all others said that even sending viruses means Hacking.
Sending Virus V/s Hacking
# 15 % Correct
# 85% In correct
The term cracking means, 'illegal access'. Now, 'access' comprises the entering of the whole or any part of a computer system (hardware, components, stored data of the system installed, directories, traffic and content-related data). However, it does not include the mere sending of an e-mail message or file to that system. 'Access' includes the entering of another computer system, where it is connected via public telecommunication networks or to a computer system on the same network, such as a LAN (local area network) or Intranet within an organisation. The method of communication (e.g. from a distance, including via wireless links or at a close range) does not matter. So if a virus is send through an e-mail, it is not an illegal 'access' and hence cannot be termed as 'cracking'.
Cyber Hacking (or rather Cyber Cracking in verity), is one of the Cyber Crimes and Cyber Crime is a universal term that allude to all criminal activities done using the medium of computers, internet, cyber space and the world wide web (www). In India, the law regulating such crimes is the Information Technology Act, 2000 (or the IT Act, 2000). If studied in detail, we will find that there are still many areas in the said Act, which need Amendments. Like, it does not even define the term 'Cyber Crime' and the crimes mentioned in Chap. XI named 'offences' have been declared penal offences punishable by imprisonment or fine. Then Sec.66 defines hacking, but it went on defining what is in reality 'cracking'. The definition of hacking provided in Sec.66 of the Act is also very wide and capable of misapplication. There is every possibility of this section being misapplied.
So in light of Sec.66 of the Act read along with this project topic I will now use the words 'Hacking' and 'Cracking' interchangeably as per the demand of the chapter.
Crackers are becoming a peril so uncontrollable that even the largest companies in the world are finding it difficult to cope up with their perpetual attacks. Some crackers just crack systems and gain access to them, for 'fun'. Their intention is not to commit any crime. Now, it is a question of debate whether such act in itself constitutes an offence or not. They may not be brought within the ambit of existing laws because the IT Act uses the word 'destroys or deletes or alters any information' and in this case they just gain access to the system and nothing else. The act of such a cracker can perhaps, most appropriately, be considered in the light of laws relating to criminal trespass.
Trespass to Property
In common language the word 'trespass', means to go on another's property without permission or right. Though it is ordinarily a civil wrong, if trespass is done with criminal intention, it is treated as criminal trespass. The ingredients of the offence of criminal trespass have been laid down under sec.441 of the Indian Penal Code. The object of making trespass a criminal offence is to keep the trespasser away from the premises of individuals so the one may enjoy his/her property uninterrupted by any intruder.
In applying the section to hacking on the Internet, the question which arises is "whether websites are property". Many of the words used to describe websites have a basis in real property: the word 'site' itself is one, as are such expressions as 'home' pages, 'visiting' Websites, 'travelling' to a site and the like. This usage suggests that the trespass action might appropriately be applied to websites as well. That analogies to real property trespass can be made does not suggest, however, that they should be made. The fundamental issue is whether the treatment of websites as property makes sense in light of the justifications for the institution of property generally.
Thus, as trespass actions are stranded in the idea of protecting an owner's control over his property and as even the websites should be considered as a species of property, there is no reason for not allowing a cause of action for 'trespass to websites'.
Mens Rea
The next question that is of importance arises when a cracker has no intention to commit any further crimes. The question is 'whether such cracking is enough to constitute threats or annoyance? Under Indian law it has been clearly laid down in Smt. Mathri v. State of Punjab that for establishing the offence of criminal trespass it is not enough to merely show that the person entering upon the property of another had knowledge that his act would cause annoyance. The rule that a person must be presumed to intend the natural consequences of his act is not a binding rule, if any other intention can be shown. This interpretation may be problematic while dealing with crimes on the Internet.
Liability
There is no doubt as far as liability is concerned when a Cracker is caught. Now this liability can be of two types.
1. Civil Liability
2. Penal Liability
As like in the case of trespass, when just cracking is there by the cracker, it is of a civil nature but once the intention to cause harm or rather damage the system is proved, the liability becomes that of a penal nature.
Now it is not just criminal trespass, which can be done by cracking but cracking may also result in many other crimes which are mentioned in the Indian Penal Code, 1860. Like, if a cracker cracks an e-banking website and transfers money into his own account, this may constitute a crime under Sec.378 of the Penal Code, which in this case may also be termed as Cyber Theft. This kind of act is completely of a penal liability.
In R. v. Gold prestel systems provided it subscribers free e-mail facilities and access to its database. The accused - Gold and Schifreen cracked into its computer and were charged in England under the Forgery and Counterfeiting Act, 1981. They were convicted but the Court of Appeal and the House of Lords as well acquitted them as an instrument was necessary to commit the offence under the said Act, which had to be similar to other examples in the statutory definitions, which were physical objects.
For this, then the Law Commission in England recommended that cracking be made penal and proposed: -
* A broad offence that seeks to deter the general practice of hacking by imposing penalties of a moderate nature on all types of unauthorized access; and
* A narrower but more serious offence imposes much heavier penalties.
Similar considerations apply in our country also. The IT Act tries to achieve this by providing civil and penal consequences for cracking and other wrongful activities. The case concerning Sec.66 of the IT Act, 2000, in India was first lodged in Lucknow in February, 2001.
Interestingly, the victim of the first cyber crime was none other than a police employee. The FIR was lodged by junior engineer, police range, V K Chauhan, whose password for Internet access was hacked and 100 hours of connectivity time exhausted even before he could use it once. The case was registered under Sec.66 of the IT Act.
Interest in Hacking
There were questions in the questionnaire regarding movies (question no. 6(i), 6(ii) and 7) on hacking by which I assessed the interest of the youth in hacking and henceforth their knowledge about hacking and the laws regarding it.
What I found is as follows: -
Interest In Hacking
# 55% No
# 10% Yes & Hacking Reasons
# 35 % Yes But Other Reasons
By this, we can see that only 35% of the samples had seen hacking based movies and that too because the storyline of the movie was of Hacking. Rest are not interested in it.
Henceforth, we can also see that very few percentage of them are aware about hacking and the laws regarding it.
