Author Archives: PTLB

Supreme Court Stays Mandatory Linking Of Aadhaar With PAN Till Constitution Bench Decides Constitutionality Of Aadhaar

COI Principles

The Constitutional Position Of Aadhaar

The “Constitutional Position” regarding Aadhaar is aptly described by Praveen Dalal as follows:

“Government made Aadhaar Optionally Compulsory Whereas Supreme Court made Aadhaar Compulsorily Optional”.

So Aadhaar is absolutely optional for Government and Private services and purposes. Refuse enrollment and seeding of Aadhaar with everything. Block the biometric and deseed Aadhaar from all services with whom you have seeded your Aadhaar.

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Important Updates

Update 1: The PTLB India and ETax handles Of P4LOIndia have clarified on many occasions that Aadhaar is not mandatory for either tax return or for linking with PAN.

We have also clarified that even if the e-filing of returns is not operational due to any technical glitch or other reasons, you can file your tax return offline through a registered post.

Update 2: Perry4Law Organisation’s (P4LO) stand has been confirmed by Indian Government once again. Tax returns can now be filed without Aadhaar in both e-filing and offline modes. Income Tax Department would remove the technical glitch that is preventing people not having Aadhaar from filing their returns through e-filing method.

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True And Correct Interpretation Of Supreme Court Judgment On Section 139AA

In an expected move, a division bench of Supreme Court stayed mandatory linking of Aadhaar with permanent account number (PAN) till the Constitution Bench of Supreme Court decides about constitutionality of Aadhaar. As on date Aadhaar is subject to constitutional attack for being violative of various Fundamental Rights, including right to Privacy. Aadhaar has become a constitutional anomaly and as such the Supreme Court cannot leave the issue unresolved by citing any fictitious ground of Fait Accompli. So sooner or later, the Constitution Bench of Supreme Court has to take the call on the constitutional validity of Aadhaar.

On October 15, 2015, a Constitution Bench of Supreme Court held (pdf) as follows (page 12, para 4 and 5):

“4. We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013.

5. We   will   also   make   it   clear   that   the Aadhaar   card   Scheme   is   purely   voluntary   and   it cannot be made mandatory till the matter is finally decided by this Court one way or the other”.

We at Perry4Law Organisation (P4LO) wish to inform public at large that this position has remained unchanged and the constitutional position regarding Aadhaar is that Aadhaar is optional till the month of June 2017 and till the writing of this article i.e. 11-06-2017. Neither the Aadhaar Act, 2016 nor the Finance Act has made any difference to this settled constitutional position. This is also clear from the judgment of Supreme Court regarding Section 139AA that is also subject to the final decision of the Constitution Bench of Supreme Court.

Section 139AA(1) proposed to make citing of Aadhaar number mandatory for filing tax returns and for issuance of new PAN card after 01-07-2017. Proviso to Section 139AA (2) provides the penal consequences of not giving Aadhaar number within the stipulated time by an existing PAN holder if asked by a notified agency. Proviso to Section 139AA (2) is also the only penal provision for failure to comply with the requirements of Section 139AA (1) and Section 139AA (2).

This penal provision has been stayed by Supreme Court till the matter is decided by the Constitution Bench of Supreme Court as this penal provision has to be tested on the touchstone of Article 21 and other Fundamental Rights as well. PAN of an individual, whether Aadhaar number holder or not, cannot be cancelled by Indian government till the matter is finally adjudicated by the Constitution Bench of Supreme Court after analysing the constitutional validity of both Aadhaar and Aadhaar Act, 2016. This would also involve testing Aadhaar and Aadhaar Act, 2016 on the touchstone of Fundamental Rights, including Article 21, which has not been discussed by the Supreme Court in Section 139AA case. Similarly, the Constitution Bench would also analyse infringement of other Fundamental Rights and Constitutional Rights by Aadhaar and Aadhaar Act, 2016, including constitutional provisions pertaining to Money Bills. Till that is done, the existing interim order of Constitution Bench of Supreme Court (pdf) would govern the position i.e. Aadhaar is optional for all purposes and all services whether government, private, welfare, non-welfare, etc. No government department or private company or individual can ask for Aadhaar for any service or purpose. If asked, people are free to reject that demand. They can meet any procedural or legal requirement with alternative government documents like driving license, passport, PAN card, voter ID, etc as Aadhaar is absolutely optional as on date.

