Wednesday, December 22, 2010

Do We Have Separation Of Powers In India Anymore?

India is perhaps the only country of the World whose Agencies and Instrumentalities are working without any law supporting their existence. Whether it is the Aadhar Project/ UID Project, Unique Identification Authority of India (UIDAI), Intelligence and Law Enforcement Agencies of India, etc none of them are “Practically Governed” by any Legal Framework and Parliamentary Scrutiny.

Surprisingly, India has a long and unpardonable history of clinging to antique and colonial laws like Indian Telegraph Act. It is beyond any reasonable doubt that laws like Telegraph Act do not serve the present purposes of lawful interception in India.

In the absence of a Constitutionally Valid Lawful Interception Law in India, companies like Google, Skype and Blackberry can legally refuse to part with any information regarding its users citing absence of a lawful interception law on the one hand and protecting its users’ Privacy on the other hand.

Unfortunately, Blackberry’s maker Research in Motion (RIM) has succumbed to Indian Government’s pressures and has openly shown its intentions to violate the Privacy Rights of its users in a “Cloud Computing Environment”. This also proves that India is still not ready for a cloud computing environment. Fortunately, Google has rightly rejected Indian Government’s possible demand well in advance citing privacy reasons.

India is deliberately escaping from enacting suitable Privacy Laws and Data Protection Laws. Further, since the Colonial Laws like Telegraph Act serve the purpose of Indian Government, it is abstaining from enacting suitable and timely Legislations.

However, of all Illegal and Unconstitutional Projects nothing can match the Violating Limits of Aadhar Project and UDIAI. With “Biometric Information” as its base and core components, Indian residents have virtually surrendered their Privacy Rights in the hands of a Regime and Government that cannot be trusted at all in this regard. That is why there is an urgent need of Robust, Effective and Constitutionally Sound Legal Framework in this regard.

In these circumstances it can be safely said that Indian Parliament is slightly better than a non operational one. It does not conduct any relevant business these days and even if it does not operate at all, not much difference would be there. Are Indian Parliamentarians listening or has Indian Constitution been “Bypassed” for surrendering all its “Constitutional Powers” to its Executive Branch and Bureaucrats? Perhaps, the concept of “Separation of Power” no longer exists under Indian Constitution.

Monday, December 13, 2010

Security And National Interest: What A Joke By Vodafone India

At last I got some insight about the “Reverification Drive” of Department of Telecommunication (DOT) India and mobile service providers like Vodafone. A person named Rahul Sindwani of Customer Care, Vodafone, finally contacted me to explain the rationale for unilateral disconnection exercise of mobile services of Vodafone India in the name of “Reverification”.

He informed that as per DOT guidelines they have instructions to disconnect all cellular connections, whose documentation is found non-complaint by the “authorities”. Now this is interesting on at least two counts. First, Vodafone has passed the buck upon DOT India for this whole mess. Secondly, who are these “Authorities” that see whether the documents in question are complaint or non complaint? Is it DOT, India or the Security and Intelligence Agencies?

It also raise an important question that if complete and proper documents in question have already been submitted at the time of getting connection, why Vodafone/DOT are again asking for the same? Without knowing who checked our documents and what deficiencies, if any, have been found by them, it is very difficult to believe the argument of DOT/Vodafone regarding lack of proper documentation. Perhaps, it is high time for a Right to Information Application (RTI Application) against DOT/Vodafone.

Vodafone also played the classic card of “Security” and “Public Interest” for this whole mess. Where is “Public Interest” in harassing law abiding and honest citizens and what “Security” purposes it is going to serve?

Meanwhile, I have once again communicated with Vodafone and asked for further details like the rationale for resubmission of documents, by whom my documents have been analysed, who are the authorities that analyses the documents, how would Vodafone indemnify the users whose documents have been misused and why should not a Consumer Case and Civil Proceeding be started against Vodafone.

I hope I would get some good, concrete and logical answers this time and not another eye wash response by Vodafone. Of course, the option of filing an RTI Application to elicit truth is always available to me.

Analysis Of Right to Information Rules, 2010

This is my Opinion regarding the Right to Information Rules, 2010:

(1) Request for Information U/S 6(1) Of Act: A person, who desires to obtain any information from a public authority under sub-section (1) of Section 6 of the Act, shall pay an application fee of Rs. 10/- to the public authority alongwith the application;

Provided that the request for information shall relate only to one subject matter and shall be limited to two hundred and fifty words, excluding the address of the Central Public Information Officer and the address of the applicant.

Opinion: In my opinion this is a retrograde step in a backward direction. Firstly, the Proviso is limiting information seeking to a “Single Subject” only. At times subjects for which information is required are so interrelated and diverse in nature that it is neither feasible nor possible to limit them to a single category.

