• Friday, May 19th, 2017

Praveen Dalal 1Rule of law, human rights, fundamental rights and civil liberties protections are essential attributes of a democratic country. In contrast, a totalitarian state and police state is a sure sign of death of rule of law and human rights. India is presently in a metamorphism stage where it is turning into an Orwellian state from a democratic and rule of law governed country. All this is happening because of forced imposition of Aadhaar upon Indians and a lethargic Supreme Court that is no more interested in protecting fundamental rights and rule of law in India.

The problem with the Supreme Court is that it cannot say that Aadhaar is mandatory and constitutional as Aadhaar is clearly unconstitutional and deserves to be scrapped. Warnings about Aadhaar were given by us as early as 2010 and since 2012 we have been cautioning Supreme Court about unconstitutional biometrics collections of Indians. So neither Indian government nor Supreme Court can now say that they were not forewarned regarding Aadhaar at early stage of this Orwellian project that is the worst digital panopticon of human history.

Meanwhile two more constitutional frauds were committed by Indian government when the Parliament passed the Aadhaar Act and Finance Act as money bills. Clearly, none of them is a money bill and the constitutionality of Aadhaar Act has already been challenged before the Supreme Court.

But this entire scenario of Aadhaar has put a question mark on the credibility and legitimacy of Indian Supreme Court. What type of Supreme Court would prefer to support an oppressive technology like Aadhaar over fundamental rights and constitutional supremacy? Presently Indian Supreme Court is the one that prefers suppression and killing of rule of law and Indian Constitution over Aadhaar. But Aadhaar can never pass the test of constitutionality. This is the reason why Supreme Court issued interim orders making Aadhaar optional for welfare, non welfare, government, private or any other types of services provided to Indian citizens. Supreme Court has also clarified that Aadhaar would remain optional till the matter is decided by the court one way or the other. Clearly, Supreme Court has not decided this issue conclusively and the interim orders are still in force.

Now the government has pleaded before the Supreme Court in Section 139AA and benefits under Aadhaar Act petitions that Finance Act and Aadhaar Act have overruled the interim orders of Supreme Court. The logic given is that the restrictions of Supreme Court were imposed against the Executive and not Parliament. The viability of this legal argument is in serious doubt but we would not touch this issue at this stage. What we would like to say is that neither the Aadhaar Act nor the Finance Act has affected the applicability of interim orders of Supreme Court even with the help of these money bills as they are constitutional frauds. Above all, neither Aadhaar Act nor Finance Act has removed the basis of the interim orders of Supreme Court and as such cannot affect these interim orders.

So the constitutional position as in existence till May 2017 is that Aadhaar is not mandatory for any welfare, non welfare, government, public or any other type of services and this applies to Section 139AA requirements and services mentioned under the Aadhaar Act as well. As petitions against Section 139AA and services under Aadhaar Act are pending before the Supreme Court, it would not be wise to deliberate more upon this aspect as on date. But in all probability, very soon two separate Division Benches of Supreme Court would reiterate that Aadhaar is optional and it cannot be made mandatory for Section 139AA or services under the Aadhaar Act.

However, till such judgments are delivered or interim reliefs are granted, we must use the existing interim orders of the Constitution Bench of Supreme Court that is binding upon both the Division Benches of Supreme Court, Executive, Parliament and agencies/departments of Indian government. While the judgement for Section 139AA petition can be pronounced any time yet petition for services under Aadhaar Act has been posted for further hearing on 27-06-2017.

No matter how much Indian government and Supreme Court drag their feet, Aadhaar would always remain unconstitutional, optional and an e-surveillance tool in the hands of Indian government and its agencies. It is high time for the Supreme Court to regain its lost legitimacy and respect by declaring Aadhaar as unconstitutional and destroying the biometric and other databases collected by Indian government.

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• Thursday, January 26th, 2017

IoT And Smart Cities Forum Of India

Internet of things (IoT) and smart cities are two of the most contemporary technology developments around the world. India has embraced both these concepts with warmth and enthusiasm. Nevertheless, we at Perry4Law Organisation (P4LO) have felt that there is little research material built around the concepts of IoT and smart cities in India. This is more so regarding techno legal research materials for IoT and smart cities in India.

We have already launched the Smart Cities Cyber Security in India Daily, Techno Legal Centre of Excellence for Internet of Things (IoT) in India (TLCOEIOT), etc to cover IoT and smart cities related issues of India and other jurisdictions. The Centre of Excellence for Cyber Security Research and Development in India (CECSRDI) and Centre of Excellence for Digital India Laws and Regulations in India (CEDILRI) would also extend their techno legal expertise in this regard.

In order to further expand the techno legal resource centre of Perry4Law Organisation (P4LO) in the fields of IoT and smart cities, we have also launched a dedicated and exclusive techno legal IoT and Smart Cities Forum of India. It is a goldmine for national and international IoT and smart cities stakeholders as it is covering all possible techno legal issues of IoT and smart cities at a single place.

The IoT and smart cities forum of India is covering areas like cyber law, privacy, data protection, cyber security, cyber forensics, e-discovery, techno legal regulatory compliances for IoT and smart cities entrepreneurs, cyber law due diligence compliances, cloud computing, open source software and hardware, etc as applicable to national and international IoT and smart cities stakeholders.

IoT would be used for virtually everything in the near future making them vulnerable to cyber attacks. Data theft, identity theft, cyber crimes and cyber attacks would be normal and privacy protection would be a serious challenge. IoT would also be connected to cloud computing infrastructures raising further privacy and data protection issues. All these issues have already been covered at the IoT and smart cities forum of India.

To make the discussion even more comprehensive, we have also launched another discussion forum known as PTLB LPO Discussion Forum. The LPO Discussion Forum is serving twin purposes of spreading awareness about techno legal regulatory compliances of IoT, smart cities, cyber law, cyber security, cloud computing, etc on the one hand and outlining the procedure to avail the techno legal services of PTLB on the other. Interested stakeholders can avail techno legal services of PTLB after establishing the client attorney relationship with PTLB/Perry4Law. Reading of Frequently Asked Questions (FAQs) is strongly recommended by us in this regard.

In short, if you a national or international IoT or smart city stakeholders interested in doing business in India, it is imperative to subscribe and read the IoT and smart cities forum of India. In case you need techno legal services of TLCOEIOT or PTLB, please feel free to contact us in this regard and comply with the conditions mentioned at the contact point. We would be more than happy to help you in your journey to success.