As per our “Constitutional Scheme”, a division bench of Supreme Court can never overrule what has already been ordered by a Constitution Bench. The Constitution Bench has clearly mentioned that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other. So whether on the Judicial side or the Legislative side, Section 139AA cannot make Aadhaar mandatory for filing returns, PAN applications, mentioning to the notified agency or any other taxation or non taxation related issue as specified by government or its departments. Any contrary decision by a division bench, including the one that heard Section 139AA petition, is simply Per Incuriam. This is the reason why Supreme Court in Section 139AA petition stayed the proviso and read down Section 139AA. This practically made Aadhaar optional for all purposes including for filing returns and obtaining a PAN card.

Once the constitutional position that Aadhaar is optional till decided by the Constitution Bench becomes clear, there is nothing to discuss further. But for the sake of further clarity, let us discuss few more things. If we read Section 139AA carefully, it is clear that Section 139AA at large is not making Aadhaar mandatory for filing of return or obtaining a PAN card. For instance, if a person files a return on or before 30-06-2017, there is no need for citing an Aadhaar number. Similarly, if a person makes an application for PAN card on or before 30-06-2017, again there is no need for citing an Aadhaar number. The requirement for Aadhaar, if at all required, arises only on and after 01-07-2017. So those looking for filing a return or getting a PAN card can do so on or before 30-06-2017.

An interesting issue has also missed the attention of almost all people. Supreme Court has given a strong protection to “Existing PAN Cards” under Section 139AA (2). All PAN cards are existing PAN cards if they have been issued before 01-07-2017. So all those who are interested in obtaining a PAN card must apply or obtain the same on or before 30-06-2017. This way their PANs would become existing PANs under Section 139AA and would be saved from the penal provisions of proviso to Section 139AA (2) that has been stayed by Supreme Court.

There is another curious angle of Section 139AA and its legality. Section 139AA is a standalone provision that is in active violation of Aadhaar Act, 2016. Supreme Court tried to harmoniously construe this inconsistency by saying that Aadhaar Act, 2016 and Section 139AA operate in different fields. However, this makes Section 139AA very “ambiguous and unreliable”. A provision with no clarity and background is asking for submission of Aadhaar number for filing of returns and making an application for PAN card after 01-07-2017. If we analyse Section 139AA on its own, clearly it has no legs to stand on. So we have to interpret Section 139AA by just referring to Section 139AA alone and not the Aadhaar Act, 2016. Let us interpret Section 139AA in this background.

Let us reproduce Section 139AA (1) and (2) here. Section 139AA of the Act reads as under:

“Quoting of Aadhaar number. – (1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of July, 2017, quote Aadhaar number–

(i) In the application form for allotment of permanent account number;

(ii) In the return of income:

Provided that where the person does not possess the Aadhaar Number, the Enrolment ID of Aadhaar application form issued to him at the time of enrolment shall be quoted in the application for permanent account number or, as the case may be, in the return of income furnished by him.

(2) Every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette:

Provided that in case of failure to intimate the Aadhaar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this Act shall apply, as if the person had not applied for allotment of permanent account number.

A cursory look at Section 139AA would reveal that it is simply asking a person “eligible” to get Aadhaar to get the same before a “stipulated date” i.e. 01-07-2017. So till both elements of “eligibility and stipulated date” are not merged, Section 139AA (1) cannot apply.

Now eligibility of something is a positive concept whereas forced Aadhaar is a negative one. So the choice and option is inherent for all who are eligible to get Aadhaar and they may enroll for Aadhaar or they may not. Government cannot force any individual to get Aadhaar compulsorily especially when the Constitution Bench of Supreme Court has made it absolutely optional.

Let us give two examples in this regard. A person of 18 years of age is eligible to vote. Similarly, a person of 21 years of age is eligible to marry. Does it mean he/she has to compulsorily vote and marry? So eligibility is a right and enabling provision and interpreting it as an obligation that violates Fundamental Rights is incorrect and unacceptable.

