Monday, August 29, 2011

An Ideal Jan Lokpal Authority Of India

In this Guest Column, Praveen Dalal, Managing Partner of New Delhi based Techno Legal ICT Law Firm Perry4Law and leading Techno Legal Expert of India, has shared his views about the Jan Lokpal Authority of India. He maintains that the proposed Jan Lokpal Authority of India must be Techno Legal in nature to be most effective.

Till now it is absolutely clear that the proposed Jan Lokpal Law of India must be Techno Legal in nature. The existing Bills are suffering from many “Deficiencies” and absence of “Techno Legal Aspect” is one of them.

For instance, Technology is the Best Whistleblower and a Jan Lokpal Authority or Law that does not believe in this “Technological Use” is bound to be another Authority with practically little benefits and uses. That is why a Strong and Effective Whistleblowers Protection Law in India is urgently required.

However, I wish to cover another related aspect of the proposed Jan Lokpal Law of India. The “Real Strength” of the proposed Jan Lokpal Law of India would be the “Jan Lokpal Authority of India”. If we have a Weak or Ineffective Jan Lokpal Authority in India, the proposed Law cannot serve its purpose.

The first aspect that must be resolved is what should be the “Composition” of the proposed Jan Lokpal Authority of India. I believe that the composition of the proposed Jan Lokpal Authority of India must essentially involve Experts representing fields like Judicial, Legal, Technological, Social Justice, etc.

No matter how many Experts from each field are made part of the Authority, the Authority must be Techno Legal in nature. Preference must be given to Experts who have knowledge of both Technical and Legal aspects.

Another aspect that needs to be considered is the “Nature” of such Authority. Should such authority be a “Constitutional Authority” or can it be a “Statutory Body” under the proposed Jan Lokpal Law of India? If it is a Constitutional Body, what additional efforts we need to make to make it “Functional” immediately? If it is a Statutory Body, it can be Constituted along with the passing of the Jan Lokpal Law of India.

These issues require immediate deliberations before the Parliamentary Standing Committee and they must be resolved while passing the Jan Lokpal Law of India by the Parliament.

Sunday, August 28, 2011

Law Students Of India Are Not Getting Practical Training

Legal education in India is not up to the mark and it requires serious reforms. At the moment, the legal education is not professional in nature as it suffers from being excessive academic in nature and is producing law graduates who lack good research and analytical skills.

This fact came to the knowledge of Justice Markandeya Katju, a judge of the Supreme Court, while addressing an audience of law students at the Dr Ambedkar Law University. Justice Markandeya Katju posed a simple question before the law students who found it difficult to answer.

The question was “what will you do if a client approaches you alleging that the cop refused to register his complaint?". The law students failed to give a satisfactory answer to this question. Justice Markandeya Katju showed his dissatisfaction with the practical knowledge of Indian laws on the part of law students. He also showed his dissatisfaction with the Bar Council of India (BCI), the statutory body governing legal education in the country, for prescribing the syllabus which did not include practical training.

Justice Markandeya Katju opined that mere theoretical classes would not bring the result, unless it is supported by practical training classes. The students should get to know the day-to-day legal problems of common man and the way to get rid of them if the students were imparted practical training by way of participation in free legal clinics. Justice Markandeya Katju further said that the legal education system of India needs radical change. Answering a valley of questions posed by the students, Justice Markandeya Katju at times also complemented them for their brilliant queries and their up-to-date knowledge.

The law students and law graduates need to undergo practical legal training in India. They must stress hard upon legal skills development . In the present era of information technology, e-learning can greatly assist them in achieving this task. Online skills development in India is now possible for legal professionals.

There are some very good online legal research, education and training institutions in India. In fact, institutions like Perry4Law Techno Legal Base (PTLB) are even providing research, education and training in techno legal fields. PTLB is the exclusive techno legal research, education and training institution of India and world that provides online education and training in the fields like cyber law, cyber forensics, e-courts, legal research, legal drafting, digital evidencing, etc.

Law students, law graduates, lawyers, corporate counsels, etc must take full advantage of the research, education and training courses of PTLB so that they are not only well versed with the practical aspects of Indian and foreign laws but also well equipped to deal with techno legal issues like cyber law and cyber forensics.

Indian Whistleblowers Protection Laws Needed

Now the Indian government has finally shown some interest in bringing the jan lokpal bill of India, it is high time to move towards making it a strong, effective and robust law. Experts have been claiming that the present jan lokpal versions are neither strong nor effective. In fact, they have claimed that the present versions of jan lokpal bills do not address many important issues that must be combined to make the jan lokpal law strong and effective.