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• Sunday, June 26th, 2016

Procedure For Obtaining A Domicile Certificate In IndiaReserve Bank of India (RBI) has recently released the Payment and Settlement Systems in India: Vision-2018 document. Among other things, the vision document intends to introduce a responsive regulatory framework for online payment industry of India and a customer liability framework to help resolve cyber fraud. The vision document has also expresed an intention to ensure contemporary and technology driven regulations in India. Perry4Law Organisation (P4LO) welcomes these positive steps on the part of RBI.

In order to ensure that regulations keep pace with the developments in technology impacting the payment space, the global level developments in technology such as distributed ledgers, blockchain etc. will be monitored, and regulatory framework, as required, will be put in place by the RBI.

Further, the payments eco-system is dynamically evolving with the advancements and innovations taking place, particularly in the area of FinTechs. In order to provide a platform for innovators to showcase their models to the industry, particularly in the areas of interest to payment systems and services, the Reserve Bank has organised an innovation contest through the Institute for Development and Research in Banking Technology (IDRBT). Learnings from such interfaces will also be used as inputs for policy adaptations.

RBI’s Deputy Governor H.R. Khan has recently informed that a group of experts will be constituted to study blockchain technology from a perspective of a evolving a more decentralised financial system and promoting cashless economy. The group would be small and draw its members from RBI, the Hyderabad-based Institute for Development and Research in Banking Technology and outside.

The legality of Bitcoin in India is a “grey area” and dealing in Bitcoin may be legal or illegal depending upon the way they are handled by the concerned individual or organisation. India is still discussing the legality or illegality of Bitcoin as RBI has to come up with a conclusive regulatory framework in this regard. The crucial question is whether Bitcoin use, websites and businesses are legal in India? There is no conclusive answer to this question as on date and the safest bet is to ensure techno legal compliances for Bitcoin businesses in India. The prominent of these compliances is the cyber law due diligence (pdf) that most of the e-commerce businesses and Bitcoin websites are not complying with.

Perry4Law Organisation (P4LO) wishes all the best to RBI and is committed to extend its techno legal expertise to help studying and implementation of Bitcoin and Blockchain technologies and other forms of online payment mechanisms in India.

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• Sunday, October 04th, 2015

Procedure For Obtaining A Domicile Certificate In IndiaAt Perry4Law, we are very frequently approached to assist our clients in obtaining a domicile certificate for various purposes. Many times we have to explain the difference between a domicile certificate and a residence certificate as the legal requirements and the use of these two certificates are totally different.

We have explained in a seperate post titled “how to obtain a domicile certificate in India” about various aspects of a domicile certificate and the rules and reguations applicable for the same. Perry4Law Organisation (P4LO) has also requested the Central Government to frame a techno legal framework for domicle in India. We believe that the domicile policy of India must be formulated by Central Government as soon as possible due to the present Digital India project and ever opening economies around the world.

India is a quasi federal nation and it is governed by a single citizenship or domicile system. Indian Constitution provides that every citizen of India shall have a single domicile throughout the territories of India. No state in India can insist upon a separate domicile other than the national domicile as conferred by Indian Constitution.

Domicile is different from residence. A person may be resident in India but he may not be domiciled in India. To make a residence a domicile, the residence must be accompanied with an intention to make that residence permanent. Similar rule applies if such a person is resident outside India. The crucial criterion is the intention of the person and this intention is decisive in determining the domicile status of such person.

While approaching the Central Government for obtaining a domicile certificate, it is imperative that various documentary proofs reflecting the intention of the applicant to obtain the domicile of India must be duly submitted.

There is no set procedure or formalities to obtain a domicile certificate in India and every case has to be decided by the Central Government on its own facts and circumstances. Obtaining a false or illegal domicile certificate is a punishable offence in India and it can have serious legal consequences.

We have developed our own techno legal procedure to assist our client in obtaining a domicile certificate. It is differnet for citizens and non citizens of India and seperate procedure is applicable for seperate individuals. If you need a domicile certificate for succestion or taxation related issues, please contact us in this regard.

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• Thursday, July 02nd, 2015

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBThere are lots of myths about Aadhaar project that have been deliberately spread by Indian government so that it can continue to impose the same upon Indian masses. What is most surprising is the fact that Indian government is so adamant about this project that it has not even cared to follow the directions of Supreme Court of India.

Clearly, the Narendra Modi government is deliberately and maliciously indulging in “contempt of court” that must be taken note of by the Supreme Court of India. In fact, now the Supreme Court must vehemently protest the establishment of National Judicial Appointments Commission (NJAC) as it’s “Existence and Independence” is in real danger, warns Praveen Dalal.

He observes that opposing NJAC by the Supreme Court makes sense if we analyse the negative developments in the past and present like Section 66A of Information Technology Act, 2000, Aadhaar, Digital India, etc. In short, India is moving towards being a “Totalitarian State” and this must be immediately stopped by the Supreme Court of India, opines Praveen Dalal. So bad is the position that Aadhaar has become the worst e-surveillance instrumentality abused by Indian government so far.

In this post, Praveen Dalal has elaborated the dangers that Aadhaar project is posing to the democracy and fundamental rights of Indian citizens. The persistent use of Aadhaar by Indian government even at the cost of contempt of court and prohibition by the Supreme Court of India shows that Indian government is well committed to violate the civil liberties of Indian citizens. In fact, the Digital India project has become the biggest digital panopticon of human history as Indian government has illegally linked the same with the illegal and unconstitutional technology names Aadhaar, says Dalal.

Aadhaar Project was visualised as a public good project but it ended up being a project that is violating various Constitutional and Statutory Provisions. The Constitutional Validity of the Aadhaar Project has been questioned before the Supreme Court of India. In another related case, the Supreme Court of India has held that the Aadhaar cannot be made compulsory for availing Public Services. Similarly, the Supreme Court has also restrained UIDAI from transferring any Biometric Information of any person who has been allotted the Aadhaar number to any other Agency without his consent in writing (PDF).

Just like Congress Government even the BJP Government has declared that it would bring and ensure a Legal Framework for Aadhaar. However, till the writing of this Article, no news about a Legal Framework for Aadhaar is available. As a result the position on the date is that Aadhaar is operating without any Legal Framework and Parliamentary Oversight.

Aadhaar Project in its “Current Form” is suffering from many “Illegalities and Infirmities”. For instance:

(1) Aadhaar has been made “Mandatory and Exclusive” for availing many Public Services in India despite Supreme Court’s Interim Order and Constitutional Prohibitions.

(2) Aadhaar Project is not supported by any Legal Framework and is not subject to “Parliamentary Oversight”.