So going by the very language of Section 139AA (1), but without approving its constitutional validity, it is clear that only person eligible to get Aadhaar are required to comply with Section 139AA and those who are ineligible, whether due to choice or operation of law, are not required to furnish the Aadhaar. This is natural as well as a person who is neither interested nor entitled to get Aadhaar cannot quote the same. So the word eligible in Section 139AA (1) cannot be construed as compulsory and it is for the people to decide whether they wish to apply for Aadhaar or not.

So section 139AA (1) is not applicable to those who have decided not to enroll for Aadhaar as they have no Aadhaar number to be quoted while furnishing a tax return or while applying for a PAN card.

But what about those who have already enrolled for Aadhaar? The good news is that even they are not required to comply with the requirements of Section 139AA (1) due to the constitutional position mandating that Aadhaar is optional till decided by the Constitution Bench as discussed above.

Now let us analyse Section 139AA (2).

Again Section 139AA (2) is not applicable to those who have decided not to enroll for Aadhaar as they have no Aadhaar number to be intimated to concerned authority. As the proviso has been stayed by Supreme Court, even their PAN cannot be cancelled.

So what is the legal position of Section 139AA (2) for those who have already enrolled for Aadhaar? Again even they are not required to comply with the requirements of Section 139AA (2) due to the constitutional position mandating that Aadhaar is optional till decided by the Constitution Bench as discussed above. In addition, even their “existing PAN” cannot be cancelled by government due to embargo put by Supreme Court.

Let us now sum up the position after the judgment of Supreme Court on Section 139AA. This is as follows:

(1) Aadhaar and its uses are absolutely optional (pdf) for all purposes till the matter is finally decided by the Constitution Bench of Supreme Court.

(2) Neither Section 139AA nor the judgment of Supreme Court empowers government to make Aadhaar mandatory for filing of return, making an application for PAN or any other tax issue.

(3) Those not having Aadhaar can safely ignore Section 139AA and its implications in totality.

(4) Those having Aadhaar have absolute option to comply with requirements of Section 139AA as the interim order of Constitution Bench of Supreme Court making Aadhaar optional protects them.

(5) Section 139AA judgment of Supreme Court is given by a division bench that is subject to the final decision of the Constitution Bench. The decision of Constitution Bench would be final for all purposes, including for Section 139AA.

(6) Section 139AA judgment has not considered violation of Article 21 and other Fundamental Rights/Constitutional Rights by Aadhaar and Aadhaar Act, 2016. They can be agitated again for Section 139AA purposes even now.

(7) No penal action can be taken against any person, whether he has Aadhaar or not, for not giving his/her Aadhaar number while filing a tax return, making an application for new PAN or for any other taxation or non taxation matter.

(8) A tax return filed without an Aadhaar number cannot be rejected or otherwise mishandled by government and tax department. If any such rejection or mishandling is done, people can sue the government and tax department for that.

In short, Aadhaar is optional for Section 139AA and other purposes and people have a choice to refuse to enroll and use (if already enrolled) Aadhaar for any purpose.

British Government Admits Unlawful Monitoring Of Lawyers And Clients Communications By Intelligence Agencies

British Government Admits Unlawful Monitoring Of Lawyers And Clients Communications By Intelligence AgenciesIllegal and unlawful e-surveillance is very common in countries like United States, United Kingdom and India. All these countries have been managing many e-surveillance oriented projects even at the cost of Human Rights violations. Their operations have become omnipresent and pervasive and even Judiciary of these countries has become helpless. India has taken this exercise at a level that even U.S. and U.K. cannot match. India has launched the ultimate and unconstitutional e-surveillance tool named Aadhaar and has created a “Digital Panopticon” named Digital India.

There is a universal lack of parliamentary oversight of intelligence agencies and this has given them a free hand to indulge in illegal and unconstitutional e-surveillance and eavesdropping. Google has already opposed the proposal to expand the FBI’s search warrant powers but at this point of time civil liberty activists and technology companies are fighting a lost battle. This is so because there are no laws at place that can make the governments and their agencies accountable for their wrongs. Even many companies have little respect for civil liberties and cyber security of their end consumers. Of course there are some companies like Microsoft that have adopted a robust cloud privacy framework to protect the privacy of its customers.