Although there are many areas that need to be included in the proposed jan lokpal bill of India yet extending a strong and effective protection to the whistleblowers, who raise their voices against the corruption in India, needs a specific mention and adoption.

In fact, in the year 2004/2005 itself a techno legal whistleblowers protection code was suggested by Praveen Dalal, managing partner of New Delhi based techno legal ICT law firm Perry4Law and leading techno legal expert of India. The code was complete techno legal solution till a proper law was formulated by Indian parliament.

However, even after 6 years of providing of such code, Indian parliament has not deemed it necessary to protect the lives of our heroic whistleblowers that have been loosing their lives one by one.

Till now we have no whistleblowers protection law in India and this is making other laws weak and ineffective. Either people are not willing to come forward or if they come forward they loose their lives.

We have to develop Techno Legal Mechanisms that can safeguard the Information provided by and Details of Whistleblowers, opines Praveen Dalal. If lives of Whistleblowers cannot be Safeguarded, Corruption in India can never be eliminated, suggests Dalal.

India has a bad reputation of “Ignoring Formulation of Essential Laws” and Jan Lokpal and Whistleblowers Protection Laws are classic examples of the same. If Parliament of India keeps on functioning only through “Public Disruptions and Agitations”, that would be a death knell of Democracy and Parliamentary Supremacy, opines Praveen Dalal.

It would be better if parliament of India enacts a strong and effective whistleblowers protection law before this cause is also picked up by Indian masses and it forces again the parliament to succumb to its pressure. This is not the way any Parliament, especially the Parliament of the largest Democracy of the World, should function, says Dalal.

Saturday, August 27, 2011

Whistleblowers Protection Law In India

Just like anti corruption laws, whistleblower protection laws in India have been long ignored by Indian government and Parliament of India. Of course, if the Parliament of India fails to fulfill its constitutional duties of law making, the balance between the three organs of Indian constitution would be disturbed. This also raises the doubt about the very existence of separation of powers under the constitution of India.

Absence of whistleblower protection requirements from various drafts Jan Lokpal bills presented by civil society and Indian government is also the reason why experts are not considering them as ideal and strong. In fact, experts have openly claimed that the suggested Jan Lokpal Bills are not strong and effective. The proposed drafts of Jan Lokpal Bills have failed to incorporate many good suggestions of experts that could have made the proposed law more comprehensive, robust and effective.

One of the areas that require an “Immediate and Urgent Attention” of the Parliamentary Standing Committee constituted in this regard is to ensure a Strong, Robust and Constitutionally Sound Jan Lokpal Law, opines Praveen Dalal, a Supreme Court Lawyer and leading techno legal expert of India. A Strong and Effective Whistleblower Protection Law in India is “Mandatorily Required” for the successful application and functioning of many other Laws, including the proposed Jan Lokpal Law, suggests Dalal.

Presently, whistleblowers are at the mercy of hard core criminals who are least afraid of the law and order of India. This is evident from the killing of many Indian whistleblowers in the past that have raised their voices against the corruption existing in governmental dealings.

It would be a prudent exercise to involve maximum intellectuals and experts by the Parliamentary Standing Committee so that a national consensus in this regard can be obtained.

By confining the Jan Lokpal Bill to the version of either the civil society or government version, the Parliamentary Standing Committee would be doing injustice to India. Further, a Jan Lokpal law without whistleblowers protection is nothing but wastage of time, money and resources. I hope the Parliamentary Standing Committee would consider all these aspects before coming out with the final draft of Jan Lokpal law of India.

Friday, August 26, 2011

Cyber Crime Investigation In India

Modernisation of police force of India is need of the hour. We need modern police forces that can easily deal with technology related crimes and its misuses. With growing cases of cyber crimes in India, people are finding themselves helpless as they are unable to get justice in a timely and proper manner.

This is happening as Indian police force lacks the cyber crime investigation capabilities. Even the cyber crime cells of India lack expertise in fields like cyber law and cyber crimes. The truth is that police in India needs urgent cyber law training and a trained cyber police force of India is urgently needed.

There is no ready reference for cyber crime investigation in India. Recently, Perry4Law Techno Legal Base (PTLB), the techno legal segment of exclusive techno legal ICT and IP firm of India Perry4Law, informed that a cyber crime investigation manual for various stakeholders of India would be available very soon.

This is the exclusive techno legal cyber crime investigation manual of India. The manual is in the final phase of preparation and it may be available to governmental departments and general public after few months. You may also download the first cyber crime investigation manual of India if an electronic version of the same is also released by Perry4Law and PTLB.

