Constitutionality Of NCTC Challenged Before Madras High Court

The constitutional validity of National Counter Terrorism Centre (Organisation, Functions, Powers and Duties) Order 2012 has been challenged before the Madras High Court. A public interest litigation petition (PIL) has been filed in the Madras High Court challenging the constitutional validity of the NCTC Order 2012.

This action is not only natural but was also very obvious. The constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) has not been accepted by States and now NCTC has been launched through an NCTC Order 2012. This was too much for the States and they protested against this order before the Prime Minister of India.

Indian government is bypassing parliamentary oversight for almost all its projects and initiatives. For instance, the National Counter Terrorism Centre (NCTC) Project of India, National Intelligence Grid (Natgrid) Project of India, Aadhar Project of India, Crime and Criminal Tracking Network and System (CCTNS), etc are not governed by any legal framework and parliamentary oversight. Indian government must understand and accept that intelligence work is not an excuse for non accountability and violating constitutional safeguards and scheme.

The intelligence infrastructure of India has become synonymous for non accountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of intelligence agencies of India. The proposed law titled Intelligence Services (Powers and Regulation) Bill, 2011 for intelligence agencies was not made a law at all. Similarly, the Draft Central Bureau of Investigation Act, 2010 has also not seen the light of the say.

It is obvious that Indian government is not interested in bringing intelligence agencies and law enforcement agencies under the parliamentary scrutiny. Till date parliamentary oversight of parliamentary agencies of India is missing. Indian government cannot for long tag these projects and agencies with existing laws and agencies as that is a very bad policy decision.

If this is not enough, Google censored NCTC news and blog posts in India that pointed towards these constitutional infirmities and lacunas. This is not the first time Google has done so. Even in the past Google has censored critical posts against Indian government and its projects. Clearly there is a nexus between critical posts pertaining to NCTC, intelligence agencies and censorship by Google in India.

The ruling government cannot for long silence Indian citizens and political parties for long. This is now evident with the filing of PIL before the Madras High Court. The petitioner prayed the Court to call for the records and quash the impugned NCTC Order 2012 as ultra vires the Constitution. With the present attitude of ruling government, more such petitions can be expected in the near future, including the one that can challenge the constitutional validity of NIAA 2008.

Parliamentary Oversight Of Intelligence Agencies Of India Is Missing

This is an opinion piece that 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. We are not even sure whether Google would keep this article in search engine results pages (SERPs) and blog search.

In order to make available this article to the widest possible audience, we are publishing this piece of article at our blog. Though, originally it was intended to be an exclusive article for “Cjnews India” but we are hereby forced to post it at our own blog keeping in mind the increasingly succumbing nature of Google before Indian government. We apologise for cross posting to our readers in general and “Cjnews India” in particular.

In this exclusive guest column, Praveen Dalal, leading techno legal expert of Asia and Managing Partner of India’s exclusive techno legal ICT Law Firm Perry4Law, has shared his viewpoints about the growing needs of parliamentary oversight of intelligence agencies and law enforcement agencies of India.

Indian Government is too reluctant to ensure Parliamentary Oversight for Intelligence Agencies and Law Enforcement Agencies of India. If this is not enough, Indian Government has been launching new Projects having serious “Constitutional Ramifications” and “Civil Liberties Violation” effects.

For instance, the National Counter Terrorism Centre (NCTC) Project of India, National Intelligence Grid (Natgrid) Project of India, Aadhar Project of India, Crime and Criminal Tracking Network and System (CCTNS), etc are not governed by any Legal Framework and Parliamentary Oversight. Indian Government is not willing to understand and accept that Intelligence Work is not an excuse for Non Accountability.

For some strange reasons Intelligence Infrastructure of India has become synonymous for Non Accountability and Mess. There is neither any Parliamentary Oversight nor and Transparency and Accountability of the working of Intelligence Agencies of India.

Even a basic level effort to enact a Legal Framework for Intelligence Agencies of India is missing in India. The first and foremost challenge to such Parliamentary Oversight mechanism comes from the Intelligence Agencies themselves that do not wish to be governed by any Rules and Norms at all.