Communications between two individuals or entities are presumed to be private and confidential and the government and its agencies have no business to eavesdrop the same. This is more so in case of “privileged communications” like those taking place between a lawyers and his client. In shocking news it has been reported that U.K. intelligence agencies have been monitoring conversations between lawyers and their clients for the past five years in an unlawful manner and the U.K. government was well aware of the same. This has happened because there is no international recognition of Human Rights in Cyberspace as on date. Even United Nations has failed on this front to protect Human Rights of citizens in cyberspace.

Recently a British court ruled that the U.S. – U.K. surveillance regime was unlawful for seven years. This means that the regime has also failed to comply with the European convention on human rights. U.K. government is already facing a trial where it has been accused of unlawfully intercepted conversations between lawyers and their clients. The case is due to be heard before the Investigatory Powers Tribunal (IPT). It is being brought by lawyers on behalf of two Libyans, Abdel-Hakim Belhaj and Sami al-Saadi, who, along with their families, were abducted in a joint MI6-CIA operation and sent back to Tripoli to be tortured by Muammar Gaddafi’s regime in 2004.

A government spokesman said that the intelligence agencies would now work with the interception of communications commissioner to ensure their policies satisfy all of the UK’s human rights obligations. Nevertheless the incidence is sufficient to raise questions about violation of right to fair trial of the victims. A draft interception code has also been recently published to streamline interception related issues. The government spokesman said the draft code set out enhanced safeguards and provided more detail than previously on the protections that had to be applied in the security agencies handling of legally privileged communications. The draft code makes clear that warrants for snooping on legally privileged conversations, emails and other communications between suspects and their lawyers can be granted if there are exceptional and compelling circumstances. They have to however ensure that they are not available to lawyers or policy officials who are conducting legal cases against those suspects.

We at Centre of Excellence for Protection of Human Rights in Cyberspace (CEPHRC) believe that similar protections must exist in India where there is no constitutional lawful interception law in existence. There is an urgent need to bring intelligence agencies reforms in India so that civil liberties of Indians can be safeguarded.

Smart Cities Cyber Security And Civil Liberties Issues In India And Their Management

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBIndia is embracing the concept of Digital India and electronic delivery of services to its citizens. This is a noble intention but its actual implementation requires strong and effective techno legal framework. Digital India and initiatives based upon it cannot be successful till the foundation of Digital India itself is strong, legal and flexible. Unfortunately, Digital India project is not only suffering from many shortcomings but it is also heading towards rough waters.

Digital India is also closely related to the Internet of Things (IoT) concept. India has issued the Draft Policy on Internet of Things (IoT) (PDF) and a Revised Draft Policy on Internet of Things (IoT) (PDF). The IoT Policy of India is yet to be finalised and implemented after analysing and incorporating the public suggestions and inputs.

Smart Cities is another promising project of Indian Government to make urban cities technology oriented. While this is a fancy idea yet its implementation is not free from challenges. For instance, India has been using e-governance for delivery of public services for long. However, cyber security of e-governance services in India is still not upto the mark. This would make the proposed Smart Cities also vulnerable to sophisticated cyber attacks and cyber crimes. So before establishing Smart cities in India, Indian Government must take care of various techno legal challenges that are still not managed by India.

There are many cyber security challenges before the Narendra Modi Government that have to be addressed on a priority basis. A quick analysis of the National Cyber Security Policy of India 2013 reveals that it is suffering from many shortcomings. There are no Cyber Security Disclosure Norms in India that may require individuals and companies to share details of cyber attacks and cyber breaches. There is also an urgent need to formulate the Cyber Security Policy of India 2015 as the Cyber Security Trends are very alarming in India. Even there is no implementable Telecom Security Policy of India as on date and telecom related issues are getting complex day by day.

However, Indian Government and other stakeholders have also initiated many good projects to facilitate public delivery of services through e-governance and use of information and communication technologies (ICT). For instance, an E-Police Station in Delhi has been established that would register online FIR for motor vehicle theft cases of Delhi. The Reserve Bank of India (RBI) has also decided to set up an IT Subsidiary to deal with technology related banking issues. The Technical Advisory Committee (TAC) of SEBI would address cyber security issues as well. The Grid Security Expert System (GSES) of India has also been proposed by Indian Government. Indian Government has also banned private e-mail services for official communications in Government Departments. Indian Government would also launch Internet Safety Campaign very soon to spread awareness about cyber security among various stakeholders. However, the best effort of Indian Government via-a-vis cyber security is the appointment of Dr. Gulshan Rai as the first Chief Information Security Officer (CISO) of India by the Prime Minister Office (PMO) of India. This would definitely strengthen the cyber security infrastructure of India.