(3) Aadhaar Project is violating various “Civil Liberties” like Privacy Rights of Indians.

(4) Aadhaar Project is “Grossly Weak” on the fronts of Cyber Security and Data Security.

(5) Aadhaar is not “Full Proof and Tamper Proof” and it can be “Obtained Illegally” and in Wrong Name.

(6) The “Authentication Mechanism” of Aadhaar Project is also faulty and in many cases gives “False Negative Alarms”.

(7) The present Practices and Methods adopted by Indian Government and its Agencies for Biometric Collection of Indians/Residents is Unconstitutional.

(8) Even “Clubbing/Merging” of Biometric Data of Aadhaar and National Population Register (NPR) has “Serious Constitutional Ramifications” and the same should not be done.

(9) Absence of Encryption Policy of India (PDF) to safeguard Biometrics Data, etc.

If we add the “Unaccountable Intelligence Related Exercises” of Indian Government, its Agencies and Foreign Partners like United States, the list is too bulky to be discussed here. Suffice is to say that the Aadhaar Project is suffering from many “Vices and Illegalities”. These include Civil Liberties Violations, Unconstitutional E-Surveillance Issues, Data Security and Cyber Security Issues, Compulsory Nature of Aadhaar, Unaccountable Intelligence Agencies, Foreign E-Surveillance Threats, Telecom Security Issues, Integration with Surveillance projects like NATGRID, Unconstitutional Biometrics Collections, etc.

All these aspects make the Aadhaar Project an Unconstitutional Project that was required to be Scrapped by the Modi Government. Alternatively, all these Constitutional Infirmities and Illegalities were required to be “Eliminated” by the Modi Government before allotting further funds to Aadhaar Project. There cannot be a “Third Option” for the Modi Government and wasting precious “Public Money” on Unconstitutional Project like Aadhaar “Can Never Be Justified” even by the Standards of the “Fancy Words and Empty Promises” made by the Congress and BJP Governments regarding Aadhaar Project.

Not only this, the entire situation has also raised “Serious Questions” about the “Real Intentions” of Indian Government vis-à-vis Aadhaar Project. The “Present Form” of Aadhaar Project and the behaviour of Indian Government regarding Civil Liberties have definitely negated the theory of Welfare Project as projected by both Congress and BJP Government. But if Aadhaar Project is not a Welfare Project what is its purpose and true nature?

In my personal opinion, Aadhaar in its present form has no Welfare Elements attached to it whatsoever but is an “Endemic E-Surveillance Project” that is operating well beyond the Constitutional Protections, Parliamentary Oversight and Judicial Scrutiny. The sole purpose seems to be to club the Biometric Details of Indian Citizens/resident with other “Centralised Databases” like National Intelligence Grid (NATGRID) Project of India, Central Monitoring System (CMS) Project of India, Internet Spy System Network and Traffic Analysis System (NETRA) of India, Crime and Criminal Tracking Network and Systems (CCTNS) Project of India, etc. Gradually, both Biometrics and Non Biometrics based details and data would be clubbed with the DNA Databank of India that Indian Government would definitely go for in the near future.

It is for You to decide whether You wish to give Your Children a “Free and Transparent India” or You wish Your Children to be a Guinea Pig or Lab Rat for Indian E-Surveillance Projects like Aadhaar that are clearly Illegal and Unconstitutional.

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• Tuesday, April 07th, 2015

Digital India, Online Pharmacies And Healthcare Laws In IndiaDigital India is the pet project of Narendra Modi government and it has high hopes with the same. However, Digital India is suffering from many shortcomings and this is making the entire project vulnerable to judicial interventions. Just like the Supreme Court of India had to interfere in the Aadhaar and section 66A cases, the Supreme Court of India may also have to interfere with the implementation of Digital India project.

The biggest problem with the Digital India project is that it lacks a clear cut policy and implementation plan. There is neither a legal framework nor a parliamentary oversight of the Digital India project. India is also notoriously infamous for its e-surveillance activities and violation of civil liberties in cyberspace. There are no dedicated privacy and data protection laws (PDF) in India as well. In short, there is no transparency, accountability and legal recourse available against the misdeeds and wrongs committed by Indian government and its agencies while implementing the Digital India project.

While these conditions are not at all acceptable in other nations yet this is just ignored in India by Indian citizens except by few privacy loving citizens. Take the example of healthcare laws of India that are simply outdated, irrelevant and ill suited to meet the objective of Digital India. Fields like e-health, m-health, telemedicine, etc require dedicated techno legal framework that is missing in India. As a result, healthcare industry and healthcare entrepreneurs of India are presently acting more on the side of violation than compliances.

Another area of concern pertains to unauthorised and illegal operation of online pharmacies in India. As on date, there are very complicated sets of legal requirements for establishing online pharmacies in India and for online sale of prescribed medicines in India. We have no dedicated laws for opening of online pharmacy stores in India but different laws of India govern different legal aspects of the same. There are numerous legal risks associated with online selling of medicines in India and all online pharmacies that intend to operate in India mist strictly follow various regulatory provision related to this field. As on date online pharmacies in India are violating various applicable laws of this field.

Digital India intends to give a boost to use of information and communication technologies (ICT) for public delivery of services. However, we at Perry4Law Law Firm believe that use of ICT for healthcare industry and services in India without appropriate regulatory environment would be counterproductive in the long run. It is in the interest of patients, hospitals and healthcare service providers that a techno legal framework must be established by Indian government as soon as possible. The process of constituting the National E-Health Authority (NeHA) of India is the correct approach to embrace Digital India project. We expect more such initiatives on the part of Indian government in near future.

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• Sunday, March 15th, 2015

It Took India Almost 10 Years To Realise That Women Empowerment Is Possible Through ICTThe year was 2006 when Praveen Dalal suggested the use of ICT for Women Empowerment in India (PDF).  However, it took almost 10 years for India to realise that women empowerment is possible though ICT.  Narendra Modi government has finally appreciated this fact and has introduced the Digital India project covering this aspect as well. However, there are many limitations and shortcomings of Digital India project of India as on date and with these limitations and shortcomings the effect of Digital India would not be as conducive as anticipated.

Of all facts one fact is very frustrating and discouraging and that would also defeat the Digital India project in the long run. According to Praveen Dalal, mandatory e-governance services in India are needed that are presently missing. This is also one of the main reasons explaining why e-governance has failed in India.

Another reason is that Indian government is very slow in accepting suggestions and recommendations that can be game changer for India. For instance, if the suggestions of Praveen Dalal were accepted in the year 2006 itself, women empowerment in India would have a totally different meaning today in India. Platforms like MyGov have little significance if the suggestions provided by public are not accepted and acted upon.

