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Mushroom Growth of Cyber Crimes and its Control

According to recent Home Ministry data, 39 government websites were hacked in the month of January and February, 2017 alone. According to Ministry of Information and Technology, the number of government websites hacked has been on a steady rise from 155(in 2014) to 199(last year). The National Crime Records Bureau’s (NCRB) report for 2015 which was submitted in 2016, says that 11,592 cases of cyber crime were registered in India, out of which Uttar Pradesh leads in the highest number of recorded cyber crimes. The majority of the cases so registered were mainly related to financial gains.
It has also been noticed that demonetisation had spiked the number of cyber crimes as well as that the period post demonetisations has reflected , how ineffective India’s Cyber defence indeed is, as mobile and electronic wallets are extremely vulnerable to hacking.
The opinions of Legal experts are that essentially the Information Technology Act is lacks the element of legal deterrence with regards to these cyber crimes which are on the rise. With an exception of Cyber Terrorism and Child Pornography, none of the other cyber crimes are Non Bailable.
The Home Ministry has proposed to institute the Indian Cyber Crimes Coordination Centre ( I4C). The Government intends to initiate an online platform to report such cyber crimes and cyber crime forensic laboratories and training sites so as to strengthen the enforcement of such cyber laws .The Home Ministry in an attempt to address the rise in cyber crimes with regards to online debit/credit cards in the state of Karnataka has authorised the institution of 41 new police Stations and 6 additional police stations at each of the commissionerates to specifically deal with cyber crimes.
To control this mushroom growth of cyber crimes, it is extremely essential to strengthen the legal framework and effectuate such policies as according to the nation’s requirements.
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SC: Anti Torture Legislation is the Need of the Hour

According to a latest PIL filed by the former Law Minister, Ashwani Kumar, the petitioner wants the government to be directed to draft a framework on the lines of the International Convention against Torture. The International Convention on Torture, of which India is a signatory since 1997, hasn’t been ratified in India.
The petitioner in his PIL has also demanded proper guidelines to prohibit torture, cruelty, inhuman or degrading treatment of jail inmates. Citing the fact that India is one of the nine countries who hasn’t ratified the said convention out of the 161 signatories, Mr. Kumar has expressed the need on a rehabilitation scheme, relief and compensation scheme for victims of custodial torture and violence. The Supreme Court in September, 2016 has issued a notice to the centre with regards to the same PIL.
According to a data published by the Home Ministry in 2015 the number of unnatural prisoner deaths have increased from 126 (2012) to 195(2014). Similarly, a data was also presented on the increase in proportion of percentage of death of children in police custody to total number of deaths in police custody.
Stating that the Law Commission must take up this matter with extreme urgency, a bench of Chief Justice of India JS Khehar and Justice DY Chandrachud has given a period of 10 day to the government to prepare its response. The Supreme Court bench has stated that the existence of such standalone law is in the national interest, as India faces roadblocks in extradition of criminals from foreign nations.

WhatApp in a Soup of its own Data

The Supreme Court rejected  the government’s contention to hold back the hearing of  the Privacy issue regarding WhatsApp till Diwali , as that is when the new regulations from the Telecom Regulatory Authority of India (TRAI) .

A five judge bench of the Supreme Court of India led by Justice Dipak Misra is entrusted to examine if the Facebook has violated the privacy rights of almost 160 million users of WhatsApp  who have an access to all the messages and contents shared via the platform.

The Constitutional bench has asked Facebook, WhatApp, the Centre and the Telecomm Regulatory Authority of India to respond to the petition by two young Indian students.  Harish Salve arguing for the petitioners has invoked the citizen’s fundamental right to speech and expression and right to privacy under Article 19 and 21 respectively. He contended that WhatsApp has become a  Public Utility Service, by providing free messaging, call and video call services.

The of Chief Justice J S Khehar and Justice D Y Chandrachud bench had difficulties initially to entertain petition stating that could a free service provider be required to be liable for privacy rights being violated.

Since its inception in India in 2010, WhatsApp’s privacy policy promises to protect the data and content , which has continued even after being acquired by Facebook in 2014.

The government represented by attorney general Mukul Rohatgi while contending to hold back the hearing said that TRAI is attempting to make such guidelines so as to ensure security and confidentiality to such data which are retained by the servers.

The Bench is to hear preliminary written submissions from all the parties by 24th April and the next date of hearing has been set for the 27th April, 2017.

Pro Bono work may earn extra brownie points for Judicial Aspirants.