Similarly, the limiting of the number of words to 250 is also “Not Desirable” as it would compromise the nature of information sought. Of course, an applicant cannot ask for information in hundreds of pages but at times it becomes pertinent to ask information in many pages.

Suggestion: The Proviso is a serious “Embargo” upon information seeking and should be reconsidered.

(2) Fees for providing information: Fee for providing information under Section 4(4), Section 7 (1) and Section 7 (5), as the case may be, shall be charged at the following rates:
(a) rupees two for each page in A-3 size or smaller size paper;
(b) actual cost or price of a copy in larger size paper;
(c ) actual cost or price for samples or models;
(d) for inspection of records, no fee for the first hour; and fee of rupees five for each subsequent hour (or fraction thereof);
(e) for information provided in diskette or floppy, rupees fifty per diskette or floppy;
(f) for information provided in printed form, at the price fixed for such publication or rupees two per page of photocopy for extracts from the publication;
(g) the actual amount spent by public authority on hiring a machine or any other equipment, if any, to supply information;
(h) Postal charges, in excess of rupees ten, if any, involved in supply of information.

Provided that no Fee shall be charged under this rule from the persons who are below poverty line as may be determined by respective State Governments.

Opinion: Charging of fees on the basis of actual amount spent by a public authority on hiring a machine or any other equipment, if any, to supply information is “Not Rationale”. Every Public Authority is supposed to have “Complete Infrastructure” like Printers, Scanners, Photo Copiers, etc at its place. It would be absurd to suggest that Indian Government would not or have not yet provided the required Infrastructure to these Public Authorities.

Suggestion: This Clause need to be removed from the Rules.

Opinion: For inspection of records, no fee for the first hour; and fee of rupees five for each subsequent hour (or fraction thereof). This is a good provision and it should be implemented in “True Letter and Spirit”. In many cases there is no need of any documents or the quantity of documents can be reduced to a considerable amount, if proper inspection is allowed. This would also reduce the burden upon Public Authorities.

Opinion: The Proviso also specifies that no Fee shall be charged under this rule from the persons who are below poverty line as may be determined by respective State Governments. This is a “Very Sensible” provision and is a “Welcome Addition”.

(3) Payment of fee: Fee under these rules shall be paid by way of cash, demand draft or bankers cheque or Indian Postal Order, etc to relevant officer of the public authority. Even electronic means are also available if facility for receiving fee through electronic means is available with the public authority.

Provided that a public authority may accept fee by any other mode of payment.

Opinion: The “Modes of Payment” of fees are good to effectuated information seeking by the Applicants. Even electronic payment facility has been prescribed if the Public Authority has an infrastructure for the same. The best part of this arrangement is that the Public authority may accept fee by any other mode of payment. This is an “Enabling Provision” and Welcome Step.

(4) Admission of Appeals: (1) On receipt of an appeal, if the Commission is satisfied that it is a fit case for consideration, it may admit such appeal; but where the Commission is not so satisfied, it may, after giving an opportunity to the appellant of being heard and after recording its reasons, reject the appeal.

(2) The Commission shall not admit an appeal unless it is satisfied that the appellant had availed of all the remedies available to him under the Act.

(3) For the purposes of sub-rule (2), a person shall be deemed to have availed of all the remedies available to him under the Act:

(a) if he had filed an appeal before the First Appellate Authority and the First Appellate Authority or any other person competent to pass order on such appeal had made a final order on the appeal; or

(b) where no final order has been made by the First Appellate Authority with regard to the appeal preferred, and a period of 45 days from the date on which such appeal was preferred has expired.

Opinion: This Rule needs to be “Reconsidered” especially Sub Rule (2). It seems to be in conflict with other Provisions and Powers of the Central Information Commission under the Act.

(5) Procedure for Deciding Appeals: The Commission, while deciding an appeal may,

(i) receive oral or written evidence on oath or on affidavit from concerned or interested person;
(ii) peruse or inspect documents, public records or copies thereof;
(iii) inquire through authorized officer further details or facts;
(iv) hear Central Public Information Officer, Central Assistant Public Information Officer or the First Appellate Authority, or such person against whose action the appeal is made, as the case may be;
(v) hear third party; and
(vi) receive evidence on affidavits from Central Public Information Officer, Central Assistant Public Information Officer, First Appellate Authority and such person against whom the appeal lies or the third party.

Opinion: This is a Good Rule and it must be incorporated.

(6) Amendment or withdrawal of an Appeal: The Commission may allow a prayer for any amendment or withdrawal of an Appeal during the course of hearing, if such a prayer is made by the Appellant on an application made in writing.

