Procedure to Report Cyber Crime Online through Government Portal

By Nevin Clinton

Advancements in technology, especially in cyberspace, has brought with it a plethora of advantages that makes day-to-day life easier. Features that were unimaginable in the past are now just a click away. However, there are several dangers that are associated with cyberspace as well and the number of cyber crimes are growing rapidly around the world.

What is a cyber crime?

Cyber crime is any crime that involves the use of cyberspace or computers. A computer or a network of computers could be used either as a tool to achieve the end of a criminal activity or they could be the target. All crimes that are covered under the Indian Penal Code will therefore fall under the purview of cyber crime if there is the use of computers involved.

Cyber Crime Laws in India

Cyber Crime has a rather unique position in the Indian legal system. Both the Indian Penal Code and the Information Technology Act, 2000 govern it. There are some provisions that overlap while there are some that are unique to the latter act. In cases where there is an overlap and provisions from both statutes apply, it is those of the more specific IT Act that come into force if there is an involvement of cyberspace.

How to report a cyber crime online?

The Ministry of Home Affairs has a portal called the National Cyber Crime Reporting Portal where a citizen of India can report a cyber crime. The portal was brought in to ensure that complaints on cyber crime are reported and registered in quick time. The focus of the portal is aimed towards protecting women and children in particular, but general complaints can also be made. Once a complaint is made, it will be directed to the police authority that has jurisdiction to investigate.

For better and more focused reporting of complaints, the MHA has listed 24 broad cyber crimes. These include child pornography, cyber bullying, cyber stalking, credit card fraud, spamming, phishing, data breach, online drug trafficking, and more. 

So to report any cybercrime, one has to follow these steps

  • Go to the National Cyber Crime Reporting Portal (https://cybercrime.gov.in/
  • Click on ‘File a Complaint’
  • Accept the terms that pop up confirming that all facts that you state are true to the best of your knowledge.
  • You will then have two options – Reporting cyber crimes relating to women and children, and other cyber crimes.
  • After clicking on the category, you will be directed to a page where you will have to provide details about the incident. Fill up the details including your state, place of occurrence of the incident, photo proof, and a complete description of the crime. You will then be directed to a page where you will have to provide any information that you might have on the suspect(s). After you submit the same, your complaint will be registered.
  • Note that for crimes involving women and children, you can choose to report them anonymously. For others, you will have to provide details about yourself by signing in.
  • Finally, you must provide as much information as possible for the authorities to take swift action.

What happens after a complaint is made?

After a complaint is made on the portal, the police authorities in the concerned state receive it and will decide on how to proceed with it. This is why filling up the correct state or UT while filing a complaint is important. In cases where the location of occurrence of the crime is not known such as child pornography, one can select his/her own residence as the state. The police in the said state will then investigate and direct the complaint to police of the state where they have jurisdiction.

Conclusion

Statistics from Norton Lifelock show that 27 million Indian adults fell victim to some form of cyber crime in 2020. Further, more than 50% of Indian adults are said to be unaware of how to keep themselves safe in cyberspace. Therefore, it is imperative for each citizen to always stay alert while using computers. The government can help as well by helping in educating and protecting its citizens. The aforementioned portal for filing complaints on cyber crime is a good step in this regard as it helps in quick reporting and tracking of cases while also granting the option of anonymity for the complainant. Due to the same, citizens must be made aware of the existence of this portal and such awareness can aid in curbing cyber crime to some extent at least.

Sedition Law in India: Growing calls to strike down ‘colonial’ law

By Nevin Clinton

Sedition law has been one of the most controversial aspects of the legal system in India since time immemorial. The law which deals with punishments for rebellion against the established order has been prevalent from the time of the British colonial rule and has been an infamous tool in suppressing the voice of the people. Freedom fighters like Mahatma Gandhi and Lokmanya Tilak have been victims of the law which was exploited by the British.

Lord Macauley who framed the Indian Penal Code included provisions for punishment for sedition under Section 113 and after amendments post-independence, sedition is governed by Section 124A of the Code. The section states that if a person by speaking, writing, signs or visible representations brings hatred or contempt towards the government, he will be punished with imprisonment up to three years and/or fine.

