Techno Legal Journalists

Electronic Commerce Laws In India

2012-03-02T23:34:00.002-08:00

Electronic commerce is the buzz word these days. Many national and international players are exploring e-commerce field. While e-commerce is well known and widely used in western countries, it is still at the infancy stage in India. Further, we have no dedicated electronic commerce laws in India.

E-commerce regulations and laws in India can be found under the information technology act (IT Act 2000) that is the cyber law of India. It prescribes basic level legal requirements for undertaking e-commerce in India. However, besides the IT Act, 2000 we have no dedicated e-commerce laws in India.

So what does techno legal experts of India think about e-commerce environment and regulatory aspects of the same? According to Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of Asia, E-Commerce in India requires compliance with various Statutory Laws of India. The chief among them are the Cyber Law of India, Indian Contract Act, Privacy and Data Protection Regulations, Cyber Security Regulations, Foreign Investments Regulations, etc.

Although E-Commerce in India has great potentials yet Legal Aspects of E-Commerce in India must be taken care of before launching an E-Commerce Project or Website, suggests Praveen Dalal.

With growing establishment of e-commerce websites and platforms in India, disputes are also bound to arise. E-commerce lawyers and law firms in India have been suggesting active use of information technology for e-commerce dispute resolution in India. For instance, online dispute resolution (ODR) in India can be used for resolving transborder e-commerce disputes. Similarly, e-courts and ODR in India can also be used for resolving various e-commerce related disputes in India.

Perry4Law and Perry4Law Techno Legal Base (PTLB) have been providing the exclusive techno legal ODR services in India for resolving e-commerce and various technology related dispute resolutions in India.

Keeping in mind the future and growth of e-commerce in India, it would be a good idea to formulate a dedicated e-commerce law for India. It may cover all the abovementioned aspects to make it holistic and comprehensive.

News, Blogs And Websites Censorship By Google

2012-03-02T20:40:00.001-08:00

Most of you may aware that Google often removes offensive contents on valid legal requests. However, Google also refuses to remove an alleged offending content if it feels that the content accused to be offensive or violative is not violating Google’s terms and conditions and its policies.

However, what about those contents, blog posts, news articles and websites searches those are clandestinely manipulated, removed or demoted by Google? There is no account of such contents that are removed by Google in its sole discretion and without any justification.

I just came across a very good blog titled Websites, Blogs and News Censorship by Google and India that is providing first hand information and unique information about censorship and results manipulation aspects of Google. Although Google gives an idea about the number of governmental requests for blocking of websites and removal of objectionable contents yet Google does not make it public. This Blog would fill that gap, at least regarding some controversial topics of India.

Some of the areas that are covered by the blog are Aadhar project, central monitoring system (CMS), e-surveillance, human rights in cyberspace, international organisations, internet censorship, national cyber coordination centre (NCCC), national intelligence grid (Natgrid), national counter terrorism centre (NCTC), news, phone tapping, websites blocking, others, etc.

Blogs, news and websites manipulations by Google in these areas have been covered by these categories that are frequently updated. This blog is one place stop for all censorship and contents manipulation and removal exercises of Google. Some of the posts covered by the blog so far are:

(1) Methods that Google uses to Filter, Manipulate and Censor Contents

(2) Posts, News and Articles that Appeared and Disappeared at Google

(3) Google Defeated by Splogs, Content Farms and National Censorships

(4) News Results Censorship by Google in India

(5) Websites, Blogs and News Censorship and Results Manipulation by Google

Unfortunately, the blog itself seems to have been censored and filtered by Google so you have to bookmark the same for regular updates. Additionally you may like to subscribe the feeds of the blog. If you have your own experiences to share, contact the blog with your experiences.

Google Censored NCTC News And Blog Posts In India

2012-02-21T09:23:00.001-08:00

Another instance of censorship by Google in India has been reported. It has been reported that Google is now censoring national counter terrorism centre (NCTC) and intelligence agencies related news, search and blog results in India.

Indian government is under tremendous pressure from various parties and states after its proposal regarding establishment of NCTC in India. This is the reason why it has forced Google to censor NCTC and intelligence agencies related results in India. The news article first appeared in Google news but was censored by Google within an hour of its publication.

This act of Google is a gross violation of civil liberties in general and right to speech and expression in particular. Anticipating further censorship on the part of Google, the article in controversy has been reposted at another platform.

Some of the results that first appeared in Google search results and Google news and then disappeared are:

(a) National Counter Terrorism Centre (NCTC) of India

(2) National Counter Terrorism Centre (NCTC) of India Is Required

(3) Parliamentary Oversight of Intelligence Agencies of India Is Needed.

Indian government has finally succeeded in arm twisting Google and forcing it to remove articles and news that do not violate any provisions. In fact, these news and articles are discussing national security and nation interests of India that Indian government is not willing to undertake.

While it is obvious that Indian government wishes to silent all critical and contrary posts yet why Google is becoming a puppet of Indian government is not clear. The only explanation seems to be that Google is just keeping in mind its commercial interests and is least bothered about civil liberties of netizens. If this is the attitude of Google, its downfall has already begun.

Online Legal Courses In India By PTLB

2012-02-16T22:07:00.000-08:00

Online education in India is slowly and steadily being used by many individuals and organisations. Legal education has also been streamlined due to use of information technology. For instance, legal e-learning in India is become one of the favourite methods of knowledge gaining in India. Similarly, e-learning for lawyers in India is increasingly being explored.

With the merger of technology and law, new fields and careers are emerging in India and world wide. Techno legal skills development in India is also seen as a requirement by Indian corporate sector. However, our present educational system is not stressing upon skills and practical trainings but is academic in nature.

In this background, techno legal training and educational institutions like Perry4Law Techno Legal Base (PTLB) are playing a very crucial role in the techno legal education development in India. PTLB is the exclusive techno legal education and training institution of India that is providing online cyber law education in India, online cyber forensics courses in India, online cyber security courses in India, online ethical hacking courses in India, etc.

These courses and trainings are managed by the techno legal e-learning platform of PTLB. The entire process beginning from enrollment to successful completion of trainings is done in an online environment from the comfort of your homes.

Just fill the “application form” and send the same to the Address mentioned at the form along with “prescribe fees”. To get more idea about the courses and trainings of PTLB and the scope, nature, duration, fees, etc, of such courses, see FAQs before applying.

Techno Legal Issues, Privacy, Cyber Law And E-Discovery Updates 09-02-2012

2012-02-08T22:44:00.000-08:00

Techno legal issues have started showing their effect in India. Areas like cyber law, privacy protection, data security, data protection, e-discovery, etc have dominated the Indian cyberspace for the last few weeks.

Court litigations have further shown that foreign companies and websites cannot ignore Indian laws in general and techno legal issues in particular. With the present trends, cyber litigations in India are going to increase in the year 2012.

The following news items are analysing all these issues from a techno legal perspective:

(1) Data protection laws in India,

(2) Privacy rights and laws in India,

(3) Human rights protection in cyberspace,

(4) Privacy rights, privacy laws and data protection laws in India

(5) Google’s strategy to tackle Indian legal disputes

(5) Google and Facebook to remove offending contents

(7) Google must address trademarks violations complaints

(8) Remedies for small copyright claims in United States

(9) DMCA compliant to Google Incorporation and legal notice to Google India

(10) Google’s Adwords and Adsense trademark policy

(11) Google’s new privacy policy and terms of service (ToR)

(12) India must invent alternative to DMCA complaints to Google and others

(13) Google and Facebook must comply with Indian laws

(14) National telecom security policy of India

(15) National Telecom Network Security Coordination Board (NTNSCB) of India

(16) Are Google, Facebook, etc heading for a trouble?

(17) Modernisation of Postal Department Of India

(18) Internet Intermediary Liability In India

(19) Legal arsenal for Delhi High Court to decide Google and Facebook case

(20) Will Delhi High Court deliver cyber justice to India?

(21) Video conferencing is a trouble technology in India

(22) Is Google deliberately avoiding compliance with Indian laws?

(23) Blogger is making country specific redirections

(24) Cyber litigations against foreign websites in India

(25) Websites blocking in India

(26) Information Technology (Intermediaries Guidelines) Rules, 2011

(27) Google, Facebook, etc must appoint nodal officers in India

(28) E-discovery for social media in India

(29) Data rooms and legal compliances in India

(30) Virtual data rooms and legal compliances in India

(31) Online legal due diligence in India

(32) Virtual legal due diligence in India

(33) Civil liberties protection in cyberspace

(34) E-courts in India

(35) E-courts training and consultancy centre of India

(36) Online dispute resolution in India

(37) Cyber forensics centre in India

(38) Cyber forensics research and training centre in India

(39) Techno Legal E-Learning in India

We hope you would find these updates useful.

Will Delhi High Court Deliver Cyber Justice To India?

2012-02-01T06:30:00.000-08:00

Legal actions against offending foreign websites would certainly be taken in India whether such foreign websites like it or not. Presently, a criminal trial is pending before a trial court in New Delhi, India against companies like Google, Facebook, etc. Even the Delhi High Court would hear the case of Google, Facebook, Microsoft, etc on 02-02-2012 in this regard.

Cyber litigations against foreign websites would increase a lot in India. However, India has not enacted an appropriate regulatory and procedural mechanism to deal with websites that are deliberately and openly violating laws of India.

Fortunately, Delhi High Court has some very good suggestions available to it before the next hearing. Perry4Law Techno Legal Base (PTLB) has suggested some very good and effective measures that can help India in getting its laws enforced against companies like Google. Facebook, etc. Google, Facebook and other companies must comply with Indian laws in order to operate in India.

In order to ensure that these companies comply with Indian laws, PTLB has also suggested certain safeguards in this regard. The chief among them is that Indian must formulate an alternative mechanism to DMCA complaint to Google and others to get its laws and regulations enforced at national and international level.

PTLB has also suggested:

(1) All subsidiary/Joint ventures companies operating in India that deal in information technology and online environment, must mandatorily establish a server in India. Otherwise, such companies and their websites should not be allowed to operate in India.

(2) A stringent liability for Indian subsidiaries dealing in information technology and online environment must be established by laws of India.

(3) More stringent online advertisement and e-commerce provisions must be formulated for Indian subsidiary companies and their websites.

Unfortunately, Indian computer emergency response team (CERT-In) and department of information technology (DIT) are not fulfilling their responsibilities under the information technology act 2000 (IT Act 2000) and its corresponding rules. For instance, blocking of websites in India has been imposed upon judiciary even though it is the primary responsibility of Cert-In and DIT.

The Delhi High Court has a great opportunity to formulate sufficient guidelines in this regard so that companies like Google, Facebook, etc comply with Indian laws. Presently, these companies are bypassing Indian laws by using the façade of subsidiary nature and by not complying with both US and Indian laws.

Legal Arsenal For Delhi High Court To Decide Google And Facebook Case

2012-01-28T06:01:00.000-08:00

A recent DMCA complaint to Google incorporation and notice to Google India has resulted in the emergence of very interesting situation. The situation asks a simple question i.e. what should India do when websites like Google, Facebook, etc deliberately avoid implementation of and compliance with Indian laws and legal requirements.

This is a difficult question that requires practical solutions. Fortunately Perry4Law Techno Legal Base (PTLB) has even suggested alternatives to DMCA complaint to foreign websites and companies like Google and Facebook.

PTLB has suggested the following:

(1) All subsidiary/Joint ventures companies in India, especially those dealing in information technology and online environment, must mandatorily establish a server in India. Otherwise, such companies and their websites should not be allowed to operate in India.

(2) A stringent liability for Indian subsidiaries dealing in information technology and online environment must be established by laws of India.

(3) More stringent online advertisement and e-commerce provisions must be formulated for Indian subsidiary companies and their websites.

These are very good suggestions that would take away the façade of subsidiary status and make the companies that are getting commercial gains from India to be personally liable for objectionable contents and various civil and criminal violations and contraventions.

The Delhi High Court would hear Google, Facebook, etc on 02-02-2012 and there is nothing that prevents it from taking note of these suggestions.

Meanwhile, the trial court adjourned the matter till March 13, 2012. The trial court has also directed the external affairs ministry to serve the summons issued to foreign-based websites. With this the excuse of being an Indian subsidiary is also gone and now parent companies would have to face the heat.

Use Of Video Conferencing In India

2012-01-25T03:21:00.000-08:00

Video conferencing in India has been in use for commercial and governmental purposes. Indian courts have been using video conferencing for recording evidence of witnesses. Similarly, corporate houses are using video conferencing for business purposes.

However, video conferencing in India is a troubled technology. The recent episode of Rajasthan government and Rajasthan police not allowing the video conferencing of Salman Rushdie shows Indian struggle with information technology.

We have no dedicated video conferencing laws and regulations in India. Obviously, we have no dedicated video conferencing blocking laws in India as well. In the absence of a clear cut law, Indian government is following procedures that do not justify its stand.

Use of video conferencing for expressing one’s views and opinions is a part of right to speech and expression. Such speech and expression cannot be curbed unless certain constitutional requirements are fulfilled.

India needs to make it sure that technological uses like video conferencing are not blocked by citing arbitrary and extraneous reasons. Otherwise, it would amount to violating the right to speech and expression.

E-Discovery In India Needs To Be Developed

2012-01-16T23:42:00.000-08:00

Electronic discovery in India was considered an important cyber aspect by the cyber law trend of India 2011 of Perry4Law and Perry4Law Techno Legal Base (PTLB). Even the projected cyber law trends in India 2012 by Perry4Law and PTLB have placed e-discovery services in India at a prominent position.

Despite the importance of e-discovery in India the same has not yet been adopted suitably. There are very selective e-discovery LPO and KPO in India that are providing e-discovery LPO and KPO services in India. The information technology act 2000 (IT Act 2000) is the cyber law of India that incorporates provisions regarding electronic evidence. All electronic evidences must comply with the requirements of IT Act 2000 in order to be legal and valid.

According to Praveen Dalal, managing partner of ICT and IP law firm Perry4Law and leading cyber law and cyber forensics expert of Asia, “Despite popular belief, Cyber Forensics is different from E-Discovery, Digital Recovery or other synonymous terms. Cyber Forensics primarily caters the “Legal Requirements” whereas E-Discovery meets the requirements of private individuals and organisations as well.