The Union Law Minister, Ravi Shankar Prasad indicated that Pro Bono legal service may be a part of the Memorandum of Procedure, which are guidelines for High Court Judge selection Procedure, which is presently being revised by the centre.

On the 20th of April, Mr. Prasad, initiated a few measures, which includes Pro bono legal Services, Tele Law service and Nyay Mitra (Justice Facilitator). These measures aim at  “ digitally ” including the  underprivileged in the justice delivery system.

The Department of Justice has launched an online portal on its website doj.gov.in .The lawyers may register themselves to volunteer services for this mainstream legal aid program. The ‘Tele Law’ program aims to include the expert panel of Lawyers at the State Legal Service Authority (SLSA) and the marginalized communities through the Common Service Centre (CSCs).

‘Nyay Mitra’ strives to solve the issue of pending cases by designating a retired judicial officer/executive as a justice facilitator. The justice facilitator among other assistance is to recognize such delayed cases through the National Judicial Data Grid, he is also to refer such cases to the Lok Adalats for dispute resolutions.

Sp Bala Subrahmanyam and IIayaraja | Bonum lex

Copyright Feud between SP Balasubrahmanyam and Ilayaraja

In recent news SP Balasubrahmanyam, famous playback singer and vocal artist received a legal notice from Ilayaraja, a  composer who has almost composed for over 6000 films, most of them sung by SP Balasubrahmanyam, prohibiting him from performing any song composed by him without prior permission.

S.P.B, as lovingly called by his fan, through a Facebook post, expressed this news to his fans along with his opinion on it. S. P. B who is presently on an International Tour since August visiting  Toronto, Russia, Sri Lanka, Malaysia, Singapore and Dubai, said that Shri. Ilayaraja had never expressed any such ideas during the previous shows, and that he was ignorant of the Law. He has affirmed that his troupe shall not be performing any such songs while on the International Tour.

According to the Indian Copyright Laws, SP Balasubrahmanyam has equal performer’s rights on each of such songs performed by the duo. Balasubrahmanyam as the singer of all these songs has the performer’s rights to perform them. However, Ilayaraja here is entitled to the royalty for performing the song from the venue owner. In the present scenario the venue owner is performing such copyrighted song for commercial purposes; Ilayaraja has a share in this royalty.

The fans of both these musical geniuses might have to wait till this feud is over to enjoy some of their best works in concert performances.

News | Bonum lex Llp

An Uneventful Ides of March in the Tata- DoCoMo Row.

The Delhi High Court by reserving its order in the NTT DoCoMo plea of enforcement of its $1.18 billion arbitration award against Tata sons, made the Ides of March this year extremely uneventful.
The London Court of International Arbitration (LCIA) on 24th June last year passed an award in favor of NTT DoCoMo, whereby Tata Sons were to pay $1.18 billion as damages for breach of contract in their joint venture with Tata Teleservices. In 2009, Japanese entity NTT DoCoMo acquired a 20 % stake in Tata Teleservices Ltd. As according to the agreement between the two, in a scenario that DoCoMo exercise the sale option to exit this Tata Teleservices investment, Tata Communications Ltd and Tata Power Company Ltd. would acquire the shares of NTT in the same proportions as were held by NTT. Tata Sons agreed to buy NTT’s stakes in the failed Joint Venture, in the month of June 2014, and sought permission from the RBI for the same. However, RBI entered the dispute as Third Party in October 2016, on the grounds that such buy out of NTT violates the foreign direct investment rules.
On 14th March 2017 the Delhi High Court rejected the RBI’s plea to re examine the matter afresh. The Court directed the RBI, to state their locus standi in objecting the enforcement of an arbitral award where both the parties are have mutually accepted the same. The RBI has stated that such a buy back would be a violation of the public policy.
However, on 15th the High Court reserved its order on the matter and has brought it to a standstill temporarily.

uber dispute | Bonum lex

Price Discrimination must Uber ‘GO’

The Supreme Court of India had summoned Meru on Uber Plea. Uber has approached the Supreme Court of India challenging the order of the Competition Appellate Tribunal in a suit filed against the CAT by Meru.

Earlier the Competition Appellate Tribunal (CAT) overruled the CCI’s decision and ordered an investigation by the Director General (DG) into the charges of predatory pricing by the taxi aggregator (aggregator is an electronic commerce business model where an entity, that does not produce any item collects information on goods and services from several competing sources at its website).

The Competition Commission of India (CCI) has witnessed many issues relating to competition pertaining to aggregator based radio taxi business across different states in India. Most of the issues pertain to various anti-competitive practices in relation to predatory pricing, unfair policies etc. The CCI refused to interfere with the matter, saying that there was no prima facie case made out against Uber. The issue which came up for the Competition Appellate Tribunal’s consideration was about the scope of market as CCI had ruled that the relevant market was Delhi alone and not Delhi-NCR.

