Erasing Old Memories from Digital Medaia

 

Can one erase information, opinions, intentions, instructions or any other personal information posted in social media so that a third party cannot track or use it.? Well at present it is not possible except by an order from the court but if the bill pending in the parliament since 2019 gets passed and becomes the law then it would be possible to do with certain riders, such as the data has served its purpose for which it was collected. There are number of cases in public domain where a person has suffered financially or in employment or in public life even after being acquitted by the court or after the information has lost its relevance. At present any information in digital form in public domain or otherwise is like an arrow shot from a bow which cannot be recalled or destroyed and put back in the quiver. It is also imperative that the right to privacy should not be allowed to override public interest hence the right to erase the information available in public domain needs to be balanced with the information that is required in public interest

 Supreme Court in their judgement, in the case of Justice Puttuswamy and another V/S Union Of India in 2014 (WP number494 of 2012), given by the nine judge bench declared that right to privacy is a fundamental right under article 21 of the constitution of India. A five judge bench on 26 Sep2018 while delivering its final judgement in the above case impressed upon the government to bring about a robust data protection regime. The Personal Data Protection Bill (PDPB) of 2019 is a step in this direction.

 The bill, as given in preamble, aims to provide the protection of the privacy of individual relating to their personal data and aims to specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the data, protect the rights of individual whose personal data are processed,  to create a framework of organizational and technical measures in processing of data, laying down norms for social media intermediaries, cross border transfer accountability of entities processing the data, remedies for unauthorized and harmful processing  and to establish the data protection authority of India for the same purpose and for matters connected there with or incidental  thereto.

The act will apply to a host of agencies where the data has been or is being collected, disclosed, shared or otherwise processed within the territory of India. This will include state, company, body of persons or the entities not present in India which process these data. It will also lay down that no personal data shall be processed  by any person except for clear, specific and lawful purpose and it shall be collected only to the extent that is necessary. No personal data shall be processed without the consent and the burden of proof of that consent will be that of the entity.  The person to whom the data belong shall have the right to restrict or prevent the continuing disclosure of his personal data by an entity under certain conditions.

The critical personal data shall be processed in India .If any person has suffered harm as a result of any violation of any provision under this act or rules or regulation made there under by any entity then the aggrieved person will have a right to seek compensation form the entity. The offense under this act shall be cognizable and non bailable. A complaint can be made to the adjudicating officer under the act. There is a provision that in case it is committed by a company then every person who at that time was responsible to the company for the conduct of business of the company as well as the company shall be deemed to be guilty of the offense and shall be liable to be proceeded against and punished accordingly. Harm as defined under the act has a very wide meaning and includes besides bodily or mental injury, financial or loss of identity, humiliation, loss of employment, any discriminatory treatment , subject to blackmail and extortion, denial or withdrawal of service, benefit or good, any restriction placed or suffered directly on speech or  movement or placed under surveillance . Under this act the word data has also a wide meaning and includes besides personal data any representation of information, facts, and concepts, opinions or instructions in a manner suitable for communication, interpretation or processing  by human or by automated mans.

Inter Faith Marriages

                          Inter Faith Marriages-Some Issues

AS per an Independent non religious organization there are about 4300 religions in the world in practice. Out of these five religions together are practiced by about 75% of the population and 20 religions combined together cover about 93% of the population. As per law the Hindu religion also includes Sikhs, Jains and Buddhist. In India Buddhism is legally not considered a spate religion as it originated from India but outside India it is regarded as a separate religion.

Now every religion other the Hindu and Bahai expect that the marriage is between two persons belonging to the same religion and the marriage is considered valid or legal only if both the persons belong to the same religion or conversion takes place if it is between two persons belonging to different faith. In India the Christian marriage is governed by Indian Christian marriage Act 1872 and the Muslim marriage under the Shariat Act. In both the religions the marriage is to be performed only between persons belonging to same religion otherwise it is illegal unless before marriage conversion takes place.  Muslim law prohibits marriage between Kitabia( Those who believe in divine book)and a non kitabia (This includes idol, fire or sun worshipers) but a Muslim can marry a  Christian or a Jew.

As per the personal laws of other religions once you go through the marriage ceremony as prescribed in their law then it implies that one has accepted the religion as his religion, whether knowingly or unknowingly, and the marriage ceremony is between two persons belonging to the same faith. Therefore, by undergoing Nikah or a church marriage means that one has converted to that faith. In India by law it is the first marriage ceremony which is given legal acceptance and recognition, other ceremonies or marriage rituals as per other religion after that are only considered ceremonial.

