Cyber fears

V VENKATESAN IN THE FRONTLINE

Certain provisions in the rules notified under the IT Act cause concern about the security of sensitive personal information.

ON April 11, the Union Ministry of Communications and Information Technology notified new rules under the Information Technology Act, 2000, to regulate the use of the Internet. This led to widespread apprehensions that the government and private persons might gain free access to sensitive personal information concerning Internet users.

The government, however, clarified in a press release that the intent of the rules was to protect sensitive personal information and not to give the government undue powers to access such information. The government added that wide public consultations had been held before finalising the rules and that the rules had been endorsed by the stakeholders.

As the government is empowered to make rules in order to carry out the purposes of an Act, it is necessary to examine whether the rules have a nexus with such purposes. Among the four sets of rules notified on April 11, The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, caused serious concern in civil society. Rule 3 in this set defines sensitive personal data or information as “such personal information which consists of information relating to password; financial information such as bank account or credit card or debit card or other payment instrument details; physical, physiological and mental health condition; sexual orientation; medical records and history; biometric information; any detail relating to the above clauses as provided to body corporate for providing service; and any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise”.

Rule 3 has an important proviso, which says that any information that is freely available or accessible in the public domain or furnished under the Right to Information Act, 2005, or any other law, shall not be regarded as sensitive personal data.

Rule 2(b) defines “biometrics” as technologies that measure and analyse human body characteristics, such as “fingerprints”, “eye retinas and irises”, “voice patterns”, “facial patterns”, “hand measurements”, and DNA for authentication purposes.

The controversial provision is Rule 6, which deals with disclosure of information. Rule 6(1) lays down that disclosure of sensitive personal data by a body corporate to any third party shall require prior permission from the provider of such information, unless such disclosure has been agreed to in the contract between the body corporate and the provider of information, or where the disclosure is necessary for compliance of a legal obligation.

Rule 6(1) carries a key proviso, which, its critics say, can be misused. It lays down that such information shall be shared, without obtaining prior consent from the provider of information, with government agencies mandated under the law to obtain information, including sensitive personal data for the purpose of verification of identity, or for prevention, detection, investigation, including cyber incidents, prosecution, and punishment of offences. The government agency, under this proviso, shall send a request in writing to the body corporate possessing the sensitive personal data or information, stating clearly the purpose of seeking such information. The government agency shall also state that the information so obtained shall not be published or shared with any other person. Many consider Rule 6(2) to be even more draconian. It says that notwithstanding anything contained in Rule 6(1), any sensitive personal data shall be disclosed to any third party by an order under the law. The safeguards in Rule 6(3) and 6(4) that the body corporate or the third party receiving such sensitive personal data shall not publish or disclose them further are considered weak.

Rule 7 elaborates on this. As the bar on the body corporate is only against publishing sensitive personal data, it may transfer such data to any other body corporate or a person in India, or located in any other country, that ensures the same level of data protection that is adhered to by the body corporate as provided for under these rules. The rule says that the transfer of such data may be allowed only if it is necessary for the performance of the lawful contract between the body corporate or any person on its behalf and the provider of information or where such person has consented to data transfer. Critics ask whether these safeguards will be complied with absolutely, and if not, what the remedies available to a victim are.

R. Chandrashekhar, Secretary in the Department of Information Technology, said the rules were framed to fix the liability on service providers, intermediaries and bodies looking after the details of the users as the government could not allow complete insulation to anyone from any illegitimate activity that involved a body or a person. “The rules were made to define that liability and restrict that liability,” he clarified. He denied that the government intended to restrict free speech through these rules.

Concerns have been expressed over another set of rules, too. The Information Technology (Intermediaries guidelines) Rules, 2011, impose certain duties on intermediaries such as Facebook, Google and Twitter to observe due diligence. Rule 3 in this set requires that the intermediary shall publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource by any person.

Rule 3 (2) requires that such rules and regulations, terms and conditions or user agreement shall inform users not to host, display, upload, modify, publish, transmit, update or share any information that belongs to another person and to which the user does not have any right to, and is grossly harmful, blasphemous, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.

Powers to censor content

The loose language of this rule, critics fear, can be interpreted widely, and the intermediaries may enjoy extraordinary powers to censor content, resulting in unnecessary restrictions on freedom of expression.