Knowledge About Its Tools:
# 55% Do Not Know At All
# 30% Have Some Idea
# 15% have No Idea
Knowledge About The Laws:
# 10% YES
# 90% NO
Regarding, the insurance cover against Hacking only 25% of them has said that it can be done, rest all either outrageously said 'no' or they are unaware about it. What is interesting over here is that though the insurance is being offered for the first time in India, and that too in the month of February, 2001, at least there are few of them who knew about it so early. Insurance is being offered against all kinds of cyber crime, including loss of airtime, to the extent of $25 million.
This insurance is to cover reasonable ransom demands, litigation costs, third party liabilities, etc. It will also offer a reward for any information that could lead to the arrest of the hacker and also a crisis management fund.
Insurance Cover:
# 25% Yes
# 10% No
# 65% Don't Know
So what we can conclude from this is that most of the youth today are though unaware about Hacking but its an emerging field and is on its way to be the upcoming field of study. This can be said because there was another question regarding why one resort to hacking and the responses I got, also includes 'Academic Reasons'.
Hacking Reasons:
# 27% Fun
# 31% Economic Reason
# 6% Security
# 27% Social Status
# 6% Academic
# 3% Never
Then, when asked to name any famous hacker, at least 30% of them easily named few of them.
The effectiveness of a judicial system is anchored by regulations which define every aspect of a system's functioning and primarily, its jurisdiction. A court must have jurisdiction, venue, and appropriate service of process in order to hear a case and deliver an effective judgement. Jurisdiction is the power of a court to hear and determine a case. Without jurisdiction, a court's judgement is futile and impotent. Such jurisdiction is essentially of two types, namely subject matter jurisdiction and personal jurisdiction , and these two must be conjunctively satisfied for a judgement to take effect. It is the presence of jurisdiction that ensures the power of enforcement to a court and in the absence of such power, the decree of a court, is, to say the least, which is of little or of no use. Moreover, only generally accepted principles of jurisdiction would ensures that courts abroad also enforce the orders of other judicial bodies.
The Cyber Crimes like cracking can be seen as multi-jurisdictional because of the ease which a user can access the website from anywhere in the world. It can even be viewed as 'a jurisdictional' in the sense that from the users' perspective as state and national borders are essentially transparent.
The Indian jurisprudence with regard to jurisdiction over the hacking is almost non-existent. In the first place, there has been very few cases or rather only one case regarding hacking, to the best of my knowledge, in India and then secondly, it is an emerging field and that too where the place of action for the dispute is very difficult to decide. But an interesting feature of the IT Act is that it is applicable to offences and contraventions committed by any person not just in India but also outside India, as per sec.1(2) . This principle has been elaborated in sec.75 of the Act which provides that Indian Courts will have jurisdiction over acts committed outside India as well as over foreigners committing such acts, if the act amounts to an offence or contravention involving a computer, computer system or computer network located in India. Thus the determining factor is the location of computer, computer system or computer network that is involved in an act or transaction.
In India, the court would assume jurisdiction over a defendant, if even a part of the cause of action for the dispute arose within its jurisdiction. Now these may appear to be distinct and disparate points of view but when you get down to examining the essential ingredients that must be fulfilled in order to satisfy the requirements of these principles, there are several similarities between them which may allow the Indian Courts to assume jurisdiction.
First of all, to conclude I would like to state that there are lots and lots of fallacies regarding the term hacking. Even though people are not aware about it today but by the study of various samples and researches made, I have found that it is very rapidly expanding its scope and day by day more and more people are interested in it.
Again it has two aspects. It can help the society to a great extent but it may also prove to be otherwise. In such cases punishments must be proportionate and serve as a sufficient deterrent. As computer data often contain personal information a cracker can also infringe one's right to privacy guaranteed by Art.21 of the Constitution of India.
Cracking can also be taken as an offence under Indian Penal Code. For this there are two types of liabilities, i.e., 'civil' and 'penal'.
Then for deciding the applicability of jurisdiction of a case, the court faces a lot of problem, due to its insensitiveness to local constraints. So, even when inventions and discoveries had widened the scientific horizons, it has also posed new challenges for the legal world. This Information Technology has posed new problems in jurisprudence to which it is very difficult to give a concrete shape.
Cheers
Sumi
Cyber Hacking
Hey friends.., life has changed a lot and computers play an important role in our present situation.., year by year different inventions and hi-tech knowledge's being shared between all. Does the law covers all that.. ?.. Cyber law needs lots of attention more than wat is given now. Each and every term has to be defined well and the way it is applied.so today there is something that i like to share it with u..., this article wa written by Abhishek Jaiswal, Law Student, National Law University, Jodhpur, who gave a good knowledge transfer about CYBER HACKING.., hope u people will enjoy it...,
Whenever the word 'Hacking' or 'Hacker' comes to our mind, the picture or the image which is created is that of an intelligent being who is criminal by nature, who attacks other computer systems, damages it, break codes and passwords, send viruses etc. Their mindset are as if the 'hackers' are the computer criminals. They have a very wrong notion in this regard and have a completely negative attitude and utter dislike for the 'Hackers'.
In this regard, the media has wrongly associated the computer criminals as 'Hackers'. The media has played a major role and has its hands behind this creation of negative connotation of the word 'hacker'. General public may spread rumours but it is hard to believe, someone speaking about completely new term, which is also a totally new concept to him.
But the fact is that the terms 'Hacker' and so called 'Computer Criminal' are absolutely two different terms and are not linked with each other in any respect. They speak what they read and listen from others. For this, whenever any cyber crime occurred, by unauthorised use of other computer systems, the news published and delivered in public was by the use of the term 'hacking'. So we can say that it is because of media why people have hatred or negative feeling for the 'hackers'.
Now if such cyber criminals are not hackers then two major question which arises are:
1. Who are Hackers? And,
2. What are such cyber criminals called?
Actually, 'Hackers' are very intelligent people who use their skill in a constructive and positive manner. They help the government to protect national documents of strategic importance, help organisations to protect documents and company secrets, and even sometimes help justice to meet its end by extracting out electronic evidence. Rather, these are people who help to keep computer criminals on the run.
Now dealing with the second part, i.e., what are such cyber criminals called? The actual word for such criminals is not 'hacker' but 'cracker'.