Once you convert from being a Hindu to any other religion then the Hindu succession, Inheritance, Adoption and other Hindu related laws do not apply to you and you are legally debarred for any share in your parent’s or ancestral property but will be governed by the personal law of that religion. If you married first under the religious rituals of a particular religion then the personal law of that religion will apply to you  unless you first married under the Special Marriage Act 1954 and then as per your other spouse’s religious practices. In this case both will be governed by Indian Succession Act and not as per the personal law of each other’s religion in respect of marriage, divorce, succession, adoption, etc. Even after conversion you may still like to retain your old name and other related documents but your religion will be that to which you converted whether knowingly or unknowingly. To avoid this dilemma it would be better if after changing religion one take a gazette notification for the public to know that you have changed your faith.

Hindu marriage act contains no such clause of debarring marriage between persons belonging to different faith and persons belonging to different faith can legally marry as long as the main ceremony of sath phere or saptpadi or similar ceremony is performed as per Supreme Court judgement. It is possible that some priests may refuse to perform the marriage. But again as per the personal and marriage laws of other religions except Hindu and Bahai the marriage is illegal. Hence it is very much likely that the girl or boy may face issues connected to their faith and even may be refused funeral rights as per their religion and may lose connection with their family and community. But it all depends on the individual and families. Allahabad and Tamilnadu high court have held that marriage is void or illegal if the conversion was for the sake of marriage only. They have observed that there is no need for conversion as the marriage between two persons belonging to different faith can easily take place under the Special Marriage Act 1954 and conversion for the sake of marriage is not required. But however if a person wants to convert to Hindu faith then no ceremony is required as per Supreme Court and only a declaration by the person that he is a Hindu and follows Hindu practices is sufficient. Even if a person wishes to convert from any faith to another faith then it is his right to do so by following the practices of conversion to that faith.  If one coverts to another religion then it would be better to take out a gazette notification that one has changed his religion and now his religion and name will be such and such.

Therefore in the end the conclusion is clear and is also opinion by various courts that in case of inter faith marriage the best option is the marriage to be performed under Indian Special Marriage Act 1954.also referred to as court marriage first and later as per the individual’s religious practices if required as a social obligation.

 

 

Will-Facts, Myths & Mistakes

 

                                   Will- Facts, Myths, Mistakes

Will is an expression of Intent or wish of a person.  It is defined as “A legal declaration of the intention of the testator with respect to his property which he desires to be carried out after his death”. Wish can be expressed orally or in writing, whether registered or not. The document can be private or public. A letter written or a spoken word is a private document. To make it public document, it has to be brought to the notice of the world either by publishing or speaking in public or announcing in public or it should be a registered document so that it becomes a public document.

A document ha two important aspect   (i) legal and (ii) execution. A document may be legally right that is it conforms to all the rules laid down at that time it was spoken or written but it is on executable meaning it cannot be executed. It is possible that the document is executable but does not conform to the laws of the land. A will, therefore, has to conform to both these aspects that it is not only legally correct but is also executable.

A will is written while the person is alive and is in full senses, stable mind. It can be operational during his life time and such a will is called a living will or advance declaration and is operational as long as the person is alive and becomes null and void once he is dead. The other type of will is the one with which we are normally familiar and this is also written during his life time but becomes operational only after his death and deals with how his assets are to be divided or given out to his heirs or to any other person including a Hindu deity, a company, a corporation, a trust or to any individual.

A spoken will is a legally correct will but it may fail in the execution as it will require to be proved in the court along with witnesses and evidence that it is so. Therefore, it is of little value in present day scenario. You may write your wish on a piece of paper and also sign it. This is again a legal will but will have to be proved in a court of law of its validity with witnesses and evidence. A will can be written and attested by two witnesses, who can testify that the will was signed by the person in their presence. This is a proper legal will and is referred to as an unregistered will. If it is registered with the office of registrar in the presence of two witnesses after following the due process then it is registered document and referred to as registered will. The original will along with the details and signature of the authority is returned back to the person and a copy is kept in the record along with the computerized version. A certified copy of this document can be obtained after paying the fee. A court will take notice of any such document or its certified copy and this document requires no further proof.

