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Question -3). Discuss the need for the development of cyber laws.
Answer -3). In the 49th year of Indian independence, Internet was
commercially introduced in India. The beginnings of Internet were small and
the growth of subscribers painfully slow.
However, as Internet has grown, the need has been felt to enact the relevant
Cyber laws, which are necessary to regulate Internet in India. This need for
Cyber laws was propelled by numerous factors.
Firstly, India has an extremely detailed and well-defined legal system in place.
Numerous laws have been enacted and implemented and the paramount
among them is The Constitution of India. We have various laws like Indian
Penal Code, 1860, The Indian Evidence At, 1872, The Banker’s Book
Evidence Act, 1891, The Reserve Bank of India Act, 1934, The Companies
Act, 1956, and so on. However, the arrival of Internet signaled the beginning of
the rise of new and complex legal issues. It may be pertinent to mention that
all the existing laws in place in India were enacted keeping in mind the
relevant political, social, economic, and cultural scenario of that time. Nobody
then could really visualize the emergence of the Internet. Despite the brilliant
acumen of our master draftsmen, the requirements of cyberspace could hardly
be anticipated. The advancement of Internet led to the emergence of
numerous ticklish legal issues and problems, which necessitated the
enactment of Cyber Laws.
Secondly, the existing laws of India could not be interpreted in the light of the
emerging cyberspace, to include all aspects relating to different activities in
cyberspace.
Thirdly, none of the existing laws gave any legal validity or sanction to the
activities in Cyberspace. For example, the Net is used by a large majority of
users for email purposes. Yet, e-mail was not “legal” in our country. There was
no law in the country, which accorded legal sanctity to e-mail and the
electronic format. The judiciary in our country had been reluctant to grant
judicial recognition to the legality of e-mail in the absence of any specific law
having been enacted by Parliament on the subject. Thus the need arose for
enacting Cyber Law in our country.
Fourthly, Internet requires an enabling and supportive legal infrastructure in
time with the times. This legal infrastructure can only be given by the
enactment of the relevant Cyber Laws as the traditional laws have failed to
provide it. E-commerce, the biggest future of Internet, can only be possible if
necessary legal infrastructure complements the same to enable its vibrant
growth. As such, an urgent need was felt for enacting Cyber Law in our
country.
Answer -5). Consumer’ means any person who: (i) “Buys any goods for a
consideration which has been paid or promised, or partly paid and partly
promised, or under a system of deferred payment,” or (ii) Hires any services
for a consideration which has been paid or promised, or partly paid and partly
promised, or under a system of deferred payment i.e., in respect of hire-
purchase, transactions, [Sec. 2(d)].
Thus, consumer is a person who (i) buys any goods for a consideration, or (ii)
hires or avails any services for a consideration. In addition to buyer(s) of goods
or hirer(s) or user(s) of services, any beneficiary of such services, using the
goods/services with the approval of purchaser or hirer or user would also be a
deemed a ‘Consumer’ under the Act. The widow of the deceased Policy holder
was held as consumer under the Act by the State Commission of A.P. in the
case of A vs. LIC of India. The consideration may be either paid or promised,
or partly paid and partly promised or under any system of deferred payment.
The Act thus covers transactions for the supply of goods and rendering of
services.
Buyer of goods for consideration: The Act, unlike the Sale of Goods Act,
does not insist on money consideration only. Transactions of transfer of
services, or barter, or exchange will come within the purview of the Act. The
user of such goods, with the approval of the buyer of goods, is also a
consumer as per the Act. But according to Section 2(d) of the Act, the term
consumer does not include a person who obtains such goods for resale or for
any commercial purpose. Thus a purchaser of goods for reselling them or a
purchaser of a taxi for plying the same on hire, a purchaser of a V.C.R. for
running a video library, or purchaser of machinery for his commercial
establishment is not a consumer. However, according to Consumer Protection
(Amended) Act 1993, a person who purchases tools or machinery under self-
employment scheme is also a consumer.
