Bhumesh Verma, Managing Partner, Corp Comm Legal

Somashish, 5th Year B.A. LL.B. (Hons.) student, School of Law, Christ (Deemed University), Bangalore

Introduction

Recently, the government’s overdrive on making Aadhaar mandatory in every walk of life for Indians and the litigation pertaining to Aadhaar Unique Identification has brought forth the issue of data protection and privacy into civic debate spehere. Between MP Sharma[1] and Rajagopal[2], the Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union of India[3] has decisively held in favour of the right to privacy recognised in the latter. Thus, right to privacy, the right to be free and protected from unwanted intrusion into one’s private life, is now a part of right to life and personal liberty under Article 21. It is worth noting that the judgment provides us profound conceptual insights into privacy while permitting necessary factual flexibility needed for deciding future disputes.

The judgement, inter alia, pertains to informational privacy. In other words, an individual’s interest in preventing and if necessary controlling access to and dissemination of private information is protected under Art. 21. Any encroachment upon this right can only be enforced by virtue of law which  serves a legitimate and compelling State interest and if the means adopted by the said law to achieve such interest are proportional in nature.

Simultaneously, the encroachment on privacy must not be disproportionate to the compelling State interest to be served by the law. Further, notwithstanding the presence of any such law, the State has a positive obligation to protect informational privacy from patently illegal intrusions.

It is noteworthy that hitherto the issue of data protection has been statutorily addressed in a manner which is friendly to the State and confusing for the individual. The legal framework under the Information Technology Act, 2000 (ITA) and rules thereunder has been continuously felt inadequate for protection of privacy and severely constrains the ability of individuals to hold violators liable for data theft and breaches.

In terms of government interception of digital/electronic communication, the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption) Rules, 2009 (Interception Rules) and sections 69 and 69B of the ITA now provide far greater surveillance powers to the Central Government and State Governments (the governments). Experts are unanimous about the fact that these powers are even greater than the powers granted by the Indian Telegraph Act, 1885.[4]

Arguably, the rules also make significant departure from the judgement of the Supreme Court in PUCL v. Union of India.[5] Nevertheless, going by the governments’ poor record in respecting these norms, one is tempted to believe that the Interception Rules are far more likely to be honoured in the breach than compliance. In any scenario, even the most literal conservative interpretation of the aforesaid norms does very little to control the governments’ all-pervasive powers of monitoring and interception.

Ultimately, when it comes to the privacy test laid down by the Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union of India[6] one finds it difficult to defend the Aadhaar project, both constitutionally and practically for a number of reasons elucidated in this article. The Central Government’s record in protecting privacy is extremely poor and its Aadhaar project only adds to the existing problems in relation to privacy protection in India.

Aadhaar—an astronomical data project with big risks

Aadhaar Unique Identification project is a gigantic data gathering project which seeks to provide a Unique Identification to persons living and accessing government subsidies, benefits, and services in India. Section 2(a) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services), Act, 2016 (‘Aadhar Act’) defines “Aadhaar number” to be an identification number issued to an individual by a Central Government-recognised enrolment authority on the basis of the demographic information and biometric information. Thus, we find a 12 digit unique Aadhaar number on Aadhaar/Unique Identification cards.

The uniqueness of the Aadhaar number is confirmed by section 4 of the Aadhaar Act which declares that one person’s Aadhaar number shall not be assigned to any other and that it shall be a random number without any relation with the holder’s attributes.  Section 9 declares that Aadhaar is not a proof of citizenship. This means that the identity function of Aadhaar is connected to the economic activity of availing any government related subsidy, service or benefit. Hence, it is not surprising that one of the key contentions in favour of the Central Government in the ongoing case is purely economic. Thus, it’s argued by the government that Aadhaar is not about sneaking on citizens but on keeping identification of anyone availing any advantage or benefit from the government.

It would be pertinent to note the definitions of “biometric information” and “core biometric information” under section 2(g) and 2(j) of Aadhaar Act. Biometric information means photograph, fingerprint, iris scan, or other biological attributes as decided by regulations. Of the aforesaid, fingerprint, iris scan (and other biological attributes prescribed by regulation) are defined as core biometric information. Section 10 empowers the UIDAI to establish a Central repository containing the data of all Aadhaar number holders. Section 28 stipulates that protection of the aforesaid voluminous data is to be the sole responsibility of UIDAI. Thus, no civil suit or private lawful enforcement effort for Aadhaar data protection is permissible under the Act.

One of the key controversies which have arisen relating to Aadhaar is with respect to the merits of the Aadhaar project. Over 82 billion rupees have been spent on the project till now.[7] Maintenance and planned security upgrades might push up expenditure even further on an annual basis.[8] It would not be an exaggeration to suggest, as the World Bank has recognised, Aadhaar now contains identification data of more than one billion Indian citizens.[9] In such a scenario, one is bound to assess the benefits which arise on account of the project—a valuable consideration in overall constitutionality test of Aadhaar. 

There have been two highly diverging discourses on Aadhaar - Central Government’s optimistic propaganda has presented the project as a panacea for plugging economic leakages in the implementation of government benefits, whereas a sobering sceptical discourse of several legal and technical experts has doubted the efficacy, security of Aadhaar apart from the reliability of government’s tall claims. The Central Government has employed or engaged a plethora of private technology firms for implementation of Aadhaar, but without so much as initiating a tender based process.[10] This has also been one among major reasons for sceptics to be wary of Aadhaar project.

