Legal Requirements Of Undertaking E-Commerce In India

Electronic commerce in India is all set for big growth. However, there are many technological, legal and regulatory challenges that are forcing limited growth of electronic commerce in India.

Electronic commerce laws in India are still evolving and there are many legal regulatory requirements that must be complied with before an e-commerce project is launched in India. At the same time, there is an urgent need to enact full fledged and dedicated e-commerce laws in India.

So what does techno legal experts of India think about e-commerce environment and regulatory aspects of the same? According to Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of Asia, E-Commerce in India requires compliance with various Statutory Laws of India. The chief among them are the Cyber Law of India, Indian Contract Act, Privacy and Data Protection Regulations, Cyber Security Regulations, Foreign Investments Regulations, etc.

Although E-Commerce in India has great potentials yet Legal Aspects of E-Commerce in India must be taken care of before launching an E-Commerce Project or Website, suggests Praveen Dalal.

Of all these legal requirements, the requirements prescribed by the cyber law of India are most stringent. For instance, e-commerce players are intermediaries for the purpose of affixing their Internet intermediaries’ liability in India under the IT Act 2000. Similarly, e-commerce players are also required to ensure cyber law due diligence in India that is frequently ignored by them.

However, legal awareness about e-commerce requirements is missing among masses. Even there are very few e-commerce lawyers and law firms in India that can provide expert services in this regard. The e-commerce players must undertake a prior and proper techno legal due diligence for establishing e-commerce business in India. Jumping upon the e-commerce terrain without proper compliances may prove a landmine instead of a goldmine.

NCTC, Intelligence Agencies And Censorship By Google In India

The proposed national counter terrorism centre (NCTC) of India is suffering from many irregularities. This is the reason why NCTC is facing stiff opposition in India. Indian government is trying every possible method to get out of this situation. It is not only denying the basis of such oppositions but is also putting pressure upon companies like Google to filter news and search results.

However, Indian government is not doing what it is absolutely required to do. It is not formulating a constitutionally sound legal framework for NCTC and most importantly for the intelligence agencies of India that are still operating in wild. Despite all wrongs and misuses, parliamentary oversight of intelligence agencies of India is missing.

According to Praveen Dalal, leading techno legal expert of Asia and Managing Partner of India’s exclusive techno legal ICT Law Firm Perry4Law, Parliamentary Oversight of NCTC is a Secondary Issue and the more important issue is Parliamentary Oversight of Intelligence Agencies of India. Presently, Intelligence Agencies of India are operating without any Legal Framework and Parliamentary Oversight and this needs to be changed, opines Praveen Dalal. Even NCTC has been put under the control of Intelligence Bureau (IB) and this practically means no oversight of NCTC as well, suggests Praveen Dalal.

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, opines Praveen Dalal.

If this is the legal and constitutional position, Indian government has every reason to panic but neither Indian government nor Google has any justification to censor news and articles simply because they are critical in nature.

It has been reported that Google is censoring NCTC and intelligence agencies related results in India. On further analysis and research, even we are of the same opinion that Google censored NCTC news and search results in India. It seems this is handwork of Google manual manipulation of news and search results. Google has not only dumped NCTC and intelligence agencies related critical articles deep in the news and search results but has also removed the pointer pointing towards the news posts.

Some of the results that first appeared in Google search results and Google news and then disappeared are:

(1) 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.

This is not the right manner of reaching at a consensus about establishment of NCTC in India. It is now evident why states are so apprehensive about the establishment of NCTC as such an institution without constitutional and legal safeguards would bring more troubles than solutions.

With these intentions and acts of Indian government, it is clear that NCTC has not been proposed to deter terrorism in India but to gain more and more control over law and order situations across states and state executive and legislative powers. In such situation, establishment of NCT would only impose further financial and manpower constraints with no actual benefits. It would be better if we have no NCTC than having a handicapped and self serving institution as has been presently suggested.

Parliamentary Oversight Of Intelligence Agencies Of India Is Needed

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.

NCTC Of India Facing Stiff Oppositions

National counter terrorism centre (NCTC) of India is an initiative taken by the home ministry of India to tackle the growing menace of terrorism in India. However, it is a very sensitive constitutional issue where states are not in a mood to let centre start this initiative.

The constitutionality of the national investigation agency act 2008 is still doubtful and new projects like national intelligence grid (Natgrid), national counter terrorism centre (NCTC), etc are also treading on similar path.

There are obvious practical difficulties for the establishment of NCTC in India. Not only centre state relationship in this regard is at crossroad but even there is an internal rift among various ministries that need to be sorted out.