He gives an example to explain the difference. “Take an example of a security breach like hacking in an organisation. The management of the organisation decides to trace the origin of this breach. After proper analysis they come to know about the source of that breach. Till this stage it is only an E-Discovery. The management can take whatever preventive or remedial measure as it may deem fit”, informs Praveen Dalal.

If the management decides to take a “Legal Action” against the offender, it has to prove the acquired digital evidence before the Court of Law. Mere E-Discovery may not be enough to prove the guilt of the accused as legal requirements regarding evidence and procedural laws must also be complied with. When the E-Discovery is “Law Compliant” it becomes “Cyber Forensics”, suggests Praveen Dalal.

This difference between e-discovery and cyber forensics has become a well accepted principle and well established standard of e-discovery and cyber forensics in India and world over. So firms and companies performing e-discovery must keep in mind this crucial difference.

In short, if e-discovery is not performed as per the cyber law of India and other Indian laws, the same may be held inadmissible in court of laws. In fact, every e-discovery investigation must be conducted with the objective that the same would be used in various civil and criminal proceedings. This essentially means that when stakes are high, e-discovery must always be supplemented with cyber forensics investigation. This also means that e-discovery practices in India need to be developed for the proper growth and sue of e-discovery in India.

Google And Facebook Are Beneficiaries Says Indian Government

2012-01-16T07:04:00.000-08:00

Google and Facebook are currently fighting a legal battle in the Delhi High Court against a trial court’s order to prosecute them along with other websites and social media platforms. Google and Facebook appeared today before the Delhi High Court to prove their innocence in the recently filed criminal case before a trial court. Meanwhile the trial court has asked the representatives of the parent companies to appear before it and face the trial.

The Delhi High Court on Monday adjourned the hearing of the petition filed by Google and Facebook challenging the trial court's order to prosecute them for objectionable content, till January 19.

Some arguments were raised by both the sides before the Delhi High Court. The Indian government said that websites such as Google and Facebook are liable for the content, posted on their platform by users, as they benefit from the content. This argument was taken to counter the arguments of Google that it does not control or benefit from the platforms, such as YouTube, Orkut or Blogger.

Government’s counsel Hariharan argued that every click on a Google owned website gets it revenue on the content. He said that Google India is wrong in stating that it is just an Ad-collection subsidiary of Google Inc. The Memorandum of Association (MOA) of Google India shows that it is in the business of production of software, internet products, computer aided design, analysis, selling internet search, engineering platforms and solutions. Thus it is not only in the business of advertising alone argues Hariharan.

Citing an analogy, Google India's counsel Neeraj Kishan Kaul argued before the Court that a landlord cannot be held liable for an illegal activity carried out by a tenant in his house. However, this argument did not find favour with Justice Suresh Cait who countered him by saying that if a landlord is benefiting from the illegal activity carried out by a tenant he can be held liable for the same.

The government's counsel also countered Google India's argument that it has no control over the platforms and is a separate legal entity. He pointed that the MOA of Google India’s company clearly states that the office of Google India's Managing director will be vacated upon direction of Google Inc. He also pointed out that the trademark of parent company can also not be changed without parent company’s permission. He also pointed that almost all shares of Google India are owned by the parent company.

The lawyer of Facebook took a different approach. He tried to attack the very evidence that has been relied upon by the complainant. He said that the evidence collected by the complainant is not testified as an electronic record, and thus can't be admitted. The next hearing would be on 19th January 2012.

Who Is Manipulating Blogspot Blogs: Google Or Malicious Competitors?

2011-12-25T08:53:00.000-08:00

Abuses of Google are jeoparadising its reputation and trust. Google platforms like Blogs are often manipulated wither by internal rouge employees or by external malicious users. In the past, bugs in Google’s webmaster tools allowed anyone to remove a site from Google even if he is not the owner or controller of the removed site. Further, the report abuse button on the Blogs is itself abused by competitors and malicious users. If you are lucky and somehow managed to save you Blog from being removed from Google, censorship of Blogs by Google is there to add to your woes.

Our Blog titled Cyber Laws In India is one such Blog that has been removed from Google. New posts are not appearing in the search results although a site operator shows the same. But none is interested in reading blog posts by doing site operator function as it is a diagnostic method and not a way to find new contents. Even results at Blog search have been affected.

Thanks to some rouge employee’s action at Google or an over protective automated bot of Google or some over zealous competitor, our Blog has been demoted and delisted from Google. However, there must be some mechanism where a real person may check the misdeeds of either Google’s employees or system or those malicious users who are generating false positives.

Our Blog seems to be a victim of rivalry by our competitors. If not, than it is an internal issue of Google and it must be investigated further. There is nothing wrong on the part of Google in these cases except that it must analyse things first before banning. If Google restores back the accounts that means there was nothing wrong with the contents. All that is wrong on the part of Google is that it has a policy that allows "ban first restore later" that must be changed.

Why Google Censored Cyber Laws In India Blog

2011-12-24T08:34:00.000-08:00

Recently Internet intermediaries in India were asked to pre screen contents. Basically it meant that India wanted companies like Google and Facebook to censor users’ contents. While pre screening of users contents was out rightly rejected by these Internet intermediaries yet censorship on the basic of governmental demands seems to have been accepted.

At least Google is manipulating search engine results page (SERPs) and blogs search results in India. It seems Google has succumbed to the pressures of either Indian government or some rouge employees of Google are doing it on behalf of Indian government or private players.

It is not the case that Google was not doing this previously. In the past Google has censored Aadhar and UIDAI related search results. For some strange reasons Google is engaging in two forms of web censorship. The first one is by putting relevant and critical posts in blackholes. The second method is by actively manipulating the Google news and search results.

Further, it has also temporarily filtered some of our posts questioning the practice of World Bank to grant unaccountable loans to countries like India. Further, international loans and grants related posts questioning the role of World Bank and Indian government are also poorly placed in search results.

Google has been in controversies from time to time. Whether it is illegal data gathering, censorship of Google news searches, manipulation of search results, etc, Google has been doing it all. Clearly, Google is loosing the search related quality due to these manipulations. Now Google is trying to manipulate with the news results as well as search engines results pages (SERPs) by expressly going against its motto of don’t be evil.

The latest to add to this growing censorship list of Google is our blog titled Cyber Laws In India. Its SERPs and blog search results have been degraded to such an extent that it has now almost become unavailable. The webmaster tool is not showing any defect or problem and the blog is perfect in every sense. Still it has been degraded without any reason. Perhaps censorship at the instance of either Indian government or a private party is the sole reason. Let the Google explain the same.

Now consider the search engines like Yahoo, Bing and DuckDuckGo. They have acquired a good reputation and goodwill among the users due to their consistency and lack of censorship activities. Time has come to test Google’s intentions and claims before relying upon them.

Internet Banking Cyber Security In India

2011-12-24T04:45:00.000-08:00

Internet banking is both a necessity and evil. As a necessity it brings conform and time efficiency. As a drawback, it attracts various forms of financial frauds and cyber crimes. With the removal of limits for financial transaction through mobile banking in India, more such cyber crimes and financial frauds are anticipated.

These are the few good posts in this regard that have been shared in the last week:

(1) Internet Banking Risks In India

(2) Cyber Security Of Internet Banking In India

(3) Indian Internet Banking Risks

(4) Indian Cyber Security Of Internet Banking

(5) Insecure Online Banking

(6) Data Security And Privacy In Indian Banking Industry

(7) Data Security, Cyber Security And Privacy In Indian Banking Industry

(8) Online Banking System Of India

(9) ICICI Online Banking System

Clearly, there is an urgent need on the part of Reserve Bank of India (RBI) to ensure that the guidelines prescribed by it are immediately implemented by the banks of India. Let us hope that banking customer’s interests would be safeguarded by RBI and Indian banks that is neglected for the time being.

Source: Cyber Laws In India Blog

Cyber Security Of Internet Banking In India

2011-12-24T02:20:00.000-08:00

Internet banking in India or e-banking in India is a process that involves use of information and communication technology (ICT) for doing various banking related transactions. While use of ICT for banking purposes in India has many advantages yet there are certain cyber law, cyber security and due diligence tasks as well that Indian banks must perform to escape civil and criminal liabilities.

Banks in India are required to not only ensure cyber due diligence in India but also cyber security due diligence in India. Reserve Bank of India (RBI) has very categorically told Indian banks to ensure effective cyber security in their day to day affairs and banking transactions. However, banks in India are not complying with RBI’s cyber security due diligence requirements.

Internet banking risks in India are increasing rapidly. Even the RBI acknowledged Internet banking risks in India. Although electronic banking in India has many advantages and convenient to handle yet online banking risks in India cannot be ignored by either the banks or its customers.

Unfortunately, Indian banks are poor at cyber security. This is resulting in an increase in banking related cyber crimes and financial frauds. For instance, Citigroup Inc recently confirmed that computer hackers breached the bank's network and accessed data on hundreds of thousands of bank card holders. Similarly, a security researcher has recently proved that Internet banking system of ICICI is not cyber secure.

Obviously, Internet banking in India is not cyber secure and RBI must urgently step in to remedy this situation. RBI’s ombudsman office is already flooded with complaints of ATM frauds. Similarly, phishing complaints are also on rise where customers’ money is misappropriated. Banks in India must voluntarily build cyber security mechanism and also implement the recommendations of RBI in this regard. Even better would be to enact a dedicated Internet banking law in India.

Internet Banking Risks In India

2011-12-24T02:01:00.000-08:00

Technology has brought many benefits for banking consumers in India. However, technology has also given birth to many unforeseen challenges. Cyber security challenges of Internet banking in India have grown tremendously in the past. In fact, Internet banking in India is not cyber secure despite the recommendations of Reserve Bank of India (RBI). Banks in India are ignoring the cyber security due diligence requirements prescribed by Reserve Bank of India (RBI).

Internet banking is a very important aspect of Indian banking industry. Internet banking not only provides instant banking facilities but it also confers mobility to the account holders. However, cyber security of internet banking infrastructure of India is the need of the hour. Instances of theft of money through hacking of accounts of the accounts holders are fast becoming a trend in India.

This is partly due to the ignorance of the accounts holders and partly due to the weak cyber laws of India. The account holders are increasingly targeted for phishing attacks that result in loosing of sensitive banking information.

According to Praveen Dalal, Managing Partner of Perry4Law and the leading Techno-Legal Expert of India, the Information Technology Act 2008 has made most of the cyber crimes and cyber offences “bailable”. India has made its cyberspace a “free zone” and “safe heaven” for cyber criminals and cyber offenders. He says that now even after committing hacking in India a person would be entitled to “bail” as a matter of right. There is nothing that prevents such cyber criminals from committing cyber crimes in India in the absence of a deterrent law.

This has resulted in an increased spate of cyber crimes including hacking of the e-mail IDs of the Internet banking users and stealing of their money.

Further, India has also become one of the most endemic surveillance societies of the World. Confidential information is already vulnerable and with the proposed Indian plans of installing key loggers at cyber cafes, the same would exclude the use of cyber cafes for these purposes. Although cyber cafés are not a good place to transact confidential matters yet with a poor Internet penetration in India this may still happen, says Dalal.

With a weak cyber law, lack of cyber security awareness and increasing e-surveillance initiatives in India, Internet banking disputes are bound to increase in India. The government is least bothered about these issues and ultimately the account holders would have to bear the financial losses.

Is Online Banking System Of India Cyber Secure?

2011-12-22T03:12:00.000-08:00

Cyber security in India is still not considered seriously by various stakeholders. Whether it is governmental departments, financial institutions, banks, private companies, etc none of them have taken cyber security seriously so far. An implementable national cyber security policy of India is also missing. In the absence of India’s national cyber security policy, cyber security has not been suitable adopted by various stakeholders. Even there is no legal framework for cyber security in India.

Cyber security for banking and financial sectors of India is urgently required as they perform very crucial functions. Realising the necessity of ensuring cyber security for these sectors, the Reserve Bank of India (RBI) has in the past constituted a working group on information security. RBI issued a “notification” asking the banks of India to comply with its recommendations.

As per RBI’s recommendations, all banks should create a position of chief information officers (CIOs) as well as steering committees on information security at the board level at the earliest. However, banks of India have shown no willingness to incorporate cyber security into their day to day functions. Till now the directions of RBI to appoint CIOs and steering committee has not been followed by banks of India. The recommendations of the RBI have still not been implemented. Naturally, Indian banks are poor at developing cyber security policies and implementing the same.

Cyber Security Policy is an issue that is very important for Banks of India, says Praveen Dalal, managing partner of New Delhi base ICT law firm Perry4Law and leading cyber law expert of India. With the growing use of Internet Banking, ATM machines, Credit and Debit Cards, Online Banking, etc, Banks of India must also upgrade their Cyber Security Infrastructure and establish a Cyber Security Policy, suggests Dalal.

For example Citigroup had recently confirmed cyber attack upon bank’s network. It is also well known that a timely and appropriate cyber due diligence could have prevented such attacks and various cyber frauds that are growing in the banking sector of India.

Few more areas that Indian banks must keep in mind include cyber security due diligence for banks in India, e-discovery for due diligence for banks in India, cyber law compliances, ATM frauds and phishing attacks, etc. However, the big question is are Indian banks ready for cyber due diligence?

In the past, RBI imposed penalty upon 19 banks for non compliance of prescribed standards. Similarly, RBI has also directed that any strictures passed against directors of a bank by any financial sector regulators must be reported to it. Non compliance of the recommendations of RBI working group may attract both penalty and strictures. However, banks in India are least bothered regarding cyber law and cyber security due diligence in India. Times again instances of cyber crimes and cyber breaches are reported in India and the position remains the same.

For instance, Yash, a chief technology officer in a cyber-security startup firm, has developed a proof-of-concept virus to attack the ICICI Online banking using the Man-in-Middle / Man-in-Browser attack method. It shows what an attack can do to an online banking customer who uses ICICI online banking facility and how it can result in financial loss.