Then we have “Bureaucratic Hurdles” in India that do not allow such a Legal Framework to be proceeded with. Finally, the Parliament of India itself is not interested in bringing these Intelligence Agencies within the fold of Parliamentary Oversight.

Take the example of the recent Private Bill titled Intelligence Services (Powers and Regulation) Bill, 2011. It was shelved out by none other than the Indian Prime Minister Dr. Manmohan Singh who announced that Law on Intelligence Agencies would be formulated soon. However, it proved nothing but a “Time Gaining Tactics” and so far Intelligence Agencies of India are not governed by any Legal Framework and Parliamentary Oversight.

Interestingly, even the Central Bureau of Investigation (CBI) is riding the same boat. The Draft Central Bureau of Investigation Act, 2010 is another example where the Indian Government is just interested in making “Declaration” with no actual “Intention” to implement the same.

In these circumstances, can the States trust the Centre regarding the establishment of National Counter Terrorism Centre (NCTC) of India? The answer is definitely negative even if States keep their “Political Interests” aside. This is also the reason why NCTC is facing stiff oppositions. Of course, there are “Practical Difficulties” and “Internal Turf War” among various Agencies and Ministries of Central Government a well. It seems the obvious but unsolvable Terrorism Dilemma in India would continue as National Interest of India and fighting Terrorism is not a “National Priority”.

Till now the constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) has not been accepted by States and now NCTC has been launched through an “Executive Order”. The practice of clubbing new Projects, Agencies and Institutions with existing laws is a bad approach. So NCTC without a Legal Framework is definitely Unconstitutional and even tagging it with the Unlawful Activities (Prevention) Act, 1967 would not save it from the Patent and Apparent Unconstitutionality with which it is suffering.

Google Is Censoring NCTC And Intelligence Agencies Related Results In India

Censoring and filtering of search engine results pages (SERPs) by Google in India is neither new nor uncommon. Even blogs have been demoted and censored by Google. Posts offending Indian government sentiments and ideology are frequently censored by Google. Whether it is search results of Aadhar project, video conferencing, World Bank related issues, etc all of them have been censored by Google from time to time in India and world wide.

The latest to add to this list is search results pertaining to national counter terrorism centre (NCTC) and intelligence agencies of India. Google has crossed all the limits this time and it has done so in great disregard to the right to speech and expression in India and world wide. Opinions disclosing lacunas, limitations and inconsistencies of Indian government and its policies are simply removed to please Indian government and intelligence agencies of India.

While NCTC related SERPs results have been completely censored by Google yet intelligence agencies related news results have been deleted by Google altogether. Some of the results that first appeared in Google SERPs 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- A news piece that disappeared within one hour of its publication.

Even if some of the posts have appeared in the SERPs and Google news, they have been dumped so deep that it is difficult to trace them. Further, SERPS and news results are showing great fluctuations.

It seems the civil and criminal cases filed against Google in India have shown their impact. Google is complying with the demands, even if illegal and unconstitutional, of Indian government and its agencies without even thinking twice. Clearly, Google has deviated from its motto of do not be evil and is doing exactly the opposite.

National Counter Terrorism Centre (NCTC) of India

National Counter Terrorism Centre (NCTC) of India is presently facing stiff oppositions. A majority of them are self created problems but some of them are also arising due to practical difficulties and internal turf war. The net result is that the obvious but unsolvable terrorism dilemma in India still continues.

NCTC, like other governmental projects, is not supported by any legal framework. This is the most inappropriate step taken by the Indian government in general and home ministry in particular. While the constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) is still doubtful yet NCTC without a legal framework is definitely unconstitutional. By tagging it with the Unlawful Activities (Prevention) Act, 1967 this unconstitutionality is not cured.

Add to this the list of other projects of home ministry like National Intelligence Grid (Natgrid) and other similar projects by other ministries like Aadhar project. None of these projects are supported by a legal framework of any kind and they are just pure executive orders violating the constitutional provisions.

