Sunday, January 9, 2011

The Draft Central Bureau Of Investigation Act, 2010

One of the major problems with Indian law enforcement agencies and intelligence agencies is that they are virtually governed by no law. Experts of this field have been asking for the establishment of sufficient laws for law enforcement agencies and intelligence agencies of India for long.

The CBI, IB and RAW in India represent a case in which there is almost no law to look at. Further, there is no legally tenable mechanism that can keep an eye upon these agencies and their functioning. With the enactment of National Investigation Agency Act, 2008 some steps have been taken in this regard.

With the introduction of endemic surveillance and e-surveillance projects like Aadhar, national intelligence grid (Natgrid), crime and criminal tracking network and systems (CCTNS), etc it has become absolutely essential to enact suitable laws in this regard.

According to Praveen Dalal, Supreme Court Lawyers and Managing Partner techno legal firm Perry4Law, there is an urgent need of “Parliamentary Oversight” of Intelligence Agencies and Law Enforcement Agencies in India as presently there is none. Fortunately, The Central Bureau of Investigation Act, 2010 has been drafted by the Indian Government and after proper deliberations and its finally passing by the Parliament of India, it may become an enforceable law very soon, informs Praveen Dalal.

However, is the CBI Bill sufficient to accommodate the growing requirements of civil liberty protections in India? Like all other similar Bill, even the CBI Bill is suffering from various “Shortcomings”, informs Praveen Dalal. The chief among them is absence of “Civil Liberty Safeguards” against possible misuse of projects like Aadhar, NATGRID, CCTNS, etc, opines Praveen Dalal. However, at least a good step in the right direction has been taken by Indian Governments, says Dalal.

Will Supreme Court Of India Protect Privacy Rights In India?

Enactment of suitable Privacy Laws in India is long overdue. However, the Government of India has not considered this issue to be important enough.This is so even if Projects like Aadhar, NATGRID, CCTNS, etc may be declared to be “Unconstitutional” by Constitutional Courts of India. The matter is pending before the Supreme Court and this occasion can be utilised by it for prescribing “Stringent and Suitable” Privacy Rights Guidelines.

In this “Guest Column” Praveen Dalal, Supreme Court Lawyer and Managing Partner of Perry4Law, has analysed the possibility of expansion of right to privacy in India by the Supreme Court of India.

Few things related to 2G Scam have happened in the right perspective so far at the Supreme Court of India. The questioning of Supreme Court regarding inaction on the part of Prime Minister’s Office (PMO) India, giving due credit to the CAG’s Report, accepting Ratan Tata’s Writ Petition regarding Privacy Rights Violation, etc are some of them.

The latest to add to this list is denial of Supreme Court to issue any “Interim Relief” in the Tata’s Writ Petition and issuing of notices to open and outlook magazines which had published contents of the alleged taped conversation.

Tata had sought an interim relief for restraining the respondents from further publication of recorded conversations between him and Radia. He also sought an Injunction that would prevent the publishing and circulation of the contents of these conversations in “Any Form”. However, is it possible and does it make any difference at this stage?

The answer seems to be in Negative although Tata may not like the same. This is because contents of conversations are already out in “Public Domain” and on multiple traditional and electronic mediums and platforms. It is not possible for the Supreme Court of India or even for the Government of India to do much at this stage and in this regard.

However, one aspect has skipped the attention of all parties to the Writ Petition and even of the Supreme Court. The sole purpose of Ratan Tata seems to be to protect “His Privacy Rights” by preventing the “Disclosure and Circulation” of conversation or communication recorded through “Surveillance Methods” of State machinery. At this stage this concern and demand seems to be “Infructuous” and “Academic Purpose” only. This is because even if Supreme Court of India provides the “Relief” that Tata is claiming “In Toto”, the “Contents” of the conversation would remain on Internet and this is next to impossible to remove.

There is a blessing in disguise in Tata’s Petition. This is a golden chance for the Supreme Court of India to analyse the “Implementation” of its decision in the PUCL case (Phone Tapping Case). The Supreme Court must “Widen” the scope of Privacy Rights in India not only in the context of Phone Tapping but in an “Overall Manner”. The Supreme Court must formulate and lay down the widest possible “Guidelines” regarding Privacy Protection in India as it has done in the Vishaka’s Case (Guidelines against Sexual Harassment).

I hope this Writ Petition by Tata would come as a rescue of Fundamental Rights in general and Right to Privacy of Indians in particular. The only question that remains to be seen is will the Supreme Court of India protect Privacy Rights of Indians at large? I am optimistic and would be glad to see this outcome.