The matter “Meru Travels Solutions Private Limited, Competition Commission of India & Ors came into the limelight, when Uber was indulging in anti- competitive trade practices by giving discounts to its user, leading to lower fare for customers. Meru stated that before the commencement of Uber’s operations, the prevailing market price for radio taxis in Delhi NCR was approximately INR 23 per km ($0.33). Subsequently, Uber launched its services from INR 20 per km ($0.29) and progressively reduced it further to INR 7/12 per km ($0.10/$0.17) depending upon the services availed by customers such as carpool. The former radio taxi drivers prior to the Uber launch would get benefit of substantial discounted price during the scheduled ride. Whereas the latter drivers would get paid by the passengers and, in addition, get a bonus from Uber upon attaining certain targets. Such practices led to an increase in the market share of Uber to almost 50% per trip basis, thereby declining Meru’s market share from 18% in December 2013 to 11% in September 2015. It was further alleged by Meru that incentives offered to Uber drivers, partners, customers and the losses incurred by it out of every trip was done to create a “network effect” thereby eliminating competition from the market.

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vodafone | Bonum lex

The Vodafone Tax Issue

 

The International Court of Justice, Hague has rejected a plea by the Indian government to replace the presiding arbitrator in the 22,000 Cr Vodafone Tax Arbitration.

The Government of India had taken the plea that Sir Berman, the present presiding arbitrator in this case was ineligible on account of his nationality, as both Sir Berman and the Vodafone PLC are British.

The Telecomm giants had approached the ICJ after being unable to zero down a choice of presiding arbitrator acceptable by both the parties. Vodafone in April 2013 had invoked the India-Netherlands bilateral investment treaty, seeking to resolve the tax demand made by the Indian government through a retrospective amendment to bypass the Supreme Court judgment that was in favor of Vodafone.

The Supreme Court today ruled in favor of Vodafone saying capital gains tax is not applicable to the telecom major. The apex court also said the Rs 2, 500 Cr which Vodafone has already paid should be returned to Vodafone with interest.

The Supreme Court was convinced by the view that the business connection rule did not apply to capital transactions. According to the business connection rule, if a non-resident earns and receives income abroad thanks to a business connection in India, he would have to pay tax in India pro tanto i.e. to the extent of business connection in India. This applies squarely to the Vodafone case because the Cayman Island Company is a single charter company, to control the Indian operations of the telecom business in India of Hutchison. The Supreme Court however said the rule applied to revenue transactions and not to capital transactions

In May 2007, Vodafone bought Hutchison Telecommunications International Ltd’s 66.98% stake in Indian telecom company Hutch Essar Ltd for $11.2 billion (around Rs.52,300 Cr). Hutchison controlled its Indian telecom subsidiary through a Cayman Island company called CGP. CGP’s shares were sold to Vodafone, which consequently became majority owner of the Indian telecom firm.

The government in June 2014 had appointed former chief justice of India R C Lahoti as arbitrator while Vodafone named Canadian trial lawyer Yves Fortier as its choice. The two had zeroed in on Abdulqawi Ahmed Yusuf of ICJ as the presiding arbitrator. However, Lahoti recused himself from the case in May 2015 and a month later, Yusuf too declined to be part of the panel. Thereafter, India last year named Costa Rica- based lawyer Rodrigo Oreamuno to arbitrate on its behalf. But Oreamuno and Fortier have not been able to decide on a presiding arbitrator, prompting Vodafone to move ICJ.

The-SSA-Boost-to-Indo-Japan | Bonum lex

The SSA Boost to Indo- Japan Relationship

Relationship The Social Security Agreement between India and Japan which was signed in Tokyo on November 16, 2012 is now operational since 1st October, 2016.

The exchange of Note Verbales in accordance with the Article 28 of the Agreement was made on 20th July, this year. The Article 28 requires notifying the completion of the respective constitutional and legal procedures required for the entry into force the agreement.

Bilateral Social Security Agreements, according to the Ministry of External Affairs, protects the interest of Indian skilled workers working abroad by providing a number of benefits. For instances, after implementations of such bilateral SSAs between India and another country, it exempts an Indian worker, who is on a short term contract abroad, from social security contribution in that foreign country. Although,  such an exemption is provided only if the Indian is covered under the social security contribution and continues to pay his contribution during this period of oversea contract.