A video also shows how virus can control your Internet explorer and manipulate ICICI Bank transactions in real time. The user is unaware that a virus is running, he logs into ICICI Online bank and performs an online transaction, the virus modifies the destination payee information in real-time and redirects the fund to an attacker account without the knowledge of the user. The same virus can be extended to any browser.

An integrated modern banking law for India is in pipeline and it would be a good idea to make it techno legal in nature so that it can address cyber crimes and cyber security in a more effective manner. Corporate and banking laws in India are in the process of being streamlined. RBI has even issues a notification prescribing enhanced due diligence measures for high risks customers in India.

Banks in India need to adopt techno legal measures to prevent ATM and other similar financial frauds and cyber crimes. Further, cyber due diligence trainings for bank employees can also be beneficial in this regard. Banks must also appoint steering committees and CIOs as soon as possible.

Cyber due diligence for banks in India should be made mandatory by RBI and through various pending and existing legal frameworks. Cyber law due diligence in India is already applicable to banks of India in certain circumstances and these liabilities are going to be more stringent in near future. The sooner the banks adopt these due diligence practices the better it would be for these banks.

ICT And Cyber Law Lawyers In India

2011-12-19T19:51:00.000-08:00

Information and communication technology (ICT) is a field that requires good working knowledge about technology. If we add legal issues to it, ICT dealings become techno legal in nature. This techno legal nature of laws like cyber law and fields like cyber forensics, cyber security, etc poses big challenge for legal fraternity world wide.

For instance, we have very few cyber law firms in India. There are a few cyber law firms in India that are providing cyber law due diligence services in Delhi, India. In fact, these law firms are giving cyber law a new shape in India. We would need many good cyber law lawyers and law firms in India in near future.

Perry4Law is the exclusive techno legal cyber law firm in New Delhi, India and world wide that is internationally renowned in the fields like cyber law, cyber security, cyber forensics, etc. Perry4Law Techno Legal Base (PTLB) further strengthens the techno legal expertise of Perry4Law.

Although cyber security as a legal field has been acknowledged by foreign lawyers and law firms yet cyber security law firms in India or cyber security lawyers in India are still missing. In fact, Perry4Law is the exclusive cyber security law firm in New Delhi, India.

Of late, young lawyers have started to explore career in areas like cyber law and intellectual property rights (IPRs). Traditional litigation fields like civil and criminal laws are not attracting them any more.

However, making a career in cyber law is not an easy task. These young lawyers need to ensure cyber skills development so that they can effectively manage the technical aspects of cyber law. PTLB is providing the exclusive techno legal e-learning in India for various stakeholders, including young lawyers.

With the growth of online cyber law education in India, cyber law as a career for young lawyers is going to be top choice. Those seeking career in cyber law must ensure that they invest in practical trainings and not theoretical knowledge. If you wish to be a good ICT and cyber law lawyer in India, start acquainting yourself with practical aspects of cyber law.

Important RBI Press Releases And Notifications

2011-12-15T22:27:00.001-08:00

Reserve Bank of India (RBI) has recently issues many important and far reaching press releases and notifications. These include compounding of contraventions under the foreign exchange management act 1999 (FEMA 1999), delegation of the compounding powers of RBI to its regional offices, risks management and inter bank dealings, FDI in the form of issuance of equity shares, etc.

The following are important press releases of RBI:

(1) Compounding Of Contraventions Under FEMA, 1999

(2) RBI Delegates Compounding Powers Under FEMA To Its Regional Offices

(3) Risk Management And Inter Bank Dealings In India

(4) Foreign Direct Investment (FDI) In India - Issue Of Equity Shares Under The FDI Scheme Allowed Under The Government Route

(5) Foreign Investment In Pharmaceuticals Sector - Amendment To The FDI Scheme

(6) RBI: Indian Banks’ Investments In Non Subsidiary And Non Financial Services Companies

Business entities dealing in these areas would be benefited if they go through these releases and notifications. I hope readers and various stakeholders would find them useful.

Corporate Regulatory Conditions Are Improving In India

2011-12-15T03:07:00.000-08:00

Indian corporate environment has been struggling for long to rejuvenate itself. However, for one reason or other, corporate regulatory conditions in India remained unsatisfactory. Corporate laws in India remained old and outdated.

Finally, India considered it important to change this position. The Companies Bill 2011 has been tabled in the Lok Sabha. The proposed Bill has brought significant changes and improvements to the existing corporate legal framework of India.

Another significant and associated development in this regard is happening in the banking sector of India. An integrated modern banking law for India is in pipeline. The parliamentary standing committee on finance has suggested for such integrated law for the banking sector of India.

Even on the fronts of corruption, transparency and accountability, many crucial bills have been introduced in the Lok Sabha. Overall, this seems to be a good effort by India to streamline the corporate environment of India.

Legal Websites, Blogs And Pages In India

2011-12-14T03:13:00.000-08:00

While searching for a legal database of websites, blogs and pages for Indian laws, I found very few of them. Further, these few results were also mainly confined to a single stream. I found this really surprising as there is no dearth of legal acumen and research in India.

This also inspired me to cover Indian law firms, lawyers, consultants, that are contributing towards spreading legal awareness in India. This is a time consuming and continuous process and it cannot be covered by single post. So I decided to cover lawyers, firms, consultants, etc one by one.

Let me start with the most active and updated legal experts in this regard. Further, let me also introduce the techno legal segment first as it covers both technical as well as legal category that is most useful.

The following are some of the very useful legal websites, blogs, pages, etc that may be helpful for readers:

(1) Bar Examination In India

(2) Citizen Journalists India

(3) Corporate Laws Of India

(4) Cyber Laws In India

(5) Human Rights Protection In Cyberspace

(6) Intellectual Property Rights Services In India

(7) International ICT Policies And Strategies

(8) Legal Enablement Of ICT Systems In India

(9) LPO And KPO In India

(10) Online Techno Legal Cyber Law Education

(11) Perry4Law Techno Legal Base (PTLB)

(12) Perry4Law Techno Legal Base (PTLB) Blog

(13) Perry4Law Techno Legal ICT Training Centre (PTLITC)

(14) Perry4Law- The Exclusive Techno Legal ICT And IP Law Firm Of The World

(15) Sales, Concepts And Theories

(16) Techno Legal Centre For Lifelong Learning In India

(17) Techno Legal E-Learnings In India By PTLB

(18) Techno Legal Journalists

(19) Techno Legal News

(20) Techno Legal Online Dispute Resolution Services In India

(21) Techno Legal Skills Development In India

The list is just illustrative and not exhaustive. Other sites may also be there that I would cover subsequently. I hope viewers would find this collection of techno legal websites useful for their purposes.

Author: Ram K Kaushik

India Wants Google And Facebook To Censor User Content

2011-12-05T20:34:00.000-08:00

E-surveillance in India is on rise. The latest trend is moving in the direction of surveillance of Internet traffic in India without constitutional procedure and safeguards. Civil liberties in cyberspace like speech and expression, right to privacy, etc are in grave danger in India.

Initially these Internet intermediaries did not pay much attention towards the draconian laws that Indian government have passed in the recent time. Experts like Praveen Dalal have been stressing upon dropping of unconstitutional amendments like information technology amendment act 2008. However, Internet intermediaries kept a mum keeping in mind their commercial interests.

Now things have taken really dangerous shape for all of the Internet stakeholders in India. In fact, Yahoo took Indian government to court over e-surveillance and more such litigations are expected in the near future.

Now Internet intermediaries in India like Google, Microsoft, Yahoo and social media sites like Facebook have been asked to prescreen user content from India and to remove disparaging, inflammatory or defamatory content before it goes online.

Supreme Court of India is already dealing with privacy issues arising in the cyberspace. Now the only question that remains to be answered is will Supreme Court of India protect privacy rights of Indians in cyberspace?

Legal Education In India Is Transforming

2011-11-22T04:27:00.000-08:00

The nature and contours of legal education in India are fast changing. However, educational institutions are not in a position to meet the expectations of the contemporary requirements.

Today we need domain specific and professional education and our educational system is still adhering to the traditional old attributes of academic nature. Clearly, legal education in India needs reforms and rejuvenation.

While the governmental machinery and educational institutions are falling well behind the global educational requirements yet private players have done great job in this regard. Not only private players are imparting qualitative world class educations and trainings in India but they are also combining various streams to produce better results.

Perry4Law Techno Legal Base (PTLB) is one such private institution that has combined technological and legal aspects and providing various techno legal courses, educations and trainings. PTLB is the premier techno legal segment of India’s exclusive techno legal ICT and IP law firm Perry4Law. PTLB is also managing the exclusive techno legal institute for lifelong learning in India.

Similarly, another techno legal segment of Perry4Law known as Perry4Law Techno Legal ICT Training Centre (PTLITC) is providing domain specific and highly specialised techno legal education and trainings in India and world wide.

These techno legal courses of PTLB are provided through the PTLB e-learning platform that is providing these trainings and educations in an online environment and through distance learning mode.

The signs of transformation of legal education in India are very apparent. Further, foreign universities are also planning to open their branches and campuses in India. Even opening of various virtual campuses for legal education in India are in pipeline. This positive transformation would also help in reducing the corruption that has strong grip over the higher legal education in India and deteriorating the higher legal research acumen of India.

Cyber Skilled Workforce Of India

2011-11-20T02:30:00.000-08:00

Skilled workforce is the backbone for any economy. India is presently having one of the most populated workforces of young generation in the world. However, the problem is that they are not adequately skilled and trained. This is more so regarding the information technology field.

While countries like UK are looking forward for cyber crime fighters yet the cyber skills development in India has not been taken seriously. For instance, ethical hacking skills developments in India are urgently required. Ethical hacking training and courses in India must be encouraged and Indian government must pay special attention to this aspect.

Similarly, cyber security courses in India are also required to be undertaken. Cyber security is techno legal in nature. Thus, cyber security courses must also be techno legal in nature. Techno legal online courses in India need to be developed so that interested students and professionals can be enrolled from any part of the world.

Law enforcement agencies of India also need cyber law training. Presently cyber law and cyber crimes cases and not taken up by Indian police. Even the so called cyber crime cells of India lack necessary expertise to deal with cyber law cases and solve cyber crime cases.

On the front of defence forces as well India need to develop both offensive and defensive cyber warfare capabilities. Indian defense and security against cyber warfare is still not upto the mark. As a result cyber espionage and cyber warfare against India have increased tremendously.

It is high time for Indian government to develop a cyber skilled workforce for India that can handle both defensive and offensive cyber issues.

E-Delivery of Public Services Development Policy Loan of India

2011-06-14T00:29:00.000-07:00

World Bank has been granting loans and grants to India for long. However, there seems to be no mechanism to ensure either the achievement of results or to bring accountability towards the loans and grants so issued. The latest to add to this list is the e-delivery of public services development policy loan to India.

This is the updated version of my previous article on similar topic. E-delivery of services has been seen as an essential part of e-governance in India. However, e-governance itself is based upon good governance that also in a corruption free manner.

E-governance has the potential to eliminate corruption but in the Indian context e-governance itself has become a source of corruption. What is surprising is the fact that this is happening right in front of and under the nose of World Bank. The bigger question is whether the World Bank or Indian government is accountable for loans and grants that are never utilised for the benefit of common man in India?

Recently the World Bank and Indian government signed a loan agreement of $150 million for the e-delivery of public services in India. The loan has been granted as the e-delivery of public services development policy loan to be utilised under the national e-governance plan of India (NEGP).

Although the intentions are good yet the final outcome is not difficult to predict. India has a very poor track record of policy formulation and its implementation. For instance, policies pertaining to cyber law, cyber security, encryption, telecom, telecom security, mobile security, etc are still missing.

Further, India also has a poor track record of e-governance utilisation and providing of electronic delivery of services in India. We have no legal enablement of ICT systems in India and legal framework for e-delivery of services in India is also missing. In fact, as per e-governance experts of India, e-governance in India is dying. Without a mandatory e-governance services in India, e-delivery of services in India cannot be achieved.

According to Praveen Dalal, managing partner of New Delhi based law firm Perry4Law and leading techno legal expert of India, “The Government and Indian Bureaucrats need to change their mindset and stress more upon outcomes and services rather than mere ICT procurement. India needs a services-based approach that is not only transparent but also backed by a more efficient and willing Government. Presently the Bureaucrats and Government of India are in a “resistance mode” towards novel and effective e-governance policies and strategies and they are merely computerising traditional official functions only. This is benefiting neither the Government nor the citizens and is resulting in wastage of thousands of crores of public money and United Nations Development Programme (UNDP) and World Bank Grants amount”.“The Governmental will and leadership is missing in India. To worsen the situation the Government of India is concentrating more upon the image rather than upon the end results. The grassroots level action is missing and the benefits of ICT are not reaching to the under privileged and deserving masses due to defective ICT strategies and policies of Indian Government. India is suffering from the “vicious circle” of defective e-governance, as the basic input .i.e. governance itself is poor. India needs a “virtuous circle” of e-governance through good governance that would have multiplication and amplification effect upon e-governance efforts of Indian Government, says Praveen Dalal.

E-delivery of public services in India is missing and World Bank is not at all interested in establishing transparency and accountability in Indian NEGP. World Bank must ensure accountability of Indian NEGP in order to show that its loans are actually meant for growth and development of Indian masses rather than benefiting few politicians and bureaucrats as is happening right now.

In these circumstance, the e-delivery of public services development policy loan would just add to the woes of Indians as this type of e-governance would be a source of corruption itself rather than removing the mass corruption existing in India. No time in the past the need for a strong and effective Jan Lokpal Act is felt more than the present circumstances where neither India nor International organisations like United Nations, World Bank, UNDP, etc are questioning the acts and omissions of Indian government.

Indian Government, Aadhar Project And UIDAI Are Hiding Truth From You

2011-06-14T00:24:00.000-07:00

Indian government, Aadhar project and UIDAI are hiding truth from Indians. While Nandan Nilekani is portraying Aadhar project as beneficial and a welfare scheme, it is nothing but an evil design to indulge in illegal and unconstitutional e-surveillance upon Indians.

