Archive for ◊ November, 2013 ◊

• Wednesday, November 27th, 2013

Kerala Refused Permission To Future Gaming Solutions India Private Ltd To Sell Nagaland Lotteries In The StateThe sale of and dealing in paper based and online lotteries in India is governed by the Lotteries (Regulation) Act, 1998 of India (PDF) and the accompanied Lotteries Regulation Rules 2010 of India (PDF). The provisions of the Act and Rules must be adhered to in order to engage in, sale and purchase of real world and online lotteries in India. If the provisions of the Act and Rules are violated, criminal prosecution and imprisonment can also be there.

Further, as per Act and Rules one State is well within its right to deny the dealing and organisation of a lottery game/event by another organising State if the latter do not comply with the requirements of the Act and Rules.

In one such incidence reported by New Indian Express, Future Gaming Solutions India Private Ltd sought permission for sale of Nagaland lotteries in the State of Kerala. However, the State of Kerala refused to grant such permission citing the dubious history of violating Lottery Regulation Act and Rules in the sale of Sikkim State lotteries in Kerala by Future Gaming in the past. Besides, the Government of Nagaland has not informed the Government of Kerala about its intention to sell its lottery tickets in the State.

Santiago Martin, the prime accused in lottery fraud cases, is a director of Future Gaming Solutions. The Kerala State produced a notice before the Kerala High Court on Tuesday in this regard. The Kerala High Court disposed of a petition by Santiago Martin seeking a directive to the State Government to consider the application for the registration of promoter for the sale of Nagaland lotteries in the State.

As per the notice “It was revealed in an inquiry conducted on the sale of Sikkim lotteries that Future Gaming Solutions company had illegally printed Sikkim lotteries worth `60.65 crore in unauthorised printing presses and sold it in the State through Megha Distributors from April, 2010, to August 31, 2010,”.

“The present application for sale of Nagaland State lotteries is yet another attempt from the company to amass wealth illegally by cheating the public,” the notice said. It said the CBI had taken up 32 cases in connection with violation of the Lottery Regulation Act and investigation is going on.

The violation of the Act had wreaked havoc and led to public fury, which was felt in the State Assembly also. It is pointed out that the company did not furnish details of persons/firms involved in the sale of Nagaland lotteries. “This is a clear violation of the statutory directions issued by the Central Government,” the notice stated.

The agreement by the company with Nagaland Government was void. “If the agency sells lotteries based on the illegal and ambiguous agreement, it gives room for the distributor to play fraud as is evident in the case of Sikkim and Bhutan lotteries,” the notice stated.

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• Monday, November 25th, 2013

UN Draft Resolution On The Right To Privacy In The Digital AgeThe UN Draft Resolution on the Right to Privacy in the Digital Age is a significant development of the contemporary time as it intends to bring positive results for civil liberties protection in cyberspace.

This is of particular significance in the Indian context as 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.

Indian perspective regarding the proposed resolution is still not clear. However, keeping in mind the anti privacy inclinations of Indian government not much is expected from India at this stage.

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• Friday, November 15th, 2013

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBGetting a First Information Report (FIR) registered at a Police Station is a tedious task and in many cases FIRs are not registered at all. This is a serious lapse of criminal justice system administration as if the offence is not registered it cannot be investigated and prosecuted at all.

The law of India says that if a cognizable offence has been committed and such fact of commission of the cognizable offence is brought to the notice of a Police Officer, such Police Officer has to register an FIR of the same. However, registering of FIR for even cognizable offences was not easy in the past.

The Central Ministry of Home Affairs reacted to this situation and an Advisory by Central Ministry of Home Affairs of India for Registration of FIR Irrespective of Territorial Jurisdiction and Zero FIR (PDF) was issued. Even the Parliament of India supported this cause of criminal justice and added Section 166A to the Indian Penal Code, 1860 through The Criminal Law (Amendment) Act, 2013 (PDF).

Section 166A(c) of IPC provides that whoever, being a public servant, fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (Code) and in particular in relation to cognizable offence punishable under section 354, section 354A, section 354B, section 354C, sub-section (2) of section 354D, section  376, section  376A, section 376B, section  376C, section  376D or section  376E, he/she shall be punished  with imprisonment for a term which may extend to one year or with fine or with both.

However, 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.

The Bench also held that the insertion of Section 166A in the IPC vide Criminal Law (Amendment)Act 2013, must be read in consonance with the provision and not contrary to it. Thus, an FIR must be registered by a Police Office for all cognizable offences mentioned under the IPC and not just the one mentioned U/S 166A.

The Bench also observed that Section 39 of the Code casts a statutory duty on every person to inform to the nearest Magistrate or Police Officer about commission of, or of the intention of any other person to commit, certain offences which includes offences covered by Sections 121 to 126, 143 to 145, 147, 148, 302, 64-A, 382, 392, 431 to 439, 449, 450, 456 to 460, etc., of the IPC.

The Bench held that for offences under Laws other than IPC, different provisions can be laid down under a Special Act to Regulate the Investigation, Inquiry, Trial etc., of those Offences. Section 4(2) of the Code protects such special provisions.