According to Praveen Dalal, leading techno legal expert of Asia and Managing Partner of India’s exclusive techno legal ICT Law Firm Perry4Law, there are many “practical difficulties” that may prevent the actual implementation of the much needed NCTC of India. Presently intelligence agencies of India are operating under different Department/Ministries and there would be a “reluctance” to submit to the centralised NCTC of India, suggests Dalal.

Besides practical difficulties, lack of proper Legal Framework is also a big shortcoming of projects like NATGRID, NCTC, etc opines Praveen Dalal. Indian Government is simply “tying up” Projects with existing Legal Frameworks although they require Separate and Constitutionally Sound Legal Frameworks, suggests Dalal.

In the absence of constitutionally sound legal frameworks, states have been opposing opening of NCTC in India. They are claiming that this amounts to violating their constitutional rights and powers.

Of course, the ruling government is trying to pass these projects by tying up the same with existing legal frameworks that is a fallacious policy on their part. This approach is also unconstitutional in nature that can be challenged in Indian courts.

With this attitude and tying up policy, States are well within their rights to challenge the establishment of NCTC in India even though it is absolutely required in India, says Praveen Dalal. It seems the obvious but unsolvable terrorism dilemma in India would continue.

National Counter Terrorism Centre (NCTC) of India Is Required

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 needs for and methods of establishment of National Counter Terrorism Centre (NCTC) of India.

The doubts of the Constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) are still raised and the Union Home Ministry has decided to launch few more Projects and Initiatives that have “Serious Constitutional Ramifications”. These include the National Intelligence Grid (NATGRID) Project, National Counter Terrorism Centre (NCTC) of India, etc. NCTC of India is a pet project of Home Minister Mr. P. Chidambaram.

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.

The real problem seems to be “Lack of Coordination and Harmonisation” between the Centre and States. The Constitution of India has made a clear demarcation between the Legislative, Executive and Judicial Powers of Centre and State. The NIAA 2008 and NCTC are sitting at the “Border Line” of the Legislative and Executive Powers of Centre.

The intentions of Home Minister Mr. P.Chidambaram are good but the concerns of States are also of equal force. Further, the turf war between multiple Intelligence Agencies operating under different Government Ministries is also causing problem for the successful establishment of NCTC. Even there is a lack of proper Planning and Management on the part of Union Home Ministry that is causing delayed implementation of Projects like Natgrid, NCTC, CCTNS, etc.

If Mr. P. Chidambaram really wants his Projects to become successful, he has to think well beyond the present “Parameters and Objectives” set by Indian Government in general his own Ministry in particular.

A good starting point can be formulation of a “Constitutionally Sound Legal Framework” that can confer Legitimacy and Constitutionality to Projects like NATGRID, NCTC, CCTNS, etc. Obviously, States must be taken into confidence before starting any such Legislative Exercise.

This must be supplemented by Sound Planning and Management. The Projects of Home Ministry are neither simple nor easy to execute. They required dedicated efforts from all directions. Experts from diverse fields must be on panel of Home Ministry so that these Projects can be successfully implemented. I am sure Home Minister Mr. P. Chidambaram would have already considered these aspects and I wish all the best to him in this regard.

Cyber Due Diligence For Foreign Websites In India

Foreign websites and companies are facing growing court cases and litigations for violation of Indian laws. This trend was already predicted by techno legal experts of India. According to techno legal experts in India, legal action against offending foreign websites can be taken in India if they fail to exercise cyber due diligence. Further, as a measure of last resort, these foreign websites can be blocked in India for not complying with Indian laws.

Experts have also suggested appointment of nodal officers so that these foreign websites and companies can comply with Indian laws. The Information Technology (Intermediaries Guidelines) Rules, 2011 of India prescribe stringent provisions regarding Internet intermediary liability in India. However, till now foreign companies and websites have not followed the guidelines and rules issued by Indian government in this regard.

This is the main reason for growing incidences of litigations and cases against foreign websites in India. A criminal complaint has been filed against companies like Google, Facebook, Microsoft, Yahoo, etc before a Trail Court for non observation of cyber due diligence by them. Even the Delhi High Court has not quashed the criminal complaint against these companies so far.

Fortunately, the Delhi High Court has granted an exemption from personal appearance of the executives of Google and Facebook. However, executives of other 19 co-accused companies are still required to personally appear before the trial court.

Now a new petition has been filed with the AP High Court seeking directions to the Central Government that it may ask social networking site Facebook to publish its security architecture and safeguard mechanisms to protect its user profiles. It has also been pleaded that Facebook makes its users authenticate accounts with official identification documents.

Although the present petition against Facebook seems to be premature and unnecessary yet the criminal and civil cases against social networking websites and foreign companies is worth trying. This situation also is a wake up call for these websites and companies to fall in line with Indian laws.