Aadhar project and UIDAI are based upon deceit and deception. There is no legal framework, no defined policies and guidelines and most importantly no procedural and civil liberty safeguards.

However, nothing can match the evil practice of websites and Internet censorship in India done by Indian government, its agencies and commercial companies operating in India. For instance, Google has been censoring critical web posts regarding Aadhar project of India and unique identification authority of India (UIDAI) for the past two or more years. Further, it has also temporarily filtered some of our posts questioning the practice of World Bank to grant unaccountable loans to countries like India.

This article has been censored by Google News twice at this and this. Of course, this is neither a co incidence nor a technical glitch that Google is currently facing. The truth is that unaccountable, illegal and unconstitutional websites blocking, Internet censorship and e-surveillance exercise along with lack of legal framework makes Aadhar project and UIDAI very dangerous project and authority. These activities censorship and e-surveillance are supported by the draconian cyber law of India. Citizens wake up before it is too late. Meanwhile here is the controversial interview that has been censored twice.

Unique identification project (UID project) or Aadhar project of India is always portrayed as a welfare scheme. In reality, Aadhar project and UIDAI have evil intentions. In fact, Aadhar project and UIDAI are the most evil projects of India till now.

What is more surprising is why this e-surveillance and big brother project has not been scrapped by the Prime Minister’s office (PMO). In this interview of Praveen Dalal, managing partner of New Delhi based ICT Law Firm Perry4Law and a Supreme Court Lawyer, he has shared his opinion and concerns regarding Aadhar project and UIDAI.

Q 1. Is India ready for a controversial project like Aadhar?

A 1. In my personal opinion, India is not yet ready for either Aadhar Project/UID Project or Unique Identification Authority of India (UIDAI). In fact, both Aadhar and UIDAI are “Highly Undesirable” at this stage. Aadhar and UIDAI must be preceded by a Constitutionally Sound Legal Framework and Parliamentary Oversight. Both of these are missing presently making it an “Unconstitutional Project”.

Q 2. What is the process of making a constitutionally sound law in India?

A 2. Constitutionally preparation of a Legislation/Bill is the duty of Indian Government and it must be passed by the Parliament of India. In this case, an authority like UIDAI is suggesting the Bill that (UIDAI) itself is devoid of any Constitutional Validity. Indian Government must come up with its own Bill on Aadhar Project as even the Bill by UIDAI is mere “Eyewash” and does not make much difference. Even if it is passed by Parliament of India, the Unconstitutional Nature of the Aadhar Project and UIDA would remain the same.

Q-3. What are the serious concerns that have been ignored by Indian Government, UIDAI and Indian Cabinet?

A-3 I found it really surprising the way the Bill prepared by UIDAI was cleared by Cabinet and introduced in the Parliament. Many issues, including Profiling, Privacy Safeguards, Civil Liberties Protection, E-Surveillance, etc have been totally neglected by UIDAI and Cabinet and perhaps would be ignored by the Parliament of India as well.

Q 4. How do you see the present activities of Aadhar project and UIDAI?

A 4. The present exercise of taking Biometric Details of Indians is simply “Unconstitutional”. A Project and Authority without any Legal Sanction and Parliamentary Oversight cannot indulge in these activities on such a mass scale. I believe the Government of India is violating various Civil Liberties of Indian though Aadhar Project and UIDAI by making it, Directly and Indirectly, Relevant and Mandatory.

Q-5. Is Aadhar project and UIDAI still not governed by any legal framework and what are the recent developments in this regard?

A 5 Yes. Till now the position has not changed. Rather it has become worst where the District like Mysore has made UID Number Mandatory for various Public Services even though UIDAI claims it to be Optional. Practically UID never was, and never will be, Optional.

Q 6. What are the possible Civil Liberty violations that Indians can face in near future?

A 6. There are great chances that Biometric Details of Indian would be shared with Intelligence Agencies of India and Law Enforcement Agencies of India. Projects like National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS). Central Monitoring System (CMS), etc would love to utilise these Biometric Details.

Google Web Censorship Has Greatly Increased

2011-06-14T00:18:00.000-07:00

Of late, Google has been actively engaging in web results manipulations one way or other. This may be due to governmental orders or on its own. But it is happening for sure.

For some strange reasons Google is engaging in two forms of web censorship. The first one is by putting relevant and critical posts in blackholes. The second method is by actively manipulating the Google news and search results.

Google has been in controversies from time to time. Whether it is illegal data gathering, censorship of Google news searches, manipulation of search results, etc, Google has been doing it all. In fact, it seems Google is actively helping Indian government and its agencies for messing up with Aadhar project, UIDAI, World Bank or any other similar post that questions the wrong practices of Indian government.

What is more astonishing is that India does not have a “Constitutionally Sound Law” for Lawful Interceptions, E-Surveillance, Websites Blocking, Internet Censorship, etc says Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of India. Praveen Dalal has spearheaded the exclusive centre for protection of human rights in cyberspace that keeps a close watch upon civil liberty issues of cyberspace.

One of the most controversial projects imposed by Indian government upon Indian citizens is unique identification project of India (UID project of India) or Aadhar project of India. It is managed by Nandan Nilekani led unique identification authority of India (UIDAI). Both Aadhar project and UIDAI are unconstitutional and operating without any Legal Framework and Parliamentary Oversight, informs Dalal.

Aadhar project and UIDAI are based upon deceit and deception. There is no legal framework, no defined policies and guidelines and most importantly no procedural and civil liberty safeguards.

However, nothing can match the evil practice of websites and Internet censorship in India done by Indian government, its agencies and commercial companies operating in India. For instance, Google has been censoring critical web posts regarding Aadhar project of India and unique identification authority of India (UIDAI) for the past two or more years. Further, it has also temporarily filtered some of our posts questioning the practice of World Bank to grant unaccountable loans to countries like India. Further, international loans and grants related posts questioning the role of World Bank and Indian government are also poorly placed in search results.

Our latest article has been censored by Google News twice at this and this. Of course, this is neither a co incidence nor a technical glitch that Google is currently facing. The truth is that unaccountable, illegal and unconstitutional websites blocking, Internet censorship and e-surveillance exercise along with lack of legal framework makes Aadhar project and UIDAI very dangerous project and authority. These activities censorship and e-surveillance are supported by the draconian cyber law of India. Citizens wake up before it is too late. Meanwhile here is the controversial interview that has been censored twice.

Unique identification project (UID project) or Aadhar project of India is always portrayed as a welfare scheme. In reality, Aadhar project and UIDAI have evil intentions. In fact, Aadhar project and UIDAI are the most evil projects of India till now. What is more surprising is why this e-surveillance and big brother project has not been scrapped by the Prime Minister’s office (PMO). It is high time for us to actively protest against the Aadhar project and UIDAI before it is too late.

Corporate Mergers And Acquisitions Regulations In India

2011-06-14T00:07:00.000-07:00

Merger and acquisitions (M&As) have become in indispensable part of Indian corporate environment. Business efficiency warrants that companies and organisations must be merged with or acquired by others for better performance and enhanced profit margins.

A merger is a combination of two or more businesses into one business. In India the term “amalgamation” is used synonymously for merger. An acquisition may be defined as an act of acquiring effective control by one company over assets or management of another company without any combination of companies. Thus, in an acquisition two or more companies may remain independent, separate legal entities, but there may be a change in control of the companies.

However, Merger and acquisitions are not a free ride and they are subject to various Laws of India, informs Praveen Dalal, managing partner of new Delhi based IP and ICT law firm Perry4Law and leading techno legal expert of India. Further, talks are in progress for excluding Banking Related (M&As) in India from the ambit of Competition Commission of India (CCI), informs Dalal.

With the recent proposed amendments in the Banking Regulations Act, 1949, now only Reserve Bank of India (RBI) would have power to regulate M&A pertaining to banking sector. In fact, the proposed amendments have already been approved by Cabinet of India.

The CCI has released the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011, informs Dalal. This is a good step in the right direction, says Dalal.

Now corporate mergers and acquisitions (corporate M&As) would be regulated in India with effect from June 1. The new norms have been drafted with the objective of curbing anti-competitive practices adopted while engaging in M&As. However, M&As that commenced before June 1 with definitive action have been kept outside the competition watchdog’s purview. Similarly, a combination taking place outside India with insignificant local nexus and effect on markets in India will not come under the purview of CCI.

Now the M&As like the proposed Cairn-Vedanta may fall under the purview of the CCI. Though the companies have got the approval from their boards of directors and the process of acquisition is well underway, the deal is yet to be sealed. Let us see how much fairness these proposed regulations would bring in the corporate M&As regime of India.

The Generalised System Of Preferences (GSP) Scheme Of EU And India

2011-06-13T23:54:00.000-07:00

European Union and India are in the process of considering the latest Free Trade Agreement (FTA). However, disagreements have already started surfacing. For instance, the intellectual property rights (IPRs) issues have already been subject to hot debate.

Further, EU, India and other countries may also face Technological Issues of IPRs in future, says Praveen Dalal, managing partner of New Delhi base IP and ICT law firm Perry4Law and leading techno legal expert of India. For instance, Technology Transfer has been a subject of much debate in the past. While developed countries are reluctant in technology transfer yet developing countries are insisting for the same, informs Dalal.

Similarly, in the Patent field as well, especially Pharmaceutical related IPRs, tussles between India and other countries are going on. While developed nations are insisting upon TRIPS Plus Provisions in Data Exclusivity regime, India is in no mood to do the same, informs Dalal.

Now EU has aimed another blow upon developing countries. EU’s Trade Commissioner, Karel De Gucht, has announced plans to slash the number of countries, from 176 to 80, that benefit from the generalised system of preferences (GSP) scheme, whereby eligible nations enjoy reduced or zero customs tariffs on imported goods.

The proposed reforms would come into practice from 2014. Speaking to reporters, De Gucht made it clear the action was aimed at large emerging economies like India, Brazil and Russia, which did not require continued specialized assistance, given their newly muscular economies. He said 40 per cent of the EU’s “current preferences benefit Russia, Brazil, China, India and Thailand, which no longer need the same.” Further, countries classified by the World Bank as high-income or upper-middle income countries for three consecutive years would automatically become ineligible.

If dropped, India may be forced to enter into FTAs with EU. This is the core strategy of EU where it can force other countries to fall in line with its own International Trade Objectives, suggests Dalal. However, implications of this decision of EU have yet to be analysed from the perspective of TRIPS Agreement, says Dalal.

The Competition Commission Of India (Procedure In Regard To The Transaction Of Business Relating To Combinations) Regulations, 2011

2011-06-13T23:47:00.000-07:00

This is the analysis of the salient features of recent regulations on combinations formulated by Competition Commission of India. The same has been made by Praveen Dalal, Managing Partner of New Delhi based IP, ICT and Corporate Law Firm Perry4Law. The proposed regulations are taking care of large scale corporate mergers and acquisitions in India. However, banking industry related mergers and acquisitions may be excluded from the applicability of these regulations.

The Competition Commission of India (CCI), in exercise of the powers conferred by sub-section (1) and clauses (b), (c) and (f) of sub-section (2) of section 64 read with sub-sections (2) and (5) of section 6 of the Competition Act, 2002, formulated the following regulations applicable with effect from 1st day of June, 2011, namely:

(1) “Combination” means and includes combination as described in section 5 of the Act and any reference to combination in these regulations shall mean a proposed combination or the combined entity, if the combination has come into effect, as the case may be.[1]

(2) In a situation not provided for in these regulations or the Competition Commission of India (General) Regulations, 2009, the Commission may determine the procedure, in specific matters, if so required.[2]

(3) In view of the duty cast upon the Commission under section 18 and powers conferred under section 36 of the Act, and having regard to the mandate given to the Commission to, inter-alia, regulate combinations which have caused or are likely to cause appreciable adverse effect on competition in terms of sub-section (1) of section 6 of the Act, it is clarified that since the categories of combinations mentioned in Schedule I are ordinarily not likely to cause an appreciable adverse effect on competition in India, notice under sub-section(2) of section 6 of the Act need not normally be filed.[3]

(4) Any enterprise which proposes to enter into a combination shall give notice of such combination to the Commission in accordance with sub-section (2) of section 6 of the Act and these regulations.[4] The notice under sub-section(2) of section 6 of the Act, shall ordinarily be filed in Form I as specified in schedule II of these regulations, duly filled in, verified and accompanied by evidence of payment of requisite fee by the parties to the combination including the instances where –

(a) None of the parties to the combination are engaged in the production, supply, distribution storage , sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable services, or the parties to combination are not engaged at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or trade in goods or provision of services in which another party to the combination is engaged;

(b) The parties to the combination are predominantly engaged in exports of goods or services from India and continue to be predominantly engaged in exports of goods or services from India after the combination takes effect.
Provided that the market share of the combined entity is less than fifteen percent (15%) in the relevant market in India.

Explanation: A party to the combination shall be deemed to be predominantly engaged in export of goods or services from India if at least seventy five percent (75%) of the turnover of the party to the combination is derived from exports out of India.

(c) An acquisition or acquiring of control over an enterprise is by a liquidator, administrator or receiver appointed through court proceedings or through any scheme approved under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or under the Sick Industrial Companies (Special Provisions) Act, 1985 or any other modification or re-enactment of the law;

(d) An acquisition results from a gift or inheritance;

(e) An acquisition is of a trustee company or arises from a change of trustees of a mutual fund established under the Securities and Exchange Board of India (Mutual Fund) Regulations 1996, as amended from time to time;

(f) The parties to combination are engaged in production, supply, distribution, storage, sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable service and the combined market share of the parties to the combination after such combination is less than fifteen percent (15%) in the relevant market ;

(g) The parties to the combination are engaged at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or trade in goods or provision of services, and their individual or combined market share is less than twenty five percent (25%) in the relevant market.[5]

Notwithstanding the provisions of sub-regulation (2), the parties to the combination may, at their option, annex additional supporting documents, if any, with Form I or file notice in Form II as specified in schedule II of these regulations.[6]

Where in the course of inquiry, it is found by the Commission that it requires additional information, the Commission may direct the parties to the combination to file such additional information:[7]

Provided that the time taken by the parties to the combination in filing such additional information shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.