Provided that such request shall not be entertained by the Commission after the matter has been finally heard or a decision or order has been pronounced by the Commission.

Opinion: This is a Good Rule and it must be incorporated.

(7) Personal presence of the appellant before the Commission: (1) The appellant shall be informed of the date of hearing at least seven clear days before that date.

(2) The appellant may, at his discretion, be present in person or through his duly authorized representative or, if permitted by the commission, through video conferencing, at the time of hearing of the appeal by the Commission.

(3) Where the Commission is satisfied that the circumstances exist due to which the appellant is being prevented from attending the hearing of the Commission, then, the Commission may afford the appellant another opportunity of being heard before a final decision is taken or take any other appropriate action as it may deem fit.

Opinion: This is a Good Rule expecially the use of Video Conferencing Facility by the Commission. Effective use of E-Governance is presently missing from RTI Act, 2005 and under other Laws and it is high time for the Government of India to make it “Mandatory”

(8) Service of notice by Commission: Notice by name to be issued by the Commission may be served in any of the following modes, namely:-
(i) service by the party itself;
(ii) by hand delivery (dasti) through Process Server;
(iii) by registered post with acknowledgement due;
(iv) by electronic mail in case electronic address is available.

Opinion: Use of E-Mail as a Mode of Service of Notice by Commission is a welcome step and good provision.

(9) Compliance of the order of the Commission: The head of a public authority shall ensure that an order passed by the Commission, unless varied or stayed by a validly passed order, is complied with and compliance report filed with the Commission within the time limit specified by the Commission, or within 60 days if no such limit is specified.

Opinion: This is a Good Rule and it must be incorporated.

CORE RECOMMENDATION: Both RTI Act 2005 and Rules made thereunder must be “Thoroughly Amended”. The RTI Act 2005 needs many “Pro Active Amendments” that would make it more Effective, Transparent and Accountable. The RTI Act, 2005 also needs to be “Reconciled” with other Laws.

Thursday, December 2, 2010

Supreme Court Of India Must Expand Privacy Rights In India

Enactment of suitable Privacy Laws in India is long overdue. However, the Government of India has not considered this issue to be important enough.This is so even if Projects like Aadhar, NATGRID, CCTNS, etc may be declared to be “Unconstitutional” by Constitutional Courts of India. The matter is pending before the Supreme Court and this occasion can be utilised by it for prescribing “Stringent and Suitable” Privacy Rights Guidelines.

Few things related to 2G Scam have happened in the right perspective so far at the Supreme Court of India. The questioning of Supreme Court regarding inaction on the part of Prime Minister’s Office (PMO) India, giving due credit to the CAG’s Report, accepting Ratan Tata’s Writ Petition regarding Privacy Rights Violation, etc are some of them.

The latest to add to this list is denial of Supreme Court to issue any “Interim Relief” in the Tata’s Writ Petition and issuing of notices to open and outlook magazines which had published contents of the alleged taped conversation.

Tata had sought an interim relief for restraining the respondents from further publication of recorded conversations between him and Radia. He also sought an Injunction that would prevent the publishing and circulation of the contents of these conversations in “Any Form”. However, is it possible and does it make any difference at this stage?

The answer seems to be in Negative although Tata may not like the same. This is because contents of conversations are already out in “Public Domain” and on multiple traditional and electronic mediums and platforms. It is not possible for the Supreme Court of India or even for the Government of India to do much at this stage and in this regard.

However, one aspect has skipped the attention of all parties to the Writ Petition and even of the Supreme Court. The sole purpose of Ratan Tata seems to be to protect “His Privacy Rights” by preventing the “Disclosure and Circulation” of conversation or communication recorded through “Surveillance Methods” of State machinery. At this stage this concern and demand seems to be “Infructuous” and “Academic Purpose” only. This is because even if Supreme Court of India provides the “Relief” that Tata is claiming “In Toto”, the “Contents” of the conversation would remain on Internet and this is next to impossible to remove.

There is a blessing in disguise in Tata’s Petition. This is a golden chance for the Supreme Court of India to analyse the “Implementation” of its decision in the PUCL case (Phone Tapping Case). The Supreme Court must “Widen” the scope of Privacy Rights in India not only in the context of Phone Tapping but in an “Overall Manner”. The Supreme Court must formulate and lay down the widest possible “Guidelines” regarding Privacy Protection in India as it has done in the Vishaka’s Case (Guidelines against Sexual Harassment).

I hope this Writ Petition by Tata would come as a rescue of Fundamental Rights in general and Right to Privacy of Indians in particular. The only question that remains to be seen is will the Supreme Court of India protect Privacy Rights of Indians at large? I am optimistic and would be glad to see this outcome.