Rule 3 (2) (i) requires the intermediary to ensure that the content posted by the user does not threaten the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or cause incitement to the commission of any cognisable offence or prevent investigation of any offence or is insulting to any other nation. Again, this rule is loosely phrased, and does not explain how the intermediary can conclude that a particular post “threatens to…”.

Rule 3(4) is even more mischievous. It requires that the intermediary, upon obtaining knowledge by itself or being brought to actual knowledge by an affected person in writing or through e-mail signed with electronic signature about any such information as mentioned in Rule 3(2), shall act within 36 hours and work with the user or owner of such information to disable it. Further, the intermediary has also to preserve such information for at least 90 days for investigation.

Rule 3(11) provides the remedy for an aggrieved user. It requires the intermediary to publish on its website the name of the grievance officer and his contact details as well as the mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of Rule 3 can notify their complaints. The grievance officer has been asked to redress such complaints within one month from the date of receipt of a complaint. Ironically, the rules do not provide content writers a means to defend their work or appeal a decision by the intermediary to remove content. The absence of natural justice in the rules will make it easy for critics to challenge them legally.

Google has expressed fears that the rules could impede its operations in India as it could become liable for questionable content posted by third parties and suffer great harm in terms of huge fines or other punishment. It is reported that the Indian authorities have asked Google to remove content that speaks ill of leading politicians. The Ministry has denied that it intends to acquire regulatory jurisdiction over content posted on the Web.

http://www.frontlineonnet.com/stories/20110701281304700.htm

Advertisements

DIVORCE BY MUTUAL CONSENT

VIRENDRA KUMAR IN THE TRIBUNE

Divorce

Divorce

The sanctity of marriage cannot be allowed to be undermined by the whims of one of the annoying spouses. The law allows divorce by mutual consent, but its intent is not to facilitate the dissolution of marriage. To save marriage and  not to hasten its dissolution should be the core concern of courts

Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before with us.” (emphasis added) This is how a Bench of the Supreme Court consisting of D.K. Jain and H.L. Dattu, JJ., prefaced its judgment in the case of Hitesh Bhatnagar v. Deepa Bhatnagar delivered on April 18, 2011.

Hitesh and Deepa got married in 1994. The following year they were blessed with a daughter. Sometime in 2000 due to “differences in their temperaments”, they began to live separately from each other and have been living thus ever since. In 2001 they filed a petition under section 13-B of the Hindu Marriage Act, 1955, seeking divorce by mutual consent. Subsequently, before the court could consider their case for a divorce decree, the wife withdrew her consent. This resulted in the dismissal of the petition by the district court.

The High Court through its “well considered order” dismissed the appeal of the husband against the decision of the trial court. On further appeal, the husband again failed to get the desired divorce decree from the Supreme Court.

Why it is tough

One reason that applies to the resolution of matrimonial disputes generally is of course the inherent complexity of human nature and behaviour defying the application of set standard formulas. The other reason is the persistent misconceptions or misgivings about the very nature, scope and ambit of the remedy of divorce by mutual consent itself.

The apex court in the Hitesh Bhatnagar case has not just decided the dispute but undertaken fairly an extensive survey of the law developed through judicial decision-making. A juridical analysis of this decision would, therefore, be instructive in unfolding the various nuances. The following misgivings often come into vogue.

A close reading of section 13-B of the Hindu Marriage Act, 1955, shows that a divorce decree by mutual consent is not really a divorce decree by mere consent of parties. In effect, it is with the consent of the court. It becomes operational “with effect from the date of the decree” granted by the court and not from the date of filing of the petition “by both the parties to a marriage together.” To this extent, the expression “divorce by mutual consent” seems to be a misnomer. Literally speaking, it seems to imply that as there is “marriage by mutual consent” by taking seven steps around the sacred fire, say, in clockwise direction, so is “divorce by mutual consent” as if taking seven steps in anti-clockwise direction!

Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13B are rather more stringent. Under the mutual consent provision, the parties intending to dissolve marriage are required to wait, not only for at least one year from the date of marriage, termed as the “trial period” under section 14 of the Act, but also obligated to show further that they have been living separately for a period of one year or more before the presentation of the petition, and during this period of separation “they have not been able to live together” as husband and wife. Besides, after filing the joint petition they must wait further for at least another six months, usually termed as the “cooling off period”. In short, mere filing the joint petition does not by itself snap the marital ties.

