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More on Section 65B..from Madhya Pradesh..election petition

Posted by Vijayashankar Na on November 17, 2017
Posted in Cyber Law  | Tagged With: , , , | 4 Comments

In the High Court of Madhya Pradesh at Jabalpur, in an order dated 17th January 2017, regarding E.P. no 01/2014, an important confirmation of a process has been added to the Cyber Jurisprudence of Section 65B of Indian Evidence Act.

In this case, there was a video shot by sub contractors of Election commission during an election campaign which was handed over to the election commission. After the election, one of the parties has raised an election petition in which he has produced a copy of the CD obtained from the Election Commission as a “Certified Copy” and produced it in the Court. Initially, it was not having Section 65B certificate and the petitioner again approached the Election Commission, obtained another set and presented it to the Court.

However, the Court observed that the original document in this case was contained in the memory card (Ed: or the tape) of the Camera and this was first transferred to a CD when it was handed over to the Election commission and then this was again transferred by the Election Commission onto another CD and handed over to the petitioner.

The Court held that at each transfer point there has to be what it called a “Contemporaneous Certificate under Section 65B”. In this case the video grapher should have given the first certificate to EC and EC should have given the second certificate to the petitioner. Since this was not properly done, the Court refused to entertain the evidence.

The contention of the Court is on the right lines even though it may surprise many. The undersigned has been advocating it to some where necessary.

It is good that Courts have been deliberating on the issue of Section 65B certification in great detail and this will be discussed again and again in the days to come.

Naavi

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Making a mockery of Background checks

Posted by Vijayashankar Na on November 16, 2017
Posted in Cyber Law  | No Comments yet, please leave one

Recently there is news about many relatives of known international terrorists as well as those who are openly advocating secession from India for Kashmir as well as other terror sympathizers being provided with plush Government jobs (besides security at Government cost).

While we leave the political debate of the issue to Arnab Goswami, Rahul Kanwal or Zakka Jacob and others, there is one aspect of this accommodation which I feel creates a problem for private sector in rest of India.

We emphasize as part of “Due Diligence” in any Company under Section 79 of ITA 2000 as well as other laws, that a Company must conduct a proper background check on people whom they recruit as employees. We believe that failure of a proper back ground check could result in “Vicarious liabilities” on the organizations.

In such background check it is not only checking of educational qualifications and previous employment details which are checked but also any information available on the “Character” of a person and his likely involvement directly or indirectly in any offences. Now if some body is a son a known terrorist or even a petty criminal, it is often considered as a disqualification for employment. In such a scenario, it is unthinkable for some body to be employed in any part of India if he says that he is the son of Yasin Mallick or Dawood Ibrahim or Hafeez Sayeed.

Now when we learn that the J&K Government does not consider such relationship as a disqualification, a precedent is being created that even in other parts of India, some of these tainted persons may claim a constitutional right to employment under the Indian constitution and seek Government jobs. State Governments like Kerala and West Bengal may even provide reservations and privileges to the kith and kin of the freedom fighters of Kashmir.

If therefore we donot oppose the recruitment of such persons in Government employment in J&K Government, we will create a very undesirable precedent for the entire country of which J&K is an integral part. Continuation of these practices would result in making the present back ground checks and any adverse action based on past involvement in fraud or other crimes completely untenable. This will make a mockery of our current back ground check policies.

I therefore urge the Government of India to take a strict view of the recruitment of alleged sympathizers of the secession of Kashmir by the Mehbooba Mufti Government and also send out a general circular across the country that

“Any person suspected to have been involved in any anti social activities including terrorism or sedition shall not be recruited in any Government or Private sector jobs without a specific clearance by the Central Government Home Ministry”.

Any violation of the above rule should be treated as an “Abatement” to the associated anti social act. The Home ministry should create a proper administrative set up to approve requests in eligible cases where there is a “Rehabilitation program” under a proper Government initiative and a proper monitoring of such individuals.  Rules should also be laid down on what kind of employments can be provided to such persons and whether any specific types of jobs such as “Police or Security or Judiciary” should be barred for such persons.

Even when we await Government action in this regard, a clause as indicated above should be part of the HR policy of every private organization with the proviso that the clearance would be required by a high level body at the Director’s level in the Company.

