Indian Central Monitoring System

The central monitoring system (CMS) project of India is one of the most controversial projects about to be launched by Indian government. It the CMS project of India is attached with other controversial projects like Aadhaar; this would be a serious civil liberty fiasco. The Aadhaar project is already questioned in the Indian courts and the CMS project would also face similar fate.

We have been maintaining that the ministry of communication and information technology (MCIT) must be put PMO scrutiny. In fact, the MCIT must be put under the direct control of PMO to make it more transparent and accountable. Although the PMO took some interest in the technology related issues in the past yet they were never sufficient.

Now it has been reported that the PMO questioned the preferential market access (PMA) policy of MCIT. The PMO must also question the CMS project as it has serious civil liberties issues. Human rights protection in cyberspace must also be kept in mind by the PMO.

The CMS project and telephone tapping issues are also interrelated. Although the standing committee on home affairs recommended safeguards for phone tapping of politicians yet no such safeguards have been prescribed for ordinary citizens. We still do not have a lawful interception law in India to govern phone tapping and e-surveillance issues. The fact is that India must reconcile civil liberties and national security requirements immediately.

The CMS project has also created waves at the international level as well. For instance, see the Reddit, Pastebin, Pastebay, bedtime e-post, etc in this regard.

According to Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of Asia, The CMS Project of India is a good and ambitious project that is required to manage National Security and Law Enforcement requirements of the country. However, adequate “Procedural Safeguards” must also be established in the System so that it is not abused for political and personal reasons, warns Dalal.

It is clear that the time for CMS project of India has still not come. Of course, if Indian government is still willing to waste tremendous public money on illegal and unconstitutional projects like Aadhaar, it is free to go ahead with CMS project as well. But keeping in mind the forthcoming elections and the attitude of PMO this seems to be a distant possibility.

Finally Indian Online Pharmacies Are Under Scrutiny

The online sales of prescribed medicines in India are by and large still unregulated. Illegal and unscrupulous online pharmacies, both Indian and foreign, are taking advantage of this lacuna of Indian laws.

However, those days of chaos and non regulation are gone. Indian regulatory authorities are now scrutinising these online pharmacies for violation of various pharmaceutical standards, codes and regulations.

Although we have no dedicated e-commerce laws and regulations in India yet the legal aspects of online pharmacies can be found under multiple legislations of India.

According to Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal e-commerce expert of India, Online Pharmacies of India are under Regulatory Scrutiny. There are many Online Pharmacies in India that are openly violating the Pharmaceutical and other Laws of India.

Further, these Online Pharmacies are also violating the Cyber Law of India, especially the Cyber Law Due Diligence of India. There is an urgent need on the part of States to crack down upon such Illegal Online Pharmacies of India, opines Dalal.

Illegal online pharmacies are grave danger to the lives of millions of Indian citizens who readily rely upon such pharmacies for their medical requirements. The central drugs standard control organisation (CDSCO) must play a more pro active role in this regard. Till now its role has been passive and non-interfering in nature when it is must be otherwise.

We hope the CDSCO and Indian government would take strict penal action against the defaulting and illegal online pharmacies that are openly flourishing in Indian that also right under the nose of Indian government.

E-Commerce Site Selling Adult Merchandise In India Are Committing Criminal Offences

Making of profit at the cost of violation of laws of the land is not a feasible option. However, in India this seems to be the norm. For instance, e-commerce websites in India are engaging in punishable soft porn publication and Indian government is sleeping over the matter.

The information technology act, 2000 (IT Act 2000) governs the internet intermediary laws in India and cyber due diligence. The IT Act 2000 is also the cyber law of India that deals with and regulates online dealings and transactions.

We have no dedicated e-commerce laws and regulations in India but the IT Act 2000 governs the civil and criminal aspects of e-commerce dealings in India. IT Act 2000 has also prescribed the internet intermediary liability in India.

There are well recognised legal requirements to start an e-commerce website in India and the legal formalities required for starting e-commerce business in India. As on date, the e-commerce websites are not following such techno legal requirements.