The arguments in favour of sedition law

Sedition law is considered important by its advocates for the reason that it helps keep anti-national elements in check. Terrorists and secessionists who incite violence through words can be curbed through the law. Anarchy, overthrowing of the government, violent protests and the like are also sowed usually by words and hence, sedition law can help prevent the same. Also, sedition law is considered akin to contempt of court as the latter deals with disrespecting one organ of the government – judiciary while the former deals with the other organs – executive and legislature. 

The arguments against sedition law

First and foremost, sedition law was introduced during British colonial rule and was used as a tool to punish Indians who dared to speak out. The law has a dark history associated with it and hence, in today’s world it seems misguided for it to continue to exist. Sedition law is also considered to be one of the biggest obstacles to the freedom of speech and expression. Further, the law is easy to exploit due to its not-so-specific wording leading to even constructive criticism sometimes being considered to be sedition. Also, there are various other provisions under the IPC and Unlawful Activities Prevention Act, 2019 which deal with and can govern terrorist and secessionist activities instead of sedition.

Recent occurrences and the growing calls for striking down sedition law

Recent occurrences involving sedition law have only led to more voices in favour of repealing it. Especially since 2014 when the BJP government came into power, there has been a rampant increase in the number of cases being filed under the controversial law. According to a study by Article 14, 96% of the sedition cases filed since 2010 have been after 2014. The arrest of activists and journalists hasn’t helped matters either. Further, the rate of conviction upon these arrests has been alarmingly low. Due to this huge spike in arrests and the low conviction rate, there have been a plethora of calls from various sections for the law to be completely repealed. 

While the law has not been struck down or deemed unconstitutional so far, the Supreme Court has time and again taken a stance that is critical of sedition law. Very recently, on the 15th of July, 2021, the apex court while examining a plea questioning the constitutional validity of the sedition law called the law ‘colonial’. The petitioner had contended that Section 124A of the IPC contained vague terms such as ‘disaffection towards Government’ and that it was an unreasonable restriction on the freedom of expression under Article 19(1)(a). Chief Justice of India, NV Ramana upon hearing the plea stated that sedition was the law that suppressed the voices of freedom fighters like Mahatma Gandhi before asking the Centre whether it was necessary to still be in force. The plea is currently being examined by a three-judge bench. 

Future of sedition law

The Supreme Court’s recent views look promising from the point of view of the sedition law being repealed in the future. However, whether or not the provision will finally see its end remains to be seen. The provision does continue to divide opinion and the debate will be unceasing. Freedom of speech has perpetually been a touchy subject and hence, what the future holds is anyone’s guess.

 

Section 66A of the IT Act: Unconstitutional provision that continues to be invoked

By Nevin Clinton

The Information Technology Act, 2000 (hereinafter referred to as IT Act) is among the most important pieces of legislation in India that is only growing in importance by the day. In today’s digital world, especially during the times of the COVID-19 pandemic, attachment to cyberspace or the internet has become part and parcel of life. Alongside the obvious positives that come with advancements in technology relating to cyberspace, there are several inherent dangers as well.

Freedom of online speech and Section 66A

In the context of social media, a key question that has been concerning lawmakers and courts for quite some time now is that of freedom of speech. When the IT Act was framed, there was a provision added to restrict sending ‘offensive messages’ online. This was given in Section 66A which stated that the following acts would be punished with imprisonment up to three years and fine:

  • Sending grossly offensive information or information having a menacing character
  • Sending false information with an intention to cause ill will, inconvenience, annoyance, danger etc. 
  • Sending emails that mislead, annoy or cause inconvenience to the receiver

The landmark Shreya Singhal case

Once Section 66A came into being, several cases were filed under it for violating its provisions. While the provisions did seem fair enough, cases of exploiting them in order to punish online speech that was either innocuous or satiric started to rise. This led to several lawyers and organizations questioning the validity of how the provisions of the section were being construed and implemented. 

A series of writ petitions were then filed by lawyer Shreya Singhal along with NGOs like PUCL, and companies like mouthshut.com. In a landmark judgment that changed the landscape of online speech, a two-judge bench deemed Section 66A to be unconstitutional as it violated the right to freedom of speech and struck it down. Despite arguments from the other side that the section would come under ‘reasonable restrictions’ to the right, the court ruled that the same would not apply. The section was deemed to be too vague and not narrow enough to constitute a reasonable restriction. The judgment received largely positive reception from journalists, lawyers and people alike. 

