Friday, November 20, 2015

SC Has Killed Cyber Law Due Diligence In India To A Great Extent

Cyber law due diligence in India (PDF) for Internet Intermediaries is incorporated in the Information Technology Act 2000 (IT Act 2000). Section 79 read with Information Technology (Intermediaries Guidelines) Rules, 2011 (PDF) deals with cyber law due diligence obligations of Internet Intermediaries of India.

There has been lots of confusion and protests against the Internet Intermediary liability applicable to the Intermediaries. Although internet intermediary liability in India has been clarified yet doubts and problems persisted in this regard. As a result cyber law due diligence requirements in India is neglected with impunity.

According to the cyber law developments of India 2014 provided by Perry4Law Organisation (P4LO) and Cyber Crimes Investigation Centre of India (CCICI), some serious cyber law related issues deserve immediate attention of Indian government. We were waiting for a positive response from Indian government but meanwhile the judgment of Shreya Singhal v. Union of India (24th March 2015), Writ Petition (Criminal) No.167 Of 2012 (PDF) was delivered by Indian Supreme Court.

This judgement has come as a big blow to the cyber law due diligence obligations of Intermediaries in India. The main problem seems to be reading down of Section 79(3) (b) and Rule 3(4) By Supreme Court in a manner that would be counter productive in the long run. In fact, reading down of Section 79(3) (b) and Rule 3(4) is more problem than solution as the Supreme Court erred in adopting this approach.

Now it has become necessary for Modi government to urgently bring suitable amendments in the IT Act 2000. Unfortunately, Indian Parliament and Indian government are not capable of enacting effective techno legal legislations. This is the reason why even the most draconian and unconstitutional rules are simply approved by Indian Parliament without any analysis, debate and application of mind. Once approved, such rules become part of the parent Act and this creates serious law and order enforcement problems.

Even worst is constitution of authorities and projects by mere Executive orders. For instance, Aadhaar project is an unconstitutional project that has been created by an Executive order. Indian Parliament has not deemed it fit to dissolve the same and come up with a robust law in this regard. Supreme Court if India has directed on multiple occasions that Aadhaar is not compulsory for government services but Indian government is not paying any heed towards those directions. Aadhaar has been made compulsory by direct and indirect means and very soon even the Aadhaar project would be declared to be unconstitutional by Indian Supreme Court.

Even Modi government is following the steps of Congress government and is very indifferent towards ensuring Parliamentary oversight of various projects and initiatives. For instance, promising projects like Digital India and Internet of Things (IoT) (PDF) are still not governed by any legislative process. Naturally, there is no accountability and transparency for these projects as on date. In fact, Digital India project of India is heading for rough waters in these circumstances.

Indian cyber law has not been appropriate since its inception. Too much stress is given to suppress civil liberties and enhance e-surveillance. However, it has now reached a stage where immediate steps must be taken to protect civil liberties in cyberspace on the one hand and projects like Digital India on the other. This is also the high time to leave politics and do positive things for Indian masses.