It also enables such Indian workers to remit his accumulated social security contribution made in a foreign country, in a case of relocation to a third country.

It also allows aggregation of residency periods made in India and the foreign nations to qualify for retirement benefits. Similarly Japanese employees posted in India shall receive the same benefits.

Fashion-labels-accused-of-Labor-exploitation | Bonum lex

Fashion labels accused of Labor exploitation

 

In July this year the Madras High Court ordered a 30% pay hike in the salary of garment factory workers in Tamil Nadu. These factories supply to many big names in the Fashion Industry, like Gap, Tommy Hilfiger, H&M (which maintains upwards of 20 suppliers in Tamil Nadu), Zara and Wal-Mart, etc. The Fashion Labels have vehemently opposed the idea and have preferred an appeal

The workers are now protesting to enforce the first minimum wage increase in 12years in the state. As according to the Minimum Wages Act 1948, the state must increase the minimum wages every 5 years, to protect the workers against labor exploitation.

The Garment and Fashion Workers Union in a statement has also supported the worker’s protest to the stagnant wages. If the court rulings is to be followed, then the workers would see a considerable hike in their pay from Rs 4500/- to Rs 6500/-. This hike would bring workers in Tamil Nadu at par with other garment and textile workers in other states.

The state however is not very psyched make these increments, and is of the opinion that, if such changes are indeed made, manufactures would move to such states which have manufacture friendly labor policies. Similarly the manufactures have synced up in the same tune as that of the state, saying that the hike proposed is far too high and such changes would put them in a disadvantageous position in comparison to their competitions that have their units in other states.

asylum | Bonum Lex

The Asylum Debate

 

Baloch leader Brahamdagh Bugti’s application for seeking Political asylum in India has been forwarded to the security agency for thorough vetting before the final decision is made by the Central Government.

The grandson of Baloch leader Nawab Akbar Bugti fled to Afghanistan in the year 2006, he has been living in Switzerland since 2010, while his application for political asylum has been pending before the Swiss government for quite some time now has been finally rejected due to his confirmed involvement in acts of terrorism. He has been known to have instigated terrorist activities in the province with information of his group almost killing 665 and injuring 1440 innocent people of Baluchistan. There have been 214 FIRs filed against his group and 42 FIRs against him alone. This puts a heavy responsibility on the security agency to scrutinize Bugti’s application thoroughly, and also to weight consequences against the information relied on by the Swiss government to reject his application.

With India having no domestic asylum law nor being a signatory to the UN Refugee Convention 1951, a debate has presented itself after this application by Bugti. Except for its Constitutional principles and Customary International Law, there are no laws or obligations that guide the present situation. Without as much as the definition of “refugee” been enumerated the Indian authorities have usually consulted The Passport (Entry of India) Act, 1920, The Passport Act, 1967, The Registration of Foreigners Act, 1939, The Foreigners Act, 1946, and The Foreigners Order, 1948, for asylum seekers and refugee entry. India currently hosts 32,000 refugees fleeing war, violence and severe persecution in countries such as Afghanistan, Myanmar, Somalia, Iraq, etc. This is in addition to the 175,000 long-staying refugees from Tibet and Sri Lanka who have been given asylum over decades. The government in the absences of a formal asylum law has been granting asylum on a case by case basis. Bangladeshi Writer Taslima Nasreen has been living in India since 1994 when she was granted political asylum by India under a long term visa renewable every year.

In the year 2015 , Congress MP Shashi Tharoor had introduced a Private  Member’s Bill called the Asylum Bill 2015, to have an umbrella law for refugee policies of India and to define the legal rights of such refugees and asylum seekers. The Bill hasn’t yet being taken up for discussion. This Bill in the present situation is a possibly an urgent requirement for India, so as to have a fixed procedural and substantial guideline for asylum and refugee management, for the protection of refugee rights as well to have a prepared system to tackle refugee crisis in the future.

The present case of Bugti, has given Indian authorities some food for thought, amidst political unrest in both countries along with diplomatic relations turning sour, this is perfect timing for India to move towards the making of a domestic asylum law .

 

 

whatsapp | Bonum Lex

WhatsApp’s Privacy Policy, not really in Public Interest

 

Public interest litigation has been filed by two Indian students in the High Court of Delhi. The PIL, contents that the recent changes in the privacy policy of WhatsApp threatens the right to privacy of millions of users. The two students through this suit are demanding Facebook. Inc, to roll back the recent policy changes that have been made. They are also seeking for a guideline for such messenger apps, to avoid such compromise of the user’s privacy.