Fortunately, the NCTC of India got the Cabinet approval. NCTC would be supported by Natgrid project, Crime and Criminal Tracking Network and System (CCTNS), etc. There is no second opinion that intelligence work is not an excuse for non accountability. Similarly, there is also no second opinion that NCTC of India is also a much needed institution.

The NCTC Project of India is also “very significant” for the national security of India. Terrorist attacks against India are on increase and we need a “specilaised institution” like NCTC to provide and analyse valuable intelligence inputs and leads. However, the inadequacies and unconstitutionalities of NCTC project is proving costly and major hurdle for the successful implementation of the same.

New GTLDs Applicants Must Ensure Due Diligence Before Applying

As the readers of the blog are aware Internet Corporation for Assigned Names and Numbers (ICANN) has already laid down stringent conditions for the acceptance of an application for registration of new GTLDs. The application amount for normal applicants has been quantified at US $ 1, 85,000. This would keep the non serious applicants out of the race to get a new GTLD.

However, merely giving this high fee would not guarantee that the applicant would get the applied new GTLD. If the applicant fails to make a good case for the grant of applied GTLD, this fee may be wasted. ICANN has clearly said that only “bonfide applicants” would be allotted the applied GTLD. The GTLD application would be minutely scrutinised before allowing the same.

Here lays the importance of a “GTLD due diligence service” that analysis the possibilities of allotment of the proposed GTLD. Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend a GTLD due diligence exercise before making an application to ICANN in this regard.

ICANN’s new generic top level domain names (new GTLDs) registration has begun. As on 12-02-2012, the applicants have 46 more days to apply for new GTLDs. A prior and thorough risks and benefits analysis of applying to new GTLDs registration to ICANN must be undertaken by the applicants. This should include techno legal analysis, new GTLDs due diligence, possible Legal Rights Objections under ICANN's New GTLD scheme, etc.

Further, with an increase in new GTLDs registrations, issues like domain names protection, brands protection, trademarks protection, cybersquatting disputes resolution, cyber law compliances, cyber security requirements, cyber due diligence, etc would also arise. Brand owners and trademark owners must prepare their “strategy” in this regard well in advance.

The legal issues of new GTLDs application, their registration and subsequent litigations would surface and a sound policy in this regard can help in minimising the legal risks associated with the same.

Cyber Security Laws In India

With the growing incidences of cyber attacks against India, cyber security in India has got the attention of Indian government. Cyber security in India is not satisfactory. Whether it is legal framework or practical implementation, cyber security of India is still lagging far behind that other nations.

We have no dedicated cyber security laws in India and we urgently need a dedicated cyber security legal framework in India. Further, cyber security capabilities of India must be strengthened so that cyber attacks against India’s critical infrastructures can be prevented.

The cyber laws and cyber security trends of India 2011 by Perry4Law and Perry4Law Techno Legal Base (PTLB) has clearly showed the cyber security vulnerabilities of India. Cyber terrorism against India, cyber warfare against India, cyber espionage against India and cyber attacks against India have already increased a lot. Even the cyber law trends of India 2012 by PTLB have also projected an increased rate of cyber crimes in India and cyber attacks against India in the year 2012.

Cyber security laws in India have not been formulated because there is very low cyber law and cyber security awareness in India. As a result we have very few cyber law firms in India and cyber security law firms in India.

Further, cyber security research, training and education in India are also not fully developed. PTLB is managing the exclusive techno legal cyber security centre of India. In the absence of qualitative educational institutes in India, cyber security courses in India are still maturing. Further, cyber security skills development in India is greatly affected in the absence of practical techno legal trainings in this crucial field.

Indian government has now shown some positive response for strengthening cyber security in India. A national critical information infrastructure protection centre (NCIPC) of India has also been proposed by Indian government. This is appositive development and Perry4Law and PTLB welcome this effort of Indian government.