First I would like to explain the term 'Hacker', because there is a great misconception regarding it. I made a field study by a questionnaire method taking few samples amongst the youths across the country. In that study, for the question regarding explaining the term 'hacking', most of the samples were just beating around the bush. The responses were as follows: -
Knowledge About The Term Hacking
# 30% Do Not Know At All
# 5% Know Exactly What It Is
# 65% have Wrong Idea
Analyzing the above chart, we can see that it is only 5% of people who know exactly, what hacking means. Rest all other either don't know at all or they have a wrong notion about it. 65% of them believe hacking to be of a criminal nature.
So as to eliminate the fallacies in its connotation, I would like to begin with its meaning. Hackers are generally computer programmers who maintain network systems, secure documents, etc. So anyone who has a good hand on computer programming can be termed as 'hacker' in general.
Ankit Fadia, who is a great master mind of India in the field of 'Hacking', has said:
"Traditionally, hackers were computer geeks who knew almost everything about computers and were widely respected for their wide array of knowledge. But over the years, the reputation of hackers has been steadily going down. Today, they are feared by most people and are looked upon as icons representing the underground community of our population."
In the light of this general allusion of the term 'hacking', which is generally construed by people, The word 'hacker' can be used to describe all of these: -
1. Code Hackers - They know computers inside out. They can make the computer do nearly anything they want it to.
2. Crackers - They break into computer systems. Circumventing Operating Systems and their security is their favourite past time. It involves breaking the security on software applications.
3. Cyber Punks - They are the masters of cryptography.
4. Phreakers - They combine their in-depth knowledge of the Internet and the mass telecommunications system.
5. Virus Builders - Virus incidents have resulted in significant and data loss at some stage or the other. The loss could be on account of: -
* Viruses - A virus is a programme that mayor may not attach itself to a file and replicate itself. It can attack any area: from corrupting the data of the file that it invades, using the computer's processing resources in attempt to crash the machine and more.
* Worms - Worms may also invade a computer and steal its resources to replicate themselves. They use the network to spread themselves. "Love bug" is a recent example.
* Trojan horse - Trojan horse is dicey. It appears to do one thing but does something else. The system may accept it as one thing. Upon execution, it may release a virus, worm or logic bomb.
* Logic bomb - A logic bomb is an attack triggered by an event, like computer clock reaching a certain date. Chernobyl and Melissa viruses are the recent examples.
Hacking v/s Cracking
The term hacker is a term used by some to mean 'a clever programmer' and by others, especially journalists or their editors, to mean 'someone who tries to break into computer systems'. Programmers who use their skills to cause trouble, crash machines, release computer viruses, steal credit card numbers, make free long distance calls (the phone system is so much like a computer system that it is a common target for computer criminals), remove copy-protection, and distribute pirated software may also call themselves 'hackers', leading to more confusion. Hackers in the original sense of the term, however, look down on these sorts of activities. Hackers generally deplore cracking. Among the programming community, and to a large extent even amongst the illegal programming community, these people are called 'crackers' and their activities known as 'cracking' to distinguish it from hacking.
A cracker is generally someone who breaks into someone else's computer system, often on a network, bypasses passwords or licenses in computer programs or in other ways intentionally breaches computer security. A cracker can be doing this for profit, maliciously, for some altruistic purpose or cause, or because the challenge is there. Some breaking-and-entering has been done ostensibly to point out weaknesses in a site's security system.
Construing the responses of the third question from the questionnaire, the responses I got were: -
Heard The Term "Cracking"
# 15% Yes
# 85% No
And further when I asked to distinguish 'hacking' with 'cracking', it was only 5% of them who did it correctly
Hacking V/s Cracking
# 5% Distinguished Correctly
# 30% Cannot Distinguished At All
# 65 % Distinguished Wrongly
Rest all either cannot distinguish it at all or they distinguished it wrongly. The wrong distinction was seen to be vice-versa of the actual definition. Out of 65% of such people, nearly 75% of them said that cracking is just breaking codes and when it is of an illegal nature, it becomes hacking.
So we can see that even though people have some rough idea about these terms but the way they are employing it to real life, it is completely changing the real meaning and giving a false impression about the hackers. It is rightly said that 'Little knowledge is more dangerous than no knowledge at all.'
When they were asked about the reasons so as why people indulge in 'hacking' (the graph of which is given later) it was seen that 27% of them said that because of 'Social Status'.
I failed to understand what kind of 'social status', they were talking about. But when I analyzed the next question and saw that 75% of them says that 'hacking' is not socially justified, I came to know that they were talking about the negative status, which is not of respect but of hatred.
Hacking Socially Justified Or Not
# 15% YES
# 75% NO
# 10% DON'T KNOW
Perceiving the text of FN1, we see that Ankit Fadia talks about the underground community of our population. So this social status can only be amongst that small part of our population, i.e., the underground world. Whereas, a hacker who is popular among the normal people is also desired and respected by crackers.
Sending Viruses v/s Hacking
Even though hacking is not at all an offence but if construed in a manner which is generally used by he public the question comes up is that whether sending viruses can be termed as hacking.
For this, again in the survey there was a question for which the correct answers were only 15%. Rest all others said that even sending viruses means Hacking.
Sending Virus V/s Hacking
# 15 % Correct
# 85% In correct
The term cracking means, 'illegal access'. Now, 'access' comprises the entering of the whole or any part of a computer system (hardware, components, stored data of the system installed, directories, traffic and content-related data). However, it does not include the mere sending of an e-mail message or file to that system. 'Access' includes the entering of another computer system, where it is connected via public telecommunication networks or to a computer system on the same network, such as a LAN (local area network) or Intranet within an organisation. The method of communication (e.g. from a distance, including via wireless links or at a close range) does not matter. So if a virus is send through an e-mail, it is not an illegal 'access' and hence cannot be termed as 'cracking'.
Cyber Hacking (or rather Cyber Cracking in verity), is one of the Cyber Crimes and Cyber Crime is a universal term that allude to all criminal activities done using the medium of computers, internet, cyber space and the world wide web (www). In India, the law regulating such crimes is the Information Technology Act, 2000 (or the IT Act, 2000). If studied in detail, we will find that there are still many areas in the said Act, which need Amendments. Like, it does not even define the term 'Cyber Crime' and the crimes mentioned in Chap. XI named 'offences' have been declared penal offences punishable by imprisonment or fine. Then Sec.66 defines hacking, but it went on defining what is in reality 'cracking'. The definition of hacking provided in Sec.66 of the Act is also very wide and capable of misapplication. There is every possibility of this section being misapplied.