Another area of concern regarding Smart Cities would be protection of Civil Liberties in Cyberspace where India is lagging far behind than its International and Constitutional Obligations. Recently the Supreme Court of India has asked for a clarification from the Central Government regarding Privacy Invasive Software and Mobile Applications. India has no dedicated Privacy and Data Protection (PDF) laws. Privacy protection in the information era has to be ensured by Narendra Modi Government for the success of Smart Cities in India. Privacy Right is a Human Rights and not a Government Charity that must be protected by the Narendra Modi Government. Narendra Modi Government has made Digital India the “Biggest Panopticon of Human History” by clubbing it with Illegal and Unconstitutional Aadhaar Project. The Indian Government is making the Aadhaar Compulsory even if the Supreme Court has clearly declared on multiple occasions that Aadhaar cannot be made mandatory. Even the Indian Parliament and Judiciary are indifferent and submissive to these Illegalities of Digital India and Aadhaar Projects.

The Smart Cities project of Indian Government has both negative and positive aspects. It is for the Narendra Modi Government to remove the negative aspects and stress more upon the positive and development aspects. I hope and wish that this would be the approach of Narendra Modi Government regarding Smart Cities in India.

Source: Global Techno Legal News And Views.

Digital India Must Address Civil Liberties And Cyber Security Issues Urgently

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBThe Digital India project has been launched with extraordinary publicity and fanfare. Undoubtedly a project of this mega nature and importance deserves to be taken seriously but so must be its shortcomings and illegalities. While the benefits of Digital India have been portrayed elaborately yet its shortcomings have been either ignored or poorly put forward. As a result the digital India project is facing severe civil liberties and cyber security issues.

As has been rightly said, we all are systematically, continuously and vigorously brainwashed with daily doses of social media and other forms of publicity regarding the digital India project of Indian government. However, when it comes to critical analysis of the digital India project, they are severely censored in India. Even the facets of digital India like smart cities are suffering from violation of civil liberties issues and facing dangers of inadequate cyber security.

In this post, Praveen Dalal has wonderfully analysed the shortcomings of digital India project that must be removed by Indian government. He believes that digital India is biggest panopticon of human race the moment it is clubbed with e-surveillance tool named Aadhaar.

According to Dalal, Digital India is a very ambitious and significant project by Indian Government. However, it is also suffering from some “Shortcomings” that have still not been tackled properly. As a result the Digital India project is heading towards rough waters and may face many legal and technological challenges in the near future.

I would not discuss all these shortcomings in this article but am focusing on a particular problem that has taken the shape of a “Civil Liberties Violations Menace”. Yes I am talking about the E-Surveillance and Eavesdropping aspects of Indian Government projects like Central Monitoring System (CMS), National Intelligence Grid (Natgrid), Internet Spy System Network and Traffic Analysis System (NETRA), National Cyber Coordination Centre (NCCC), etc. To make the matter worst, Indian Government has been postponing Intelligence Agencies Reforms for many decades.

However, nothing can beat the draconian e-surveillance project named Aadhaar that has been designed to take a complete control over the digital lives of Indians. Surprisingly both the Indian Parliament and Supreme Court of India are watching helplessly while the Executive branch has usurped the “Legislative Powers” and literally mocked all sorts of Judicial Review.

Take the example of the interim order (PDF) issues by Supreme Court of India mandating that Aadhaar cannot be made mandatory for availing various public services. Although Central Government has informed the Supreme Court that Aadhaar is not mandatory for availing public services yet it has been made compulsory for almost all the digital and non digital services in India. As a result a wonderful project like Digital India would be heading for rough waters if our Judiciary is even “Remotely Sensitive” to Civil Liberties Violation issues.

This is also not the end of the story. When everything is clubbed with Aadhaar, it gives a complete control to our E-Surveillance loving Government over our digital and non digital lives. There is nothing left to claim Informational Privacy from our own Government. Privacy is our Human Right and not a Government charity and it should not be taken away with direct or indirect methods.