According to the recent changes Facebook would be sharing WhatsApp’s data and allow targeted advertisements along with direct messages from businesses, including appointment reminders, delivery and shipping notifications and marketing pitches.

India isn’t the only place where these changes in privacy policy have been challenged, the European Union and the U.S. Federal Trade Commission is also examining whether users have been wronged, also a German consumer group is threatening to sue the company.

There is a lot on stake for Facebook .Inc considering the fact that India has close to 150 million users and has 70 million WhatsApp users. One of the largest outside of United states of America.

A two judge bench heard the matter and has issued notice to WhatApp and Facebook, the Indian Government and the Telecommunication regulators. WhatsApp has denied sharing any other information with Facebook except user names and numbers. The company also contended that the use of this app is voluntary.

adani Group | Bonum lex

Adani Carmichael faces the heat Down under.

 

The Australian Conservation Foundation has appealed the Federal Courts judgment endorsing the commonwealth’s approval for Adani’s Queensland mining.

The appeal was filed today challenging the Federal Courts judgment of last month.

The President of ACF, Geoff Cousins, is of the opinion that Environmental laws were in fact broken, when the then federal government minister, Greg Hunt approved of the mining proposal. Cousins said”If our environment laws are too weak to actually protect Australia’s unique species and places, they effectively give companies like Adani a license to kill.”

The Federal Court judgment of last month had found that Greg Hunt was entitled to find environmental impact on the Great Barrier Reef from the mines carbon emission “Speculative“.

The Queensland Resource Council had also expressly supported the Federal Court judgment. On the other hand AFC contends that Hunt had made and “error of law”. Hunt had reported that the specific effect on global warming cannot be accurately or concretely gathered.

Justice John Griffiths ruled in his judgment, that, “it is plain that the minister did give consideration to greenhouse gas emissions resulting from the combustion emissions and made an express finding that the proposed action would not have an unacceptable impact on the world heritage values of the reef”.

The ACF will be referring to recent surveys is contending that majority of the Australians demand stronger Environmental laws and many more demand to bring back legal challenge to the approval of the mining project, until then ACF awaits a hearing date.

 

Debt-Recovery | Bonum lex

India Tightens the noose around Loan Defaulters

The Enforcement of Security Interest and Recovery of Debt Laws and Miscellaneous Provisions (Amendment) Bill, 2016 AKA the “Debt Recovery Bill”  was passed by the Lok Sabha on  the 1st of August, 2016. Subsequently Rajya Sabha also passed it on the 9th of August, 2016.

With an overwhelming record of 7,686 willful loan defaulters, 69,659 pending cases, India was in dire need of reforms. The Initial set up of the Debt Recovery Tribunals, under the Banks and Financial Institutions Act 1993. The idea then, was to fast track the recovery of debts due in banks and other financial institution and reduce the docket of the civil courts.

The Debt Recovery Bill amends four laws:

  • Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), changes are made to allows creditor to confiscate the collateral on which the loan was taken on the default in repayment.
  • Recovery of Debts due to Banks and Financial Institutions Act, 1993 (RDDBFI), Indian Stamp Act, 1899 , Stamp duty would not be charged on transactions for transfer of financial assets, in favor of assets reconstruction.
  • Depositories Act, 1996

The new law, after the assent of the President, excludes agricultural loan and student’s loan from its ambit.

The systematic application of the above changes is pivotal, especially when loan defaulters like Vijay Mallya have made a mockery of the debt recovery system.

 

 

modi jio | bonum lex

Color coordinated PM appears in Reliance Jio Ad

On 2nd September, the social media critiqued the advertisement ran by the Times of India and Hindustan Times for Reliance Jio. The full page advertisement contained an image of The Prime Minister with “Jio:Digital Life” above it.

The Emblems And Names (Prevention Of Improper Use) Act, 1950, prohibits the use of any name or emblem specified in the schedule for trade, business, calling or profession, except when such previous permission from the Central Government has been authorized. Naturally the advertisement saw a severe criticism amongst the tweeple throughout the day. In M/S. Sable Waghire& Co. & Others vs Union Of India , the constitutional bench had remarked while deciding the case for improper use of national names and emblems said,” National or international significance gets attached to certain names or institutions over the years or ages and then they belong to the nation or to nations.”There remains the unanswered question of whether the Specific permission was indeed granted to the Reliance Group or not by the Central Government. Until then the Telecomm consumers wait for another buzz worthy move.

Reliance Jio became a nationwide trending news after its introduction on the 1st with the announcement, that Jio users shall have free voice calls and be only charged for data, the big telecomm companies are already planning price slashing.