Hirer of services for consideration: Any person who hires services for a
consideration is a consumer. Consumer, not only means merely one who hires
services for consideration, but also includes a person who is a beneficiary of
such services. For example, the user of a telephone, even though he is not
himself the subscriber is a consumer under the Act. Services include all kinds
of professional services, be it the routine services of a barber or the technical
services of a highly qualified person. For example, supply of electricity has
been held to be a service and not sale of goods. The services must be of
commercial nature in the sense that they must be on payment. The payments
may be in cash or kind. It may be made either at once, or partly at once, or
partly on credit. The services may be rendered wholly or partly on credit.
However, free services or personal service under a contract have been
excluded from the protective spell of the Consumer Protection Act.
Union of India Vs. Mrs. S. Prakash: It was held that the subscriber of
telephone is a consumer as the rental charges paid to the Central Government
is the consideration for the services rendered by the Tele-Communication
Department, District Manager, Telephones, Patna Vs. Lalith Kumar Bajla
(1989).
Mumbai Grahak Panchayat, Vs. Andhra Pradesh Scooters Ltd. The
complainant made an advance deposit of Rs.500 with the A.P. Scooters Ltd.,
booking a scooter. The complaint was not given the refund of the deposit when
he demanded the same as per his contract with the opposite party. It was held
that the complainant was a consumer, and was entitled to relief asked by him.
Ganapathi Vs. Postmaster, Karnataka State: In this case, the remitter of
T.M.O.,was held to be a consumer and was awarded a compensation.
Cosmopolitan Hospitals Vs. Smt. V.P. Nair’s: The National Commission held,
that a patient is a consumer and the medical assistance was a service. The
Medical Officer’s service was not a personal service so as to constitute an
exception to the application of the Consumer Protection Act.
Question -6). Undertake a survey of 20 shops and write a report on the
provisions being maintained in these shops as per the Shops and
Establishments Act.
Answer -6). No shop shall on any day be opened earlier or closed later than
such hours as fixed by the State Government. Any customer who was being
served or was waiting to be served in any shop at the hour fixed for its closing
may be served during the quarter of an hour immediately following such an
hour. No person shall carry on, in or adjacent to a street or public place, the
sale of any goods after the hour fixed for closing of shops dealing in the same
class of goods except newspapers in that locality, i.e., selling outside the shop
is prohibited after closing hour.
Daily and Weekly Hours of Work in Shops: No person employed in any
shop shall be required or allowed to work therein for more than eight hours in
any day and 48 hours in any week. If any such persons work for any period in
excess of the time limit fixed, he is entitled to overtime wages. However, the
period of work including overtime work, shall not exceed 10 hours in any day
and in the aggregate 50 hours in any week. Further, he should be given an
interval for rest of at least one hour after four hours of work in any day. The
spread-over of work periods of such a person is not to exceed more than 12
hours in any including the intervals for rest.
Closing of Shops and Grant of (Weekly and Additional) Holidays: Every
shop is to remain entirely closed on one day of the week. The shop-keeper
has to specify that day in a notice exhibited in a conspicuous place in the shop
and the day so specified is not to be altered by the shop-keeper more than
once in three months. Every person employed in a shop is to be allowed in
each week a holiday of one whole day. This provision is not applicable to any
person whose period of employment, in the week including any days spent on
authorised leave, is less than six days or a person who has been allowed a
whole holiday on the day on which the shop has remained closed.
Besides one whole day, the State Government may by Notification require
shops to be closed at such hour in the afternoon of one weekday in every
week. Every person employed in any such notified shop(s) is to be allowed in
each week an additional holiday of one-half day. The State Government may,
for this purpose fix different hours for different shops or different classes of
shops or for different areas or for different times of the year. There should be
no deduction of wages of any person employed in a shop on account of
weekly holiday (one whole day) and additional holiday (one-half day).