Internet Intermediary Liability In India

Information Technology Act 2000 (IT Act 2000) is the sole cyber law of India. IT Act 2000 is also regulating the functioning of Internet intermediaries in India. Internet intermediaries’ law and liability in India has become very stringent after the passing of the Information Technology (Intermediaries Guidelines) Rules, 2011 of India.

These Internet intermediaries liability Rules of India demarcates the rights and responsibilities of internet intermediaries in India. If the Internet intermediaries follow these Rules and exercise proper cyber due diligence, they are entitled to a “safe harbour protection”. Otherwise, they are liable for various acts or omission occurring at their respective platforms once the matter has been brought to their notice.

Social media due diligence in India has also emerged out of IT Act 2000 and the corresponding Rules. Now legal actions against foreign websites can be taken in India. Further, cyber litigations against such foreign websites would increase in India in the near future.

Privacy violations and data breach investigations would also be required to be undertaken by these companies in India. Data protection requirements would also add further obligations upon these companies and websites in India. It is of utmost importance for these foreign companies and websites to follow Indian laws in true letter and spirit.

The cyber laws due diligence requirements for companies in India are strenuous in nature and Internet intermediaries in India need to take care of the same to avoid legal troubles. Companies like Google, Facebook, etc must appoint nodal officers in India that can be served with notices and communication pertaining to Internet intermediary obligations in India.

Cyber law due diligence in India is also required to escape liability for online violations of intellectual property rights in India. Liability of Internet intermediaries for copyright violation in India is well known and even foreign companies recognise this fact. The Online Copyright Infringement Liability Limitation Act (OCILLA) of United States has been enacted as part of the Digital Millennium Copyright Act (DMCA) 1998. Foreign companies like Google, Facebook, etc are complying with the DMCA requirements while taking down intellectual property violating contents.

However, these foreign companies and websites are still not aware of the requirements of India laws. Further, even if they are aware, they are not complying with the same in the appropriate manner. Time has come for these foreign companies to take Indian laws, especially intellectual property and cyber law, more seriously.

Privacy Rights, Privacy Laws and Data Protection Laws In India

Privacy rights and data protection rights are essential part of civil liberties protection in cyberspace. With the growing use of information and communication technology (ICT), privacy rights have acquired a very different meaning. It would not be wrong to assume privacy and data protection rights as integral part of human rights protection in cyberspace.

We have no dedicated privacy laws in India and data protection laws in India. The privacy rights in India in the information era are unique in nature that requires a techno legal orientation. The growing use of e-surveillance in India has also necessitated enactment of data privacy laws in India, privacy rights and laws in India and data protection law in India.

At the policy level as well privacy rights and data protection rights have been ignored in India. In fact, an Indian national privacy policy is missing till now. Even legislative efforts in this regard are not adequate in India. A national privacy policy of India is urgently required.

A right to privacy bill of India 2011 has been suggested in the year 2011 yet till now we do not have any conclusive draft in this regard that can be introduced in that parliament of India. In fact, we are still waiting for a public disclosure of final and conclusive proposed draft right to privacy bill 2011 of India that can be discussed in the parliament.

The Supreme Court of India must expand privacy rights in India as that is the need of hour. Fortunately, the issue is already pending before it and there would not be much trouble in formulating a privacy framework for India.

However, the call is for the Indian parliament to take and it must enact sound and effective privacy and data protection laws for India.

Modernisation of Postal Department Of India In Pipeline

The postal department of India is performing many crucial functions. With the passage of time, the postal department of India also needs technological upgradation and modernisation initiatives. This is not a difficult task to achieve as the department of post is attached with the union ministry of communication and information technology (MCIT).

Realising the potential of a modern postal department, the union minister of MCIT Mr. Kapil Sibal has started the modernisation and upgradation process of postal department of India. We at Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that there are many aspects of e-commerce, e-governance and banking that can be combined with the postal department of India.

In fact, the postal department of India has already applied to the Reserve Bank of India (RBI) for a banking licence. Mr. Kapil Sibal had written to the Finance Minister, Mr. Pranab Mukherjee, to expedite the granting of the banking licence.