So in light of Sec.66 of the Act read along with this project topic I will now use the words 'Hacking' and 'Cracking' interchangeably as per the demand of the chapter.
Crackers are becoming a peril so uncontrollable that even the largest companies in the world are finding it difficult to cope up with their perpetual attacks. Some crackers just crack systems and gain access to them, for 'fun'. Their intention is not to commit any crime. Now, it is a question of debate whether such act in itself constitutes an offence or not. They may not be brought within the ambit of existing laws because the IT Act uses the word 'destroys or deletes or alters any information' and in this case they just gain access to the system and nothing else. The act of such a cracker can perhaps, most appropriately, be considered in the light of laws relating to criminal trespass.
Trespass to Property
In common language the word 'trespass', means to go on another's property without permission or right. Though it is ordinarily a civil wrong, if trespass is done with criminal intention, it is treated as criminal trespass. The ingredients of the offence of criminal trespass have been laid down under sec.441 of the Indian Penal Code. The object of making trespass a criminal offence is to keep the trespasser away from the premises of individuals so the one may enjoy his/her property uninterrupted by any intruder.
In applying the section to hacking on the Internet, the question which arises is "whether websites are property". Many of the words used to describe websites have a basis in real property: the word 'site' itself is one, as are such expressions as 'home' pages, 'visiting' Websites, 'travelling' to a site and the like. This usage suggests that the trespass action might appropriately be applied to websites as well. That analogies to real property trespass can be made does not suggest, however, that they should be made. The fundamental issue is whether the treatment of websites as property makes sense in light of the justifications for the institution of property generally.
Thus, as trespass actions are stranded in the idea of protecting an owner's control over his property and as even the websites should be considered as a species of property, there is no reason for not allowing a cause of action for 'trespass to websites'.
Mens Rea
The next question that is of importance arises when a cracker has no intention to commit any further crimes. The question is 'whether such cracking is enough to constitute threats or annoyance? Under Indian law it has been clearly laid down in Smt. Mathri v. State of Punjab that for establishing the offence of criminal trespass it is not enough to merely show that the person entering upon the property of another had knowledge that his act would cause annoyance. The rule that a person must be presumed to intend the natural consequences of his act is not a binding rule, if any other intention can be shown. This interpretation may be problematic while dealing with crimes on the Internet.
Liability
There is no doubt as far as liability is concerned when a Cracker is caught. Now this liability can be of two types.
1. Civil Liability
2. Penal Liability
As like in the case of trespass, when just cracking is there by the cracker, it is of a civil nature but once the intention to cause harm or rather damage the system is proved, the liability becomes that of a penal nature.
Now it is not just criminal trespass, which can be done by cracking but cracking may also result in many other crimes which are mentioned in the Indian Penal Code, 1860. Like, if a cracker cracks an e-banking website and transfers money into his own account, this may constitute a crime under Sec.378 of the Penal Code, which in this case may also be termed as Cyber Theft. This kind of act is completely of a penal liability.
In R. v. Gold prestel systems provided it subscribers free e-mail facilities and access to its database. The accused - Gold and Schifreen cracked into its computer and were charged in England under the Forgery and Counterfeiting Act, 1981. They were convicted but the Court of Appeal and the House of Lords as well acquitted them as an instrument was necessary to commit the offence under the said Act, which had to be similar to other examples in the statutory definitions, which were physical objects.
For this, then the Law Commission in England recommended that cracking be made penal and proposed: -
* A broad offence that seeks to deter the general practice of hacking by imposing penalties of a moderate nature on all types of unauthorized access; and
* A narrower but more serious offence imposes much heavier penalties.
Similar considerations apply in our country also. The IT Act tries to achieve this by providing civil and penal consequences for cracking and other wrongful activities. The case concerning Sec.66 of the IT Act, 2000, in India was first lodged in Lucknow in February, 2001.
Interestingly, the victim of the first cyber crime was none other than a police employee. The FIR was lodged by junior engineer, police range, V K Chauhan, whose password for Internet access was hacked and 100 hours of connectivity time exhausted even before he could use it once. The case was registered under Sec.66 of the IT Act.
Interest in Hacking
There were questions in the questionnaire regarding movies (question no. 6(i), 6(ii) and 7) on hacking by which I assessed the interest of the youth in hacking and henceforth their knowledge about hacking and the laws regarding it.
What I found is as follows: -
Interest In Hacking
# 55% No
# 10% Yes & Hacking Reasons
# 35 % Yes But Other Reasons
By this, we can see that only 35% of the samples had seen hacking based movies and that too because the storyline of the movie was of Hacking. Rest are not interested in it.
Henceforth, we can also see that very few percentage of them are aware about hacking and the laws regarding it.
Knowledge About Its Tools:
# 55% Do Not Know At All
# 30% Have Some Idea
# 15% have No Idea
Knowledge About The Laws:
# 10% YES
# 90% NO
Regarding, the insurance cover against Hacking only 25% of them has said that it can be done, rest all either outrageously said 'no' or they are unaware about it. What is interesting over here is that though the insurance is being offered for the first time in India, and that too in the month of February, 2001, at least there are few of them who knew about it so early. Insurance is being offered against all kinds of cyber crime, including loss of airtime, to the extent of $25 million.
This insurance is to cover reasonable ransom demands, litigation costs, third party liabilities, etc. It will also offer a reward for any information that could lead to the arrest of the hacker and also a crisis management fund.
Insurance Cover:
# 25% Yes
# 10% No
# 65% Don't Know
So what we can conclude from this is that most of the youth today are though unaware about Hacking but its an emerging field and is on its way to be the upcoming field of study. This can be said because there was another question regarding why one resort to hacking and the responses I got, also includes 'Academic Reasons'.
Hacking Reasons:
# 27% Fun
# 31% Economic Reason
# 6% Security
# 27% Social Status
# 6% Academic
# 3% Never
Then, when asked to name any famous hacker, at least 30% of them easily named few of them.