However, in many cases Indian government accepts the suggestions and recommendations of public. For instance, many of the suggestions of Perry4Law Organisation (P4LO) regarding technology companies were accepted by the then Congress government.

The present BJP government is also open to public suggestions and inputs. However, how much they would be accepted depends upon the policies and strategies of Modi government. If Modi government is looking towards positive and image making inputs only, that would not be a fruitful exercise. Modi government must also keep in mind the shortcomings and weakness of its policies and projects. Censorship of posts and tweets and manipulation of news and search results is definitely not the right approach in this regard.

As far as Digital India and Aadhar projects of India are concerned, Praveen Dalal has compiled a list of aspects that Digital India and Aadhaar project must take care of in order to be successful. Now it is for the Modi government to consider the same and apply them to strengthen Digital India project wherever applicable and relevant. There is no sense in waiting for another 10 years to provide even the most basic e-delivery of services to Indian citizens.

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• Monday, March 09th, 2015

Techno Legal Updates Of India 09-03-2015 By PTLB

This is a roundup by Perry4Law’s Techno Legal Base (PTLB) of the recent national and international events, news and views. The roundup includes fields like cyber law, cyber security, digital India, skills development and trainings, e-mail policy of India, censorship by Google and Twitter of dissenting digital India related topics, etc.

The detailed roundup is as follows:

(a) Online Card Games: Online card games in India are still legally risky in the absence of any clear cut position from the Supreme Court of India and Indian government. The issue is pending before the Supreme Court of India and it may take some more years before the issues would be finally resolved. As on date, the online card games websites in India are in limbo and in state of legal uncertainty.

(b) Skills Development: The need to develop skills in India has been reiterated once again by PTLB especially for the law enforcement and intelligence agencies of India. There is also a possibility that United States agencies like FBI would train Indian intelligence officials for cyber terrorism and related issues. PTLB believes that online skills development methods must be developed by Indian government to meet its skills development objectives.

(c) Censorship By Google And Twitter: In a bizarre incidence, the dissenting tweets and posts regarding digital India were censored by both Google and Twitter repeatedly. PTLB condemns these censorship activities of Google and Twitter and hope that both of these companies would respect civil liberties in cyberspace in the future.

(d) Internet Safety Campaign: In a welcome move, Indian government has decided to launch an Internet safety campaign. We at PTLB welcome this move of India government. At the same time we also recommend that school children in India must be suitably educated about cyber issues so that they do not become victims of cyber criminals.

(e) Digital India: In a complete U turn, Indian government has shown little respect to civil liberties in cyberspace. Not only Indian government is censoring Aadhaar related critical views but even opinions reflecting the shortcomings of digital India project have been censored. By clubbing the digital India project with Aadhaar, Indian government has made digital India the digital panopticon of India.

(f) E-Mail Policy Of India: Indian government has finally enforced the e-mail policy of India. As per the notified e-mail policy, using private e-mail services have been banned for official communications in India. This is a good step in the right direction and PTLB welcomes the same.

(g) First CISO Of India: Dr. Gulshan Rai has been appointed the first chief information security officer (CISO) of India. PTLB welcomes this move of Indian government as it would go a long way in strengthening of cyber security of India. This CISO position would operate directly under the PMO.

PTLB hopes that this update would be useful to our readers and all the stakeholders. Please revisit this website and other blogs of PTLB for more updates.

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• Friday, July 25th, 2014

Twitter Updates Of Perry4Law And PTLB 25-07-2014Through this latest initiative, Perry4Law and Perry4Law’s Techno Legal Base (PTLB) would share crucial tweets of Perry4Law and PTLB. We hope our readers would find this initiative of Perry4Law and PTLB useful. Constructive discussions, criticism, suggestions, etc are welcome and they may be shared at the respective tweet itself.

The tweets are solely attributable to and are opinion of the person making the same and there is no endorsement by either Perry4Law or PTLB or any of its Partner/Associate/Affiliate etc of such tweet. These tweets are strictly personal opinion of the person making the same.

We wish to share the following tweets (from latest to older one) for the date 25-07-2014:

(1) Modi Govt Is Holding Public Money In “Fiduciary Capacity” As Trustee For Future Generation. Wastage On Aadhaar- Source: CLPIC.

(2) Silence Of Narendra Modi Is Endorsement Of Illegal Central Monitoring System (CMS) By Him- Source: CSRDCI.

(3) Why Indian Central Monitoring System Is Dangerous And How It Works?- Source: CLPIC.

(4) National Counter Terrorism Centre Of India The Problems and Solutions- Source: CECSRDI.

(5)  National Cyber Security Policy Of India 2013 (NCSP 2013)- Time To Revise- Source: CECSRDI.

(6) Lawful And Constitutional Interception Law In India Is Needed- Source: CECSRDI.  

(7) Intelligence Agencies Of India Need Parliamentary Oversight- Source: CLPIC.

(8) Is Indian Government Serious About Privacy Laws In India?- Source: Techno Legal Thoughts.

(9) Internet Telephony And VOIP Service Providers Must Establish Servers In India Now- Source: CECSRDI.

(10) Cyber Security Laws In India Needed- Source: CECSRDI.

(11) Cyber Law Due Diligence In India- Source: CECSRDI.

(12) What Happened To The E-Mail Policy Of India Ordered By Delhi High Court- Source: Privacy Laws In India.

(13) The Regulations And Guidelines For Effective Investigation Of Cyber Crimes In India Are Still Missing- Source: CECSRDI.

(14) Cyber Security Best Practices In India: The Problems And Solutions Approach- Source: CECSRDI.

(15) What Happened To The Legislation Mandating Strict Cyber Security Disclosure Norms In India?- Source: CECSRDI.

(16) Cyber Security Obligations Of Directors Of Indian Companies- Source: CSRDCI.

(17) Who Will Protect The Critical ICT Infrastructures Of India?- Source: CSRDCI.

(18) India Is A Sitting Duck In The Cyberspace And Civil Liberties Protection Regime- Source: CSRDCI.

(19) Crisis Management Plan For Preventing Cyber Attacks On The Power Utilities In India- Source: CSRDCI.

(20) National Cyber Coordination Centre (NCCC) Of India Facing Deadlock- Source: CSRDCI.

(21) Privacy Is Your Human Right Not A Government Charity- Source: Privacy Laws In India.

(22) Privacy Is Your Right Not A Charity And National Security In India Is A White Lie Not A Reality- Source: Privacy Laws In India.