The situation post the Shreya Singhal judgment

Despite the fact that the Shreya Singhal judgment clearly deemed Section 66A to be unconstitutional, it continued to be invoked with more than 700 cases pending at present. The lack of communication to police officers and the lack of publicity about the exact section and its striking down led to the same. Apart from police officers, even lower courts and trial court judges were unaware of the ramifications of the Shreya Singhal judgment. This was brought to the attention of the Supreme Court in 2019 and the Court asked DGPs in all states to publicise and expressly convey to the entire police force that Section 66A was struck down. Despite this direction, there were still cases of the section being used. 

One of the key reasons for this situation arising was the fact that the section was not removed from the bare text of the IT Act. It was only mentioned in the footnotes that the Shreya Singhal judgment deemed it unconstitutional. This could have been prevented by either completely taking out the section or mentioning the unconstitutionality in the bare text itself (through brackets) instead of just the footnotes. 

The situation at present

Much like the SC direction in 2019, yet another direction has arrived now in July, 2021 wherein the Court has advised all states to not register cases under Section 66A. The issue was once again brought to the SC’s attention by PUCL which had also been one of the parties in the Shreya Singhal case and this time the Court has made it amply clear that there should strictly be no more invocation of Section 66A. Therefore, as of now, the section is not in force and there can be no cases registered under it. But it still remains to be seen if this direction will be strictly complied with and if a situation similar to the previous direction in 2019 doesn’t arise. 

UP Population Control Bill: All you need to know

By Nevin Clinton

The Uttar Pradesh Law Commission recently came up with a draft of a population control bill which vouches for a two-child policy. This bill has been the talk of the country for the past few days and it has turned out to be quite a controversial one. Social media has been abuzz with opinions on the bill as well as the statements made by the Law Commission and the Chief Minister of UP, Yogi Adityanath.

What does the bill say?

The Bill titled “Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021” states that for the purpose of population control, all couples in the state must keep up with a two-child policy. The Law Commission clarified that the policy was not mandatory and that couples can decide against adhering to the same. However, not following the policy will result in certain consequences such as the taking away of eligibility in government schemes and subsidies, applying for government jobs, and so on. It is noteworthy here that the bill is now open for suggestions for one week and if the bill is passed, it will become law after one year. Suggestions can be put forth through mail to statelawcommission2018@gmail.com or by post to the UP State Law Commission’s address.

What do the officials concerned say?

Chief Minister of UP, Yogi Adityanath said in a statement that population was the root cause of inequality in society. He further stated that such a bill and policy was necessary for an ‘advanced society’ to be formed. Yet another statement released via a policy document on the government website said that “attempts would be made to ensure there is a population balance among various communities”. Chairman of the State Law Commission, Aditya Nath Mittal explained the bill encouraging all residents of UP to follow the policy so that they can be eligible for all government schemes, apart from the advantages that come with population control. 

Incentives available to couples that follow the policy

Section 4 of the draft bill has details on the list of incentives that will be available to the general public if they take up the two-child policy. They are as follows:

  • Nominal rates of interest on soft loans for construction or purchase of houses
  • Rebate on charges for electricity, water and such services
  • Any other incentives that the Government may come up with in the future

Public servants who adhere to the policy will be entitled to two additional increments, subsidies towards purchase of land, maternity or paternity leave of 12 months, increase and pension, and so on. Also, if public servants follow a one-child policy and undergo voluntary sterilization they will have more incentives including preference for their child in education and government jobs. If the same policy and sterilization is followed by the general public who are under the poverty line, they will get a one-time payment of Rs. 80,000 if the child is a boy and Rs. 1,00,000 if the child is a girl.

