Centre Of Excellence For Cyber Crimes Investigation In India

The moment a cyber crime is committed, techno legal efforts to trace the culprit start. However, cyber crime investigation is a complicated process that may involve multiple jurisdictions and cross border organised cyber crimes. Since Internet recognises no boundaries, a cyber crime committed in one jurisdiction may have rippling effects in another jurisdiction. This gives rise to conflict of laws in cyberspace that are difficult to manage.

The framework for cyber crime investigation in India is still developing. In fact, in a Public Interest Litigations (PILs) the Supreme Court of India has issued notice to Centre to seek its views in this regard. Supreme Court was approached to ensure regulations and guidelines for effective investigation of cyber crimes in India.

Like other parts of the world, India is also trying to bridge the gap of skilled cyber workforce and trained law enforcement agencies. However, we have very few cyber crime and cyber security research and development centres in India. Similarly, there are very few cyber law firms in India that are providing legal assistance for cyber crime cases in India.

Perry4Law and Perry4Law’s Techno Legal Base (PTLB) have been working in the direction of spreading public awareness regarding cyber law on the one hand and cyber crimes investigation on the other. PTLB is managing the exclusive techno legal Centre of Excellence for Cyber Crimes Investigation in India.

PTLB is providing the exclusive techno legal cyber crimes investigation training in India for various stakeholders. PTLB is also managing the exclusive techno legal virtual campus for techno legal trainings in India.

Recently a Constitution Bench (PDF) of Supreme Court of India in Lalita Kumari v. Govt Of UP (2013) SC (5J) (PDF) held that police officers are bound to register FIR upon receiving information of commission of a cognizable offence in India. This means that for cognizable offences, as mentioned in the judgment, police officers would be left with no option but to register an FIR unless the case falls in one of the exceptions mentioned by the Supreme Court. Police officers would now be required to register an FIR for various cyber crimes as well and investigate the same promptly.

In this background, the cyber crime investigation has assumed great importance in India as cyber crimes have increasing a lot in India. Cyber crimes like online defamation, hate speech, fake social media profiles, misuse of social media, hacking, defacing of websites, etc require techno legal expertise to solve. With compulsorily filing of FIR police officials would now be required to investigate all these cyber crimes.

However, investigation of these cyber crimes would require techno legal expertise that is presently missing in India. Realising this fact, the Central Bureau of Investigation (CBI) and Serious Fraud Investigation Office (SFIO) are planning to hire contractual services of experts. The suggestions regarding rules pertaining to inspection, inquiry and investigation (SFIO) by Perry4Law (PDF) have already been provided and these suggestions equally apply to cyber crime investigations conducted by law enforcement agencies of India.

                                                                                   

Indian government must consider these issues on a priority basis. Further, techno legal expertise of firms like Perry4Law and institutions like PTLB must also be utilised by Indian government to fullest extent to make cyber crime investigation in India meaningful and effective.

10 Point Legal Framework For Law Enforcement, CBI And Intelligence Agencies In India By Perry4Law

The purpose of legislature is to enact appropriate laws and the same is implemented by the executive branch of the government. However, if legislature fails to fulfill its constitutional duties and executive usurps the powers of legislature, a constitutional deadlock is inevitable.

For too long techno legal experts like Praveen Dalal have been stressing that law enforcement agencies and intelligence agencies of India must not only be regulated through a legal framework but they must also be bound by parliamentary oversight. However, Indian government preferred to keep this crucial aspect under the carpet.

The 10 Point Legal Framework for Law Enforcement and Intelligence Agencies in India by Perry4Law was submitted to Indian government in the past. It is a framework prescribed by Perry4Law in September 2009 to Government of India and the first of its kind in India.

However, the Indian Government failed to act on the same in a timely manner and questions about its intention to make law enforcement agencies like Central Bureau of Investigation (CBI) independent kept on arising.

The Supreme Court of India has even given a deadline to Indian Government to formulate a Law for CBI. Reacting to this deadline, the Indian government has set up a Group of Ministers (GoM) to draft a law for CBI. However, that once again proved to be another time gaining exercise by Indian Government.

In a recent judgment (PDF), the constitution of CBI was held Unconstitutional by Gauhati High Court. The Division Bench of Gauhati High Court has endorsed the views that have been expressed by selective few legal experts of India like Praveen Dalal. According to experts like Praveen Dalal, the decision of Gauhati High Court declaring CBI Unconstitutional is Legally Sustainable.

The Central Government has decided to file an appeal against the order of Gauhati High Court in the Supreme Court of India. However, the task would not be as simple as the Central Government is anticipating as the position taken by the Gauhati High Court is legally tenable.

The Decision Of Gauhati High Court Declaring CBI Unconstitutional Is Legally Sustainable- Praveen Dalal

For too long techno legal experts like Praveen Dalal have been stressing that law enforcement agencies and intelligence agencies of India must not only be regulated through a legal framework but they must also be bound by parliamentary oversight. However, Indian government preferred to keep this crucial aspect under the carpet.