What is most anguishing is the “Deafening Silence” of the Parliament of India and Indian Supreme Court to resolve these issues. Why Parliament has abdicated its “Legislative Powers” in favour of the Executive and why Supreme Court has not taken the Executive stringently cannot be explained with any rationale explanation. However, in the absence of exercise of their “Constitutional Duties” we can safely conclude the “Separation of Powers” under the Indian Constitution has “ceased to exist” in the present and turbulent E-Surveillance era of India.

Digital Panopticon Of India And The Submissive Parliament And Judiciary

Digital Panopticon Of India And The Submissive Parliament And JudiciaryDigital India is a project that is of tremendous significance if implemented properly. However, due to its shortcomings, Digital India may become the most controversial project of India till now. The worst part about Digital India project is that it has become the Digital Panopticon of India that also without any parliamentary oversight and judicial review.

In fact, Digital India is being implemented in actual contempt of Supreme Court that has directed (PDF) that Aadhaar cannot be made compulsory for government services. Indian government has informed the Supreme Court that Aadhaar is not compulsory for government services but the truth is that Aadhaar has been made compulsory for almost all the digital and non digital services of Indian government.

So bad is the situation that Twitter is censoring dissenting tweets regarding Aadhaar as well. Aadhaar is a subject that is heavily censored in India and any sort of dissent is immediately censored by platforms like twitter.

However, Supreme Court itself is responsible for this situation as it failed to declare the e-surveillance project Aadhaar as unconstitutional.  Both Parliament of India and Indian Supreme Court have failed to fulfil their constitutional duties to protect the Fundamental Rights and Human Rights of Indian Citizens in this regard.

As a result unconstitutional and illegal biometrics collection is happening in India without any sort of control and reasonableness. Digital India has become the Digital Panopticon of India because our parliament and Judiciary has not done what the constitution fathers have mandated them to do.

Aadhaar Project Is A Heavily Censored Subject In India

Aadhaar Project Is A Heavily Censored Subject In IndiaThere are very few areas where Congress and BJP Governments can act alike. Aadhaar project is one such area where both Congress and BJP have acted and reacted similarly. Neither Congress nor BJP has paid any heed to civil liberties protection in cyberspace. Both Congress and BJP have made and used Aadhaar as an e-surveillance tool meant for social exploitation. Both Congress and BJP have been instrumental in getting tweets and other public contents regarding Aadhaar censored and removed from Twitter and other websites, including Google search and news results. This is the reason why a dedicated platform was launched by us to keep a tab upon various forms of censorship activities by technology companies and social media websites in India.

The most commonly censored fields in India include intelligence agencies related subjects, Aadhaar project, NCTC, news, etc. However, Aadhaar related topics have been consistently censored by almost all companies in India. The latest in this series is the censorship of Aadhaar related tweets at Twitter. We also suspect that tweets pertaining to Digital India are also censored by Twitter to give a positive look to the initiative while removing all the negative reviews and views about the same. We are investigating into this aspect as well.

Twitter is a micro blogging platform that must respect views from both sides. Merely because a view is critical is no ground to censor or demote the same. Twitter needs to maintain a “neutral” point of view instead of obliging the Indian Government.

Aadhaar has been portrayed as a panacea to all troubles in India but in reality it is an endemic e-surveillance tool in the hands of Indian Government that must be immediately declared unconstitutional by Supreme Court of India. Both Central Government and States are making Aadhaar compulsory by direct and indirect means. But before the Supreme Court, Central Government has maintained that Aadhaar is not mandatory that statement is apparently misleading and false.

If voices of dissent are suppressed in the manner Twitter and other companies are doing, then what is the purpose of running such websites and social media platforms? We are further analysing this situation and would come up with more detailed report, if required.

Aadhaar Project And UIDAI May Be Backed By A Legislation To Give It Legitimacy And Legal Sanctity

Aadhaar Project And UIDAI May Be Backed By A Legislation To Give It Legitimacy And Legal SanctityAadhaar project has been suffering from numerous legal and technical infirmities. This has made the Aadhaar project and UIDAI an illegal and unconstitutional project and authority respectively. In its present form Aadhaar project was a fit case for its scrapping by the Narendra Modi government.