Having due regard to the provisions of sub-regulations (2) and (4), in cases where the parties to the combination have filed notice in Form I and the Commission requires information in Form II to form its prima facie opinion whether the combination is likely to cause or has caused appreciable adverse effect on competition within the relevant market, it shall direct the parties to the combination to file notice in Form II as specified in schedule II to these regulations:[8]

Provided that the fee already paid by the parties to the combination while filing notice in
Form I shall be reduced from the fee payable for filing notice in Form II:

Provided further that the time taken by the parties to the combination in filing notice in
Form II shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.

If the requisite details are not available for any of the columns in Form I or Form II, the date on which they may be submitted should be clearly indicated against those columns, by the parties to the combination:[9]

Provided that the time taken by the parties to the combination to submit the requisite details shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.

The reference to the ‘board of directors’ in clause (a) of sub-section (2) of section 6 of the Act, shall mean and include,

(a) The individual himself or herself including a sole proprietor of a proprietorship firm;
(b) The Karta in case of a Hindu Undivided Family (HUF);

(c) The board of directors in case of a company registered under the Companies Act, 1956;

(d) In case of a corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) or an association of persons or a body of individuals, whether incorporated or not, in India or outside India or anybody corporate incorporated by or under the laws of a country outside India or a cooperative society registered under any law relating to cooperative societies or a local authority, the person or the body so empowered by the legal instrument that created the said bodies;

(e) In the case of a firm, the partner(s) so authorized;

(f) In the case of any other artificial juridical person not falling within any of the preceding sub-clauses, by that person or by some other person competent to act on his behalf.[10]

The reference to the ‘other document’ in clause (b) of sub-section (2) of section 6 of the Act shall mean any binding document, by whatever name called, conveying an agreement or decision to acquire control, shares, voting rights or assets: [11]

Provided that if the acquisition is without the consent of the enterprise being acquired, any document executed by the acquiring enterprise, by whatever name called, conveying a decision to acquire control, shares or voting rights shall be the ‘other document’:

Provided further that where such a document has not been executed but the intention to acquire is communicated to the Central Government or State Government or a Statutory
Authority, the date of such communication shall be deemed to be the date of execution of the other document for acquisition.

(5) The details of acquisition by a public financial institution, foreign institutional investor, bank or venture capital fund, referred to in sub-section(5) of section 6 of the Act, shall be filed without any fee in Form III, as specified in Schedule II to these regulations.[12]

The duly filled in and verified Form III, along with two copies and electronic version thereof, shall be delivered to the Commission at the address published on its official website .[13]

(6) Where a notice filed in Form I or Form II under sub-regulations (2) or (3) of regulation 5 of these regulations is received in the Commission beyond the time limit mentioned in sub-section (2) of section 6 of the Act, the Commission may, without prejudice to other provisions including that of section 43A of the Act, admit such notice.[14]

(7) Where the parties to a combination fail to file notice under sub-section (2) of section 6 of the Act, the Commission may under sub-section (1) of section 20 of the Act, upon its own knowledge or information relating to such combination, inquire into whether such a combination has caused or is likely to cause an appreciable adverse effect on competition within India.[15]

Where the Commission decides to commence an inquiry, referred to in sub-regulation (1), the Commission, without prejudice to any penalty which may be imposed or any prosecution which may be initiated under this Act, shall direct the parties to the combination to file notice in Form II, as specified in Schedule II to these regulations, duly filled in, verified and accompanied by evidence of requisite fee.[16]

The notice, referred to in sub-regulation (2), shall be filed, within 30 days of receipt of communication from the Commission, by the parties to the combination.[17]

(8) In case of an acquisition or acquiring of control of enterprise(s), the acquirer shall file the notice in Form I or Form II, as the case may be, which shall be duly signed by the person(s) as specified under regulation 11 of the Competition Commission of India (General) Regulations, 2009.[18]

In case the enterprise is being acquired without its consent, the acquirer shall furnish such information as is available to him, in Form I or Form II, as the case may be, relating to the enterprise being acquired:[19]

Provided that all information required to be filed, relating to the enterprise being acquired shall be filed with the Commission within fifteen days from filing of the notice and in case the acquirer is not in a position to furnish all the required information in Form I or Form II, as the case may be, relating to the enterprise being acquired, the Commission may direct the enterprise being acquired to furnish such information as it deems fit and the time taken by the parties to the combination or the acquired enterprise, as the case may be, in furnishing the required information including document(s) shall be excluded from the period provided in subsection (11) of section 31 of the Act and sub-regulation(1) of regulation 19 of these regulations.

In case of a merger or an amalgamation, parties to the combination shall jointly file the notice in Form I or Form II, as the case may be, duly signed by the person(s) as specified under regulation 11 of the Competition Commission of India (General) Regulations, 2009.[20]

Where the ultimate intended effect of a business transaction is achieved by way of a series of steps or smaller individual transactions which are inter-connected or inter-dependent on each other, one or more of which may amount to a combination, a single notice, covering all these transactions, may be filed by the parties to the combination.[21]

(9) The person or enterprise filing notice under regulation 5 or regulation 8 of these regulations shall pay the fee as specified under regulation 11 of these regulations.[22] Where the notice is filed jointly, the fee shall be payable jointly or severally.[23]
(10) The amount of fee payable alongwith the notice in Form I or Form II, as the case may be, shall be as under:

(a) Where the notice is filed in Form I, the fee payable shall be rupees fifty thousands (Rs. 50,000) only;

(b) Where the notice is filed in Form II, the fee payable shall be rupees ten lakhs (Rs. 1,000,000) only.[24]

(11) The fee may be paid either by tendering demand draft or pay order or banker’s cheque, payable in favour of the Competition Commission of India (Competition Fund), New Delhi or through Electronic Clearance Service (ECS) by direct remittance to the Competition Commission of India (Competition Fund), Account No. 1988002100187687 with “Punjab National Bank, Bhikaji Cama Place, New Delhi110066”.[25]

(12) The duly filled in and verified notice under regulation 5 or regulation 8 of these regulations along with two copies and an electronic version thereof shall be delivered to the Commission at the address published on its official website.[26]

All responses or other documents required to be filed before the Commission consequent to the filing of the notice under regulation 5 or regulation 8 of these regulations shall also be filed as per the procedure contained in sub-regulation (1).[27]

Provided that for the purposes of this regulation, the Secretary may through public announcement inform the procedure for electronic filing, increase or decrease the number of copies or vary the format in which the electronic version is to be filed.
(13) The notice filed under regulation 5 or regulation 8 of these regulations shall not be valid and complete unless it is in conformity with these regulations.[28] The Secretary shall issue an acknowledgement of the receipt of notice.[29] Where the information or document(s) contained in the notice under regulation 5 or regulation 8 of these regulations has any defect(s) or is incomplete in any respect, the parties to the combination shall be asked to remove such defect(s) or furnish the required information including document(s).[30] The Secretary shall place the proof of service of communication as referred to in sub-regulation (3) to the parties to the combination on record.[31] The parties shall comply with the directions as referred to in sub-regulation (3) within the time specified by the Commission and in the case of the notice filed under regulation 5 the time taken by the parties in removing such defects or furnishing the required information including document(s) shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.[32] In case the parties fail to remove the defects or fail to furnish the required information including documents(s), within the time specified, the notice filed under regulation 5 or regulation 8 of these regulations shall not be treated as a valid notice.[33]

(14) Subject to the provisions of these regulations, the time period under sub-section (11) of section 31 of the Act shall commence from the date of receipt of notice, in writing, filed under regulation 5 of these regulations.[34]

(15) The parties to the combination having filed a notice under regulation 5 or regulation 8 of these regulations, shall inform the Commission of any change in the information provided in the notice to the Commission at the earliest during the continuation of the proceedings under the Act.[35] The Secretary shall place the information relating to any change in the notice before the Commission not later than the third working day of its receipt in the Commission.[36]The Commission shall assess the significance of the information relating to that change and, if satisfied, take on record the information received.[37] Where the Commission is of the view that the change is likely to affect the factors for the determination of the appreciable adverse effect on competition significantly, it may, after giving an opportunity of being heard and after recording reasons, treat the notice already filed as not valid.[38] Where the Commission has held a notice to be not valid under sub-regulation (4), the Secretary shall convey the decision of the Commission to the parties to the combination within seven days of the decision of the Commission.[39]
Provided that no additional fee shall be payable if a notice is filed again by the parties to the combination for the same transaction within a period of thirty days from the date of communication of the decision of the Commission.

(16) The proceedings under this Act relating to the combinations shall be terminated upon,

(a) Receiving an intimation from the person(s) or enterprise(s) who filed the notice to the effect that the proposed combination will not take effect;

(b) Passing of an order by the Commission under section 31 of the Act.[40]

(17) Save as otherwise provided in the Act or in these regulations, the service of any notice excluding the notice under sub-section (2) of section 6 of the Act, or intimation to any person or enterprise under these regulations shall be effected in the manner as provided in regulation 22 of the Competition Commission of India (General) Regulations, 2009 or by electronic transmission as considered appropriate by the Commission.[41]

(18) The Commission shall form its prima facie opinion under sub-section (1) of section 29 of the Act, on the notice filed in Form I or Form II, as the case may be, as to whether the combination is likely to cause or has caused an appreciable adverse effect on competition within the relevant market in India, within thirty days of receipt of the said notice.[42]

For the purpose of forming its prima facie opinion under sub-section (1) of section 29 of the Act, the Commission may, if considered necessary, require the parties to the combination to file additional information or accept modification, if offered by the parties to the combination before the Commission has formed prima facie opinion under sub-regulation (1), as deemed fit by it:[43]

Provided that the time taken by the parties to the combination, in furnishing the additional information or for offering modification shall be excluded from the period provided in sub-regulation (1) of this regulation and sub-section (11) of section 31 of the
Act.

Provided further that in such a case where the modification is offered by the parties to the combination before the Commission has formed the prima facie opinion under sub-regulation (1), the additional time, not exceeding fifteen days, needed for evaluation of the offered modification, shall be excluded from the period provided in sub-regulation (1) of this regulation and sub-section (11) of section 31 of the Act.

Where the Commission deems it necessary, it may call for information from any other enterprise while inquiring as to whether a combination has caused or is likely to cause an appreciable adverse effect on competition in India.[44]

(19) After receipt of the response to the notice to show cause from the parties to the combination under sub-section (1) of section 29 of the Act, the Commission may decide to call for a report from the Director General under sub-section (1A) of section 29 of the Act within the time as specified by the Commission.[45] The Secretary shall convey the direction of the Commission under sub-regulation (1) to the Director General, along with copy of the notice filed by the parties to the combination with all other documents, materials, affidavits, statements, which have been filed or are otherwise available with the said notice, the notice to show cause to the parties to the combination and response of the parties to the same.[46] The Director General shall include in his report the basis of having reached the conclusions therein together with all evidences or documents or statements collected during the investigation and analysis thereof.[47] Two copies of the report of the Director General duly signed on each page by the Director General, or his authorized officer, along with an electronic version in document format, shall be forwarded to the Secretary within the time specified by the Commission.[48]

Provided that the Secretary may increase or decrease the number of copies of the report and may permit electronic transmission of the same.

(20) Where the Commission under sub-section(2) of section 29 of the Act is of the prima facie opinion that the combination has caused or is likely to cause appreciable adverse effect on competition within the relevant market in India, the Secretary shall, within four working days of such decision convey the direction of the Commission to the parties to the combination, to publish the details of the combination within ten working days of the date of such direction.[49]

The details of combination shall be published by the parties in Form IV, as specified in Schedule II to these regulations.[50] The parties shall submit the details of combination to be published under sub-regulation (2) to the Commission before its publication and the Commission may host the same on its official website.[51] The details of the combination to be published under sub-regulation (2) shall, also be hosted by the parties on the websites of their respective enterprises not later than the time specified in sub-regulation (1).[52] The parties shall publish the details of the combination under sub-regulation (2), not later than the time specified in sub-regulation (1), in all India editions of four leading daily newspapers including at least two business newspapers.[53]

(21) The parties to the combination shall submit copies of publication, referred to in regulation 22, to the Secretary, not later than the fifteenth day of the direction of the Commission for publication of the details of the combination.[54]

(22) Where the Commission deems it necessary to give an opportunity of being heard to the parties to the combination before deciding to deal with the case in accordance with the provisions contained in section 31 of the Act, the Secretary shall convey its directions to the said parties, to appear before it by giving a notice of such period as directed by the Commission.[55]

(23) Where the Commission is of the opinion that combination has or is likely to have appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination to the parties to such combination.[56]

Where the parties to the combination have accepted the modification proposed by the Commission under sub-section (3) of the section 31 of the Act or the Commission agrees with the amendment to the proposed modification by the parties and approves the combination under sub-section (7) of section 31 of the Act or the parties, in terms of the provisions of subsection (8) of section 31 of the Act, accept the modification proposed by the Commission under sub-section (3) of section 31 of the Act, the parties to the combination shall carry out such modification as per the terms and conditions and within the period as may be specified by the Commission and submit an affidavit to that effect.[57]

Where the parties accept the modification proposed by the Commission under sub-section (3) of section 31 of the Act or the Commission agrees with the amendment submitted by the parties under sub-section (6) of section 31 of the Act, it shall by order, approve the combination.[58]

If the parties to the combination fail to accept the modification proposed by the Commission within the time referred to in sub-section (6) of section 31 of the Act or within a further period referred to in sub-section (8) of section 31 of the Act, the combination shall be deemed to have an appreciable adverse effect on competition and be dealt with in accordance with the provisions of the Act.[59]

(24) The modification referred to in regulation 25 of these regulations shall be carried out by the parties to the combination within the period as may be specified by the Commission.[60] The parties to the combination shall, upon completion of modification, file a compliance report for the actions required for giving effect to the combination before the Secretary within seven days of such completion.[61] In case the parties to the combination fail to file the compliance report under sub-regulation (2), the Secretary shall place the matter of such non-compliance before the Commission for appropriate directions.[62]