After the lapse of six months, if the said petition is not withdrawn in the meanwhile either singly or jointly, both the parties may move the court by way of joint motion within the stipulated period of 18 months from the initial date of filing of the joint petition. The interregnum is obviously intended to give more time and opportunity to the parties “to reflect on their move”, give a second thought or otherwise seek advice and counsel from relations and/or friends for maintaining their marriage.

 Withdrawal of consent

For pursuing divorce by mutual consent, it is imperative that mutual consent should continue till the decree is granted by the court. In case, even if one of the parties to marriage withdraws his or her consent initially given, the court instantly loses the jurisdiction to proceed further and grant relief under section 13-B of the Act. In this respect, the Supreme Court in the Hitesh Bhatnagar case reaffirmed its earlier decision in Sureshta Devi v. Om Prakash (1991), which overruled the view of the High Courts of Bombay and Delhi that proceeded on the premise that the crucial time for giving mutual consent for divorce is the time of filing petition and not the time when they subsequently move for a divorce decree.

The statutory expression “they have not been able to live together” under section 13-B(1) of the Act, is to be construed not just as a trite statement of pure volition. It bears a deeper connotation. It indicates, as the apex court has expounded, “the concept of broken down marriage”’ implying thereby that reconciliation between them is not possible. In this respect, the court is duty bound to satisfy itself “after hearing the parties and after making such inquiry as it thinks fit” about the bona fides and the consent of the parties, and then and then alone the court shall consider the grant of divorce decree.

The purpose of the period of 18 months from the date of presentation of the joint petition under Section 13-B (2) of the Act is for re-think and reconciliation. If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed at the threshold on this very count.

In view of the long separation of more than a decade from his wife, the husband, as a last resort, urged the apex court to dissolve his marriage by exercising its special jurisdiction under Article 142 of the Constitution. To buttress his claim he specifically cited a proximate decision of the Supreme Court itself – Anil Kumar Jain v. Maya Jain (2009) – wherein though the consent was withdrawn by the wife, yet the court found the marriage to have irretrievably broken down and granted a decree of divorce by exercising its special constitutional power.

Special power

However, in the instant case the apex court refused to invoke its special power in favour of the husband mainly for two reasons. One, the special power is to be used very sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions cannot bring about complete justice between the parties.

Generally such a power is exercised neither in contravention of statutory provisions nor merely on grounds of sympathy. Two, the sanctity of the institution of marriage cannot allowed to be undermined merely at the whims of one of the annoying spouses, more specially in the situation and circumstances, as in the present case, wherein the wife has stated that she wants this marriage to continue “to secure the future of their minor daughter”.

Invariably it is found that a petition for divorce on fault grounds under section 13 is replaced by the remedy of dissolution of marriage by mutual consent under section 13-B of the Act. This is advisedly done as if the purpose of the latter provision is to facilitate divorce by effecting compromise between the parties in respect of ancillary matters. This in our view is perhaps the most erroneous construction of the provisions of section 13-B of the Act. The purpose of the remedy of mutual consent, we repeat, is not to facilitate the dissolution of marriage, inasmuch as even the provisions of section 13-B are subject to the other provisions of the Act.

Thus, to save marriage and not to hasten its dissolution should be the core concern of the court. Spouses may think of dissolving their marriage if they so fancy provided the court is satisfied that any of the grounds for granting relief exists, and that in court’s view it is not possible to make them reconciled!

Divorce with Mutual Consent- What it is all about

 Section 13-B of the Hindu Marriage Act, 1955, deals with divorce by mutual consent

Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13-B are rather more stringent

A divorce decree by mutual consent is not really a divorce decree by mere consent of the parties. In effect, it is with the consent of the court

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage

They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife

After filing the joint petition they must wait further for at least six months

It is imperative that mutual consent should continue till the decree of divorce is granted by the court

If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed on this very count. 

The writer is the Director (Academics), Chandigarh Judicial Academy. 

http://www.tribuneindia.com/2011/20110625/edit.htm#6