However, the Modi government made a policy decision to continue with the Aadhaar project. The government has also shown its inclination to remove the legal infirmities by which the Aadhaar project and UIDAI are suffering. As per media reports the Modi government is planning to formulate a legislation to make aadhaar project and UIDAI legal.

At the same time, Privacy rights in India must also be protected by Modi government. Modi government must not forget that Privacy is our Human Right and not a government charity. Till now the Modi government has not shown any political will to formulate the privacy law of India.

On the other hand, the Modi government has been continuing with unconstitutional e-surveillance projects like Central Monitoring System and NETRA. There is also no indication that Privacy law of India would be formulated soon. In these circumstances, it would be a tough task for Indian government to formulate a legal and constitutionally sound law for Aadhaar project and UIDAI.

It would also be a futile exercise to make a law for Aadhaar project by simply arranging few provisions here and there. The proposed law must be strictly constitutional in nature to avoid legal challenges before the courts. The illegality of Aadhaar project has already been questioned before Indian courts. The Supreme Court of India has already held that Aadhaar 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.

Meanwhile, the Modi government may approach the Supreme Court and seek clarification regarding the stay on government’s move to use Aadhaar for availing benefits of welfare schemes and direct benefits transfer (DBT) schemes. Modi has already asked finance minister Arun Jaitley to try and resolve all legal issues surrounding Aadhaar. However, this is not an easy task and there is no sense in launching Aadhaar project before resolving all these issues.

The Modi government’s first budget has allocated a huge amount of public money for the Aadhaar project. However, not even a single rupee must be spent till Aadhaar project and UIDAI are made legal and constitutional. Much public money has already been wasted and the Modi government must not repeat the mistake committed by Congress government.

Right To Be Forgotten Enforced Against Google By Court Of Justice Of The European Union (ECJ)

Right To Be Forgotten Enforced Against Google By Court Of Justice Of The European Union (ECJ)Recently the Court of Justice of the European Union (ECJ) held that Google must ensure “Right To Be Forgotten” to its users. This is a significant and landmark judgment against Google that would have world wide ramifications.

Before we proceed further with the judgment, it would be pertinent to analyse the background documents in this regard. These documents are as follows:

(1) Directive 95-46-EC Of The European Parliament And Of The Council On The Protection Of Individuals With Regard To The Processing Of Personal Data And On The Free Movement Of Such Data (PDF) (Directive 95/46/EC)

(2) Regulation (EC) No 1882-2003 Of The European Parliament And Of The Council Of 29 September 2003 (PDF)

(3) Reference For A Preliminary Ruling From The Audiencia Nacional (Spain) Lodged On 9 March 2012 — Google Spain, S.L., Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (PDF)

(4) Judgment Of The Court (Grand Chamber) (PDF)

(5) Google Spain SL, Google Inc. v Agencia Española de Protección de Datos Judgment in Case C-13112 (PDF) (Press Release)

The ECJ held that Article 2(b) and (d) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as “processing of personal data” within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the “controller” in respect of that processing, within the meaning of Article 2(d).

Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.

Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.

However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) would analyse the legal implications of this decision in our subsequent post(s) at either this blog or other blogs of Perry4Law/PTLB.

DOJ Announces New Reporting Methods For National Security Orders

DOJ Announces New Reporting Methods For National Security OrdersCivil liberties protection in cyberspace is attracting the attention of civil liberty advocates around the world. There is a growing disharmony between national security and civil liberties protection around the world. The national security agency of United States (U.S.) has been targeting foreign nationals and organisation for e-surveillance and eavesdropping. Even malware and radio waves have been used by NSA for engaging in e-surveillance. If this was not enough, Google system managing lawful interception and e-surveillance issues was compromised by crackers.

Meanwhile, the telecom and technology companies in U.S. have been forced with gag orders to not to disclose information pertaining to national security related information requests. Federal Bureau of Investigation (FBI) has been issuing the national security letters (NSLs) for long by showing national security requirements. FBI is maintaining that not only the contents of these NSLs but also the mere fact of its receipt must be kept secret by the recipient of such NSLs.

However, Google’s challenge to FBI national security letters was narrowed down by a U.S. Court. Nevertheless, Google and Microsoft sued U.S. government regarding user data requests under FISA law. Now the U.S. government has realised that this litigation can produce adverse effects for its surveillance activities.