Disincentives to couples that don’t follow the policy

If couples refuse to follow the two-child policy (which they are entitled to), they will be subject to disincentives such as

  • Limiting ration card units
  • No part in government welfare schemes
  • Ineligibility to contest local body elections
  • Ineligibility to apply for government jobs
  • Ineligibility to get promoted in government service

Exceptions to the policy

Chapter III of the draft bill deals with general exceptions to the policy. Firstly, in case a second pregnancy results in multiple children being born, the couple will not be deemed to have contravened the law. Similarly, there is no bar on adoption of children and a couple with two or lesser own children and one or more adopted children will not have violated the policy. Another exception is when one of the two children born to a couple suffers from some kind of disability or passes away. In such a case, a third child can be conceived. Married couples who are expecting a child when (if) the Act comes into being will also be exempted. In case of polygamy or polyandry, the male or female respectively will not be deemed to have followed the two-child policy if they have more than two children from all their relationships as a whole.

Conclusion

The draft bill has received mixed reception from the general public. While there have been people and politicians applauding the law commission’s move towards controlling the booming population, others have criticized the bill on grounds that it would lead to further imbalance between different communities in the population. Therefore, it remains to be seen if the bill will indeed be passed and come into force. 

 

Section 194Q of Income Tax Act and its impact on TDS

The Finance Act, 2021 brought in several important amendments in the Income Tax, 1961. One such amendment was the inclusion of Section 194Q in the Act which governs Tax Deducted at Source (TDS) on purchase of goods. The Section came into effect on July 1, 2021. It has a few significant implications especially when coupled with Section 206C(1H) which governs Tax Collected at Source (TCS) on the sale of goods.

The new section is an interesting addition due to the fact that it is a move to address the shortcomings of the aforementioned Section 206C(1H) which was brought in the previous year. Due to some transactions being excluded from coming under TCS provisions, Section 194Q on TDS has been added this year.

When will TDS be deductible under Section 194Q?

According to Section 194Q, TDS will be deductible when a buyer makes a payment to a seller who is also a resident and the said payment is for the purchase of goods that are of value exceeding Rs. 50 lakhs. The said ‘purchase of goods’ refers to both capital and revenue goods. The rate of TDS is 0.1% of the said value which will increase to 5% when the seller does not have a Permanent Account Number (PAN). Another thing to note is that TDS is deductible under the section even when payment is credited to a suspense account (a section in a ledger that records entries which are uncertain leading to a need for further classification).

Who is a buyer?

The section defines who a buyer is in the explanation stating that a person who has total sales or gross receipts or turnover exceeding Rs. 10 crores in the preceding financial year will qualify as a buyer. Further, if the Central Government has expressly notified that a person cannot be a buyer or that TDS provisions would not apply, the aforesaid provisions will not apply.

When can TDS be deducted?

Now, the TDS can be deducted either at the time when the sum of money is credited to the seller or when the sum is directly paid. If the buyer does not comply with the provisions of this section, Section 40a(ia) will come into being through which expenditure up to a maximum of 30% of the value of goods will be disallowed.

Exceptions to Section 194Q

One important exception to note with regard to Section 194Q is that it won’t apply if other provisions of the Income Tax Act mandate deduction of TDS in the concerned transaction. Yet another exception is when TCS is collectable on the transaction according to the provisions of Section 206C(1H) of the Act. 

When can TCS be collected under Section 206C(1H)?

As mentioned previously, Section 206C(1H) governs TCS on sale of goods. This provision will apply on a seller who receives a consideration for sale of goods with value more than Rs. 50 lakhs during a financial year. Further, the Section defines ‘seller’ as a person who has total sale or gross receipts or turnover exceeding Rs. 10 crore during the preceding financial year (similar to the definition of a ‘buyer’ under Section 194Q).

Now, when only Section 206C(1H) existed, there was the possibility of TCS provisions not being applicable even when consideration exceeded Rs. 50 lakhs due to the fact sales or gross receipts or turnover were not over Rs. 10 crore in the preceding financial year. Such transactions did not come under the purview of either tax collection or deduction and hence, the government sought to bring them under the same. This was why Section 194Q was introduced through the Finance Act, 2021. 

Mutual exclusivity of Section 194Q and Section 206C(1H)

Therefore, now both Sections co-exist to ensure that transactions are not exempt from tax collection or deduction due to the conditions not being met. But, it is important to note that the two sections are mutually exclusive, in the sense that if one starts to apply, the other will not apply. So if TDS can be deducted under Section 194Q, TCS can not be collected under Section 206C(1H) and vice versa.

Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

 

Startup India: Objectives and Benefits of the Scheme

Priyasha Sen Gupta, Flywork.io Team, Flywork.io.

Startup India is a much-needed initiative launched by Prime Minister Narendra Modi in 2015. It’s a well known fact that India is a country full of talented people, but young people don't have many opportunities to achieve their dreams and ambitions. Thus, this campaign could be a great kick-start for the youth to accomplish their goals. Prime Minister Modi declared it on Independence Day and it was launched on 16th January.

It is noteworthy here that there are eligibility criteria for a company to come under this scheme such as those concerning establishment and turnover. If the criteria are satisfied and once registration is done, a startup will be able to reap the benefits of the scheme. The aforesaid registration process is simple and can be done online by submitting the required documents.

Objectives of Startup India

It is a famed fact that youth is a very energetic and capable lot. However, this energy and enthusiasm of theirs do not usually get channelised in the proper direction. This campaign will aim to try and do precisely that. This will make sure that the youth get the required facilities from the government.

Furthermore, it is a commendable initiative that enables the youth to touch newer heights. This will provide them with the resources which will allow them to fulfill their dreams of turning into a businessman or entrepreneur. These need a start-up network that this campaign will provide. Basically, it implies that banks will provide finances to those youth for making higher employment opportunities within the country.

In other words, young people should be made to work so that the problem of unemployment can be eliminated in India. This initiative will help many startups succeed and they will finally be able to properly align their innovation and creativity making this a sign of great relief for the youth. 

The banks have been urged to support at least one Dalit and one entrepreneur, in order to maintain inclusivity as well. This is a huge improvement and will provide a career advantage for newcomers in the industry. In addition, it will also boost the national economy.

Benefits of Startup India Scheme 

Ease of Work 
The government has started the Startup India hubs wherever the incorporation, registration, grievance, handling etc., are simply handled. On the web portal, the government has set up a hassle-free registration system, so one will be able to register from any place and at any time. As per the financial condition and Bankruptcy Bill of 2015, it facilitates the quick winding-up method for startups and a new startup can take place within ninety days of the corporation.

Finance Support 
To motivate startups, the government provides financial support that includes a collection of Rs. 10,000 crores for 4 years (Rs. 2,500 per year). The state uses these funds to invest in new startups. The income tax exemption applies for the first 3 years after founding a startup. If a start-up company receives units that exceed the market value of the units, this excess is taxable for the recipient as income from other sources, under the Income Tax Act.

Government Support 
Everyone wants a government tender when it comes to high payouts and large projects. Getting government support is not easy, but under the Startup India Scheme, startups are a priority to get government support easily. The good news is that it does not require any prior knowledge.

Networking Opportunities 
Networking opportunities allow people to meet the various startup stakeholders in a specific place and at a specific time. The government does this by running two start-up tests annually, both nationally and internationally. In addition, the Startup India program also offers intellectual property awareness and awareness workshops.

Conclusion

Startup India is a great opportunity for companies that want to be successful in the market. This arrangement brings them many advantages and also saves their taxes. It is a well-known fact that startups play a crucial role in the economic prosperity of a country. Therefore, by encouraging such companies, the government has undoubtedly taken a positive step towards India's economic development.

Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

 

Legal Issues faced by a Startup in India

Priyasha Sen Gupta, Flywork.io Team, Flywork.io.

Law has a huge impact on stable companies and startups. Even with a basic understanding of law, there are unforeseen pitfalls and problems that new and young businesses cannot foresee. These problems can become more compelling and pose serious threats in startups, which could lead to the failure of a good company. Some of the common issues faced by startups and the reasons for the same are as follows

Absence of Founder’s Agreement

A founder’s agreement is an agreement that describes the position of the founders and the conditions they must comply with, and defines the role, responsibilities and duties of each founder of the company. A founding agreement is a basis for how the co-founding relationships will work in the future, how a company is structured and what each owner brings to the company that is not included in the company's operating agreements. The absence of this agreement leads to mismanagement within the founders.