(25) Where the Commission is of the opinion that the modification proposed by it and accepted by the parties to the combination needs supervision, it may appoint agencies, to oversee the modification, on such terms and conditions as may be decided by the Commission.[63] The agencies appointed under sub-regulation (1) shall be independent of the parties to the combination having no conflicts of interest. Such independent agencies referred to in this regulation may include an accounting firm, management consultancy, law firm, any other professional organization, or part thereof, or independent practitioners of repute.[64] The agencies appointed under sub-regulation (1) shall carry out the responsibilities as specified by the Commission from time to time.[65] The agencies appointed under sub-regulation (1) shall submit a report to the Commission upon completion of each of the actions required for carrying out the modification.[66] The payment to the agencies appointed under sub-regulation (1) shall be made by the parties to the combination by depositing it with the Commission or as may be directed by the Commission.[67]

(26) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India, it shall pass an order under sub-section (2) of section 31 of the Act that the combination shall not take effect.[68] Where the Commission is of the opinion that the combination does not or is not likely to have an appreciable adverse effect on competition, it shall pass an order under sub-section (1) of section 31 of the Act, approving the combination.[69] Where the Commission approves the combination with modification, the order of the Commission approving the combination shall specify the terms, conditions and the time-frame for all the actions required for giving effect to the combination.[70] Where the parties to the combination fail to carry out the modification accepted by them within the stipulated time limit, the Commission shall issue appropriate directions.[71] The Secretary shall communicate to the parties to the combination, the decision of the Commission under sub-regulation (1) or (2) or (3) or (4) within seven days of such decision.[72] Having due regard to the provisions contained in sub-section (11) of section 31 of the Act, the Commission shall endeavour to pass an order or issue direction in accordance with sub-section (1) or sub-section (2) or sub-section (7) of section 31 of the Act within one hundred and eighty days of filing of the notice under sub-section (2) of section 6 of the Act.[73] Subject to the provisions of section 57 of the Act, and regulation 30 of these regulations, the orders passed by the Commission under section 31 of the Act shall be published on its website.[74]

(27) Subject to the provisions contained in section 53B of the Act, the Central Government or the State Government or a local authority or enterprise or any person, who is party to proceedings on matters relating to a combination and is aggrieved by any direction, decision or order referred to in clause (a) of section 53A of the Act may prefer an appeal to the Competition Appellate Tribunal.[75]

(28) Any request for confidentiality of information or documents submitted during the investigation shall be duly considered having due regard to the procedure laid down in the Competition Commission of India (General) Regulations, 2009, as amended from time to time.[76] The request under sub-regulation (1) may, inter-alia, clearly state the reasons, justification and implications for the business of the parties to the combination so that all relevant factors may be considered by the Commission while taking decision in the matter.[77]

(29) The notice referred to in sub-section (2) of section 6 of the Act would be applicable as follows:

(a) For mergers or amalgamations referred to in clause (c) of section 5 of the Act, notice to be filed only in regard to proposals approved by the board of directors on or after the 1st day of June, 2011; and

(b) For acquisitions referred to in clause (a) of section 5 of the Act or acquiring of control referred to in clause (b) of section 5 of the Act, notice need to be filed only, where binding document(s) is executed, on or after the 1st day of June, 2011.[78]

Explanation-Approval of board of directors under clause (a) of this regulation refers to the final decision of the board of directors.

(30) The provisions of these regulations shall have effect in all matters relating to combinations notwithstanding anything inconsistent therewith contained in any other regulations framed under the Act.[79]

(31) Having regard to the provisions of the Act, the Commission may, from time to time, in discharge of its duties, issue general or sector specific directions, guidelines, clarifications or circulars for regulation of combinations.[80]

(32) Where the Commission deems fit, it may seek opinion of any other agency or statutory authority in relation to a combination.[81]

(33) In the matter of implementation of the provisions of these regulations, if any doubt or difficulty arises, the same shall be placed before the Commission and the decision of the Commission thereon shall be final and binding.[82]

© All Rights Reserved. No part of this work shall be used, reproduced, copied or utilised in any manner whatsoever except with the prior written approval of Praveen Dalal, Managing Partner of Perry4Law. For any query, contact at pd37@rediffmail.com and perry4law@yahoo.com.

[1] Rule 2(1) (b) of Regulations 2011.
[2] Rule 3 of Regulations 2011.
[3] Rule 4 of Regulations 2011.
[4] Rule 5 (1) of Regulations 2011.
[5] Rule 5 (2) of Regulations 2011.
[6] Rule 5 (3) of Regulations 2011.
[7] Rule 5 (4) of Regulations 2011.
[8] Rule 5 (5) of Regulations 2011.
[9] Rule 5 (6) of Regulations 2011.
[10] Rule 5 (7) of Regulations 2011.
[11] Rule 5 (8) of Regulations 2011.
[12] Rule 6(1) of Regulations 2011.
[13] Rule 6(2) of Regulations 2011.
[14] Rule 7 of Regulations 2011.
[15] Rule 8(1) of Regulations 2011.
[16] Rule 8(2) of Regulations 2011.
[17] Rule 8(3) of Regulations 2011.
[18] Rule 9(1) of Regulations 2011.
[19] Rule 9(2) of Regulations 2011.
[20] Rule 9(3) of Regulations 2011.
[21] Rule 9(4) of Regulations 2011.
[22] Rule 10(1) of Regulations 2011.
[23] Rule 10(2) of Regulations 2011.
[24] Rule 11 of Regulations 2011.
[25]Rule 12 of Regulations 2011.
[26] Rule 13(1) of Regulations 2011.
[27] Rule 13(2) of Regulations 2011.
[28] Rule 14(1) of Regulations 2011.
[29] Rule 14(2) of Regulations 2011
[30] Rule 14(3) of Regulations 2011
[31] Rule 14(4) of Regulations 2011
[32] Rule 14(5) of Regulations 2011
[33] Rule 14(6) of Regulations 2011
[34] Rule 15 of Regulations 2011.
[35] Rule 16(1) of Regulations 2011.
[36] Rule 16(2) of Regulations 2011.
[37] Rule 16(3) of Regulations 2011.
[38] Rule 16(4) of Regulations 2011.
[39] Rule 16(5) of Regulations 2011.
[40] Rule 17 of Regulations 2011.
[41] Rule 18 of Regulations 2011.
[42] Rule 19(1) of Regulations 2011.
[43] Rule 19(2) of Regulations 2011.
[44] Rule 19(3) of Regulations 2011.
[45] Rule 20(1) of Regulations 2011.
[46] Rule 20(2) of Regulations 2011.
[47] Rule 21(1) of Regulations 2011.
[48] Rule 21(2) of Regulations 2011.
[49] Rule 22(1) of Regulations 2011.
[50] Rule 22(2) of Regulations 2011.
[51] Rule 22(3) of Regulations 2011.
[52] Rule 22(4) of Regulations 2011.
[53] Rule 22(5) of Regulations 2011.
[54] Rule 23 of Regulations 2011.
[55] Rule 24 of Regulations 2011.
[56] Rule 25(1) of Regulations 2011.
[57] Rule 25(2) of Regulations 2011.
[58] Rule 25(3) of Regulations 2011.
[59] Rule 25(4) of Regulations 2011.
[60] Rule 26(1) of Regulations 2011.
[61] Rule 26(2) of Regulations 2011.
[62] Rule 26(3) of Regulations 2011.
[63] Rule 27(1) of Regulations 2011.
[64] Rule 27(2) of Regulations 2011.
[65] Rule 27(3) of Regulations 2011.
[66] Rule 27(4) of Regulations 2011.
[67] Rule 27(5) of Regulations 2011.
[68] Rule 28(1) of Regulations 2011.
[69] Rule 28(2) of Regulations 2011.
[70] Rule 28(3) of Regulations 2011.
[71] Rule 28(4) of Regulations 2011.
[72] Rule 28(5) of Regulations 2011.
[73] Rule 28(6) of Regulations 2011.
[74] Rule 28(7) of Regulations 2011.
[75] Rule 29 of Regulations 2011.
[76] Rule 30(1) of Regulations 2011.
[77] Rule 30(2) of Regulations 2011.
[78] Rule 31 of Regulations 2011.
[79] Rule 32 of Regulations 2011.
[80] Rule 33 of Regulations 2011.
[81] Rule 34 of Regulations 2011.
[82] Rule 35 of Regulations 2011.

Computer Forensics Courses In India

2011-06-13T23:41:00.000-07:00

The word computer forensics depicts a picture of science fiction movie where cops or professionals engage in the same with great ease and style. However, in real life things are not as easy and glamorous as they are shown in movies.

Computer forensics is not an easy task. Rather it is a complicated procedure that requires great cyber skills development. Computer forensics requires practical scientific knowledge about computers and associated accessories. The evidence acquired through computer forensics must be legally admissible hence every precaution must be taken to acquire evidence in a legally acceptable manner.

Computer forensics in India is still at its infancy stage. This is so because there is a general lack of legal enablement of ICT systems in India. In the absence of adequate legal enablement of ICT systems in India, cyber forensics has also not developed much.

Another reason for lack of computer forensics in India is absence of adequate and qualitative techno legal cyber forensics institutions. There are very few institutions that provide cyber forensics educations and training in India. However, cyber forensics is techno legal in nature that must cater both technical and legal requirements of the learners.

India has a single techno legal cyber forensics research, training and educational institution. It is managed by Perry4Law Techno Legal Base (PTLB). The centre is providing techno legal cyber forensics education, trainings and course in India.

PTLB is providing its cyber forensics courses and other techno legal course and trainings through the use of e-learning and online education models. Registration for online education and trainings in the field of cyber forensics and other techno legal courses of PTLB can be done through its online platform.

The present course is a basic level course and highly specialised courses would also be provided in future. The same would be managed by Perry4Law Techno Legal ICT Training Centre (PTLITC).

Some of the topics covered by the basic level computer forensics course include basic introduction about applicable law, cyber law of India, digital evidencing in India, e-mail tracing, data recovery, etc. The students or professionals undergoing the basic level trainings and education from PTLB would be given preference for courses and trainings undertaken by PTLITC.

Application form for the enrollment to various courses, internships and trainings can be downloaded from here and more details about the courses of PTLB can be found here.

PTLITC is also in the process of providing highly specialised and domain specific techno legal trainings, courses and educations in the fields like cyber law, cyber security, cyber forensics, anti cyber terrorism, anti cyber warfare, human rights protection in cyberspace, lawful interceptions and self defence against unlawful interceptions, etc.

If you have a temperament for techno legal course, get yourself a seat as techno legal profession is going to be one of the most remunerative and in demand profession in future.

Cyber Skills Development In India

2011-06-13T22:31:00.000-07:00

Cyber skills have become very important these days. Whether you are using these skills for personal purposes or for professional purposes, you must possess them to get the best out of information and communication technology (ICT).

Cyber skills must be ensures in areas like cyber law, cyber security, cyber forensics, etc as these are in great demand these days. Professionals possessing good cyber skills are scanty in every part of the world and this has raised their demand at very remunerative packages.

This is the reason that we must ensure cyber skills development in India. These days not only cyber skills are required in civil areas but they are also needed for military and intelligence purposes. India need to develop good and effective cyber skills as presently it is lagging far behind than other countries.

The real problem in this regard is that we have very few cyber skill development institutions in India. For instance, we have just a “single” techno legal cyber security and skill development centre in India. This exclusive techno legal cyber security research and training centre of India (CSRTCI) is managed by Perry4Law Techno Legal Base (PTLB).

Perry4Law is supervising the special techno-legal online security investigation, training and educational centre in India. It is managing the same through its online platform that is providing world class and exclusive techno legal courses and trainings in the fields like cyber law, cyber security, cyber forensics, etc.

Those interested in getting these trainings and courses can enroll there. Further, the application form for enrollment can be downloaded from here. The interested candidate must duly fill the form and submit the same along with the prescribed fees. You must also refer to the FAQs for more details regarding the fees, duration of courses, natures of courses, etc.

Perry4Law and PTLB are also looking for educational and training institutions and organisations as franchise and partners. Interested persons/institutions/ organisations must contact them with complete proposal. Students and professionals desiring to get techno legal trainings from PTLB can also contact it in this regard.

Judges Training In India By PTLB

2011-06-13T22:26:00.000-07:00

Training of judges in India is a much needed requirement. This is more so regarding online training of judges in India. Online training can open many avenues for Indian judiciary to upgrade its knowledge and skills on a regular basis. It is not always possible to leave the intricate day to day court work and join classes or training outside court complex.

Lifelong learning for judges in India is another good option. Lifelong learning ensures that judges are regularly in touch with the contemporary national and international legal standards. Further, laws also keep on changing from time to time. It is always beneficial if judges are regularly made aware of the contemporary laws.

A special emphasis must be given to technology related laws and regulations. These include telecommunication laws, cyber laws, digital evidencing and electronic evidencing, online dispute resolutions (ODR), e-courts, etc.

The reforms must also be done at the legal education level. From the basic level legal education to continuing legal education in India (CLE in India), everything must be streamlined. Such CLE in India must be combined for legal and judicial trainings in India.

Judicial infrastructures in India also need to be improved and modernised. Not only Indian courts must be computerised but e-courts in India must also be constituted. The present e-courts infrastructure of India needs rejuvenation as it has not improved at all.

Indian judges must be urgently trained in fields like cyber law, cyber forensics, e-courts, ODR, etc. The present national litigation policy of India (NLPI) must be suitably amended to meet these objectives.

Non-Banking Finance Companies (NBFC) Laws In India

2011-06-11T10:29:00.000-07:00

Reserve Bank of India (RBI) has recently announced setting up of a working group to examine issues pertaining to regulation, governance and supervision of Non-Banking Finance Companies (NBFC) operating in India. The working group would be providing its recommendation in this regard.

While the recommendations of the working group are pending, an important development has taken place. Till now it was assumed that only Parliament of India has the power to legislate regarding NBFCs in India. However, this notion has been completely changed by the recent judgment of Supreme Court of India (SCI).

In two separate judgments, the Bombay High Court and Madras High Court held different opinions. The Bombay High Court declared the Maharashtra Protection of Interests of Depositors (in Financial Establishments) Act as unconstitutional holding that only Parliament can pass such a law. However, the Madras High Court on the other hand, upheld the Tamil Nadu law, which was almost identical to that of Maharashtra.