The effectiveness of a judicial system is anchored by regulations which define every aspect of a system's functioning and primarily, its jurisdiction. A court must have jurisdiction, venue, and appropriate service of process in order to hear a case and deliver an effective judgement. Jurisdiction is the power of a court to hear and determine a case. Without jurisdiction, a court's judgement is futile and impotent. Such jurisdiction is essentially of two types, namely subject matter jurisdiction and personal jurisdiction , and these two must be conjunctively satisfied for a judgement to take effect. It is the presence of jurisdiction that ensures the power of enforcement to a court and in the absence of such power, the decree of a court, is, to say the least, which is of little or of no use. Moreover, only generally accepted principles of jurisdiction would ensures that courts abroad also enforce the orders of other judicial bodies.
The Cyber Crimes like cracking can be seen as multi-jurisdictional because of the ease which a user can access the website from anywhere in the world. It can even be viewed as 'a jurisdictional' in the sense that from the users' perspective as state and national borders are essentially transparent.
The Indian jurisprudence with regard to jurisdiction over the hacking is almost non-existent. In the first place, there has been very few cases or rather only one case regarding hacking, to the best of my knowledge, in India and then secondly, it is an emerging field and that too where the place of action for the dispute is very difficult to decide. But an interesting feature of the IT Act is that it is applicable to offences and contraventions committed by any person not just in India but also outside India, as per sec.1(2) . This principle has been elaborated in sec.75 of the Act which provides that Indian Courts will have jurisdiction over acts committed outside India as well as over foreigners committing such acts, if the act amounts to an offence or contravention involving a computer, computer system or computer network located in India. Thus the determining factor is the location of computer, computer system or computer network that is involved in an act or transaction.
In India, the court would assume jurisdiction over a defendant, if even a part of the cause of action for the dispute arose within its jurisdiction. Now these may appear to be distinct and disparate points of view but when you get down to examining the essential ingredients that must be fulfilled in order to satisfy the requirements of these principles, there are several similarities between them which may allow the Indian Courts to assume jurisdiction.
First of all, to conclude I would like to state that there are lots and lots of fallacies regarding the term hacking. Even though people are not aware about it today but by the study of various samples and researches made, I have found that it is very rapidly expanding its scope and day by day more and more people are interested in it.
Again it has two aspects. It can help the society to a great extent but it may also prove to be otherwise. In such cases punishments must be proportionate and serve as a sufficient deterrent. As computer data often contain personal information a cracker can also infringe one's right to privacy guaranteed by Art.21 of the Constitution of India.
Cracking can also be taken as an offence under Indian Penal Code. For this there are two types of liabilities, i.e., 'civil' and 'penal'.
Then for deciding the applicability of jurisdiction of a case, the court faces a lot of problem, due to its insensitiveness to local constraints. So, even when inventions and discoveries had widened the scientific horizons, it has also posed new challenges for the legal world. This Information Technology has posed new problems in jurisprudence to which it is very difficult to give a concrete shape.
Cheers
Sumi
Friday, October 26, 2007
OCI - Dual citizenship
REGISTRATION AS OVERSEAS INDIAN CITIZENS
The Constitution of India provides for a single citizenship for the entire country. The Citizenship Act enacted by the Parliament in 1955 provides for acquisition and determination of citizenship.
The Parliament of India has enacted The Citizenship (Amendment) Act, 2003. This further amends the Citizenship Act, 1955 and provides for Overseas Indian
Citizenship or Dual CitizenshipOne of the primary reasons for allowing dual citizenship is to allow persons of Indian Origin to freely travel and invest in India among many other things..On the occasion of first Pravasi Bhartiya Diwas on 9th January 2003 , former Prime Minister Shri Atal Bihari Vajpayee had made an announcement for grant of dual citizenship to PIOs. the necessary Legislation was introduced by the Government of India in Parliament in May, 2003. On January 7th 2005 Prime Minister Manmohan Singh said the government has decided to offer dual citizenship to all overseas Indian who migrated from the country after January 26th, 1950 , as long as their home countries allow dual citizenship under their law.
The concept of dual citizenship, now phrased as Overseas Citizenship of India, will grant overseas citizenship to persons of Indian origin belonging to certain countries as well as Indian citizens who may take up the citizenship of these countries in future. At present this facility is being extended to Person of India Origin ( PIO ) of 16 specified countries, namely, Australia, Canada, Finland, France, Greece, Ireland, Israel, Italy, Netherlands, New Zealand, Portugal, Republic of Cyprus, Sweden, Switzerland, United Kingdom, United States of America.
ELIGIBILITY
The Central Government on application made in this behalf may register any person as an overseas citizen of India if;
that person is of Indian origin of full age and capacity who is a citizen of a specified country;
that a person is of full age and capacity who has obtained the citizenship of a specified countries on or after the commencement of Citizenship (Amendment) Act, 2003 and who was a citizen of India immediately before such commencement;
The person registered as an overseas citizen of India shall be an overseas citizen of India as from the date on which he is so registered.
No person who has been deprived of his Indian citizenship under this Act shall be registered as an overseas citizen of India except by an order of the central Government. For this purpose, the expression "person of Indian origin" shall mean a citizen of another country who;
was eligible to become a citizen of India at the time of the commencement of the Constitution;
belonged to a territory that became part of India after the 15th day of August, 1947; and
the children and grand-children of a person covered under clauses (i) and (ii), but does not include a person who is or had been at any time a citizen of Pakistan , Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify.
BENEFITS AND PRIVILEGES
Issuance of a registration certificate on being granted overseas citizenship.
Issuance of an overseas citizen passport.
No requirement of visa for travel to India (both passports will be required to be presented while traveling to/from India. ) .
No registration formalities for staying in the country.
No separate documentation required for admission in colleges/institutions or for taking employment.
Parity with non-resident Indian in respect of facilities available to the latter in the economic, financial and educational field. (details separately available)
Facilities as available to children of NRIs for obtaining admission to educational institutions in India , including medical colleges, engineering colleges, institute of technology, institute of management etc. under the general category.
Facilities under the various housing schemes of LIC, State Govt. and other government agencies.