Absence of Employment Documentation

In many startups, the employment documentation is considered a very trivial formality and is ignored by the company, this leads to various unforeseen and unanticipated problems. The employment documentation is established as a relationship between the employer and the employee. The documentation is made available to the employer and employees of their rights and obligations in the company and binds both parties to the company's laws. Employment documentation includes:
 • Employee Stock Option Plan Documents 
 • At-Will Job Offer Letter 
 • Employment Contract 
 • Confidentiality Agreements

By-Laws

In order for startups to run smoothly and easily, founders need to plan strong by-laws from the beginning. The By-Laws must stipulate the company's internal rules, such as dispute resolution, shareholder rights and powers, and management choices.

Lack of legal protection for intellectual property

Inaccurate and inadequate protection of intellectual property rights can have serious financial implications. Ideas, products or company logos and brands must be protected to prevent them from being misused by competitors. Trademark rights must be related to logos or trademarks; similarly, copyright should be used to obtain rights to the original work.

Improper licensing

Any commercial transaction of any particular product or service needs to obtain the licenses and compulsory licenses of various departments in order to make the enterprise operate normally. Many startups fail to comply with these rules due to a lack of legal awareness, resulting in financial and major losses including hefty penalties. 

Insufficient due diligence before fundraising

A start-up goes through several fundraising steps, self-financing, start-up capital, etc. so a proper due diligence exercise should be conducted at the time of those procedures for the presence of ample funds within the business.
 
Lack of confidentiality agreement

Whenever a startup company discusses an important topic or reaches an agreement with other companies or people outside the business or non-employees, the interlocutor must sign a confidentiality agreement. This agreement is used to maintain the confidentiality of the information of both parties. A lack of the said agreement could lead to a plethora of problems.
 
Conclusion

It is a famed and indisputable fact that startups work on tight budgets and have even tighter financial limits to spare on the various compliances needed by the law. However, it's crucial for such business models to know the importance of guaranteeing correct legal compliances before venturing into growth. A one-time investment within the space of legal compliance and due diligence shall save them from being closed up in the future once the company grows. Further, drafting a legitimate and watertight employment contract shall save the corporate from various litigations concerning employment and labour problems. It is henceforward necessary that the startups analyse and stay alert to all the mandatory due diligence processes and compliance needs at the time of incorporation as a preventive measure against any future legal problems.

The Indian government has been very attentive and accommodating to the startup culture, especially in the area of ​​tax formalities, and has therefore implemented many reforms to provide less strict and complicated guidelines for easy onboarding and rapid growth for such companies. Hence, it is a smart business move for startups to benefit from such friendly policies in our country and protect themselves from future losses, closings, litigation or other unexpected issues that may arise due to non-compliance.

Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

 

What is an affidavit of heirship?

By Nevin Clinton Flywork.io Team, Flywork.io.

    An affidavit of heirship is a written statement which verifies that an individual is a legal heir when he dies without leaving behind a will. The affidavit helps in transferring the property of the deceased to the individual named in the document. It is also used to identify the legal heirs of the deceased to a court. Before delving into the need for the affidavit of heirship and its essentials, it is essential to understand who a legal heir is and what is heirship.

    Heirship is an individual’s right to receive a share of the property of a person who died intestate i.e. without a will. The person who has the right is called a legal heir and it is usually children, descendants, and relatives of the deceased who are the heirs. An affidavit on the other hand is a written statement that can be used as evidence by the court. So an affidavit of heirship is essentially a written statement that confirms an individual as an heir. 

Need for an affidavit of heirship
    It is worth noting that even without a will as well as an affidavit of heirship, a probate court will review the deceased’s debts and determine how his property will be distributed among the legal heirs. But this process is extremely lengthy and risks incurring huge expenses as well. Therefore, if all the legal heirs agree to an affidavit of heirship, the process will be made simpler and the probate court needn’t take the burden of making decisions on distributing the property. 

    Further, even if a will was made by the deceased, an affidavit of heirship can be drafted. This is once again to save time but the affidavit must be similar to the actual will and the wishes of the deceased. If a case arises where the affidavit’s statements contradict those in the will, it is the former which will be considered invalid.

