Supreme Court Erred In Reading Down Section 79(3)(b) And Rule 3(4): Praveen Dalal

The judgment of Shreya Singhal v. Union of India (24^th March 2015), Writ Petition (Criminal) No.167 Of 2012 (PDF) is not just about Section 66A but many other sections and rules as well. For instance, Section 79 of IT Act 2000 and Rule 3 of Information Technology (Intermediaries Guidelines) Rules, 2011 have also been analysed by Supreme Court.

As the constitutionality of these provisions was challenged, Supreme Court had limited choices. Supreme Court preferred to narrow down these provisions to keep them operational and constitutional. But it has not been realised at what cost this has been done.

According to Praveen Dalal, managing partner of ICT law firm Perry4Law, Supreme Court’s Judgment on Section 66A is a big blow for Cyber Law Due Diligence in India and reading down of Section 79(3) (b) and Rule 3(4) by Supreme Court in the present manner is “Counter Productive” in long run. He has also suggested that Modi Government must urgently bring suitable Amendments in the IT Act 2000 to tackle growing Cyber Threats and Cyber Crimes in India.

Indian cyber law has never been appropriate since its inception. Too much stress is given to suppress civil liberties and enhance e-surveillance. However, it has now reached a stage where immediate steps must be taken to protect civil liberties in cyberspace on the one hand and projects like Digital India on the other. This is also the high time to leave politics and do positive things for Indian masses.

Source: Cjnews India.

Aadhaar Must Be Scrapped Immediately Opines Praveen Dalal

Some believe that an Aadhaar card is a useful identification document while others abhor it. Whatever the case may be but the Aadhaar project was never implemented in a legal and constitutional manner. From the very inception, Aadhaar project was an illegal and unconstitutional project. However, Indian government was well committed to continue with this project despite many protests and warnings.

One of the early, stern and incessant opposers of the Aadhaar project is Praveen Dalal who was the first one to demand for scrapping of Aadhaar project. Dalal claimed that the UIDAI must not use public funds till provisions regarding the same are incorporated in the law to be formulated by Parliament of India. He also maintained that Aadhaar project must be scrapped till a constitutional law supporting the project is in place as it is a fraud against the constitution.

Surprisingly our political parties did not find it offensive and they kept mum on this issue. This helped the Congress government to continue with the illegal and unconstitutional Aadhar project.

According to Dalal, “The Aadhaar Project is the most “Obnoxious” and “Evil” Project that Indian Government has been pursuing till now. In my personal opinion, the very foundation of Aadhaar Project is based upon “Lies and Deception” and this Project should have been “Scrapped” long before. However, the previous Government not only deliberately kept this “Illegal and Unconstitutional Project” alive but also wasted crore of “Hard Earned Public Money” on a Project that is clearly Illegal and Unconstitutional. Narendra Modi “Must Scrap Aadhaar Project” as well along with the Cabinet Committee on UIDAI, recommends Dalal.

Fortunately, the Constitutional Validity of Aadhaar Project has been questioned in the High Courts and Supreme Court of India. The Supreme Court has even held that Aadhaar Card/Number cannot be made mandatory for availing public services in India. The Supreme Court has also prohibited UIDAI from sharing biometric data with Indian Government Agencies without data owner’s consent. Even a Parliamentary Committed rejected the proposed National Identification Authority of India Bill 2010 finding it “Inadequate and Unsuitable”, informs Dalal.

It is high time for Modi government to scrap Aadhaar project as much public resources and money have already been wasted upon this useless project.

Relevant Notifications Under The New Company Law Of India

The company law of India has been rejuvenated and it has brought many far reaching and significant changes in the previous regime. The regulatory compliances under the new law have become totally different and companies have to tackle the same effectively and in a timely manner. These compliance requirements have raised many techno legal and cyber obligations before Indian corporates.