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• Saturday, November 09th, 2013

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBIn a recent decision (PDF) a Division Bench of Gauhati High Court has held that the Central Bureau of Investigation (CBI) is an Unconstitutional Law Enforcement Agency. Although Legal Opinions in this regard are divided I, in my personal opinion, believe that the Decision of Gauhati High Court Declaring CBI Unconstitutional is Legally Sustainable and must be “Highly Respected” by all, including the Supreme Court of India.

At Perry4Law we have been keeping a track of this Controversial and Crucial Issue since 2009. In fact, we provided a 10 Point Legal Framework for Law Enforcement, CBI and Intelligence Agencies of India (PDF) in the year 2009 itself. However, Indian Government has “Negligently Failed” to take any step in this regard though urgent steps were required to be taken.

Fortunately, the Supreme Court of India has done what it was most required to do at this stage. The Supreme Court of India stayed the decision of Gauhati High Court that declared the CBI to be an Unconstitutional Law Enforcement Agency pending hearing of the arguments from both sides to the litigation.

Now the first step has been taken rightly will the Indian Government take the most appropriate step in this regard? I am not talking about fighting the case at the Supreme Court but to Draft a Legal Framework for CBI as soon as possible and get it passed at the Parliament of India.

From the past experience of Indian Government, I wonder Whether Indian Government is Really Interested in Making CBI Autonomous and Independent. Although a Group of Ministers was Constituted to Draft Law for CBI and to make it Autonomous and Insulate from Executive Interference yet till now no Legal Framework has been provided by the Indian Government to the Supreme Court.

If the Indian Government is considering continuing the way it has been doing so far that would be the biggest mistake on its part. I personally “Believe and Wish” that in such circumstances the Supreme Court of India must “Upheld” the decision of the Gauhati High Court.

I believe that in reality it is not the call for the Supreme Court but for the Indian Government to take. Because Legally Speaking, the Supreme Court of India should not think on “Different Lines” but on the same one as has been adopted by the Gauhati High Court.

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• Friday, November 08th, 2013

Constitution Of CBI Held Unconstitutional By Gauhati High CourtIn a very bold decision (PDF) a Division Bench of Gauhati High Court has held that the very process of setting up the Central Bureau of Investigation (CBI) was invalid and unconstitutional. 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.

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.

In the present case, the Gauhati High Court observed that CBI was constituted through a resolution issued by the Union ministry of home affairs on April 1, 1963. The creation of the CBI through the resolution, which was signed by then secretary to the Union government V. Viswanathan was held to be as ultra vires by the Court. The Court also set aside the impugned resolution. As a result of that, from today, the CBI ceased to be a constitutionally valid police force empowered to investigate crimes and all CBI cases have become void ab initio.

The High Court was of the view that a police force with powers to investigate crime cannot be constituted by merely issuing an executive order. For that purpose, an act shall have to be passed by the Legislature. This is a valid stand taken by the Court and this situation could have been avoided if proper law for CBI was drafted in time. There is nothing wrong per se with CBI but its constitution is highly controversial and debatable. The present judgment of the Gauhati High Court has just reaffirmed this position.

Meanwhile, the legal team of CBI is examining the judgment. According to CBI, the order seems to be faulty as so many CBI cases are being monitored by the Supreme Court at present and several High Courts often ask the country’s investigative agency to probe cases. An official source said the CBI is likely to challenge the judgment in the Supreme Court.

Additional solicitor-general of India P.P. Malhotra appeared for the Centre and the CBI. Malhotra said the judgment was totally erroneous and the Centre would appeal in the apex court on November 11 after the vacation.

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• Thursday, November 07th, 2013

Proposed Privacy Law Of India Is Facing Intelligence Agencies ObstaclesAfter many decades of hard work and persuasion the Indian government finally decided to work in the direction of enactment of a dedicated privacy law of India. However, this very effort has taken many years to even suggest a bill that can be introduced in the Parliament of India.

For one reason or other, the privacy bill of India has been stalled from time to time. The latest stumbling block in this regard is the objection of intelligence agencies of India to be governed by the proposed bill.

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.

As per HT, the Intelligence Bureau and the Research and Analysis Wing (RAW) have told the government to dilute the proposed privacy bill that makes it a crime to leak sensitive personal information collected by government departments and the private sector. The proposed privacy bill has suggesting a penalty of Rs. 2 crore for illegal phone tapping in India.

Surprisingly, home secretary Anil Goswami has challenged the very purpose of the proposed privacy bill. The Right to Privacy Bill 2013 lays down privacy principles and standards, and stipulates jail terms and fines for leak of sensitive personal data. Goswami has argued that if such a bill is to be considered, intelligence agencies should be exempted from its purview.

The intelligence agencies also spoke about how the bill would adversely affect or compromise the functioning of many agencies and projects, such as the Central Monitoring System that is used to intercept phone calls and internet communication, and the National Intelligence Grid that would give law enforcement agencies access to information combat terror threats.

Privacy right is an important part of civil liberties protection in cyberspace. The proposed privacy bill must also address issues pertaining to cyberspace. Similarly, e-surveillance and civil liberties issues in cyberspace and conflict of laws issues must also be addressed. This is not happening as on date and civil liberties in India would have a tough job ahead.

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