CONFERMENT OF RIGHTS ON OVERSEAS CITIZEN OF INDIA
Apart from the benefits and privileges available to an Overseas Citizens of India as enumerated above, such a citizen would also be entitled to other rights which the Central Government would specify and which would be notified in the official Gazette from time to time. However, there are certain sector such as public employment, voting rights etc where the rights would not be available to overseas citizens.
An overseas citizen of India shall not be entitled to the rights conferred on a citizen of India -
under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;
under article 58 of the Constitution for election as President;
under article 66 of the Constitution for election of Vice-President;
under article 124 of the Constitution for appointment as a Judge of the Supreme Court;
under article 217 of the Constitution for appointment as a Judge of the High Court;
under section 16 of the Representation of the People Act, 1950 in regard to registration as a voter;
under sections 3 and 4 of the Representation of the People Act, 1951 with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;
under sections 5, 5A and 6 of the Representation of the People Act, 1951 with regard to the eligibility for being a member of the Legislative Assembly or a Legislative Council, as the case may be, of a State;
for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central Government may by special order in that behalf specify.
PROCEDURE
The application of registration as an Overseas Citizen of India ( OCI ) has to be made in the prescribed form. This form when completed should be submitted in triplicate;
In India: to the Collector within whose jurisdiction the applicant is ordinary resident for transmission to the Central Government through the State Government or Union Territory Administration, as the case may be.
Elsewhere: to the Indian Consulate/Embassy whose jurisdiction the country of which an applicant is a citizen for this for transmission to the Central Government. To commence registration process please complete the No Obligation Online Form
FEES/GOVERNMENT LEVY
The application fee for registration under the OCI Scheme is US$ 275 or its equivalent local currency. An additional amount of US $15 or its equivalent local currency towards return mailing charges and a self addressed envelope should also be sent with the application. For a family $15 as a mailing charges should be added along with the OCI fees. For PIO card holders, the fee for OCI is US$ 25 , this amount along with US$ 15/- for return mailing charges.
APPLICATION FORMS
Under the Citizenship (Second Amendment) Rules, 2004, the following application forms have been prescribed for registration as "Overseas Citizens of India" under the Citizenship Act 1955 as amended from time to time:
Form XIX for Registration under Section 7(A)(1)(a)
For a person of Indian origin who became a citizen of any of the above Specified Country before the commencement of the Citizenship (Amendment) Act 2003 on January 7, 2004Form XIX A for Registration under Section 7(A)(1)(b) For a person who obtained citizenship of any of the above Specified Country on or after the commencement of the Citizenship (Amendment) ACT 2003 and was a citizen of India immediately before such commencement.Form XIX B for Registration under Section 7(A)(1)(c) For a minor of the person who is required to fill either Form XIX or Form XIX B e: An application for registration of a minor child of overseas citizen of India under Section 7(A)(1)(c) shall include the following particulars, namely :- a. a statement whether the applicant is a parent or guardian of the child and if he is a guardian, how he became the guardian; b. a statement showing whether the child was adopted by the applicant and if so, documentary evidence to this effect; c. a statement indicating reasons for which the child is required to be registered as an overseas citizen of India .
Commence registration process by filling our No Obligation Online Form :
REGISTRATION CERTIFICATE
All applications for registration as an Overseas Indian Citizen will be processed in India . The concerned authorities would take about 4 months (only indicative) to issue the Registration Certificate which would be valid for life unless renounced/cancelled. OVERSEAS CITIZEN OF INDIA PASSPORT The Registration Certificate will form the basis for the issue of the Overseas Citizen of India Passport. Modalities in this regard are being evolved.
PIO CARDSThe scheme relating to the PIO Cards will continue to be in operation at the same time as Overseas Citizen of India Passport scheme. PIO cardholders will have the option to apply for an Overseas Citizen of India Passport. To obtain an Overseas Citizen of India Passport, PIO cardholders will have to apply for the registration process as above like other PIOs. It is eligible for the Indians who hold a foreign passport living abroad till the fourth generation. The PIO Card holder would be exempt from registration if his stay in India does not exceed 180 days . However, if the stay exceeds 180 days, the PIO Card holder will have to register within 30 days of the expiry of 180 days with the concerned Foreigners Registration Officer at district headquarters.
Cheers
sumi
The Constitution of India provides for a single citizenship for the entire country. The Citizenship Act enacted by the Parliament in 1955 provides for acquisition and determination of citizenship.
The Parliament of India has enacted The Citizenship (Amendment) Act, 2003. This further amends the Citizenship Act, 1955 and provides for Overseas Indian
Citizenship or Dual CitizenshipOne of the primary reasons for allowing dual citizenship is to allow persons of Indian Origin to freely travel and invest in India among many other things..On the occasion of first Pravasi Bhartiya Diwas on 9th January 2003 , former Prime Minister Shri Atal Bihari Vajpayee had made an announcement for grant of dual citizenship to PIOs. the necessary Legislation was introduced by the Government of India in Parliament in May, 2003. On January 7th 2005 Prime Minister Manmohan Singh said the government has decided to offer dual citizenship to all overseas Indian who migrated from the country after January 26th, 1950 , as long as their home countries allow dual citizenship under their law.
The concept of dual citizenship, now phrased as Overseas Citizenship of India, will grant overseas citizenship to persons of Indian origin belonging to certain countries as well as Indian citizens who may take up the citizenship of these countries in future. At present this facility is being extended to Person of India Origin ( PIO ) of 16 specified countries, namely, Australia, Canada, Finland, France, Greece, Ireland, Israel, Italy, Netherlands, New Zealand, Portugal, Republic of Cyprus, Sweden, Switzerland, United Kingdom, United States of America.
ELIGIBILITY
The Central Government on application made in this behalf may register any person as an overseas citizen of India if;
that person is of Indian origin of full age and capacity who is a citizen of a specified country;
that a person is of full age and capacity who has obtained the citizenship of a specified countries on or after the commencement of Citizenship (Amendment) Act, 2003 and who was a citizen of India immediately before such commencement;
The person registered as an overseas citizen of India shall be an overseas citizen of India as from the date on which he is so registered.