Essentials of an affidavit of heirship

  • Details of the affiant: First and foremost, the affidavit of heirship must have all details on the person filing it. Name, address, contact details, and the like must be provided in the very beginning.
  • Declaring relation with deceased: The relationship of the affiant to the deceased person and details on the death of the said person must be mentioned. The cause of death if known must be provided as well. 
  • Details on the deceased: The name, address, contact details, and other details on the heirs of the deceased person must also be given in the affidavit.
  • Detail on the property: Complete details on the property and debts of the deceased person, if known, must be mentioned in the affidavit. 
  • Signatures: The affidavit of heirship must be signed by the affiant, the notary who is officiating proceedings, and preferably by a third party attesting to the fact that the information mentioned in the document is true. After the affidavit is drafted and signed, it has to be filed at the concerned court. 

    Apart from the aforementioned, it is necessary that the basic requirements while drafting an affidavit must also be kept up with. The Kerala High Court in K. Chandrasekharan vs C. Sasidharan Pillai And Ors. laid down certain essentials. Firstly, while providing a piece of evidence, there must be documents and sources to back it up. It is necessary that proof in the form of particulars must be given. If there is no proof and if it’s up to the court to decide on a matter, the affiant must not merely state that he is of the belief that something is true. He must mention the grounds as to why he believes so. So, the aforementioned points must be kept in mind as well while drafting an affidavit of heirship. 

Affidavit of heirship is an important document and it is advisable that legal personnel draft it

    It is always preferable to have an attorney or a legal professional familiar with the process to draft the document. This would ensure that key details and essentials are not missed out. If such a mishap happens, the affidavit will be considered invalid and a new document will have to be drafted.

Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

Legal Ethics and Technology: What has changed?

Nevin Clinton, Flywork.io Team, Flywork.io.

What is legal ethics?

Legal ethics refers to a set of norms on how an advocate must conduct himself/herself and behave in a professional workspace. Such professional ethics are of paramount importance for any occupation and it is no different in the legal field as well. Now, there are various written and unwritten rules on legal ethics that each advocate is expected to follow not only in India, but around the world as well.

Need for Legal Ethics

Having and following a code of legal ethics is crucial because there is a sense of nobility and honour associated with the legal profession that is necessary to be preserved. Professional behaviour and friendly cooperation thanks to legal ethics helps in doing the same by establishing smoothness of operation in the court. Unwarranted behaviour by legal personnel on the other hand, would tarnish the image of the legal professional and lead to lesser confidence among the general public. Such a situation would turn out to be extremely problematic because of how high a regard the integrity of the legal profession is held in. Thus, it becomes essential to clearly establish a code of legal ethics and the lawmakers in India have done the same.

Legal ethics in India

Legal ethics in India is provided by rules passed by the Bar Council of India as well as the provisions of the Advocate Act, 1961. According to these, there are various duties imposed on advocates towards the court, clients and colleagues. 

Some of the duties towards a court imposed by legal ethics on an advocate include behaving in a dignified manner, respecting the dignity of the court, not using foul language in the court, appearing in proper dress code, not appearing in matters of pecuniary interest etc. Similarly, towards the clients, advocates have certain duties like not withdrawing from service, upholding clients’ interests, keeping discussions confidential, not appearing for opposite parties and so on. Not following these ethics could result in a complaint being filed at the State Bar Council which can result in a warning, suspension or removal of the advocate from the state roll.

Legal Ethics and Technology: The position in India and around the world

With the advent of modern technology and its impact in virtually all fields of work, it becomes necessary to examine the legal profession as well from a technological viewpoint. With technology ruling the roost and playing a key role in all operations around the world, advocates must also stay competent and abreast of advancements. Thus, integrating technological aspects into legal ethics becomes necessary at the moment.

In India, rules governing legal ethics have not been amended to include any technological aspect. But that is not the case with most countries around the world. For example, the USA has brought in amendments to its American Bar Association Model Rules of Professional Conduct. Rule 1.1 of the same states that a lawyer must competently represent his client by staying abreast of changes in law “including the benefits and risks associated with relevant technology”. 

What has changed?

Technology has become an inescapable part of the legal profession around the world today. Right from documentation to communication to even litigation, everything is done online. Further, there is ready availability of data online which leads to ease of research and better quality of service by advocates. Also, technology helps eliminate risk of errors while also ensuring better resource management. There is a heightened sense of transparency as well. For example, technology has ensured that legal solutions and opinions can be sought online. Similarly, availability of chatting options with various advocates helps in creating a marketplace where clients can choose their lawyers. 