Police in India urgently needs good techno legal trainings in the fields like cyber law, cyber forensics, digital evidencing, etc. PTLB has been providing techno legal trainings to police officers for long and the cyber crime investigation manual is a part of this initiative.To improve the cyber crimes investigation skills of police officers of India as well as to help in the successful prosecution and punishment of the cyber criminals, Perry4Law and PTLB are also imparting exclusive online techno legal trainings in the fields like cyber law, cyber forensics, digital evidencing and much such other training.

With these pro active initiatives, cyber crime investigation and prosecution would be successful in India to a great extent. However, the government of India needs to take the issue seriously. Techno legal issues like cyber law, cyber security, cyber forensics, etc needs a national level policy decision. The sooner it is done the better it would be for the interest of India.

Thursday, August 25, 2011

Jan Lokpal Bill Of India 2011 Is Not Strong And Effective

Jan Lokpal bill of India has become a bone of contention between Anna Hazare group and Indian government. Finally, after lots of protest and anti corruption movement, Indian government finally decided to bring a law in this regard.

However, Anna group is not convinced with the law suggested by the government and has been adamant to get its own bill introduced in the Parliament.

In this tussle between both these groups, very few have appreciated that it is not the law that is enough but an effective, strong and robust anti corruption law that alone would serve the purpose.

Unfortunately, both the versions of Jan Lokpal Bills are not adequate to cover all the aspects of anti corruption movement in India. Experts like Praveen Dalal, a Supreme Court lawyer and leading techno legal specialist of India, have opined that the proposed Jan Lokpal Bills are not strong and effective to deal with the deep rooted problem of corruption in India.

So what are the aspects that have been missed by both the parties regarding a strong and effective Jan Lokpal Bill of India? According to Praveen Dalal, if Jan Lokpal Act 2011 of India has to be successful it must incorporate many more issues like Technology, Whistleblower Protection, Harmonisation between Judicial and Lokpal fields, Right to Information, Mandatory E-Governance Services, etc. These issues are very relevant to make Lokpal law effective, flexible and robust. Unfortunately, none of these issues are covered by either version of the Bill or independently by a separate anti corruption law.

The Jan Lokpal Bill 2011 itself requires numerous “Improvements and Additions” suggests Dalal. The Jan Lokpal Bill 2011 must be Techno Legal to be most successful. In short, the proposed Jan Lokpal Bill 2011 must be Strong and Effective. By confining it to either the Governmental version or the version of Civil Activists, we are not going to achieve anything, suggests Dalal.

We do not need a Code that contains Ineffective and Weak Provisions. On the contrary, we need a “Holistic Law” in this regard that covers all the aspects of Anti Corruption in India, suggests Dalal.

Indian Jan Lokpal Bill Is Not Ideal And Strong Says Expert

The initiatives of Prime Minister and Anna Hazare camps are worth praising. However, the versions proposed by both camps are myopic in nature and are at best a reflection of their respective ideology.

Firstly, Jan Lokpal law in itself would not be a panacea for all corruption related problems in India unless the same is constitutional, robust, effective and strong. To be an ideal Jan Lokpal law, the same must encompass many more issues that have been ignored by both camps even after they have been suggested by many experts.

Secondly, according to experts like Praveen Dalal, if Jan Lokpal Act 2011 of India has to be successful it must incorporate many more issues like Technology, Whistleblower Protection, Harmonisation between Judicial and Lokpal fields, Right to Information, Mandatory E-Governance Services, etc. These issues are very relevant to make Lokpal law effective, flexible and robust. Unfortunately, none of these issues are covered by either version of the bill or independently by a separate anti corruption law.

The Jan Lokpal Bill 2011 itself requires numerous “Improvements and Additions” suggests Dalal. The Jan Lokpal Bill 2011 must be Techno Legal to be most successful. In short, the proposed Jan Lokpal Bill 2011 must be Strong and Effective. By confining it to either the Governmental version or the version of Civil Activists, we are not going to achieve anything, suggests Dalal.

Let us not enact an impotent law that has no impact at all upon corruption and faulty governmental machinery. Let us insist upon a robust and strong anti corruption law that provides protection to anti corruption crusaders and whistle-blowers. If you are interested in this version of anti corruption law, read on and contribute.

Friday, August 12, 2011

Home Ministry Of India Banned Google And Facebook For Its Employees

Restricting access to social networking sites at governmental offices is a common feature. This is done to prevent compromise of crucial government computers at such departments.

It has now been reported that the home ministry of India has banned its officials and staff from opening social networking sites such as Google, Facebook, etc and the websites of free online games on official government computers after it has received fresh reports of cyber espionage attacks on sensitive government installations, including the home ministry.