No person who has been deprived of his Indian citizenship under this Act shall be registered as an overseas citizen of India except by an order of the central Government. For this purpose, the expression "person of Indian origin" shall mean a citizen of another country who;
was eligible to become a citizen of India at the time of the commencement of the Constitution;
belonged to a territory that became part of India after the 15th day of August, 1947; and
the children and grand-children of a person covered under clauses (i) and (ii), but does not include a person who is or had been at any time a citizen of Pakistan , Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify.
BENEFITS AND PRIVILEGES
Issuance of a registration certificate on being granted overseas citizenship.
Issuance of an overseas citizen passport.
No requirement of visa for travel to India (both passports will be required to be presented while traveling to/from India. ) .
No registration formalities for staying in the country.
No separate documentation required for admission in colleges/institutions or for taking employment.
Parity with non-resident Indian in respect of facilities available to the latter in the economic, financial and educational field. (details separately available)
Facilities as available to children of NRIs for obtaining admission to educational institutions in India , including medical colleges, engineering colleges, institute of technology, institute of management etc. under the general category.
Facilities under the various housing schemes of LIC, State Govt. and other government agencies.
CONFERMENT OF RIGHTS ON OVERSEAS CITIZEN OF INDIA
Apart from the benefits and privileges available to an Overseas Citizens of India as enumerated above, such a citizen would also be entitled to other rights which the Central Government would specify and which would be notified in the official Gazette from time to time. However, there are certain sector such as public employment, voting rights etc where the rights would not be available to overseas citizens.
An overseas citizen of India shall not be entitled to the rights conferred on a citizen of India -
under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;
under article 58 of the Constitution for election as President;
under article 66 of the Constitution for election of Vice-President;
under article 124 of the Constitution for appointment as a Judge of the Supreme Court;
under article 217 of the Constitution for appointment as a Judge of the High Court;
under section 16 of the Representation of the People Act, 1950 in regard to registration as a voter;
under sections 3 and 4 of the Representation of the People Act, 1951 with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;
under sections 5, 5A and 6 of the Representation of the People Act, 1951 with regard to the eligibility for being a member of the Legislative Assembly or a Legislative Council, as the case may be, of a State;
for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central Government may by special order in that behalf specify.
PROCEDURE
The application of registration as an Overseas Citizen of India ( OCI ) has to be made in the prescribed form. This form when completed should be submitted in triplicate;
In India: to the Collector within whose jurisdiction the applicant is ordinary resident for transmission to the Central Government through the State Government or Union Territory Administration, as the case may be.
Elsewhere: to the Indian Consulate/Embassy whose jurisdiction the country of which an applicant is a citizen for this for transmission to the Central Government. To commence registration process please complete the No Obligation Online Form
FEES/GOVERNMENT LEVY
The application fee for registration under the OCI Scheme is US$ 275 or its equivalent local currency. An additional amount of US $15 or its equivalent local currency towards return mailing charges and a self addressed envelope should also be sent with the application. For a family $15 as a mailing charges should be added along with the OCI fees. For PIO card holders, the fee for OCI is US$ 25 , this amount along with US$ 15/- for return mailing charges.
APPLICATION FORMS
Under the Citizenship (Second Amendment) Rules, 2004, the following application forms have been prescribed for registration as "Overseas Citizens of India" under the Citizenship Act 1955 as amended from time to time:
Form XIX for Registration under Section 7(A)(1)(a)
For a person of Indian origin who became a citizen of any of the above Specified Country before the commencement of the Citizenship (Amendment) Act 2003 on January 7, 2004Form XIX A for Registration under Section 7(A)(1)(b) For a person who obtained citizenship of any of the above Specified Country on or after the commencement of the Citizenship (Amendment) ACT 2003 and was a citizen of India immediately before such commencement.Form XIX B for Registration under Section 7(A)(1)(c) For a minor of the person who is required to fill either Form XIX or Form XIX B e: An application for registration of a minor child of overseas citizen of India under Section 7(A)(1)(c) shall include the following particulars, namely :- a. a statement whether the applicant is a parent or guardian of the child and if he is a guardian, how he became the guardian; b. a statement showing whether the child was adopted by the applicant and if so, documentary evidence to this effect; c. a statement indicating reasons for which the child is required to be registered as an overseas citizen of India .
Commence registration process by filling our No Obligation Online Form :
REGISTRATION CERTIFICATE
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sumi
Thursday, October 25, 2007
Consumer case _ The great Mc Donald's
Business Ethics Consumer Rights and Complaints The Case of McDonalds Coffee Albuquerque New Mexico USA
The Incident: In an early morning of February 1992, a lady drove into a McDonald's restaurant in Albuquerque, New Mexico to have breakfast. She had just dropped her son at the local airport. She ordered Mcbreakfast with coffee and decided to have the breakfast in the car itself. She could not place the coffee cup on the dash board as it was slanted too steeply. Since both her hands were busy, she placed the coffee cup between her knees. She also tried to open the lid off the cup in that position. What she did not know was that the coffee supplied in that cup was heated to 170 Degrees.Many people do not know that when you pour something very hot into containers and immediately close the lid, it can be very difficult to open for scientific reasons. You need to be a Tarzan to open the lids in case of metal containers. You will also spill the contents, invariably. In case of plastic containers you might damage the container and it can be dangerous. The same thing happened to the lady. Hot coffee poured out on her thighs and she suffered second degree burns on her private parts. She was hospitalized for 3 weeks and further went for skin grafting, which can be very painful. Her experience was traumatic, lost lot of weight and she also lost further 3 to 4 weeks recuperating. Her daughter had to stay at home to look after her and she lost her salaries and wages.This lady wrote to McDonald's asking for just USD 2000 as compensation. McDonald's offered her USD 800. Her daughter decided to approach some lawyer and did so. The lawyer filed a case in courts asking for USD 100,000 as compensatory damages and 300,000 as punitive damages. The jurors were quite irritated and not amused when the case came up in courts and thought that the issue was frivolous. However, when they learnt that McDonald's had not reduced the temperature of the coffee for 10 years even after receiving 700 complaints, they changed their minds. Medical experts confirmed that at 170 degrees, coffee can cause serious second degree burn injuries. McDonald's blamed the lady completely for the incident and said it was her fault in keeping the cup between her knees. The jury decided in favor of the lady. She was awarded USD 200,000 as compensatory damages and USD 2.7 million as punitive damages. The trial judge later reduced it to USD 640,000. The case was finally decided out of court and the final settlement is a secret.