Need to include provisions on technology in legal ethics

Due to the various aforementioned uses of technology in the legal profession, it becomes essential to use these in an ethical manner. It is quite easy to manipulate information online and hence, lawyers must be bound by certain norms. Further, like the American Bar Association Rules say, competence is key for a lawyer in the field of technology. One must stay aware of the need to use technology in an effective way. Ensuring data security, preservation of documents and so on which were of significance even before the advent of technology are all the more important at present. A lack of knowledge on these technological developments could have detrimental effects on a lawyer’s performance. That is exactly why the Bar Council of India must also strive to make provisions on technology in the legal ethics of the country.

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Notarization Of Documents

By Simran Kaur, Flywork.io TeamFlywork.io.

The popular term "notarization" is sometimes used to refer to "notarial activities." A notary public performs a three-part process that includes vetting, certifying, and keeping records. It is essentially the official process of preventing fraud and assuring the parties involved in the transaction that the notarized document is authentic. Notarization is usually necessary for documents used in banking transactions or court documents.

A notary public is a person who acts as an unbiased witness in the discharge of fraud deterrent activities relating to legal papers in India. The Notaries Act of 1952 governs a notary public's responsibilities. Certifying, attesting, or authenticating any instrument and performing and certifying legal document translations from one language to another are some of them. He can administer oaths to deponents and witnesses swearing for affidavits. A notary can also serve as a mediator. 

WHO HAS THE AUTHORITY TO NOTARIZE? 

In India, a practicing lawyer with at least ten years of experience (seven years for SC, ST, and women candidates) can become a notary public. A person who has served in the judicial services or has held a post in the state or central government that requires a specific understanding of the law is also eligible to become a notary public.

THE SIGNIFICANCE OF NOTARIZATION 

A notarized document serves as proof that you are the one who signed it. As a result, the main objective of notarizing a document is to prevent document fraud and/or identity theft by preventing the presentation of a counterfeit document. A notarized letter certified by a notary public also aids in the protection of citizens' rights who could otherwise be exploited, as well as the avoidance of many court actions if the document of a transaction is certified by a notary.

DIFFERENT TYPES OF NOTARIAL ACTS

  • Acknowledgments – Acknowledgements are typically necessary for valuable asset documents. Deeds and mortgages are two examples. 
  • Jurats – A jurat must be signed by the signer by appearing personally before the court. By signing a jurat, the signer certifies that the documents' contents are correct. 

Use of a verbal oath or affirmation can also be used to compel a client to tell the truth. Oral affirmations and oaths are used.

Copy certification may be required for diplomas, driver's licenses, medical records, and bills of sale. A copy certification verifies the accuracy of a copy of an original document.

THE ADVANTAGES OF HAVING A DOCUMENT NOTARIZED 

Notarization is not required for all legal documents, although it is required in specific circumstances. Because if you do not notarize the documents that need to be notarized, their legal validity may be called into question, potentially leading to their rejection in court.
According to Rule 12 of the Notary Rules of 1956, a notary seal should be 5 cm in length and used for document verification. The seal verifies the fact that the people signing the documents are who they say they are. 
It also aids in the prevention of forgery and fraud in legal documents.
The presence of a notary seal on any document assures the court that the signatures on the document are authentic and not forged.

DOCUMENTS THAT MUST BE NOTARIZED IN GENERAL INCLUDE

1. A completed Notarization/Attestation Application Form; 

2. Legal documents (original and copies), 

3. A signed covering letter stating the purpose of the attestation and a list of the commercial attestation documents from the applicant's company;

4. If the attestation is for civil purposes, a signed covering letter with the attestation purpose and a list of the attestation documents from the applicant himself/herself is required. 

5. For civil attestation purposes, the original and photocopy of the applicant's passport, as well as the agent's passport are required.

A notary public is appointed by the state or federal government to perform notarization. He has the power to administer oaths and receive affidavits from anyone.  

Thus, documents are notarized to ensure their authenticity, avoid fraud and ensure that they are properly executed. The Notary is regarded as an unbiased witness who verifies signers and confirms that they have entered into agreements willingly and knowingly. In a nutshell, its goal is to determine whether everything on the document is authentic and genuine.
 

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