Tuesday, July 31, 2012

Cyber Warfare And India

India has been facing cyber warfare for long. In the absence of adequate cyber security in India, cyber attacks and cyber warfare are posing real danger to India. As on date, India is vulnerable to cyber warfare. As on date we have no cyber warfare policy of India. As on date we have no implementable cyber crisis management plan of India.

If we analyse the cyber security reflections the trend is really worrisome. The cyber law, cyber crimes and cyber security trends by Perry4Law and Perry4Law Techno Legal Base (PTLB) have shown the loopholes of Indian cyber security capabilities.

In these circumstances, cyber warfare against India is going to increase further. We must anticipate the cyber warfare against India and its defenses. In order to achieve that, the cyber security capabilities of India must be strengthened.

According to Praveen Dalal, managing partner of Perry4Law and leading techno legal expert of India, Indian Defense and Security against Cyber Warfare must be strengthened so that Cyber Warfare attacks of highest level can be defended against. The Cyber Warfare Capabilities of India cannot be considered to be effective till it comprises of both Offensive and Defensive Capabilities, opines Praveen Dalal.

Even the prime Minister of India now acknowledged that India must be prepared to meet the challenges arising out of Internet and cyberspace. However, if this acknowledgement is just another speech for another occasion, we may not see any ground level action for another decade or more.

Defending against cyber warfare requires maturity and skills and lots of patience. If India thinks that it can produce cyber warfare experts at the eleventh hour that would be a big blunder. India has to give attention to this aspect right now and then only it may be able to acquire necessary expertise in this regard after some years. I hope good sense would prevail upon Indian government very soon lest it is too late to react.

Friday, July 13, 2012

Legal Fraternity Of India Is Getting Serious But Legal Education Is Getting Worst

Legal fraternity of India has become more active and vocal in the recent past. Whether it is a protest strike against the proposed higher education bill of HRD ministry or protest against allowing foreign law firms and legal process outsourcing (LPO) companies in India, legal fraternity has taken them with an iron hand.

The main stress seems to be that legal practices, in any form whatsoever, must remain within the realm of advocates enrolled under the Advocates Act, 1961 alone. With the interim order of the Supreme Court if India, legal practice in India, both litigation and non litigation, has now become an exclusive professional area for Indian advocates alone.

These concerns of Indian legal fraternity are well justified and legally sustainable. However, legal fraternity of India must also take care of the growing decline of standards pertaining to legal education on the one hand and legal practice on the other. For instance, PhDs in the law are dying slowly and Bar Council of India (BCI) is doing nothing in this regard. 

Praveen Dalal, a Supreme Court Advocate and managing partner of Perry4Law, even sent e-mails to Kapil Sibal and Salman Khurshid drawing their attentions to the growing corruption in higher legal educations in general and PhDs in particular. However, neither Sibal nor Khurshid has time to look at the deteriorating standards of Indian legal education.

In these circumstances, opposing the higher education bill proposed by the HRD ministry is absolutely justified and legal fraternity must take a more active and direct control over legal education in India. 

Even the legal fraternity of India must make its own house in order. The Bar Council of Maharashtra and Goa has taken a significant step in this direction. Preparation of conveyance documents is the duty of advocates and not touts and agents. However, many advocates adopt the practice of getting the same drafted through touts or agents due to their busy schedule and low fees offered in a particular case.

Now the Bar Council of Maharashtra and Goa has declared that such practice is illegal and it should be stopped with immediate effect. The council will request the state government to curb this practice and authorise only lawyers to formally draw up conveyance documents. Such badly drafted court documents are frequently challenged in the courts for various reasons.

These types of initiatives are essential to ensure good legal standards and accountability of advocates in India. There are still many areas to cover that Bar Council of India must immediately start covering.

Monday, July 9, 2012

Foreign Law Firms, LPOs And Chartered Accountant Firms Cannot Practice Law In India Anymore

The issue of legal practice by foreign law firms, lawyers, legal process outsourcing (LPO) providers and others like chartered accountants is a bone of contention between Indian legal fraternity and these persons.

It seems the matter is on the verge of being decided by the highest court of India. In a recent interim order by the Supreme Court of India, the court held that till the matter is finally decided by it, the Reserve Bank of India shall not grant any permission to the foreign law firms to open liaison offices in India under Section 29 of the Foreign Exchange Regulation Act, 1973 ( now FEMA 1999).

The Supreme Court of India also clarified that the expression "to practice the profession of law" under Section 29 of the Advocates Act, 1961 covers the persons practicing litigious matters as well as non-litigious matters other than contemplated in para 63(ii) of the impugned order and, therefore, to practice in non-litigious matters in India the foreign law firms, by whatever name called or described, shall be bound to follow the provisions contained in the Advocates Act, 1961.

This means that foreign law firms and LPOs cannot practice either litigation or non litigation related issues in India anymore. This also means that Indian LPO service providers like Perry4Law would witness an enhanced role in the LPO segment of India.

Of course, the foreign law firms or foreign lawyers can visit India for a temporary period on a “fly in and fly out” basis, for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues. However, foreign LPO or an LPO having non legal personals have to close their shops in India immediately.

This also means that chartered accountants (CA), companies secretaries (CS), etc who are in full time practice cannot engage in either litigation or non litigation related activities in India. If they engage in such activities that would clearly be illegal.

All companies, individuals, etc, whether Indian or foreign, who engage the services of such persons  would be doing the same at their own risks as such services would not be recognised by Indian law. This should be avoided till the matter is conclusively resolved by the apex court of India.

The matter would be again reheard after a gap of 10 weeks and let us see how the developments would take shape from here onwards.

Sunday, July 8, 2012

Cloud Computing Policy Of India

There are certain areas where India is definitely not ready. For instance, India is not yet ready for cloud computing.  Many have openly expressed their concerns that India must not use cloud computing till proper policy and legal framework is at place. Being a profitable segment many cloud computing service providers in India are lobbying hard to get the same used at governmental platforms and for governmental services.

Indian government also seems to be in a hurry to use cloud computing for public delivery of services without analysing its pros and cons. For instance, India has no dedicated privacy laws, data protection laws and data security laws. Even leading techno legal expert of India and managing partner of ICT law firm Perry4Law Praveen Dalal believes that India should not use Software as a Service (SaaS) and cloud computing for crucial governmental services in the present circumstance and without any policy and legal framework.

India is opposing the concept of human rights in cyberspace. While on the one hand India is maintaining that it is not against civil liberties in cyberspace like speech and expression yet on the other hand India has opposed the United Nation’s resolution

The United Nations Human Rights Council (UNHRC) this week officially declared free expression on the Internet a basic human right. India opposed this resolution clearly and it indicates its intentions to curb online rights of its netizens.

India has been pushing e-surveillance projects like Aadhar/UID project, national intelligence grid (Natgrid), crime and criminals tracking and networks systems (CCTNS), central monitoring system (CMS), etc that also without any judicial scrutiny and parliamentary oversight.

In these circumstances, use of cloud computing in India is a landmine for privacy violations and civil liberty violations. Indian government is imposing various projects without any legal framework and civil liberty safeguards. Any person or institution can take the sensitive and personal data of others and can use it for commercial purposes.

If Indian government wishes to use cloud computing in India, the same must be supported by adequate civil liberty protections and safeguards, suggests Praveen Dalal. Without these essentials, use of cloud computing is nothing more but a method of e-surveillance alone.