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cheers
sumi
The Incident: In an early morning of February 1992, a lady drove into a McDonald's restaurant in Albuquerque, New Mexico to have breakfast. She had just dropped her son at the local airport. She ordered Mcbreakfast with coffee and decided to have the breakfast in the car itself. She could not place the coffee cup on the dash board as it was slanted too steeply. Since both her hands were busy, she placed the coffee cup between her knees. She also tried to open the lid off the cup in that position. What she did not know was that the coffee supplied in that cup was heated to 170 Degrees.Many people do not know that when you pour something very hot into containers and immediately close the lid, it can be very difficult to open for scientific reasons. You need to be a Tarzan to open the lids in case of metal containers. You will also spill the contents, invariably. In case of plastic containers you might damage the container and it can be dangerous. The same thing happened to the lady. Hot coffee poured out on her thighs and she suffered second degree burns on her private parts. She was hospitalized for 3 weeks and further went for skin grafting, which can be very painful. Her experience was traumatic, lost lot of weight and she also lost further 3 to 4 weeks recuperating. Her daughter had to stay at home to look after her and she lost her salaries and wages.This lady wrote to McDonald's asking for just USD 2000 as compensation. McDonald's offered her USD 800. Her daughter decided to approach some lawyer and did so. The lawyer filed a case in courts asking for USD 100,000 as compensatory damages and 300,000 as punitive damages. The jurors were quite irritated and not amused when the case came up in courts and thought that the issue was frivolous. However, when they learnt that McDonald's had not reduced the temperature of the coffee for 10 years even after receiving 700 complaints, they changed their minds. Medical experts confirmed that at 170 degrees, coffee can cause serious second degree burn injuries. McDonald's blamed the lady completely for the incident and said it was her fault in keeping the cup between her knees. The jury decided in favor of the lady. She was awarded USD 200,000 as compensatory damages and USD 2.7 million as punitive damages. The trial judge later reduced it to USD 640,000. The case was finally decided out of court and the final settlement is a secret.
i do appreciate feedbacks....
cheers
sumi
Tuesday, October 23, 2007
Shah Bano Case
Hi friends ... Everyday one case law will be there in this blog.., any comments or suggesstions can be given..., being an advocate i beleive that u people will also like this.., and now......
this is an important case law in Indian Divorce law which really created a controversy...... though u would have know about this already.., jus refresh it for the day..., so now today's case law is
The Shah Bano case is an infamous divorce lawsuit in India and has generated political controversy in the country. It is sometimes described as an example of appeasement of the vote bank for political gains. This case caused the Rajiv Gandhi government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the secular judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcees the right to alimony from their former husbands.
Contents[hide]
1 Brief of the Case
2 The Indian Government's Reaction
3 Consequences
4 Personal Laws
5 External links
Brief of the Case
Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim family law (marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christians, Muslims and Hindus) allows the husband to do this without his wife's consent: the husband just needs to say the word Talaaq before witnesses for a valid divorce. There are different classifications on Talaaq. There are also different aspects as well as other norms of Talaq which differ from sect to sect in Islam. Some sects also have certain prerequisities for a Talaq to be valid. They believe that during the Talaq, the woman should have purified herself from menstruation and her husband should not have had any sexual relationship with her.
Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.
The orthodox Muslims in India felt threatened by what they perceived as an encroachment of the Muslim Personal Law, and protested loudly at the judgement. Their spokesmen were Muslim community leaders Obaidullah Khan Azmi, MJ Akbar and Syed Shahabuddin, They formed an organization known as the All India Muslim Personal Law Board and threatened to agitate in large numbers in all major cities. The then Prime Minister, Rajiv Gandhi, agreed to their demands and cited the gesture as an example of "secularism".
The Indian Government's Reaction
In 1986, the Congress (I) party, which had an absolute majority in Parliament at the time, passed an act that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law and writ as excerpted below:
"Every application by a divorced woman under section 125… of the Code of Criminal Procedure, 1973, pending before a magistrate on the commencement of this Act shall, notwithstanding anything contained in that code… be disposed of by such magistrate an accordance with the provisions of this Act."
The Government with its absolute majority passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to dilute the secular judgment of the Supreme Court. The Statement of Objects and Reasons of this Act (i.e. the objective of the Act) needs a mention. According to the stated objects of the Act, where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law...But where a divorced woman has no relatives or such relatives..has not enough means to pay the maintenance the magistrate would order the State Waqf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only. 'Read about 'The iddat of divorce'
Critics strongly contend that this Act was passed in order to appease minorities and safeguard the Muslim vote bank.
Consequences
The Shah Bano case generated tremendous heat in India. It proved that fundamentalist minorities can exert pressure on government and judicial decisions. The mainstream media disapproved of the decision. The opposition reacted strongly against the Congress party's policies (which, according to BJP, reflect "Pseudo-secularism".)
The case has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of 500 Rs (around 10 US Dollar per month) - an upper limit which has since been removed. Cases of women getting lump sum payments for lifetime maintenance are becoming common.
Critics of the Shah Bano case point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by the Indian orthodoxy.
The Shah Bano case once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform of Hindu law in the 50's, in its metamorphosis as the Bharatiya Janata Party became an advocate for secular laws across the board. The sabre-rattling by Islamic fundmentalists caused women's organisations and secularists to cave in.
Personal Laws
The existence of personal laws is, in itself, an indicator of a constitutional bias towards maintaining religious harmony. They have been part of the Civil Law since the British Raj. The importance of personal laws lies in the fact that India is a secular nation with a sizeable concentration of several different religious groups. However, personal laws have been criticized by Feminists for their orthodox approach and for disadvantaging women. Religious rights and women's rights remain at conflict due to the disparities in religious laws. The likelihood that a common civil code for India may be introduced in the future seems bleak as even a discussion of the topic evokes strong reactions.
Judicial craftsmanship has ensured that The Muslim Women's [Protection of Rights on Divorce] Act hasn't completely violated the rights of women. High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadlly to include amounts worth lakhs (hundred thousand) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination of the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word, "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.
[edit] External links
The Shah Bano legacy
Shah Bano: Muslim Women's Right
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cheers
sumi