Further, a national postal policy targeting expansion and modernisation of the postal network would be announced during this year. Although the India government does not intend to issue licences to courier service companies yet it would make it mandatory for them to register.

The national postal policy of India aims at modernising postal services in India. The policy is expected to make the department of post adopt a more financially viable revenue model. It would also provide affordable services at all points in the country as part of its Universal Service Obligations of India.

There is a good scope of public private partnership (PPP) in this modernisation drive. For instance, various value added services can be provided through the PPP model. Similarly, PPP can also help the department of post in expanding its products and services range beyond the current core functions.

India currently has 1.55 lakh post offices, 95 per cent of which are situated in rural areas. With the use of information technology, urban areas can be provided better postal services. This is a good step in right direction and Perry4Law and PTLB welcomes the same.

Are Google, Facebook, Microsoft, Heading For A Trouble?

Companies like Google, Facebook, Yahoo, Microsoft, etc facing a cyber battle in New Delhi, India. A criminal complaint against these companies is pending before a Trial Court of New Delhi. Obviously, these companies did what was best in their interest. They petitioned the Delhi High Court for quashing of criminal complaint against them.

Before the Delhi High Court, the respondent has placed it final arguments on 02-02-2012 and the petitioner would put its final arguments on 14-02-2012. Meanwhile, the Delhi High Court has dismissed a plea of a business man to hear him in this case for violation of his right to speech and expression. The Delhi High Court observed that till date neither the Trial Court nor the Delhi High Court has passed any order which curtailed the citizens' fundamental rights of freedom of speech and expression.

The Delhi High Court also observed that Google and Facebook do have the right to freedom of speech and expression but they are not above the law. There is no second opinion about this proposition as companies like Google, Facebook, Microsoft, Yahoo, etc must comply with Indian laws. Further, legal actions against foreign websites in India can be taken if they fail to comply with Indian laws. In fact, cyber litigations against foreign websites would increase a lot in India.

In fact companies like Twitter and Google have already taken steps to ensure compliance with Indian laws. Twitter has put in place a country specific mechanism to censor/remove offending tweets. Google has also started redirecting Indian bloggers to ***.blogspot.in domains instead of ***.blogspot.com domain. This method would allow Google to remove offending contents pertaining to ***.blogspot.in alone once a valid legal request is made from a particular country or residents of that country.

Yahoo has separately approached Delhi High Court and requested for a separate trial as its case falls in a different category. The Delhi High Court has accepted the request of Yahoo and issued necessary notices in this regard.

Now the companies in question have two options. Either they declare that these laws are not binding upon them or they comply with the same. It seems companies are deliberately avoiding observance of Indian laws. This is an unacceptable behaviour that Indian government cannot afford to allow. It is not a case that only Indian government is feeling offended by non observance of Indian laws. Even private individuals and companies face problems when requests for removal of offending and intellectual property violating contents are made.

Another problem that Indian government must take care of pertains to conflict of laws. When laws of India are clearly violated, there is no sense in complying with laws of foreign jurisdictions, especially when the companies involved in such process also have sound business and commercial presence in India. India must develop an alternative mechanism to DMCA complaints to such India based subsidiary companies as well as their parent companies based in foreign jurisdictions.

These companies are openly violating the requirements of Information Technology (Intermediaries Guidelines) Rules, 2011 without any legal justifications. These companies cannot use the subsidiary argument for long as Indian government would formulate more stringent norms for Indian subsidiaries dealing in information and communication technology (ICT) related matters.

This proposition is also reflected in the recent hearing of the Delhi High Court. Justice Suresh Kait observed that these companies are not above the law and their rights are to be determined under the laws of the land. He further observed that nobody is against the freedom of speech and expression. In fact, despite the summoning order against the websites, neither the Trial Court nor Delhi High Court has asked the websites to shut or restrain from functioning. They have only been summoned in accordance with the law as nobody is above it.

The next date of hearing before the Delhi High court would be on 14-02-2012 where these companies would put forward their final arguments. Let us hope that the Delhi High Court would deliver cyber justice to India.