While this is not an absolute measure to prevent compromise of Government Computers yet it can reduce the numbers of compromised computers to a great extent, says Praveen Dalal, managing partner of New Delhi based ICT and IP law firm Perry4Law and the leading techno-legal expert of India.

The home ministry advisory warns that attackers have used “Google, Facebook and some other social networking web portals” to “identify critical individuals” to “steal information and passwords for further espionage from the infected computer”. Ministries and departments, particularly the home, defence and external affairs ministries and the Delhi police, need to take extra precautions, an MHA official said.

MHA officials have also been told not to access personal emails on the Internet from an official computer. There should be a restricted usage of USB computer storage media such as pen drives, memory sticks and external hard disk drives. Officers, moreover, should not visit any website “not connected” to his/her work, the advisory said.

The officials have also been directed not to use personal email accounts such as those on Yahoo, Rediffmail, Gmail, Hotmail, etc for official matters, even for drafting concept notes, and use only NIC email accounts to send official information. The MHA also asked its officials to change passwords every 15 days and not disclose these to anyone.

Law Firms Are Giving Cyber Law A New Shape

A few years back law firms in general and lawyers in particular were not aware of the concepts like cyber law. However, now the trend is changing with lawyers and law firm updating their knowledge about cyber law and technological issues.

As far as India is concerned, the awareness of cyber law among judges, lawyers and law firms is still at infancy stage. In this situation Perry4Law, the exclusive techno legal ICT and IP firm of India and world wide has emerged as a good tend setter.

While other law firms across the globe are struggling to deal with even the basics of cyber law, Perry4Law has emerged as a global leader in the techno legal field. It has crossed the frontiers of cyber law to areas like cyber forensics, cyber security, ICT and telecom policy, etc.

Further, Perry4Law also maintains a blog on international ICT policies and strategies that no other law firm of the world is maintaining. The blog carries good and qualitative discourses upon techno legal issues like cyber law, cyber security, cyber forensics, data protection, lawful interception, privacy protection, data security, intelligence gathering, e-governance, phone tapping, e-courts, etc.

It seems law firms are realizing the potential of technological fields and firms like Perry4Law are not only leading the race but are also paving path for other firms to follow.

If this is not enough, the leading techno legal segment of Perry4Law known as Perry4Law Techno Legal Base (PTLB) is providing world class techno legal trainings in fields like cyber law, cyber security, cyber forensics, etc.

Clearly, Perry4Law and PTLB have crossed the frontiers that are even difficult for technology firms to achieve. Let us see how the journey of Perry4Law and PTLB goes from here.

Wednesday, August 3, 2011

Legal Immunity To US Armed Forces At Foreign Jurisdictions

A question was asked at the social platform Linkedin to the following terms “Does anyone know whether data transmitted from a server at a US Army Post Office (APO) and Fleet Post Office (FPO) location overseas is subject to the data privacy laws of the country in which the server sits, or is considered a US transfer?".

I personally believe it is subject to jurisdiction and laws of the nations where such APO/FPO has been based. Further, I also believe that if a crime like cyber espionage has been committed by such unit or any person stationed therein, that nation can take cognizance of such matter.

However, the matter must be elaborated further. I believe that a US military base/facility would not become automatically entitled to diplomatic or legal immunity from host country’s civil and criminal laws and US laws would not apply to it in such circumstances. There is nothing like automatic immunity, implied immunity or absolute immunity that is available to US armed forces, including US APO/FPO.

Armed forces immunity can be claimed either under the international law and in a member country alone that is also part to any treaty in this regard to which US is also a member or it must be claimed through an executive agreement with the concerned country where US armed forces are stationed.

Until the post-World War II era, status of forces agreement (SOFAs) addressed this conflict between sovereigns and US policy was to rely heavily on the concept of immunity from host nation criminal jurisdiction created by the host nation's implied consent in expressly consenting to US forces being stationed there. The US policy of insisting on complete immunity from foreign criminal jurisdiction continued in the early post-World War II period, but ultimately gave way to the negotiation of systems of "concurrent jurisdiction" in SOFAs and bilateral supplementary agreements.

With the exception of the multilateral SOFA among the United States and North Atlantic Treaty Organization (NATO) countries, a SOFA is specific to an individual country and is in the form of an executive agreement.

It is not correct that no matter whatever criminal acts US APO/FPO commits, it or people behind the same would not be punishable in the host country, especially if it has nothing to do with the official duty as mentioned by me earlier through the cyber espionage example.