E-commerce websites dealing with online pharmacies, online gamming and gambling, online selling of adult merchandise, etc are openly and continuously violating the laws of India, including the cyber law of India.

According to Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of Asia, E-Commerce Websites in India are not very keen in Complying with the Laws of India, especially the Cyber Law of India. What is more surprising is the fact that even the Indian Government has not thought it fit to regulate the E-Commerce Websites operating in India, says Dalal.

The Cyber Law of India prescribes stringent Cyber Law Due Diligence Requirements in India that E-Commerce player sin India must follow. If they do not follow Cyber Due Diligence, they can be Criminally Prosecuted by the Government, opines Dalal.

It seems the e-commerce websites selling adult merchandise like costumes and lingerie erotic lingerie are violating the laws of India. It is high time for Indian government to give due importance to law over private gains. It is also a good time for these e-commerce websites owners to understand that anonymity in the cyberspace is a myth and they can be nailed anytime.

E-Commerce Websites In India Are Engaging In Punishable Soft Porn Publication

India has strict anti pornography laws but they are flouted very often. Ironically, they are flouted by none other than the media websites and e-commerce platforms. Not very late we have reported that media is promoting soft porn in India.

Now it has come to our notice through media reports that e-commerce websites, especially those selling cloths and dresses, are engaging in activities that are clearly violating the cyber law of India and e-commerce laws and regulations of India.

The cyber law of India clearly prohibits such display of soft porn in India yet till now we have not witnessed any compliant or court case against such platforms. This does not mean that they cannot be booked at a subsequent date.

According to Praveen Dalal, managing partner of Perry4Law and leading techno legal expert of Asia, a single such episode can attract Civil and Criminal Liabilities on the part of those involved in the making, uploading, publication and circulation of the same in paper and electronic form.

The Cyber Law of India prescribes stringent Due Diligence Requirements that paper based and electronic publishers must follow. If they do not follow Cyber Due Diligence, they can be Criminally Prosecuted by the Government, opines Praveen Dalal.

There are well recognised legal requirements to start an e-commerce website in India and the legal formalities required for starting e-commerce business in India. As on date, the e-commerce websites are not following such techno legal requirements.

Even worst is the situation when it comes to e-commerce websites selling medicines in India. Online pharmacies in India are violating Indian laws and till now no action has been taken against those playing with the lives of Indians. Online sales of prescribed medicines in India require techno legal compliances that these e-commerce websites are not following.

It is high time for Indian government in general and law enforcement agencies in particular to crack the whip upon those violating laws of India for commercial gains.

Is The Tallinn Manual On The International Law Applicable To International Cyber Warfare Attacks And Defence?

In this Guest Column, Praveen Dalal, managing partner of ICT law firm Perry4Law and leading techno legal expert of Asia, has shared his views as to why the Tallinn Manual on the international cyber warfare is not applicable and binding in the sphere of international cyber warfare activities.

He has also termed the manual as highly risky and pre mature and recommends for a harmonised international framework for cyber warfare. The question that all countries must ask “Is the Tallinn Manual on The International Law Applicable to International Cyber Warfare Attacks and Defence”? The answer seems to be in negative.

In a Significant and much appreciated effort on the part of NATO Cooperative Cyber Defence Centre of Excellence (NATO CCD COE), a manual titled the Tallinn Manual on the International Law Applicable to Cyber Warfare has been released.

The effort is Significant as it is the first Coordinated and Collaborative effort in the direction of tackling the menaced of Cyber Warfare at the International Level. However, this effort of NATO is also “Highly Risky” and “Pre Mature” as “International Consensus” is not an essential part of this effort.

There is no second opinion that we need International Regulations against Cyber Warfare as Cyber Warfare against India is also a big nuisance. The problem in achieving this “Laudable Objective” is that we have no International Cyber Law Treaty and International Cyber Security Treaty.

Even NATO is aware of these “Limitations” and this is the reason why the Tallinn Manual is not an Official Document, but instead an Expression of Opinions of a Group of Independent Experts acting solely in their Personal Capacity. It does not even represent the views of the Centre, its Sponsoring Nations, or NATO.  It is also not meant to reflect NATO Doctrine.  Nor does it reflect the position of any Organisation or State represented by Observers. 