However, as the new regime has been notified recently there are very few companies in India that have been complying with these requirements. Many of the companies are not even aware of such notifications. Asia’s best techno legal ICT and corporate law firm Perry4Law has provided a list of corporate regulatory notifications that can be really handy for all corporate stakeholders. Corporate stakeholders would find these notifications by Indian government worth considering in this regard:

(1) Indian Companies Act, 2013 (PDF)

(2) MCA Notification Dated 26-03-2014 (PDF) Regarding 183 Sections of Indian Companies Act 2013

(3) Table Containing Provisions Of Companies Act, 2013 As Notified Up To Date And Corresponding Provisions Thereof Under Companies Act, 1956 (PDF)

(4) Roll Out Plan Of Various Forms Under The Companies Act, 2013 And Continuance Of Forms Under The Provisions Of Companies Act, 1956 (PDF)

(5) Companies 2nd (Removal of Difficulties) Order, 2014 (PDF)

(6) Companies (Appointment and Qualification of Directors) Rules, 2014 (PDF)

(7) Companies (Corporate Social Responsibility Policy) Rules, 2014 (PDF)

(8) Companies (Incorporation) Rules 2014 (PDF)

(9) Companies (Share Capital and Debentures) Rules, 2014 (PDF)

(10) Companies (Accounts) Rules, 2014 (PDF)

(11) Companies (Declaration and Payment of Dividend) Rules, 2014 (PDF)

(12) Companies (Management and Administration) Rules, 2014 (PDF)

(13) Companies (Meetings of Board and its Powers) Rules, 2014 (PDF)

(14) Companies (Prospectus and Allotment of Securities) Rules, 2014 (PDF)

(15) Companies (Registration of Charges) Rules, 2014 (PDF)

(16) Companies (Specification Of Definitions Details) Rules, 2014 (PDF)

(17) Companies (Adjudication of Penalties) Rules, 2014 (PDF)

(18) Companies (Miscellaneous) Rules, 2014 (PDF)

(19) Nidhi Rules, 2014 (PDF)

(20) Rules under Chapter XIV of Indian Companies Act, 2013 pertaining to Inspection, Inquiry and Investigation (PDF)

(21) Suggestions Regarding Rules Pertaining to Inspection, Inquiry and Investigation (SFIO) by Perry4Law (PDF)

(22) Cyber Law Due Diligence Requirements For Indian And Foreign Companies (PDF)

This list would be updated from time to time by Perry4Law. Please bookmark this page so that you can have updated information about Indian Companies Act, 2013 and Rules/Notifications made thereunder form time to time.

The Indian Bitcoins Saga

Bitcoins emerged as a valuable investment in India in the year 2013. However, the legality of Bitcoins in India was always in doubts. Nevertheless the e-commerce entrepreneurs in India kept on investing and dealing in Bitcoins. They also forget to comply with Indian law, including the cyber law of India.

For instance, the IT Act 2000 prescribes cyber law due diligence in India and the Internet intermediary liability in India. These cyber laws due diligence and Internet Intermediary requirements squarely apply to use of Bitcoins in India. Further, money laundering, foreign exchange and security dealing laws also apply to Bitcoins dealings and trading in India.

Meanwhile, China, France, Thailand, etc have either regulated the use of Bitcoins or they have completely banned them in their jurisdictions. But the Reserve Bank of India (RBI) and Indian government kept on sleeping over the issue. As a result the Bitcoins frauds and crimes kept on increasing in India.

As the pressure mounted, the RBI cautioned users of virtual currencies against various risks including legal risks. Soon after the cautious advisory, the enforcement directorate (ED) swung into action and raided two Bitcoins websites and their offices. ED believes that Bitcoins money can be used for hawala transactions and funding terror operations and this seems to be a legally plausible explanation as well.

Actually, the Bitcoin website owners have themselves put into trouble as they simply assumed that there are no legal compliances that are required to be fulfilled. It is well established that e-commerce compliances in India are required to be fulfilled.

As on date the Bitcoins websites in India are under regulatory scanner and are vulnerable to all sorts of legal actions. In fact, Seven Digital Cash LLP is already facing legal risks for dealing in Bitcoins in India.

The cyber law trends of India 2013 by ICT law firm Perry4Law has cautioned that Bitcoins websites may further face legal actions if they fail to comply with Indian laws in the year 2014. We hope that the Bitcoins saga would not end up in the prosecution of Bitcoins entrepreneurs in India.

Airtel And Tata Teleservices Limited Are Violating Internet Intermediary Rules Of India

Indian telecom companies are taking Indian laws for granted. For instance, Airtel and Tata Teleservices limited (TTL) are already in cyber law violation controversy. Both Airtel and TTL have violated the mandates of Information Technology (Intermediaries Guidelines) Rules, 2011 (PDF) of India.