Looking forward to the response from the Government.

Naavi

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Indigo Airlines has landed itself is a mess after the atrocious way it handled the the incident in which a passenger was manhandled, assaulted and literally smothered on the tarmac of the Airport. This was certainly an offence under IPC as grave as “an attempt to commit murder”.

There is no way this incident can be interpreted differently and any attempt to suppress the incident either by the Police in the Airport or by others would amount to further offence of “Attempt to conceal evidence” and “Dereliction of Duty by Police” and “abetment to a criminal”.

If DGCA or Mr Jayant Sinha does not pursue the criminal case, it would be considered as “Shielding” the guilty.

Mr Aditya Gosh as the head of the organization in which the employees committed the offence during the course of their official duty, in the premises within their control is responsible for the actions of the erring employees.

The fact that Indigo has tried to shield the erring employees even while punishing the person who revealed the gory story is an indication that the company is guilty of supporting the criminals and punishing the duty conscious employee who had a duty to bring to the public knowledge commission of a cognisable offence to which he was a witness.

In his statement to the media, (Refer: Article here) Mr Montu Kalra, the whistle blower has stated that different senior officers of Indigo called him and asked that the video should be deleted. When he refused, he was harassed and finally sacked.

It is to be noted that “Deletion of Evidence” would be an offence under both IPC and as also Section 65 of ITA 2000/8 which could lead to an imprisonment of upto 3 years. It is a cognizable but bailable offence under iTA 2000/8.

In the instant case, there is an “Attempt” to cause commission of the offence   by Mr Montu Kalra which could have landed him in jail. It is good that he refused to commit the offence which finally resulted in him being punished.

The relevant Employee’s Association, the Labour Commissioner of Delhi and Human Rights Activists should all take up this case on behalf of Mr Montu Kalra and ensure that justice is done to him.

In the meantime, the vicarious liability for both “Attempt to murder” Mr Rajeev Katyal” and “Attempt to delete electronic evidence” as also “Criminal intimidation” to harass Mr Montu Kalra should all squarely be faced by the head of the organization namely Mr Aditya Ghosh.

I believe these are grave offences and are cognizable in nature and Mr Aditya Ghosh needs to be arrested and tired.

I urge the Government not to succumb to the pressures from vested interests and the pressure of corruption and ensure that “Law Takes Its own Course”.

Unfortunately, the responsibility to drive the investigation to its logical end seems to rest with the media since the Government may most likely turn a blind eye and DGCA would try its best to ensure that the controversy is buried.

In a service industry, the kind of treatment meted out to the passenger even if it is under some kind of verbal abuse hurled at the offender causing provocation, is unacceptable. A mere apology is not sufficient. There has to be a heavy fine of a few crores on Indigo, grounding of the Airline for atleast 24 hours, payment of a large compensation to Mr Katyal, imprisonment of the three employees who were involved in the assault for charges of “Attempt to Murder” are a must. In the process, there is a need to also pursue the case against Mr Aditya Ghosh as the CEO and Indigo as a company for vicarious liability of the criminal offence.

I wish some public spirited lawyers in Delhi take up this case and teach Indigo a lesson that they will never forget.

I also urge the consumers to take steps of their own to make Indigo feel the pinch by boycotting travel in the airline at least for one month. Consumers should teach arrogant CEOs how not to behave with them.

Naavi

 

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A good news is flowing through the media about Bitcoins. It is that according to news reports,  “A Government Committee has recommended that all Crypto Currency Exchanges” in India are set to be closed.

Business Today says ” Crypto Currency dealers may face closure in India even as Bitcoin reaches new high of $7000″

Cointelegraph.com says “ Ban All Crypto Dealers, India committee reportedly tells Government”.

Economic Times says : War on bitcoin?.. Govt Panel seeks crackdown on cryptocurrency dealers in India

Moneycontrol.com says: Govt panel recommends shutting down cryptocurrency dealers in India

It is clear that multiple news media have received the information though there has been no official announcement as such.

We are happy with the development but we donot want to count the chickens before the eggs hatch. There is still a need for an official announcement since there is  continued lobbying by the vested interests in getting Crypto Currencies going in some form.