Indian Government did not understand and accept that law enforcement and intelligence work is not an excuse for non accountability. For some strange reasons intelligence infrastructure of India has become synonymous for unaccountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of intelligence agencies of India.

Lawlessness and unreasonableness is guaranteed if there is no accountability. Accountability is absent when there is no legal framework for those managing essential governmental functions challenging the human rights and fundamental rights of the affected persons. Perry4Law has already provided a “10 Point Legal Framework for Law Enforcement and Intelligence Agencies in India” (PDF) to the Government of India in September 2009. However, the Indian government failed to act upon the same and to formulate a techno legal framework accordingly.

The problem with the central bureau of investigation (CBI) is that it has not been constituted under a valid law and till now CBI has been operating through an executive order. Even Indian government was well aware of this dangerous situation and despite that it failed to remedy the situation.

In a recent landmark judgment (PDF), the constitution of CBI was held Unconstitutional by Gauhati High Court. The Division Bench of Gauhati High Court has endorsed the views that have been expressed by selective few legal experts of India like Praveen Dalal.

According to Praveen Dalal, managing partner of law firm Perry4Law and a Supreme Court Lawyer, although almost all have criticised this decision of Gauhati High Court yet it is “neither absurd nor an uncalled one”. Parliamentary Oversight of any Law Enforcement Agency is the “Core Requirement” under Indian Constitution. However, our Intelligence Agencies and many Law Enforcement Agencies, including CBI, are not governed by any sort of Parliamentary Oversight, opines Dalal.

So judged from this legal position, the decision of Gauhati High Court is correct and legally sustainable. Even CBI is well aware of this ground reality. The Draft Central Bureau of Investigation Act, 2010 was suggested by CBI but the same could not see the light of the day. CBI’s case is a political fiasco that has arisen due to the PMO indifference.

Even the Intelligence Services (Powers and Regulation) Bill, 2011 failed to materialise and till now our intelligence agencies are not governed by any law. In fact, intelligence agencies are vehemently opposing the proposed Right to Privacy Bill 2013 so that they remain ungoverned and unaccountable in every possible sense.

India has already launched illegal and unconstitutional projects like Aadhar, central monitoring system, national intelligence grid (Natgrid), etc without any legal framework and parliamentary oversight. Now when we have a chance to bring some sanity among the chaos created by the intelligence infrastructure of India, the intelligence agencies have pulled their sleeves to stall the proposed privacy bill.

There are no Shortcuts to Worth Initiatives and Agencies and in case of CBI the Indian Government preferred the “Shortcut Mode”, says Dalal. The correct procedure was to formulate a Comprehensive and Holistic Legal Framework for the CBI rather than keeping it operational under an Executive Order, opines Dalal. Let us see how the Supreme Court of India would decide in this regard.  

CBI Is An Unconstitutional Agency Says Gauhati High Court

Central bureau of investigation (CBI) is the premier investigation agency of India. It has been managing many high profile cases of India. However, CBI has not been constituted under a valid law and till now CBI has been operating through an executive order.

From time to time many legal experts have asked the Indian government to confer legal status upon CBI through a separate law. However, Indian government failed to do so and now a situation has arisen where the very existence of CBI is in danger.

In a recent landmark judgment (PDF), the constitution of CBI was held Unconstitutional by Gauhati High Court. The Division Bench of Gauhati High Court has endorsed the views that have been expressed by selective few legal experts of India.

According to Praveen Dalal, managing partner of law firm Perry4Law and a Supreme Court Lawyer, although almost all have criticised this decision of Gauhati High Court yet it is “neither absurd nor an uncalled one”. Parliamentary Oversight of any Law Enforcement Agency is the “Core Requirement” under Indian Constitution. However, our Intelligence Agencies and many Law Enforcement Agencies, including CBI, are not governed by any sort of Parliamentary Oversight, opines Dalal.

So judged from this legal position, the decision of Gauhati High Court is correct and legally sustainable. Even CBI is well aware of this ground reality. The Draft Central Bureau of Investigation Act, 2010 was suggested by CBI but the same could not see the light of the day. CBI’s case is a political fiasco that has arisen due to the PMO indifference.

Even the Intelligence Services (Powers and Regulation) Bill, 2011 failed to materialise and till now our intelligence agencies are not governed by any law. In fact, intelligence agencies are vehemently opposing the proposed Right to Privacy Bill 2013 so that they remain ungoverned and unaccountable in every possible sense.

India has already launched illegal and unconstitutional projects like Aadhar, central monitoring system, national intelligence grid (Natgrid), etc without any legal framework and parliamentary oversight. Now when we have a chance to bring some sanity among the chaos created by the intelligence infrastructure of India, the intelligence agencies have pulled their sleeves to stall the proposed privacy bill.

There are no Shortcuts to Worth Initiatives and Agencies and in case of CBI the Indian Government preferred the “Shortcut Mode”, says Dalal. The correct procedure was to formulate a Comprehensive and Holistic Legal Framework for the CBI rather than keeping it operational under an Executive Order, opines Dalal. Let us see how the Supreme Court of India would decide in this regard.