In both cases, the State Governments passed legislations to protect depositors from fraudulent companies and schemes. The SCI held that Bombay High Court was wrong and Madras High Court’s view was the correct one.

A Bench consisting of Justice Markandey Katju and Justice Gyan Sudha Misra upheld the “constitutional validity” of such State laws and termed such laws as salutary measures which were long overdue to deal with scamsters.

The Bench held that if in “pith and substance” a law falls under the legislative powers of a State Government, it is valid and constitutional. The Bench further held that the objectives of such State laws must also be kept in mind as a sharp and distinct lines of demarcation are not always possible and it is often impossible to prevent a certain amount of overlapping.

The bench also observed that the Reserve Bank of India Act and the Banking Regulation Act, 1949 do not cover the field of operation of the non-banking financial companies. The Companies Act also does not directly deal with the problem posed by large-scale cheating of middle class depositors who are lured by promises of high interest rates.

Therefore, the laws to protect small depositors, by attachment of the property of the companies and other steps, was a salutary step and could not be set aside as unconstitutional, the judgment said. This judgment would go a long way in bringing suitable reforms in the NBFC sector of India.

RBI Working Group On Non Banking Finance Companies (NBFCs)

2011-06-11T10:21:00.000-07:00

The Reserve Bank of India (RBI) on Monday announced setting up of a working group to examine issues pertaining to regulation, governance and supervision of Non-Banking Finance Companies (NBFC) operating in India. The working group is headed by Usha Thorat, former Deputy Governor of RBI.

The working group would also stress upon definitional and classification issues and address the regulatory gaps between exiting regulatory frameworks for NBFCs. The group would also focus on maintaining standards of governance in the sector and provide appropriate approach to NBFC supervision

The NBFC sector in India has undergone a significant transformation in the past few years and has come to be recognised as a systemically important element of the financial system. The recent global financial crisis also highlighted the regulatory imperatives concerning the non-banking financial sector and the risks arising from regulatory gaps, arbitrage and systemic inter-connectedness. A need was, therefore, felt to reflect on the broad principles that underpin the regulatory architecture for NBFCs, keeping in view the economic role and heterogeneity of this sector and the recent international experience.

RBI has also announced in the past a regulatory framework for Core Investment Companies (CICs) that are systemically important. These CICs hold assets predominantly as investments in shares of group companies and not carry on any other financial activity. These CICs also deserves a differential treatment than NBFC hence RBI announced the regulatory framework for CICs on August 12, 2010.

As per that regulatory framework, CICs were distinguished from the regulatory guidelines applicable to NBFCs in general. Recently, a revised framework was issued on January 5, 2011, which further liberalised the earlier regulatory framework.

On top of this, RBI is in the process of formulating wealth management regulation in India. This would prevent many fraudulent transactions that are presently committed in India. It seems banking reforms in India is on government agenda this year.

Authorship Attribution And Cyber Crimes Convictions

2011-06-11T10:14:00.000-07:00

Cyber crimes are increasing world over. While technology has been used to reveal their true identity yet technology has also been used by cyber criminals to conceal their cyber tracks. There are many methods to conceal the identity of an accused and mixing within the crowd is one such method.

When an accused commits a cyber crime by mixing among the legitimate and law abiding crowd, it becomes imperative to ascertain, with great certainty, that a particular culpable act has been committed by a particular person alone.

According to Praveen Dalal, leading techno legal expert of India and managing partner of Perry4Law Techno Legal Base (PTLB), Authorship Attribution is an important aspect of “determining the culpability” of an offender where the means to commit the offence are common and accessible to many people simultaneously. Data Mining and Profiling of the accused to “Attribute Culpability” to him/her alone is an emerging area of Cyber Crime Investigation, informs Dalal.

However, ascertaining authorship of an offensive e-mail to a particular person requires tremendous expertise. In India cyber crime investigation is not upto the mark. When it comes to cyber forensics, the situation is even grimmer. However, Praveen Dalal has written an exclusive cyber forensic book for government departments of India and the same would help India greatly in fighting cyber crimes in India.

As far as the attribution aspect is concerned, the same would be covered by the forthcoming and exclusive techno legal cyber crime investigation manual of India to be released by PTLB and Praveen Dalal very shortly.

Indian government must also work in these directions and strengthen the cyber law, cyber forensics and other techno legal skill of its police officers, public prosecutors, judges, etc.

Civil Liberties Are Infringed Through Technology World Over

2011-06-11T10:04:00.000-07:00

Civil liberties like speech and expression, right to know, right to privacy, etc are well known. Even the parameters to restrict their free applicability are also drawn in almost al the constitutions of the world. What is not codified and made public is the manner in which these civil liberties are violated through the use of technology.

Not very late, the US National Security Agency (NSA) was involved in a controversy known as the NSA warrantless surveillance controversy. The NSA was authorised by executive order to monitor, without search warrants, phone calls, e-mails, Internet activity, text messaging, and other communication involving any party believed by the NSA to be outside the US. This was so even if the other end of the communication lies within the US.

This raised lots of hue and cry as it was a serious threat to civil liberties of US citizens. Surprisingly, India has been doing a warrant less e-surveillance for more than 60 years and none bothered to raise a voice.

According to Praveen Dalal, a Supreme Court lawyer and leading techno legal expert of India, we have “No Constitutionally Sound” Lawful Interception Law in India and we need one immediately. The Indian Telegraph Act, 1885 has served it purpose and it must be “Repealed” as soon as possible if India cares about Fundamental Rights of Indian Citizens, suggests Dalal.

Presently, phone tapping in India is done under the telegraph act that has no constitutionally sound provisions for phone tapping. Thus, phone tapping in India is done in an unconstitutional manner as suggested by Praveen Dalal.

Supreme Court of India laid down certain guidelines that provided few safeguards against illegal phone tapping in India. However, neither the Parliament of India enacted a law considering those guidelines nor the Home Ministry of India is following these guidelines in true letter and spirit. The truth is that lawful interception of telephone and other electronic communications in India are not performed constitutionally.

On top of it, the central monitoring system (CMS) has been recently launched by the ministry of communication and information technology. Even CMS failed to provide constitutional safeguards against it abuse.

While citizens of US are well aware of their civil liberties, Indian citizens are all happy even if their civil liberties have been literally snatched from them. Realising the gravity of the situation, the Supreme Court of India has even commented that with the technological advancement, privacy is virtually disappearing in India.

Let us hope the Supreme Court of India would preserve the civil liberties of Indians in general and privacy rights in particular from our endemic e-surveillance Indian government.

National Counter Terrorism Centre (NCTC) Of India Needed

2011-06-11T09:55:00.000-07:00

India has plethora of intelligence agencies and security agencies. These include Research and Analysis Wing (RAW), Aviation Research Centre (ARC), Intelligence Bureau (IB), National Technical Research Organisation (NTRO) and Defence Intelligence Agency (DIA), etc.

Presently, intelligence agencies of India are operating in a decentralised manner. There is no centralised authority or Ministry that can coordinate or collaborate between different intelligence agencies. Further, there is no Parliamentary oversight of these intelligence agencies as well.

Home Minister P. Chidambaram decided to bring all these agencies under an umbrella organisation. He proposed the national counter terrorism centre (NCTC) of India under which all these intelligence agencies would report and operate.

However, “Practical Difficulties” may prevent the actual implementation of the much needed NCTC of India, says Praveen Dalal, a Supreme Court lawyer and leading techno legal expert of India. He says that presently Intelligence Agencies of India are operating under different Department/Ministries and there would be a “Reluctance” to submit to the Centralised NCTC of India.

Although practical difficulties may be there but Home Minister P Chidambaram must overcome these difficulties if he wishes NCTC to be a reality. Already, the deadline for establishment of NCTC has passed and its establishment has been postponed to the end of 2011.

The “Safest and Easiest Method” to establish NCTC is to give a Parliamentary Scrutiny to Intelligence Agencies and their functioning. In the same Legal Framework, establishment and role of NCTC can be formulated, suggests Praveen Dalal.

It seems P Chidambaram cannot proceed further due to administrative and bureaucratic problems but if Parliament of India enacts suitable laws in this regard, much of the problems can be solved.

National Security Policy Of India

2011-06-11T09:23:00.000-07:00

Policy decisions are not easy to take. This is especially true if we are talking about national security policy of a nation. National security policy has to cover a wide spectrum and gamut of areas starting from traditional security concerns to cyber security.

National security policy of India is yet to be formulated. In fact, national security policy of India is urgently required. This requires a dedicate effort in this regard. We have to list all the possible areas of national security and then start working upon them one by one.

However, India is not very good at providing legal frameworks for national security related issues. In fact, there is a general abhorrence among Indian Parliament to enact suitable, timely and relevant laws.

Take the example of Indian law enforcement and intelligence agencies. They are practically governed by no legal framework in India. Even they are operating secretly and without any accountability. The worst part is that there is no Parliamentary oversight of these law enforcement agencies and intelligence agencies.

Even the premier investigation agency of India known as central bureau of investigation (CBI) of India is not governed by any law. It is only with the draft central bureau of investigation act, 2010 (Bill) that some sort of legal framework has been suggested for CBI.

While drafting the national security policy of India, Indian government must consider all these aspects. To start with, Indian law enforcement agencies and intelligence agencies must be made more transparent and accountable through proper legal framework. Once that is achieved, other issues must also be picked one by one.

Nandan Nilekani Is Wrong Regarding Aadhar Project

2011-06-11T09:20:00.000-07:00

Unique identification project of India (UID project of India) or Aadhar project of India is always portrayed as a welfare scheme to streamline public distribution system of India. It has been projected as a technological method to ensure equitable distribution of public utilities to needy and deserving masses.

However, this is just one of the “possible uses” of Aadhar project. The real and most dangerous use of Aadhar database would be to effectively use it for e-surveillance and lawful/unlawful interceptions.

India has no “Constitutionally Valid” Phone Tapping Law and Lawful Interception Law claims Praveen Dalal a Supreme Court lawyer and leading techno legal expert of India. A Constitutionally Sound Law must not only adhere to the Constitutional Requirements but must also respect Fundamental Rights and Civil liberties of Indians, informs Dalal. Neither Aadhar Project nor Unique Identification Authority of India (UIDAI) are meeting “Constitutional Requirements” and are therefore “Unconstitutional” informs Dalal.

Interestingly, UIDAI framed a proposed legislation for Aadhar project and UIDAI titled National Identification Authority of India Bill 2010 (Bill). The Bill is still to become an applicable law as it has not been approved by the Parliament of India. Legally speaking, both Aadhar project and UIDAI are still “unconstitutional” in the absence of a legal framework supporting them.

However, according to Praveen Dalal even after the Bill becomes and applicable law, both Aadhar and UIDAI would remain “Unconstitutional”. This is so because the “Constitutional Safeguards” that are required to make Aadhar/UIDAI Constitutional are still missing from the proposed Bill.

The present ruling government of Congress is already in controversies for scams, corruption charges, irregularities and black money deposits, etc. in these circumstances, spending crores of money upon an unconstitutional project like Aadhar project is not a sensible option.

However, the prime minister’s office (PMO) has not taken note of this constitutional irregularity and is allowing Aadhar project and UIDAI to operate. Our Prime Minister Dr. Manmohan Singh must urgently step in and take proper actions before it is too late.

The present unconstitutional phone tapping practices adopted by Indian government and its agencies has already become a constitutional failure. There is no need to make this constitutional failure a permanent one. Let us hope the Indian government would wake up before it is too late.

Supreme Court, Technology And Privacy Rights In India

2011-06-11T02:25:00.000-07:00

India has been passing through a phase that is most dangerous for civil liberties. Indian government and its agencies are violating various civil liberties like right to privacy, right to speech and expression, right to know, etc with no fear or remorse. The failure of Parliamentary Democracy has also contributed its share of woes for India.

To broaden its e-surveillance capabilities, Indian government has launched many unconstitutional projects without any legal framework and that are openly and actually violating various civil liberties of Indians. Some of them include Aadhar/UID project, national intelligence grid (Natgrid), crime and criminal tracking network and systems (CCTNS) project of India (CCTNS Project), central monitoring system (CMS) of India, etc.

These technological projects are helping Indian government and its agencies to unconstitutionally tap phones in India and engage in unconstitutional e-surveillance. Till now, we have no constitutionally sound lawful interception law in India.

In fact, a writ petition for protection of privacy rights in India is already pending before the Supreme Court of India. The way Indian executive is playing with the Constitution of India, the day is not far when there would be a complete “constitutional failure” in India.

Even the prime minister’s office (PMO) has failed to take any step in this direction. Presently, there is “no Parliamentary oversight” of projects like Aadhar/UID, Natgrid, CCTNS, central monitoring system (CMS), etc. If we add biometric data with other data gather by National Census and National Population Register of India and supplement it with projects like Natgrid, CCTNS, CMS, etc, an endemic e-surveillance model is apparent.

Fortunately, the Supreme Court of India has shown its displeasure regarding the growing use of technology for violating privacy rights of Indians. A division bench of Justice G.S. Singhvi and A.K. Ganguly has expressed that with the technological advancement, privacy is virtually disappearing. The bench also observed that the Official Secrets Act is a very old act it may need reform.

The Indian telegraph Act, 1885 must also be declared unconstitutional by the Supreme Court of India and a constitutionally sound phone tapping and e-surveillance law must be enacted by the Parliament of India.

Till Supreme Court of India does not declare laws like official secret, telegraph act, information technology act 2000, etc as “unconstitutional”, nothing is going to improve in India. These laws have been deliberately framed in this manner so that civil liberties can be suppressed at will. If even Supreme Court fails to deliver justice, India would become an absolute endemic e-surveillance society and a “banana republic”.

Aadhar Project And UIDAI Are Big Troubles

2011-06-11T01:54:00.000-07:00

Unique identification (UID) is no more a novel concept for India. With the imposition of unique identification project of India (UID project) or Aadhar project of India upon Indian citizens, this is no more a hidden agenda of Indian government.