What the press report indicates is just the first step where it might be stated that under the SEBI Act, the dealing in the commodity called “Crypto Currency” has not been licensed as a “Commodity” and hence all forms of dealing is per-se illegal.

There was no other way this could have been treated.

What this notification achieves is that local trading against cash payment and even bank transfers will stop.

Some “Experts” seem to be stating that

“banning cryptocurrency dealers or exchanges would not work”

“Instead of closing cryptocurrency dealers, the government should take steps to curb buying and selling of bitcoins or cryptocurrencies in cash. This move can reduce illegalities in the country”

“…in case of closure of domestic cryptocurrency exchanges, buyers will start buying them from foreign exchanges”

….so says Hesham Rehman, CEO & Co-founder, Bitxoxo, a bitcoin exchange operating in India.

I am sorry Mr Hesham Rehman, nothing short of complete banning of Bitcoins and all Private Currencies would satisfy the needs of our country.

We have taken a vow to eliminate black money from India and Mr Modi has taken a great risk to his career by demonetizing currency last November 8. Bitcoin or any other form of Crypto currency is just another form of Black Money. They have to go.

Preventing conversion from cash will only address a small part of the issue. We donot want accountable Bank funds to be converted into unaccounted Bitcoin or Crypto currency form. This will only help criminals and terrorists to run a parallel economy and weaken our economic fabric.

I donot accept the contention that banning Crypto currency is difficult or will be ineffective since people may switch to foreign exchanges. Let them do. Dealing with any foreign exchange will directly attract FEMA and violations can attract higher penalty. Also, a number of Indians are wary of dealing with foreign exchanges and there will be a significant drop of Bitcoin patronage because the direction of the policy will be set with the current move.

We know that criminals will not abide by law and continue to deal in corruption or dealing in drugs or engaged in terrorism or Naxalism even though they are declared illegal. Similarly Bitcoin will continue to be used by some even after the ban. Let them face the law.

I therefore see no reason to show any mercy on Bitcoin or Crypto Currencies (other than a sovereign Government sponsored systems if any) and it must be banned fully.

I therefore urge the Government to go the full distance and announce the “Demonetization of Bitcoin and all other Private Crypto Currencies” with immediate effect.

Other measures that may be required are:

  1. Two days time may be given for any current holders to declare their Crypto Currency holdings and convert them to INR.
  2. Non declaration should result in impounding of the balance and possible punishment under the money laundering legislation.
  3. Conversion should be subject to taxes as may apply to buying and selling of commodities.
  4. Holding of Crypto currencies beyond this cooling period of 2 days should attract more penalty.

Let us continue our war on Bitcoins until the roots are plucked out…. (As per Chanakya’s theory)

Naavi

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Bajaj Alliance Insurance has announced the launch of a Cyber Insurance Policy for individuals which could be the first such cover in India.

We have been advocating such a policy for a long time and welcome this development.

As per the report in Economic Times

the policy provides for coverage from Rs 1 lakh to Rs 1 crore against the risks of”financial Loss”, “Defence cost”, “Prosecution Cost”, “IT Theft loss” Restoration cost”, “loss due to identitity theft arising out of phishing, , malware attack” etc.

Other then financial loss due to cyber, the policy is said to also provide coverage for expenses incurred on counselling services treatment, claim for damages against third party for privacy breach and data breach and transportation for attending Court summons.

This is an excellent development.

We need to still assess the policy terms in detail and the premium but the introduction of the policy is welcome.

Naavi

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I recently got an invitation to the  “Pledge Portal” of the Central Vigilance Commission (CVC)  to take an integrity pledge on the following lines.

Since there was nothing in the pledge which I did not believe in and has been trying to follow for all my life, I took the pledge and was provided the certificate as shown above.

When I shared this in my professional circles, there were as expected an encouraging response from many. Some went ahead and obtained their own certificate. There were many who remained silent.

 “Do we require a pledge” to be honest?

There were a few of my friends who felt whether it is required to take a pledge to be honest?. Are we all supposed to be honest anyway?

This is certainly a valid question which we need to debate. In the Theory of  Information Security Motivation that I have been propounding, I have always accorded importance to “Obtaining an Ethical Declaration” from employees after a Cyber Security Awareness Program so as to “Reinforce the Commitment”.

