Civil Liberties And National Security Must Be Reconciled

Nations across the world are ignoring civil liberties for the false claims of national security. This is a disturbing trend especially when the United Nations is silent on the protection of human rights in cyberspace. This applies to India as well that has draconian laws like information technology act 2000 to violate civil liberties in cyberspace.

Unfortunately, UN has not been able to formulate a universally acceptable legal framework of cyber law and human rights protection in cyberspace. The obvious result is that different jurisdictions have different cyber laws. The only thing common in these cyber laws is that virtually none of them is protecting human rights in cyberspace.

According to Praveen Dalal, managing partner of New Delhi based ICT and IP law firm Perry4Law and leading techno legal expert of India, there is need to have “Reconciliation” between National Security needs of India on the one hand and Protection of Fundamental Rights on the other. I have also sent a communication in this regard to Government of India in the past, informs Dalal.

It seems some segments of Indian government agree with this “reconciliation theory” suggested by techno legal experts of India. For instance, the Union Minister of Communications and Information Technology, Shri Kapil Sibal has said that adequate balance needs to be maintained between needs of ‘privacy of individual’ and ‘genuine security concerns of state’ while dealing with challenges of cyber security.

Another area that deserves the attention of Indian government in general and UN in particular pertains to Human Rights Protection in Cyberspace. According to techno legal experts like Praveen Dalal, presently UN and Human Rights in Cyberspace are two separate issues although they need to be one. Similarly, we have no International Cyber Law Treaty, International Cyber Security Treaty, International Cooperation in Techno Legal fields, etc, informs Dalal.

Interestingly, Kapil Sibal appealed to the global community to collaborate and evolve global protocols in security of information and network. Sibal assured that India stands committed to contribute and cooperate with international community on this issue. It seems at least Kapil Sibal is aware of the details of techno legal issues and that is good news for India.

Ravi Shankaran’s Extradition To India Is Now Doubtful

Today information and communication technology (ICT) is involved in almost all crimes. Today’s era belongs to cyber crimes and the corresponding cyber forensics capabilities and cyber forensics skills development to solve the same.

Law enforcement agencies, security agencies and intelligence agencies of India need to have good techno legal cyber forensics trainings. However, we have very few cyber forensics research, education and training institutions in India. As a result our law enforcement agencies, security agencies and intelligence agencies are not well equipped to deal with cyber crimes and cyber forensics cases.

Even lawyers and judges are not well versed with techno legal issues and this at times results in acquittal of the accused. While lawyers in India can affords to take techno legal issues lightly yet this casual approach may prove fatal if a well versed and technologically sound lawyer is pitted against them.

This is exactly what happened in the Naval war-room leak case’s investigation. The Central Bureau of Investigation (CBI) is now facing a setback in the extradition of Naval war-room leak case accused Ravi Shankaran.

The secret evidence provided by CBI has been declared to be shaky by the experts appointed by London court. This has demolished the case of CBI to a great extent. The case appears to be falling apart as the UK court-appointed cyber forensic expert has raised doubts over the secret evidence provided by Government of India.

The prosecutors of India had earlier presented secret evidence about an e-mail with an attachment of Sir Creek sent by Commander Virender Rana to a person called Vic Branson of Inmaty company in Belgium, which they claimed was owned by Shankaran.

These attachments they alleged had material which compromised the integrity of India. The Judge noted that the alleged e-mail by Vic Branson to Rana, produced by the prosecution as the main evidence against Shankaran, had no date and time and an independent court approved expert has confirmed that it is not possible to create an email, type 11 words, attach 8 documents and then save it all in 2 seconds only.

Cyber forensic expert Jason Coyne has, according to the judge, stated that such an e-mail could not have been sent based on the evidence produced by Government of India.

Earlier James Lewis, representing Shankaran, pointed out that Coyne's conclusion on the e-mail in question "has completely destroyed the Indian Government's case" against Shankaran. The Judge at the City of Westminster Magistrates' Court put off the hearing after a plea from the Crown Prosecution Service John Hardy, who sought time to consult Government of India. The hearing about admissibility of the extradition case against Shankaran, will be held for two days from October 10, District Judge Nicholas Evans said.

In the past as well, the CBI has failed to act in a timely manner while investigating the case of defacement of its website.

Editorial Comments

We just came across some media reports after our posting. Hence the editorial comments. If possible, we would also come up with techno legal expert’s testimony in this regard very soon.

Dismissing reports of a setback in the extradition case involving Ravi Shankaran, main accused in the Naval War Room leak case, the CBI today claimed that a UK-based cyber expert has "wrongly considered" the creation time of email, presented as evidence by it in a London court. The agency said there was "no setback" to it in the case and it will present its views before the Westminster Court on October 10.

