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.