We all know that many would give a written commitment with no intention of following it or with an intention which they may not be able to sustain when under some kind of pressure.

However, psychologically, it would still be beneficial to obtain the declaration and keep reminding  people of what they have committed so that they are able to re-dedicate themselves to the cause.

Similarly, the attempt of CVC to request the public to take the pledge is to be appreciated and we should encourage more people to adopt this pledge.

In the pledge it is always easier to say that “I will not take bribe”. But when it comes to “I will not pay bribe”, people get into difficulty since in many cases “Bribes” are paid out of compulsion and not out of free volition. Also many times bribes are not paid to enable unethical extra favours from the bribe receiver but only to do what the person is paid salary to do and not create a problem to the citizen where there is none. This situation has not changed even after the 7th Pay commission and increase in salaries to the Government officials. Even the demonetization has not helped since now the bribe receivers may try to recoup their past losses if any.

Such “Bribes” are “Payment under threat and coercion” and most citizens feel uncomfortable when they are confronted with such a demand but succumb to the pressures.

What CVC can do to help compliance of the Integrity Pledge

If the CVC initiative has to succeed, then there has to be some mechanism to ensure that an honest Citizen should be able to register a voluntary declaration of a “Demand for Bribe” and “Bribe paid under duress”. This will also create an evidence which will not be available for Bribe demanded unless the Bribe is actually paid.

We need to also however consider a situation where the accusation of  “Demand For Bribe”, could be false and is meant to harass an honest official. Hence the mechanism should take in to account the principles of “Ombudsman”  suggested for “Whistle Blowing Policy” in a company to ensure that an honest person is not hounded by a false complaint.

Also, law need to ensure that some body who has declared a “Bribe Demand” and followed it up with a “Bribe Paid under Duress” information should be considered as not having committed any offence under law and must be protected under the “Whistle Blower Protection” just like Press are protected under Sting operations under the discretion of the Courts.

People like us who try to help Cyber Crime victims many times need to encounter situations where such “Bribe under Duress” is acknowledged by the victims. I however add that there are many honest officials who work without expecting any bribes and the system runs only on such honest persons whose tribe should increase.

One of the reasons that I am suggesting an online system for “Registration of a Cyber Crime Complaint with automated raise of IP resolution request to intermediaries” is to ensure that temptations for the officials to use such occasions to expect a bribe is eliminated. I am sure that this is the reason that most States have abandoned the online FIR filing system and are resisting any such suggestions.

It is now for the Central Government and CVC to consider how they would assist honest Citizens to resist the pressures from those who “Demand Bribes”.

I notice that the CVC initiative is meant only for Citizens and Organizations. I donot see any initiative for Government Employees, Police and particularly the officials of the Ministries in Center and States. For these people the pledge should be mandatory and every official should display the certificate prominently in front of their working desk so that dishonest citizens would not try to corrupt a person who wants to otherwise remain honest.

CVC should also conduct a movement in Schools and request children to encourage their parents to take the pledge and sport a badge “My Parent has taken the Integrity Pledge”.

Will CVC move in this direction?

In particular, I want CVC to demand all members of the “Committee on Bitcoins” to take the integrity pledge and disclose it to the public.

The Home Ministry should also make all Police Stations to display the integrity pledge of the Police officials in the Police Station. Incentives may be given to police stations where all the employees have taken the pledge so that we can declare that the “Entire Police Station is Pledged not to take bribe”.

Next Election Should be fought on this Campaign to remove Bribes

Mr Modi should propose that all MLAs and MPs of BJP as well as the primary members of BJP to take the pledge and display it prominently in their place of work. BJP should distribute T Shirts to its workers so that the next election campaign should run on this campaign to remove Bribes from the system.

I look forward to seeing this initiative in Gujarat, HP and in Karnataka in the coming elections.

May be those who oppose all Government initiatives for the sake of opposition may not like to be part of such an exercise and I would not compel them.

I also take this opportunity to all my friends to take the pledge and sport it as part of their WhatsApp Profile pictures so that this would attract the attention of others and motivate them to do the same.

Naavi

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