As per section 5 of the Indian Succession Act 1925, any person who is 21 years or more of age, a Hindu, Sikh, Buddhist, Jain, Parsi or a Christian can make a will provided he not a lunatic, minor, insolvent or a person who has been debarred from making the will can make a will. This type of will is called an unprivileged will. A person who is serving in Armed Forces can make a will if he is above 18 years of age and this will is called a privileged will and functions as long as the person is serving in the Armed Forces under war like conditions. This type of will also does not require attestation by two witnesses.  A will is governed by section 63 Of the Indian Succession Act 1925. A legatee can be individual, corporate, trust, Hindu Deity but a minor can be a legate only if a guardian is appointed. A minimum of two witnesses are required to attest the will and the witnesses should be of sound mind, major and should not be a beneficiary in the will. An executor can be named in the will whose job will be to execute the will. This executor can be anybody even a beneficiary in the will.

A will can be of various types. It can be a simple, complicated, and joint or a conditional will. A simple will is the one where a person writes that after his death all his assets are to be given to his wife or to a single other person. This will has a problem that in case of death of wife or other person, the will cannot be executed as the person is no longer alive and a fresh will needs to be written again or the assets will be divided as per the personal law applicable to him.. In a complicated will the person divides his assets in a certain proportion to two or more persons, like, between his wife and children. This has the advantage over a simple will that in case of death of one person the assets will be divided among the surviving members and may not become non executable at all. A joint will is one where husband and wife jointly write their will and assign how the assets are to be divided among other and in what proportion. The only disadvantage is that if the will is to be changed or a codicil to be written then it will again require both the signatures. A conditional will scores above all this by putting certain conditions and listing out how the assets are to be divided in case this condition exists. This will has the advantage that in care of death of spouse, the will does not require any change or amendment as it can still be executable under the prevailing condition while the other condition becomes redundant.

It is also important that both husband and wife should execute a separate will. Both the will can be mirror image of each other. However in case of wife her streedhan and the property of which is sole owner or the property which she receives from her parent’s side is to be specifically mentioned. As the first right on these assets will be of the children and not of husband.

A person cannot give his ancestral property in the form of a will but he can make a will only of his self acquired property. A will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intent after his death. A will regulates the succession one provides for succession as declared by the testator.

If there is no will or the will has become null and void due to any reason or declared so by the court then a person is presumed to have died intestate and his property is divided as per the personal inheritance laws or the Indian inheritance act. If there is an unregistered will and the witnesses are also no longer alive then this unregistered will is null and void. One of the witnesses has to be alive and give evidence/affidavit that he had seen the person signing the will and have attested to this fact and then only the court will presume that the will has been proved and will grant a letter of administration or probate for the will. For a registered will this formality does not exist as it s a public document and the court will take cognizance of it without any proof.

The process of registration of the will is exactly similar to the registration of flat/house/ land or any other document in the office of registrar. Get the will type on a non judicial stamp paper of Rs.100/= and paste your photograph on the first page in two copies (one original and the other photocopy), get it attested and along with two witnesses who are not beneficiary in the will go to the registrar/deputy registrar/ sub registrar office and after payment of the fee the signed original copy will be given to you as registered will. One can also write it on a plain A4 size paper and get it registered as there is no requirement that it should be on non judicial stamp paper.

A will can be changed any number of times during the life time by writing a fresh will and destroying the old one. However, a registered will can be revoked only by another registered will. Minor amendments to the will can be done by writing a codicil and getting the same registered.

A will can be signed by any other person in the presence of the person making the will under his instructions and an annotation to this effect has to be made in the document. Similarly the witnesses before signing will have to state that the same before attesting the document. Even a deaf and dumb person can make a will.

In case you have an unregistered will and also immovable property then you have the following options:-

(1)    Approach the courts to get a letter of administration / probate for the legal unregistered will or registered will. But if the witnesses are no longer alive then you will have to apply for succession certificate in case of unregistered will, as the unregistered will be of no use to you.

(2)    Get the will registered through the registrar. It is a time consuming process and after due verification from the witnesses the will be declared registered by the registrar, If the witnesses are dead then succession certificate is the only answer.

(3)    Get a family agreement with all the legal heirs made and after due attestation get it registered or present it t the court to get the succession certificate as per the agreement..

If there is no will or the will has become null and void or the unregistered will has been destroyed or lost, then the only option you have is to go for a succession certificate from the appropriate local civil court. However, in this case stamp duty on the total value of all assets owned by the person becomes payable at the time of submission of the petition for succession certificate. This can vary from state to state and can be from 2% to 8% in some states. However, it is possible to make a family agreement in which all legal heirs sign and agree to the part ion of the property as per  the agreement and the court will ratify the agreement and issue a letter under its own authority.