(23) India Justifies Its Preferential Market Access (PMA) Policy For Domestic Telecom Equipments Manufacturers- Source: CECSRDI.

(24) Department of Electronics and Information Technology advisory on PMA bidding norms- Source: Economic Times.

(25) Tor Project Working to Fix Weakness That Can Unmask Users- Source: Computer World India.

(26) Narendra Modi Government’s Small Reforms With Big Impact- Source: Economic Times.

(27) Proposed National Telecom Security Policy Of India 2014 Must Be Balanced And Constitutional- Source: Telecom Laws Blog.

(28) Telecom Security Policy Of India 2014 And Unconstitutional E-Surveillance Issues- Source: Telecom Laws Blog.

(29) The NPR Exercise Has Its Own “Demerits And Constitutional Issues” And They Must Be Resolved First- Source: Privacy Laws In India.

(30) Cyber Security Of Banks In India Needs Strengthening- International Legal Issues Of Cyber Security.

(31) Intelligence Agencies Reforms In India Are Urgently Needed- International Legal Issues Of Cyber Security.

(32) Cyber Security Challenges Before The Narendra Modi Government- Source: International Legal Issues Of Cyber Security.

(33) National Security Policy Of India: Some Techno Legal Suggestions- Source: International Legal Issues Of Cyber Security.

(34) National Counter Terrorism Centre Of India Must Be Constituted- Source: Source: International Legal Issues Of Cyber Security.

(35) Narendra Modi And BJP Must Have Scrapped Aadhaar Instead Of Adopting Double Standards. Following Congress Steps- Source: CLPIC.

(36) Time To Scrap Aadhaar Project Has Come- Source: Ground Report.

We hope our readers would find these updates useful. We would share more of our tweets in the near future.

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• Saturday, May 31st, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBI have recently analysed the procedural aspects of the Ordinance issued by the President of India Mr. Pranab Mukherjee regarding appointment of Mr. Nripendra Misra. Prima facie this Ordinance has been promulgated in conformity with the Constitutional requirements and there are little reasons to agitate against the same. However, the allegations of “Political Impropriety” cannot be ignored in these circumstances. The only thing that remains to be seen is what “Potential Benefits’ the appointment of Mr. Misra would bring in these circumstances. Nevertheless, no “Constitutional Infirmity or Illegality” can be attributed to this Ordinance as on date.

Chapter III of the Constitution of India deals with the Legislative Powers of the President. Article 123 (1) of Constitution of India provides that if at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. Article 123 (2) provides that an Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance-(a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) May be withdrawn at any time by the President. The Explanation to Article 123(2) provides that where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. Article 123(3) provides that if and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

By virtue of Article 123(1), the promulgation of an Ordinance is not necessarily connected with an “emergency” but issued by the President in case he is convinced that it is not possible to have the Parliament enact on same subject immediately and the circumstance render it necessary for him to take “immediate action”.

The Ordinance regarding Mr. Misra was duly approved by the President of India and the requirements of Article 123 have also been satisfied.  It is very difficult to challenge the “Subjective Satisfaction” of the President of India before the Supreme Court of India that is based upon the “Aid and Advise” of Council of Ministers under Article 74(1) of the Constitution of India. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. However, the proviso to the Article 74(1) provides that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. Clearly the President of India did not find anything wrong with the Ordinance in question and did not find it a fit case to be “Reconsidered”.

Further, the Constitution of India provides two “Parliamentary Checks” vis-a-vis the promulgation of Ordinance under Article123 (2) (a). The Parliament can pass resolutions disapproving the provisions of the Ordinance. There is also a provision regarding automatic expiry of the Ordinance within six weeks of the reassembly of the Houses of the Parliament unless passed by the Parliament. This gives a chance for the Parliament to debate on the Ordinance and review it accordingly. Further, an Ordinance made by the President is not an Executive, but a Legislative act. Hence, it is a “Law” within the meaning of Constitution. Clause 3 of the Article 13 mentions that the term “Law” includes Ordinance and it is void to the “Extent of Contravention” of the Rights conferred by Part III of the Constitution. Article 367(2) of the Constitution also provides that any reference in this Constitution to Acts or Laws of, or made by, Parliament, or to Acts or Laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be.

On a number of occasions, the Supreme Court of India has made it clear that the Court is competent to enquire whether in exercising his Constitutional Power in promulgating Ordinances; the President has exceeded the limits imposed by the Constitution. For instance, in DC Wadhwa v. State of Bihar (1987) the Supreme Court held that the Legislative Power of the Executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the Legislature.  Here, the court was examining a case where a State Government (under the authority of the Governor) continued to “Re-Promulgate Ordinances”, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the State Legislature. A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years.  The Supreme Court argued that if Ordinance making was made a usual practice, creating an “Ordinance Raj” the Courts could strike down re-promulgated Ordinances. As far as Mr. Misra’s Ordinance is concerned this is the first time such an Ordinance has been promulgated and that also to give effect to the “Public Reforms” works to be undertaken by the new Government. Thus, the chances of “Judicial Review” are very negligible in this case.

The Ordinances promulgated by the President are required to be laid before both the Houses of Parliament. Normally, Ordinances are laid on the first sitting of the House held after the promulgation of the Ordinances on which formal business is transacted. The Parliament has framed certain rules to ensure that this power is not abused by the Executive, simply to avoid a vote or debate in Parliament. Rule 66 and Rule 71 of the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) and the House of the People (Lok Sabha), respectively seek to make the Executive accountable to the Parliament by appending an explanatory Statement along with Ordinance.

If a notice of a statutory resolution given by a private member, seeking disapproval of an Ordinance is admitted by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, time has to be provided by the Government for discussion thereof. The resolution after discussion is put to vote first; because if the resolution is adopted, it would mean disapproval of the Ordinance and the Government Bill seeking to replace that Ordinance would automatically fall through. If the resolution is negatived, the motion for consideration of the Bill is then put to vote and further stages of the Bill are proceeded with.

Although the Parliament is responsible for the law making process yet founding fathers of the Constitution considered Ordinances making power to be a “Necessary Evil”. They believed that the Ordinance making power should be delegated to the Executive to deal with such situations when the existing law is not enough to deal with the present circumstances and the Parliament is not in session.