This is contrary to the stringent stand taken by Indian government and telecom regulatory authorities of India against foreign telecom companies. At a time when Indian government is zealously enforcing the cyber law of India, it is really surprising that Tata Teleservices Limited (TTL) and Airtel are violating Indian cyber law. There may be a case that both TTL and Airtel may not be aware of the contraventions and violations they have been committing. It is equally possible that both TTL and Airtel have been deliberately and knowingly violating the provisions of Information Technology Act, 2000.

According to various sources, Tata Teleservices Limited (TTL) and Airtel are violating IT Act 2000 and complaints have been filed against them at Department of Telecommunication (DoT) and Telecom Regulatory Authority of India (TRAI). Both Tata Teleservices Limited (TTL) and Airtel have failed to observe cyber law due diligence as required by the Information Technology Act, 2000 and the intermediary guidelines prescribed under the IT Act, 2000.

See: Ground Report for more.

Intellectual Property (IP) Disputes Have Increased Tremendously

Intellectual property rights (IPRs) have assumed tremendous importance these days and both individuals and organisations are doing their level best to protect and enforce the same. As a result, the IP battles are increasing world over and India has also witnessed a growth in IPR disputes.

IP like trade secrets, patents, copyright, trademarks, etc have become crucial for the growth and expansion of various businesses. Add to it the domain names and you cover the cyberspace and techno legal areas as well.

Intellectual property (IP) disputes have increased tremendously. As more and more individuals and organisations have started asserting their IP claims, the litigation and court cases have also increased.

At the international level, the international trade commission (ITC) has recently held that Apple and Microsoft did not violate the patent rights of Google. Kim Dotcom has accused Google, Facebook, Twitter etc of violating his two step authentication patent.

Mozilla has also issues a cease and desist notice to Gamma International for maliciously using its brand and reputation. The Japanese Company Kawasaki Heavy Industries (KHI) has also accused Chinese Company CSR Sifang of stealing its Shinkansen Bullet Trains.  

The U.K. Supreme Court has also decided that storing of cache on a users computer of the copyright protected work is not copyright infringement. Similarly, the supreme court of India also held that Novartis has no patent rights in its product Glivec. U.S. Pharmaceutical Company Merck Sharp and Dohme’s (MSD) has also appealed before Division Bench of Delhi High Court.  

On the Trademark and Domain Name fronts, India has submitted Instrument of Accession to the Madrid Protocol for International Registration of Marks. In a domain squatting case, Tata Sons And Tata Infotech won domain name lawsuit against Arno Palmen. The objection and dispute resolution for ICANN’s new GTLDs registrations is also in full swing. The Financial Times and Times of India are also fighting trademark battle in Supreme Court of India.

On the legislation front, the recent Indian Copyright Amendment Act, 2012 (CAA 2012) has incorporated provisions related to digital rights management. These include protection of technological measures used by copyright owners and making their unauthorised circumventions punishable under the Copyright Act. Similarly, the proposed U.S. legislation would target companies using stolen intellectual property of U.S.

This trend of protection of IP is going to be more severe in future. The IP portfolio management in India and online brand protection in India is going to be a trick issue and individuals and companies must keep this trend in mind.  

Nursery Admissions In Delhi: High Court To Delivery Judgment Today

Nursery admissions in Delhi are a good source of black money for schools in the form of donations and seats purchasing that are otherwise available to general public. The right to education act of India has failed to curb this evil practice of schools and schools in Delhi are openly flouting the norms and laws of India.

To a greater extent the nursery admissions process in Delhi can be compared to a legalised education mafia in Delhi. There are many schools that are following and not following the norms laid down by the directorate of education, Delhi.

We hope our Prime Minister and Chief Minister of Delhi are taking note of these negative developments and would come to the rescue of helpless parents. We have also started an online petition and protest campaign against the defaulting schools.

We have also contacted Prime Minister, Chief Minister of Delhi and Shashi Tharoor and are waiting for their official response.

Meanwhile the Delhi High Court may pronounce its judgement/order regarding the point’s criteria presently adopted by schools in India.

The present point criterion is a breeding ground for corrupt practices and schools are openly misusing the same to mint money.

It would be a good decision on the part of Delhi High Court to quash the present point system and suggest a better point system so that justice can be done to the children and right to education act.

Source: Cjnews India.