Legal Framework For Mandatory Electronic Delivery of Services In India

Electronic governance (e-governance) is the best form of good governance. E-governance brings transparency, accountability and fairness in the governmental dealings with the citizens. Since e-governance is an administrative aspect, which may or may not be used by government and its officers, a legal framework is usually established so that electronic delivery of services can ensured.

E-governance in India has failed miserably barring very few and exceptional cases. This is because e-governance in India is ailing from various vices and shortcomings. To be successful, e-governance in India needs accountability and department of information technology (DIT) India must be answerable to the prime minister’s office (PMO), India.

National e-governance plan (NEGP) of India has already failed to a greater extent. Even ICT Trends in India 2009 by Perry4Law Techno Legal Base (PTLB) have marked the year 2009 “Blunder ICT Year” of India. The year 2009 saw some major information and communication technology (ICT) pitfalls and bad decisions were made by the Indian government. The year 2010 has been even worst where 2G scam and other administrative and legal lapses have been committed by DIT, India. It would not be wrong to conclude that India has become technologically bankrupt.

Many problems of NEGP and e-governance projects of India can be solved by enacting effective privacy and data protection laws in India. In the absence of privacy and data protection laws, projects like Aadhar, national intelligence grid (Natgrid), crime and criminal tracking network and systems (CCTNS), etc can never be legitimate, legal and constitutional. Similarly, authorities like unique identification authority of India (UIDAI) are also illegal and unconstitutional in the absence of such laws.

However, the real problem with Indian e-governance initiative is that legal framework for mandatory electronic delivery of services in India is missing, says Praveen Dalal, Supreme Court lawyers and Managing Partner of India’s exclusive techno legal law firm Perry4Law. There is no effective legal enablement of ICT systems in India and even the Information Technology Act, 2000 is non-mandatory in nature in this regard, informs Praveen Dalal.

Naturally, e-delivery framework in India is in doldrums despite the contrary claims of Indian government. Further, e-infrastructure system of India is in big mess. Although, Right to Information Act, 2005 mandates that all public authorities must maintain their records in electronic form, yet this mandate has by and large been neglected by all public authorities of India, informs Praveen Dalal.

Perhaps, too much autonomy and powers have been given to the DIT, India by PMO. It is high time for the Prime Minister of India Dr, Manmohan Singh to ask time bound and actual results from DIT, India so that e-delivery of services in India can become a reality and not just paper achievement.

Where Are Privacy Rights In India?

Privacy rights in India have always been neglected. Indian government has obvious interests in not enacting a well define privacy that that can curb the excessive surveillance and endemic e-surveillance activities of sate and its instrumentalities. Even the civil society kept a mum up to a stage when e-surveillance and phone tapping has become epidemic. Now all of a sudden privacy issues has become a nightmare for Indian government.

To start with, data and privacy laws are missing in India. Even there is no sign that such crucial laws would be enacted for another five years or more. All past assurances of Indian government in this regard are just fa├žade to keep civil liberties activists silent.

Further, there is no lawful interception law in India. Of course, we have a colonial law named Indian telegraph act that is not at all meeting the requirements of present time. Instead of enacting a suitable law that meets the requirements of Indian constitution, the Indian government is keeping the dead law alive for the sole purpose that its activities can remain free from judicial scrutiny and without legal obstacles. This law is also primarily used to engage in legal as well as illegal phone tappings in India.

On top of it are illegal and unconstitutional projects like Aadhar, national intelligence grid (Natgrid), CCTNS, etc and unaccountable authorities like UIDAI that are having an absolute free hand regarding funds, lack of accountability and absence of transparency.

UIDAI is one of the worst e-surveillance instrumentalities of India and prime minister’s office of India (PMO India) must take active steps to scrap Aadhar project and UIDAI till proper legal framework and adequate safeguards are at place.

Similarly, it seems that the Natgrid project would be imposed upon us by the cabinet committee on security (CCS). Although, Natgrid project has not yet been approved by CCS yet the way Home Ministry of India is lobbying there seems to be little hope that CCS would not be forced to grant its approval even after its own objections in this regard.

Similarly, there is little planning and coordination regarding CCTNS in India. In fact, CCTNS may not be accepted by various states of India in the absence of proper planning, guidelines and legal framework.

In all this drama, there is still little hope from the Supreme Court of India (SCI). The decision of SCI on the writ petition of Ratan Tata must also include the constitutionality of Aadhar project/UIDAI, Natgrid, CCTNS, etc. The SCI would be deciding about the conflicting interests of public interest and privacy rights but no such question arises when there is no public interest involved at all.

Indian government is violating privacy rights of Indians without just causes and in the absence of any legal framework. Let us hope the SCI would do justice to this situation and reformulate privacy norms for India as soon as possible and without delaying the matter too much. I hope the entire exercise of SCI is not limited to mere prohibition of release of phone tapping tapes.