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• Friday, May 30th, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBNarendra Modi’s Government is all set to brace the first Lok Sabha session (16th Lok Sabha) on June 4-11 after coming into power. This would enable the Government to spell out crucial Policies and their implementation strategy. This would be more on the side of introductory session where preliminary formalities like swearing the new MPs, appointment of the Speaker, addressing of the Joint Session of the two Houses of Parliament by President Pranab Mukherjee, discussion on the Presidential address, etc would be undertaken. Prime Minister Mr. Narendra Modi will give his reply to the motion of thanks on the Presidential address at the end of the discussion. The Modi Government will have a separate budget session towards the June-end or early-July to present its first full budget.

Everything may go very smooth except the recent Ordinance on Telecom Regulatory Authority of India (TRAI) that cleared the way for appointment of Mr. Nripendra Mishra in the Prime Minister’s Office (PMO) as Modi’s Principal Secretary. The Congress Party contends that the Ordinance for Nripendra Misra’s appointment smacks of “Impropriety”.  It contends that Nripendra Misra, as a former chairman of TRAI was ineligible to join the Government in any position because Section 5(8) of the TRAI Act, 1997, explicitly forbids it.

Some contend that instead of waiting to amend the TRAI Act, 1997 in Parliament, and explaining why it felt the legal bar on post-retirement jobs was too sweeping, the Government issued an Ordinance, so that Misra could report to work. The episode frames a seeming impatience with legal requirements in a case that involves an individual rather than an urgent point of principle. The Modi Government invoked an emergency power given to the Executive to meet an emergent situation, for an individual appointment.

Some also contend that this step of the Government could be the first instance where a Government at the Centre promulgates an ordinance even before proving its majority on the floor of the House, which, incidentally, is a mere formality for the Modi government, with the BJP itself having a simple majority in the Lok Sabha.

Though the BJP, which leads the ruling NDA having 66 members in the Rajya Sabha, has downplayed the controversy raised by the Congress, which leads the UPA having 86 members in the Upper House, experts believe that if the government fails to enlist support of floating parties like the AIADMK (10), BSP (14) and the BJD (5), it will have no option but to convene a Joint Sitting of both the Houses to get the Parliamentary nod on the Ordinance paving way for the appointment of Mr. Misra as principal secretary to the Prime Minister.

The Modi Government is in a minority in Rajya Sabha and if it fails to get the nod of the Upper House on TRAI ordinance, options are still open under Article 108 of the Constitution for a Joint Session of the Parliament to approve it. Article 108(1) of the Constitution provides that if after a Bill has been passed by one House and transmitted to the other House-

(a) The Bill is rejected by the other House; or

(b) The Houses have finally disagreed as to the amendments to be made in the Bill; or

(c) more than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has elapsed by reason of a dissolution of the House of the People, notify to the Houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deliberating and voting on the Bill:

Provided that nothing in this clause shall apply to a Money Bill.

Article 108(3) provides that where the President has under clause (1) notified his intention of summoning the Houses to meet in a joint sitting, neither House shall proceed further with the Bill, but the President may at any time after the date of his notification summon the Houses to meet in a joint sitting for the purpose specified in the notification and, if he does so, the Houses shall meet accordingly.

Article 108(4) provides that if at the joint sitting of the two Houses the Bill, with such amendments, if any, as are agreed to in joint sitting, is passed by a majority of the total number of members of both Houses present and voting, it shall be deemed for the purposes of this Constitution to have been passed by both Houses: Provided that at a joint sitting-

(a) If the Bill, having been passed by one House, has not been passed by the other House with amendments and returned to the House in which it originated, no amendment shall be proposed to the Bill other than such amendments (if any) as are made necessary by the delay in the passage of the Bill;

(b) If the Bill has been so passed and returned, only such amendments as aforesaid shall be proposed to the Bill and such other amendments as are relevant to the matters with respect to which the Houses have not agreed; and the decision of the person presiding as to the amendments which are admissible under this clause shall be final.

(5) A joint sitting may be held under this article and a Bill passed thereat, notwithstanding that dissolution of the House of the People has intervened since the President notified his intention to summon the Houses to meet therein.

Article 123 of the Indian Constitution empowers the President to promulgate ordinance when Parliament is in recess. As per sources in the Rashtrapati Bhawan the Ordinance regarding Mishra was duly approved by the President Pranab Mukherjee. So there is no “Constitutional Infirmity” with the Ordinance in question. The only question remains about the “Propriety” of Executive action in this regard. That is, at most, a “Moral Issue” and not a Constitutional/Legal one.

There is no doubt that Mr. Mishra is “Qualified and Experience Personnel” and his tremendous expertise would prove handy for not only the PMO but the Country at large. There is also no doubt that “National Interests” should prevail over any “Technical Arguments”. In the ultimate analysis we must analyse what “Potential Benefits” the appointment of Mr. Mishra can bring to our great Nation. I have no doubt whatsoever that the duo of Mr. Nripendra Mishra and Mr. Ajit Kumar Doval can bring “Unforeseen Rewards” for India and they should be allowed to work in a “Free and Non Controversial Manner”. Even those opposing the appointment of Mr. Mishra have no doubt about his caliber and competencies and they are just challenging the way he has been appointed.

If there is any “Constitutional Infirmity” with the Ordinance, then it must be challenged before the Supreme Court of India. If not, then the Ordinance must be challenged before the Parliament of India. However, “Political Impropriety” is hardly a reason and ground to derail the good work and reforms that the duo of Mr. Nripendra Mishra and Mr. Ajit Kumar Doval can bring to India. Of course, this is my “Personal Opinion” and others may disagree with me in this regard.

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• Monday, May 26th, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBBlack money has become a real nuisance for India as Indian wealth has been accumulating in foreign jurisdictions instead of being used for development of Indian masses. Decades of corruption has resulted in mass misappropriation of Indian wealth and deposit of the same in foreign banks. For reasons unknown, no concrete and effective efforts were undertaken by Indian government to bring back Indian wealth.

Most probably, the black money is owned by our corrupt politicians, greedy businessmen and criminals. In the absence of any cooperation from foreign banks and entities it has become a daunting task to bring back the black money. Nevertheless this is a weak stand and no excuse and a strong and well articulated approach would produce positive results. The only question is how far the new government is willing to take the challenge and show its metal.

Notification Of Creation Of Special Investigation Team (SIT) To Probe Black Money Deposited In Foreign Jurisdictions Expected Soon

These gloriously and golden words of Swami Vivekananda can help us in transforming India into a world power. “What we now want are muscles of iron and nerves of steel, gigantic will which nothing can resist, which can penetrate into the mysteries and the secrets of the universe, and will accomplish their purpose in any fashion, even if it meant going down to the bottom of the ocean and meeting death face to face”.