The U.S. government and various technology companies have now decided to take a mid path. A Notice of Declassification by U.S. Government (PDF) has been issued in this regard accompanied with the Deputy Attorney General Letter Regarding New Reporting Methods for National Security Orders (PDF). A Joint Statement by Attorney General Eric Holder and Director of National Intelligence James Clapper on New Reporting Methods for National Security Orders (PDF) has also been issued. The technology companies also filed a Stipulation of Voluntary Dismissal of Action (PDF) in the Court. Thus, for the time being, the litigation has been put on hold without prejudice to the right of these technology companies to raise the issue in future.

Attorney General Eric Holder and Director of National Intelligence James Clapper released the following joint statement Monday:

“As indicated in the Justice Department’s filing with the Foreign Intelligence Surveillance Court, the administration is acting to allow more detailed disclosures about the number of national security orders and requests issued to communications providers, and the number of customer accounts targeted under those orders and requests including the underlying legal authorities. Through these new reporting methods, communications providers will be permitted to disclose more information than ever before to their customers.

“This action was directed by the President earlier this month in his speech on intelligence reforms. While this aggregate data was properly classified until today, the office of the Director of National Intelligence, in consultation with other departments and agencies, has determined that the public interest in disclosing this information now outweighs the national security concerns that required its classification.

“Permitting disclosure of this aggregate data resolves an important area of concern to communications providers and the public.  In the weeks ahead, additional steps must be taken in order to fully implement the reforms directed by the President.

“The declassification reflects the Executive Branch’s continuing commitment to making information about the Government’s intelligence activities publicly available where appropriate and is consistent with ensuring the protection of the national security of the United States.”

Internet Spy System Network And Traffic Analysis System (NETRA) Of India Proposed

Internet Spy System Network And Traffic Analysis System (NETRA) Of India ProposedCivil liberty protection in cyberspace is a crucial area that international community and Internet stakeholders must urgently raise before the United Nations. E-surveillance, civil liberties protection in cyberspace and conflict of laws are some of the crucial issues that United Nations must consider on a priority basis Recently, United Nations passed a resolution approving right to privacy in the digital age.

However, India is in no mood of complying with that resolution. India has launched illegal and unconstitutional projects like Aadhar, central monitoring system (CMS), national intelligence grid (Natgrid), crime and criminal tracking networks and systems (CCTNS), etc without any parliamentary oversight and legal frameworks.

In this entire chaos, Indian government is engaging in e-surveillance in India and surveillance of Internet traffic in India. India must reconcile civil liberties and national security requirements that it is otherwise neglecting for long. Instead of achieving this objective, Indian government has declared that an internet surveillance system known as Network and Traffic Analysis System (NETRA) will soon be launched by the Ministry of Defence to detect words like ‘bomb’, ‘blast, ‘attack’ or ‘kill’ within seconds from emails, instant messages, status updates and tweets reports Indian Nerve. The system will also be capable of gauging suspicious voice traffic on Skype and Google Talk.

The spy system has been developed by the Center for Artificial Intelligence & Robotics (CAIR) laboratory under the Defence Research & Development Organisation (DRDO). It is currently being tested by Intelligence Bureau and Cabinet Secretariat and will be deployed to all national security agencies. In fact the Ministry of Home Affairs will soon ask DRDO to deploy more men at CAIR (working with the Centre for Development of Telematics (C-DoT)) to come up with a solution on how to track the internet so that the system can be brought into play as soon as possible.

“Intelligence Bureau and Cabinet Secretariat are currently testing ‘Netra’, which will be deployed by all national security agencies,” says a telecom department note. In a recently held meeting attended by top officials of Cabinet Secretariat, Home Ministry, DRDO, CAIR, Intelligence Bureau, C-DoT and CERT-In the strategy for deployment of Netra was discussed. Also steps to be taken to counter cyber security incidents, vulnerabilities of a system were discussed along with ways to promote safe IT security practices in the country.

A Maximum of three security agencies, including Intelligence Bureau and Cabinet Secretariat, would be allotted storage of 300GB to accommodate intercepted data while an extra space of 100GB will be assigned to other agencies of law enforcement. The establishment of a national scanning and coordination centre is also in the offing it is learnt.