CBI will present its argument that the expert has wrongly considered creation time of the 'Temporary' internet file, related to email in question; which is actually an automatic process in the computer system to cache open files, which can be recovered in case of any crash" a senior CBI official said.

Will Indian Courts Accept Technology Ever?

Technology is most often used in civil cases especially matrimonial cases. Even in criminal cases, video conferencing is frequently used by courts for various purposes. This is the beginning of a larger effort known as e-courts.

We have no e-courts in India till September 2011. This means there is something grossly wrong with our management and expertise in this regard. For instance, we have a single techno legal e-courts research, training and consultancy centre in India.

It is managed by Perry4Law Techno Legal Base (PTLB), the premier techno legal segment of Perry4Law, the exclusive techno legal ICT and IP law firm of India and world wide. We need more such techno legal e-courts centers in India.

Further, there is also reluctance on the part of Indian courts to use technology for legal and judicial purposes. This is also the reason why e-courts could not be established in India till now.

Police, lawyers and judges are finding it difficult to deal with cyber crimes. More sophisticated fields like cyber forensics have yet to be introduced in Indian legal and judicial system. Here is an urgent need to develop cyber skills of police, lawyers and judges in India.

Take the example of a very recent case in this regard. A man who filed his divorce petition through a video conference from Canada has been directed to make a personal appearance in the court on December 15. Second additional family court judge G Manjula passed the order. Personal appearance is a concept that strikes at the very concept of e-courts and video conferencing.

This means courts and judges in India are still not comfortable with the use of technology. However, technological issues would be required to be taken care of by courts and judges in future.

Police, lawyers and judges must stress upon cyber skills development in India. E-learning for lawyers in India must be strengthened. Similarly, techno legal training and courses like cyber forensics trainings in India must also be undertaken by our police force, legal fraternity and judicial community.

The Futility Of Aadhar Project Of India And UIDAI

The Aadhar project of India and unique identification authority of India (UIDAI) have never been considered to be legal and constitutional. This is because both Aadhar project and UIDAI have been imposed upon India that also without any parliamentary oversight.

In fact Aadhar project and UIDAI are both undemocratic and unconstitutional as they are openly violating various fundamental rights of Indian citizens that also without following the constitutional procedure. Form time to time, experts have been suggesting that Aadhar project and UIDAI must be scrapped.

Indian government, Aadhar project and UIDAI are hiding truth from Indian citizens and are fooling them. However, sooner or later the truth was bound to be revealed. Besides experts in India now even the home ministry of India has been opposing the Aadhar project and UIDAI.

Neither Aadhar project nor UIDIA have been able to provide the mandatory legal framework under which they can operate. Further, both Aadhar project and UIDAI are openly violating various civil liberties like right to privacy in India.

Realising that Aadhar/UIDAI may be challenged in the Indian Courts; a façade was created in the form of National Identification Authority of India Bill 2010 (Bill). The Bill is still to become an applicable law as it has not been approved by the Parliament of India.

However, according to experts like Praveen Dalal, a Supreme Court lawyer and leading techno legal expert of India, even after the Bill becomes and applicable law, both Aadhar and UIDAI would remain “Unconstitutional”. This is so because the “Constitutional Safeguards” that are required to make Aadhar/UIDAI Constitutional are still missing from the proposed Bill.

The Home Ministry has now further identified flaws in the enrolment process followed by the UIDAI, citing cases where people have got UID numbers on the basis of false affidavits. None can doubts that fake UID cards has made Aadhar project further vulnerable to misuse. What is surprising that our Prime Minister Dr. Manmohan Singh has failed to take notice of these unconstitutional and illegal irregularities in the functioning of Aadhar project and UIDAI.

In a note written to the Cabinet Committee on UIDAI headed by Prime Minister Manmohan Singh, the home ministry has questioned the security of the biometric data captured by the UIDAI and pointed out uncertainties in its revenue model.

The UIDAI has sought an additional 15,000 crore to do biometric scanning of all residents of the country through its own registrars, a proposal that is being opposed by the home ministry and the planning commission, as the government has already tasked the census office with the primary responsibility of collecting biometric data of all Indian residents for a National Population register card.

The data collected by the census office is supposed to be shared with the UIDAI and every NPR card will carry the UID number of the card holder. The census office is part of the home ministry and so far has collected biometric data for 30 lakh individuals. The home ministry has urged the Cabinet to restrict the authority's multi-registrar model of biometric enrolment to the already decided level of 20 crore by March 2012.

"The home ministry, the Planning Commission and others have given their comments," Home Minister P Chidambaram said about the UIDAI proposal for more funding recently. He also said that the Cabinet Committee on UIDAI (CCUIDAI) would take a call on the overlap between the NPR and the UIDAI. Why CCUIDAI is allowing futile Aadhar project and UIDAI to continue is still a big mystery?

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.

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.