Now some ray of hope is there as the government is expected to bring out a notification by next week for creation of a Special Investigation Team (SIT). Sources in the Finance Ministry informed that a notification citing the terms of operations and final constitution of the SIT “would be made very soon” and most likely “by next week”. The Supreme Court on May 23 had granted one week’s time to the Centre to set up SIT to monitor all black money cases as per its direction. The Supreme Court of India has already held that Section 6A of DSPE Act requiring prior sanction of Central Government to prosecute corrupt senior bureaucrats is unconstitutional.

“SIT will prepare a comprehensive action plan including the creation of necessary institutional structure that can enable the country to fight a battle against generation of unaccounted money” the terms of reference for the SIT said. The SIT “shall report to the Court and shall inform the Court of all major developments by filing periodic status reports from time to time and for this purpose, the Union of India shall accord all the necessary financial material, legal, diplomatic resources both inside and outside the country to the SIT”.

The proposed SIT will be headed by former Supreme Court judge MB Shah with Justice Arijit Pasayat (retd) being the Vice Chairman. Heads or top officers of ten investigative and enforcement agencies of the country will be the members of the exclusive panel. The departments or officers that would form part of the SIT include Secretary of the Department of Revenue under the Ministry of Finance, a nominated Deputy Governor of RBI, Director of the Intelligence Bureau, Director of Enforcement, Director CBI, CBDT Chairman and Director General Narcotics Control Bureau. Also, DG Directorate of Revenue Intelligence, Director Financial Intelligence Unit and Joint Secretary (Foreign Tax and Tax Research) in the Finance Ministry will be its members.

Fortunately, the terms of reference for the SIT are wide enough to cover a variety of cases and situations. SIT shall have jurisdiction over all the cases, where investigation has already commenced or pending or awaiting to be initiated or have completed with regard to instances of black money and illicit funds generated and sent to overseas destination and tax haven nations.

This is a golden opportunity for BJP government to bring back the Indian wealth and utilise it for public good. Even Income Tax Overseas Units (ITOUs) of India can be established in foreign countries to curb black money. However, India need a techno legal solution to deal with the current problem as neither technological nor legal approach would be sufficient to serve this purpose.

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• Wednesday, May 07th, 2014

Supreme Court Of India Holds That Section 6A Of DSPE Act Requiring Prior Sanction Of Central Government To Prosecute Senior Bureaucrats Is UnconstitutionalOn 17-12-2013 a three Judge Bench of Supreme Court of India held that that no approval from the Centre is required by the Central Bureau of Investigation (CBI) to prosecute senior bureaucrats in court-monitored corruption cases. Now a Constitution Bench (5 Judge) of Indian Supreme Court has held that Section 6A of the Delhi Special Police Establishment Act (DSPE Act), which granted protection to joint secretary and above officers from facing even a preliminary inquiry by the CBI in corruption cases, was violative of Article 14. From now onwards, no prior sanction would be mandatory for the CBI to conduct a probe against senior bureaucrats in corruption cases under the Prevention of Corruption Act.

A Constitution Bench comprising Chief Justice R.M. Lodha and Justices A.K. Patnaik, S.J. Mukhopadhaya, Dipak Misra and Ibrahim Kalifulla, while allowing the petitions filed by BJP leader Subramanian Swamy and the Centre for Public Interest Litigation, held that Section 6A of DSPE Act, which granted protection to joint secretary and above officers from facing even a preliminary inquiry by the CBI in corruption cases, was violative of Article 14.

Welcoming the court order, CBI Director Ranjit Sinha told The Hindu: “It is a landmark judgment that will empower the agency in the investigations into several cases pending due to the provision that has now been struck down by the Constitution Bench. We had for long been of the view that inquiry against senior officials need not require any prior permission.”

Writing the judgment, the CJI said, “Corruption is an enemy of [the] nation and tracking down a corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of a public servant does not qualify the person from exemption from equal treatment. The decision-making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.”

The Bench said, “Section 6A of the DSPE Act granting protection to one set of officers is directly destructive and runs counter to the object and reason of the PC Act, 1988. It also undermines the object of detecting and punishing high-level corruption. How can two public servants against whom there are allegations of corruption or graft or bribe taking or criminal misconduct under the PC Act, 1988, be made to be treated differently because one happens to be a junior officer and the other a senior decision maker?”

“The provision in Section 6A impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central government, the CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection under Section 6A has propensity of shielding the corrupt,” the Bench added.

Observing that there could not be any protection to corrupt public servants, the Bench said, “The aim and object of investigation is ultimately to search for truth and any law that impedes that object may not stand the test of Article 14. Breach of rule of law, in our opinion, amounts to negation of equality under Article 14. Section 6-A fails in the context of these facets of Article 14.”

Like almost any other judgement dealing with cases of corruption in high places, Tuesday’s order is related to the Supreme Court’s December 1997 ruling in the Vineet Narain v. Union of India case related to the Jain hawala scandal, involving payoffs to politicians by four Jain brothers who facilitated illegal foreign exchange transactions (termed hawala). That ruling, like Tuesday’s, sought to reduce the interference of the government in investigations of politicians and bureaucrats by CBI.

This is the third time the apex court has overturned a legislative action to fetter the CBI from inquiring against senior babus. On December 18, 1997, the court had struck down the “single directive” provision in Vineet Narain judgment. However, the “shield” for bureaucrats was restored when the Centre promulgated an ordinance on August 25, 1998. While SC’s intervention saw the provision deleted from the ordinance, the NDA government, headed by the BJP, on September 12, 2003 inserted Section 6A in the DSPE Act, which governs the CBI, to debar the agency from inquiring against top bureaucrats for corruption charges without prior permission of the Centre. It was challenged in 2005 by Subramanian Swamy and NGO “Centre for Public Interest Litigation”.

“It is very sad that this section was reintroduced even after the court’s decision in the hawala matter. This shows the extent to which both BJP and Congress governments were willing to go to prevent the prosecution of corrupt officials and offer them protection,” said lawyer Prashant Bhushan.” The Supreme Court maintained its view from the Vineet Narain v. Union of India case that “However high you may be, the law is above you”.

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• Wednesday, April 09th, 2014

Takeda Pharmaceutical And Eli Lilly Ordered To Pay A Combined $9 Billion In Punitive Damages For Cancer Risks From Actos MedicineThe case of Actos (Pioglitazone) Products Liability Litigation MDL No. 2299 (PDF) is part of the Multidistrict litigation system of United States (U.S.). When cases having a common question to be decided are scattered under different Districts of U.S. they may be consolidated and transferred to a single District for better results and effective justice delivery.