On the contrary, Aadhar project has emerged as a publically known endemic e-surveillance project of Indian government. Surprisingly Indian citizens have still not raised their voices against this illegal and unconstitutional project?

The reason for this lack of interest about the vicious Aadhar project is due to the fact that Indian government is smart enough and it has not yet imposed this project upon educated masses of India. Till now Aadhar project has been imposed upon illiterate and docile people belonging to poor population.

These poor people have been given big dreams of effective public distribution and good supply of food and other utilities. What else these deprived category of people need than this dream that would never be fulfilled by Indian government.

The truth is that Indian government and UIDAI are fooling Indian masses. Under the façade of welfare schemes and streamlining of public distribution system lies a hideous trap of endemic e-surveillance and civil liberties violations.

Unfortunately, even the prime minister’s office (PMO) has been a supporting party to the illegal and unconstitutional Aadhar project and UIDAI. Our Prime Minister Dr. Manmohan Singh did not bother to get privacy laws, data security laws, data protection laws, cyber security laws, effective cyber laws, etc enacted before imposing projects like Aadhar, national intelligence grid (Natgrid), CCTNS, central monitoring system (CMS), etc.

Time has come to ask for accountability and civil liberty procedural safeguards against various illegal and unconstitutional projects that have been recently launched by Indian government. Privacy rights issue is already pending before Supreme Court of India. Let us hope that at least Judiciary would bring some order in the otherwise chaosed situation of Indian projects.

Police In India Needs Cyber Law Training

2011-06-11T01:37:00.000-07:00

Cyber crimes are increasing at an alarming rate in India. However, law enforcement officials are not at all trained to deal with high tech crimes. As a result we have almost nil cyber crimes conviction in India.

Another reason for poor conviction rate for cyber crimes in India is due to weak and ineffective cyber law of India. The information technology act, 2000 (IT Act 2000) is the only cyber law of India. It was poorly amended in 2008 through the information technology amendment act 2008 (IT Act 2008).

Through the IT Act 2008 almost all the cyber crimes in India have been made bailable. With a poor track record of disposal of cases in India, this bailable nature of cyber law makes the conviction of cyber criminals almost impossible in India.

Indian government must repeal the present cyber law and enact a new and stronger cyber law. At the same time, police force of India must be suitably trained in areas like cyber law and cyber forensics. In short, police force in India needs good and effective techno legal trainings to deal with growing nuisance of cyber crimes in India.

Police in India need to enroll for cyber security courses, cyber forensics courses and cyber skills development courses. Police force must also develop cyber forensics skills so that cyber crimes can be solved.

Perry4Law Techno Legal Base (PTLB) is offering techno legal research, training and education to law enforcement agencies, public prosecutors and lawyers, judicial officers, corporate executives, law graduates, professionals, etc.

To widen the ambit and scope of this training, an online platform has been launched to provide online training to all interested persons and institutions. Police personnel can get themselves enrolled there to get good techno legal trainings.

With proper techno legal trainings, police force in India would be better equipped to tackle cyber crimes in India.

The Central Monitoring System (CMS) Of India

2011-06-11T01:26:00.000-07:00

The central monitoring system (CMS) is a centralised mechanism that can assist in lawful interception of communications from landline, mobile and Internet. Although it can be used only if there is a lawful interception law in India yet it seems to have been tested recently without any lawful interception law in India at place.

For a constitutionally sound lawful interception law, there must a well defined law with constitutional safeguards to protect its abuses. India has no constitutionally sound lawful interception law at present.

According to Praveen Dalal, a Supreme Court Lawyer and leading Techno Legal Expert of India, one of the laws that require an immediate repeal is the Indian Telegraph Act, 1885. It is the most abused law of India when it comes to Phone Tapping and Illegal Surveillance. The fact and truth is that India does not have a Legal and Constitutionally Sound Phone Tapping and E-Surveillance Law.

So much so that phone tapping in India is done by private individual that also without any authorisation and on the basis of forged documents. There is no mechanism through which these private individuals can be held responsible for illegal phone tapping in India. In fact, to a greater extent these private individuals are actively encouraged by Indian government to engage in phone tapping by not enacting sufficient and stringent laws in this regard.

After strong protests and constant demands for lawful interception law in India, Indian government has given some hints that guideline in this would be issued very soon. However, mere guidelines under the Telegraph Act are not sufficient and nothing short of a constitutionally sound lawful interception law would be enough to make the CMS legal and constitutional.

The present phone tapping, e-surveillance, interceptions, website blocking, Internet censorship, etc are done in an unconstitutional and undemocratic manner in India. This is despite what Indian government claims.

The matter is pending before the Supreme Court of India and it would be a good opportunity to declare the Telegraph Act unconstitutional so that the government may be forced to enact a constitutionally sound law in this regard.

Parliamentary Committee Grilled Nandan Nilekani And Sudha Pillai

2011-06-11T01:21:00.000-07:00

Unique identification (UID) project or Aadhar project has been in controversies from the very beginning. With no planning and strategy at all and crucial lacunas, Aadhar project is bound to fail. In fact, Aadhar project and Indian government are hiding truth from Indian citizens.

Aadhar project is implemented by unique identification authority of India (UIDAI) under the chairmanship of Nandan Nilekani. Neither the Aadhar project nor the UIDAI are constituted through a legislative act. This means neither Aadhar project nor UIDAI are legally constituted and constitutional valid project and authority.

While there is no chance that Aadhar project would be approved by Parliamentary Committee because it is illegal and unconstitutional yet recently the Parliamentary panel challenged the very basis and requirement of Aadhar number.

Nandan Nilekani, along with Planning Commission secretary Sudha Pillai, appeared before Parliament’s Standing Committee on Finance on Friday where many members expressed their reservations about the Aadhar project. Questions were asked about the need, non mandatory nature of the project, multiplicity of cards in India, etc.

Till now none have asked questions regarding lack of legal framework, safeguards against civil liberties violations, data security and cyber security measures undertaken to safeguard biometric data, etc.

These are the real questions that even Nandan Nilekani cannot answer and in the absence of answers to these questions, Aadhar would not be accepted by the Parliamentary Committee.

Indian Telecom Companies Used Private Individuals To Do Tapping

2011-06-11T01:06:00.000-07:00

Telephone tapping in India has never been done in a constitutional manner. Indian government has never drafted constitutionally sound lawful interception law in India as it would have diluted their endemic e-surveillance capabilities. Till now India has no constitutionally sound lawful interception and phone tapping laws in India.

Not only this, even privacy rights and data protection rights have never been enacted as they would have created hindrance in the otherwise draconian affairs of Indian government and Indian intelligence agencies.

The matter is even worst when we consider the fact that in India the law enforcement and intelligence agencies are practically governed by no law. They are still governed by colonial laws that have no significance in the present times.

Even the phone tapping in India is done under a law that is nothing but a façade to engage in illegal and unconstitutional phone tapping. The Indian telegraph act, 1885 is a law that deserves to be repealed instead of encouragement by Indian government.

During the most recent hearing before the Supreme Court of India regarding phone tapping of politician Amar Singh, it has come to the knowledge of the Court that the government had been intercepting calls on a massive scale before new norms were put in place in 2006.

The phone tapping in question was arranged by a private security agency employee contracted by the service provider to receive interception orders from official agencies. This is the most common method employed by telecom companies’ world over to avoid legal challenges. Despite what the Indian government claims in the Supreme Court, the intentions were to avoid legal scrutiny from the courts.

Even after 2006, the Supreme Court’s guidelines regarding phone tapping are not followed. The central and state home ministries are doing what they want to do and they are simply beyond the scrutiny of right to information act, 2005 and are not at all accountable to any person, institution or even to the Supreme Court of India.

The further issuance of guidelines by Supreme Court in this regard would not serve any purpose. India must immediately enact a lawful interception law as has been suggested by many legal experts.

RBI Ombudsman Office Is Flooded With ATM Related Complaints

2011-06-11T00:52:00.000-07:00

After improving ATM security in India, reserve bank of India (RBI) is now planning to conclusively establish the responsibility of ATM frauds. Most of the complaints received by the ombudsman’s office of RBI pertain to fraudulent transaction through ATMs.

The ombudsman’s office is registering a growing number of customers’ complaints claiming that despite funds not having been withdrawn, the amount gets debited from the account. RBI is now planning to mandate that banks have to prove the customer received the funds.

This means that the burden of proof is now upon the concerned bank to prove that the customer has actually withdrawn the money. With the proposed due diligence requirements by RBI, this liability of banks have become even more onerous.

Banking industry has not taken due diligence and cyber crimes seriously. Whether it is phishing scams, spam frauds, Nigerian frauds, ATM frauds or credit card cloning frauds, Indian banking industry is not serious about them. The truth is that banking industry of India is not at all prepared to tackle the growing banking related technological crimes.

Even the government of India is responsible for this position. Under pressure of industrial lobbying, Indian government has made the sole cyber law of India impotent. For instance, even if a cyber criminal is apprehended for a banking related cyber crime, he has to be released on bail as a matter of right under the information technology act, 2000 of India.

Even RBI sources claim that the present cyber law is losing its significance in the fast changing banking sector. The customer service committee is expected to highlight the need to re-look at the cyber law. Some urgent steps must be taken as soon as possible by Indian government before banking industry is severely hit by cyber criminals.

Cyber Due Diligence For Banks In India

2011-06-11T00:31:00.000-07:00

Cyber security of banking sector is an area that must be taken very seriously by banks of India. Cyber risks for banking industry in India are increasing at an alarming rate. Whether it is phishing scams, spam frauds, Nigerian frauds, ATM frauds or credit card cloning frauds, Indian banking industry is not prepared to tackle them.

Realising the gravity of the situation, the Reserve Bank of India (RBI) has recently released a report of its working group on information security, electronic banking, technology risk management, and cyber frauds.

The report has also issued many recommendations that Indian banks would be required to follow in order to provide safe and secure technology driven banking. Practically, this means that banks in India would be required to adopt techno driven and cyber law related due diligence requirements.

Till now banks have not taken due diligence requirements seriously. Already many cyber law related contraventions adjudication proceedings have started in India. The trend is going in the direction of more such consumer disputes and adjudication proceedings in India.

A major reason for this apathy on the part of banks for due diligence is lack of awareness regarding provisions of cyber law of India. The information technology act, 2000 (IT Act, 2000) clearly mandates observation of due diligence on the part of banks. In the absence of such due diligence, banks can be held liable for consumer losses.

Banks must establish core IT committees as per RBI directions that must consist of good techno legal professionals who can guide them regarding various due diligence requirements under the IT Act, 2000 and other laws.

Lawful Interception Law In India Is Missing

2011-06-11T00:20:00.000-07:00

Lawful interception consists of many segments. It includes e-surveillance, phone tapping, eavesdropping, wiretaps, pen registers, etc. As the name suggests, lawful interception must be supported by a law. This is the lay man’s interpretation of the definition of lawful interception.

However, a legal mind should not be confused by this layman’s definition. Any good lawyer would tell you that lawful interception must not only be supported by a law but that law must also pass the tests of constitutionality.

Nations all over the world are enacting laws whose primary purpose is to strengthen unlawful interceptions through the instrumentality of laws. Since this is going to be challenged by people, nations are playing the card of “national security” by creating fear, uncertainty and doubt (FUD factor).

India is no exception to this rule. Under the guise of national security, India is sticking to the same law that it considered draconian before its independence. The Indian Telegraph Act, 1885 is the colonial and draconian law that Indian government in general and home ministry of India in particular uses to indulge in unconstitutional phone tapping.

According to Praveen Dalal, a Supreme Court Lawyer and leading Techno Legal Expert of India, India is the only country of the World where phone tapping is done without a Court Warrant and by Executive Branch of the Constitution of India. Phone tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” in this regard. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more, informs Dalal.

Not only phone tapping, but even e-surveillance and eavesdropping is not regulated by a constitutionally sound law in India. India urgently needs a Lawful Interception Law, suggests Praveen Dalal. The present Cyber Law of India contained in Information Technology Act, 2000 (IT Act, 2000) is not a Constitutionally Sound Law for Lawful Interceptions in India, opines Dalal.

There is a growing distrust and anger among Indian masses regarding privacy violations and violations of other civil liberties. Further, with projects like Aadhar, national intelligence grid (Natgrid), etc privacy violations and other civil liberty violations are further bound to increase. In the absence of a constitutionally sound lawful interception law in India, only self defence measures can come to the rescue of Indian citizens.

The prime minister’s office (PMO) of India in general and our Prime Minister Dr. Manmohan Singh in particular must ensure a constitutional sound lawful interception law in India. Further, he must also ensure a good, effective and constitutional cyber law for India as well.

Indian Cyber Law Must Be Scrapped

2011-06-10T23:46:00.000-07:00

Many techno legal experts of India are saying that cyber law of India is in bad shape and it deserves to be repealed. For instance, according to Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law and leading techno legal expert of Asia, the Information Technology Act 2000 is more on the side of a collection of “Legal Jargon” than a Law as contemplated by the Constitution of India and it deserves an urgent repeal.

Technology related laws are the need of hour these days. The more technology has become a part of our daily lives the greater is a need to regulate it use in a legal manner. Deviance from lawful use of technology often results in cyber crimes. However, legal enablement of ICT systems in India is still missing.

In India cyber crimes and nuisance like spam communication are increasing at an alarming rate. However, the laws required to tackle the same are missing in India. For instance, the information technology act, 2000 (IT Act, 2000) is the sole cyber law of India.

It was amended by information technology act, 2008 (IT Act, 2008). This amendment also made almost all the cyber crimes bailable, giving enough incentives to commit cyber crimes in India without any fear of law or punishment.

Recently, telecom minister Mr. Kapil Sibal showed his intentions to frame rules under the IT Act, 2000. What is not understandable is why he is lingering with this weak and ineffective law? Why cannot he start an exercise of repealing the present cyber law and enacting comprehensive laws regarding cyber crimes, cyber security, e-governance, e-commerce, etc?

The present approach and attitude of Mr. Sibal is piecemeal in nature that can never give an enduring and strong solution against growing cyber crimes in India. It is high time for him to repeal the present cyber law of India and come up with a good one.