Obviously, we should consider the Manual as nothing more than personal Opinions of few Individuals and should not base our Acts or Omissions on the basis of this Manual. Before forming our Judgement on the basis of this Manual we must ask few questions. These are:

(1) How NATO or those related to this Manual would "Enforce" it?

(2) Why should it be considered to be "Binding and Enforceable" at the International level?

(3) What if People, Institutions and States "Defy" this Manual?

There are Thousands of such Questions and “Jurisdictional Issues” that need to be answered and resolved before we consider a Manual like this to be even "Considered" much less "Adopted".

In my personal opinion, this Manual is "Premature" and "Undesirable" at this stage when we have no "Universally Acceptable" Cyber Law and Cyber Security Norms. Jumping at the Apex without sorting out the controversial issues existing at the Ground Level is a bad idea and NATO has exactly done so.  

Are HDFC And Other Banks Inadvertently Destroying Evidence?

Banking related frauds are on rise in India. The intensity and number of such banking related crimes has also increased a lot. This is an alarming situation where our regulatory authorities must take immediate and stringent against the culprits.

For instance, ATM frauds, Internet banking frauds, online banking frauds, RTGS frauds, money laundering offences, etc are on in India. In short, banking frauds in India have increased and it is high time for the Reserve Bank of India (RBI) to take serious note of these criminal activities that are duping Indian exchequer and bank customers of millions of cash.

RBI has in the past imposed penalties upon many banks for failure to comply with various laws and regulations. RBI is also investigating the cyber fraud happened at YES Bank. Media reports have mentioned that ICICI, HDFC and Axis banks were alleged to be indulging in money laundering and benami transactions.

Keeping in mind the seriousness of the issue, the finance ministry and RBI are investigating money laundering accusations against ICICI, HDFC and Axis bank. Meanwhile the accused banks have also started their own investigations and departmental proceedings. Many employees have been suspended till the report of departmental enquiry would be out.

According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal expert of Asia, HDFC and other Banks must follow Sound E-Discovery and Cyber Forensics Procedure to avoid Legal Liability. While engaging in Private Investigations, Banks must keep in mind that “Crucial Evidence” is not tampered with or destroyed, opines Dalal.

The finance ministry and RBI must keep this crucial aspect in mind as well as without sufficient evidence the guilt of the accused cannot be established.

Nursery Admissions In Delhi Are Still Regulated By Norms And Laws

Nursery admissions procedure at schools of Delhi has now reached at an interesting stage. While the schools are celebrating victory over the judgement of Delhi High Court yet they have not realised that the era of commercialisation of education and teaching shops is about to end very soon.

As has been rightly analysed by my friend Shayam Prasad, the decision of Delhi High Court has, in effect, created more stringent norms for the unaided private schools of India than before. To make the matter conclusive and final, the matter would be taken to the Supreme Court of India very soon.

The only solace for schools can be found in the form that as on date the right to education act is not applicable to nursery admissions. But the same is not final and it is going to change very soon.

Even the Delhi High Court has shown its displeasure with the current non applicability of right to education act to nursery admissions and has recommended amending the law to make it applicable.

Legal experts are already saying that right to education act of India needs reformulation. For instance, according to the guest column of Praveen Dalal, managing partner of Perry4Law and a Supreme Court lawyer, right to education is a successful failure of India and is going against the constitutional protections.

According to Dalal, the most important aspect of the present judgement of Delhi High Court is that it is “Appealable” and the matter would be taken to Supreme Court of India. Further, there is nothing in the Judgment of Delhi High Court that is exempting Schools of Delhi from following the admission related Norms prescribed by other Rules and Regulations, opines Dalal. In short, nursery admissions are still required to be done as per Norms and Regulations and the Delhi High Court’s Judgement has not changed anything in this regard, says Dalal.

So parents do not loose heart and schools do no enjoy this limited victory as the legal battle is still on.

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