On December 29, 2011, the United States Judicial Panel  on Multidistrict Litigation transferred 11 civil action(s) to the United States District Court for the Western District of Louisiana for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. 1407, assigned to the Honorable Rebecca F. Doherty. The case involves parties like Takeda Pharmaceutical Company and Eli Lilly and Company. These companies have been accused of hiding the fact that their Actos diabetes medicine has potential cancer causing risks.

Now Takeda Pharmaceutical and Eli Lilly have been ordered to pay a combined $9 billion in punitive damages after a federal court jury found they hid the cancer risks of their Actos diabetes medicine in the first U.S. trial of its kind.

Osaka, Japan-based Takeda was ordered to pay $6 billion by the jury yesterday in Lafayette, Louisiana. Indianapolis-based Eli Lilly, Takeda’s partner, was ordered to pay $3 billion. However, as per the terms of the agreement between Takeda and Eli Lilly, the former would indemnify the latter for any litigation costs arising due to the medicine.

However, according to legal experts, this award will probably be reduced because the U.S. Supreme Court has said punitive verdicts, imposed for bad conduct, must be proportional to the awards of compensatory, or actual, damages that underlie them. The court has said that in limited cases, punitive awards that amount to ten times a compensatory award would be acceptable. Of the 10 largest U.S. punitive verdicts previously awarded against corporations, all were either reversed or substantially reduced. None were paid at the amounts assessed by the juries. Takeda and Lilly officials have also confirmed that they would appeal against the jury’s verdict.

The jury earlier awarded $1.5 million in compensatory damages to former Actos user Terrence Allen, who blamed the drug for his bladder cancer. Allen alleged in his lawsuit that Takeda executives ignored or downplayed concerns about the drug’s cancer-causing potential and misled regulators about its risks to protect billions in sales.  Takeda didn’t provide a specific warning about Actos’ cancer risks until 2011, seven years after experts said the bladder-cancer link became clear and 12 years after the drug went on the U.S. market.

However, what may be troublesome for Takeda is the fact that Takeda officials intentionally destroyed documents about the development, marking and sales of Actos. The company ditched files of 46 former and current employees, including those of top executives in Japan and U.S. sales representatives. Because Takeda failed to properly protect the Actos documents, Doherty penalized the company by instructing jurors they could infer that the files may have buttressed Allen’s claims the company wrongfully hid the medication’s health risks. “The breadth of Takeda leadership whose files have been lost, deleted or destroyed is, in and of itself, disturbing,” Doherty wrote in a January ruling that opened the door for jurors to hear about the destroyed documents.

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• Wednesday, March 19th, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBWhat constitutes National Security? There are no simple and straight forward answers to this complex question. We cannot say that National Security is an “Internal Security” aspect. Further, we also cannot claim that National Security is a protection mechanism against “External Aggressions”. Even “Border and Territorial Protection” by Armed Forces is also not National Security. The reason is because National Security is not an isolated concept but a “Homogeneous Mixture” of various aspects of Security.

In my personal opinion, a simple definition of National Security can be “The Protection of Economical, Political, Social, Territorial, Sovereign and Technological Interests of a Nation from Internal and External Aggression and Threats emanating from State and Non State Actors in both Physical Territories and Cyberspace”. We have already covers territories belonging to Land, Air, Sea and Outer Space in this regard. And to some extent we have also covered Cyberspace as well. However, there is no International Treaty or Convention that Covers the National Security aspects in “Totality and in Comprehensive Manner”.

India has recently decided to formulate a comprehensive National Security Policy. However, by past experience it would not be wrong to presume that such Policy would not be formulated for at least few more years. Further, its “Actual Implementation” may be delayed for even Five years. But the most important aspect of the proposed National Security Policy is that it must be “Comprehensive and Holistic” in nature.

Thus, the National Security Policy of India needs Techno Legal Boost. Any suitable and effective National Security must cover “Technology Issues” as well. For instance, Cyber Security and Telecom Security must be essential part of any National Security Policy. The Cyber Security Trends of India 2013 (PDF) have proved that these aspects have not been taken care of by Indian Government so far. It is only now that the National Security Council (NSC) has proposed some Cyber Security Measures for India. However, these measures are not going to make much difference in the otherwise ailing Cyber Security of India.

The Critical Infrastructure Protection in India (PDF) has to be further strengthened. Recently it was decided that NTRO would protect the Critical ICT Infrastructures of India. The National Infrastructure Protection Plan for Thermal Power Sector of India has already been proposed and this is a good step. A Tri Service Cyber Command for Armed Forces of India is also in pipeline. The Cyber Attacks Crisis Management Plan of India must also be implemented as soon as possible. Further, the National Cyber Coordination Centre (NCCC) of India must be “Made Functional” as soon as possible.

A Techno Legal Cyber Security Law of India must also be formulated as soon as possible. Such Law must ensure Cyber Security Breach Disclosures on the part of various Telecom and other Companies and Individuals. Just like past promises, the commitment to formulate a legislation mandating strict Cyber Security Disclosure Norms in India has been kept in deep freezer. There is an urgent need to ensure Mandatory Cyber Security Breaches Notification in India as non disclosures would result in Serious Cyber Security Issues for India. “Soft Requests” and “Self Regulations” for Cyber Security Breach Disclosures would not be helpful in the long run.

Target Corporation is already Facing Numerous Litigations for failure to take proper Cyber Due Diligence once it was aware of the Data and Cyber Security Breach. There are clear hints that Cyber Litigations against Foreign Websites would Increase in India in the near future and Cyber Due Diligence cannot be ignored by Indian Companies anymore.

Recently the Telecom Department’s Security Chief Ram Narain said that Telecom Companies are mandated by License Conditions (PDF) to share information on “Potential Cyber Threats”. Besides, the National Telecom Security Policy of India may impose more “Stringent Obligations” than the Licence Conditions. As the Foreign Telecom Companies are facing the heat of Cyber Security and Telecom Security in India, this is a good opportunity for Indian Telecom Companies to extend their commercial base in India. India has been planning to undergo Technological Upgrade of Border Broadcast Infrastructure due to Chinese broadcasts. The Telecom Commission Cellular Loop’s Proposal would also strengthen Mobile Based Surveillance on National Security Grounds in India.

It would not be an easy task to formulate Techno Legal National Security Policy of India. Even if the same is formulated, its actual implementation would be a herculean task for Indian Government. Nevertheless, it is a good step on the part of Indian Government to work on such Policy and take adequate and necessary action in this regard.

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