While, the authentication by Aadhaar is acclaimed as having earned global fame[11] on account of effectively plugging leakages in LPG distribution,[12] weeding out fake ration cards,[13] or providing citizens with a welfare-oriented identification mechanism,[14] it is not without its critics, which include constitutional experts. Therefore, the challenge to Aadhaar has both legal as well as technical facets.[15]

Like demonetisation spree 18 months back, India has been in a “linking” frenzy. Everyone’s email account and phone is flooded with messages from banks, insurance companies and who not. A large number of government schemes, apart from bank accounts and mobile connections, now require compulsory Aadhaar verification, flagrantly violating an interim Supreme Court order which was made during the course of the Justice KS Puttaswamy[16] matter. This gives rise to a worry that the Aadhaar based authentication may be akin to “signing a blank paper”.[17] As any lawyer would understand, such a signature can be used for all kinds of mischief, attributing them to its maker who may not even be aware of them.  Citizens do not know nor determine who all will have access to their Aadhaar information, it is the other way round. Citizens are being hounded from all corners to share their Aadhaar information. 

There are two reasons for the aforesaid conclusion—firstly, the authentication involves the separate but successive twin stages of Aadhaar number input and biometric/fingerprint verification over the internet; secondly, the separateness between the two stages enables the biometric/fingerprint information to be stored independently, albeit connected with the Aadhaar number.[18] As to how this independent fingerprint can be deployed without consent of the citizen is anyone’s guess in a country like India.

Least surprisingly, instances of serious data breaches have occurred during the Aadhaar linking processes in banks such as Axis Bank.[19] Axis Bank, Suvidhaa Infoserve and eMundhra were proceeded against by UIDAI for attempting unauthorised authentication and impersonation by illegally storing Aadhaar biometrics.[20] The said breach did not lead to any financial loss or fraud as per official replies.[21] Even if it did cause such loss to bank customers, under the Act, it is not possible for any civil/private enforcement or compensation in light of such breach.

Another illustration is the recent Airtel Payments Bank fiasco. Airtel used its customers’ biometric data provided for the purposes of mobile connection KYC requirements was used by the company to open hundreds of bank accounts in Airtel Payments Bank.[22] The principles of informed consent and purpose specificity affirmed in the UN Data Protection Guidelines[23] were disregarded.

The other threat which could strike Aadhaar data is a “Man-in-the-middle” attack by even the most novice hackers.[24] The very methods and structure of the Aadhaar infrastructure is such that in between the separate communication stages pertaining to Aadhaar number input and biometric verification over the internet, a hacker could divert to other servers, the crucial data being processed in any particular stage.[25]

Therefore, it is most alarming to note that the Tribune newspaper had last year revealed in an exposé that certain urban tech-savvy criminals in Punjab were capable of doing the business of providing access to crucial Aadhaar database for a relatively humble sum of Rs. 500.[26] The most shocking part of the exposé was that the hackers revealed that they had sold such access to more than one lakh different service providers.[27]

Even the Indian government’s computer systems have repeatedly been attacked by foreign hackers on an almost routine basis every year.[28] In 2017-18 alone over 114 government website-related servers were subjected to cyber invasion.[29] Thus, in the background of such weak security record of the government tech infrastructure a citizen might rightly consider his Aadhaar data to be insecure, despite newly added security features in the UIDAI website[30] and repeated assurances by the government.[31]

Most of the government’s claims on success of Aadhaar based economic initiatives such as LPG or PDS access verification, have fallen flat on closer scrutiny. Several reports[32] have found errors and exaggeration in the government’s claims of significant plugging of leakage of subsidies or huge reduction in subsidy burden by Aadhaar implementation, including the CAG’s Report on Implementation of Aadhaar-linked Direct Benefit Transfer in LPG subsidies.[33]

While achieving very little in comparison to the high expectations of the government, the Aadhaar linkage with LPG subsidies, large number of government welfare schemes, as well as the Public Distribution System in select villages has been found to make life difficult for the poor. A phenomenal study[34] by Jean Dreze, et. al, on the implementation of both DBT and Aadhaar verification for access to foodgrains, found that the technical discrepancies made the system so flawed that significant numbers among the poor often had to run pillar to post either to obtain their DBT entitlement or foodgrains under the PDS.[35] Even the most basic issues of low internet and weak mobile connectivity led to miserable delays in obtaining the aforesaid entitlements by the poor.[36] 

Thus, Aadhaar, as an astronomical data project with less-than-satisfactory security and reliability, is thus difficult to defend in both constitutional and practical terms.

Umbrella with holes: Data Protection under the ITA

Any person aggrieved by any data theft or system breach can sue for damages under section 43 of the ITA. The competent authority to decide such complaints is the Adjudicating officer established by different state governments in each state, having pecuniary jurisdiction to decide complaints for damage amounting upto Rs 5 crores. For complaints pertaining to damage beyond Rs 5 crores, the appropriate remedy shall be a regular civil suit. Unfortunately, section 46 of the Act uses the terms “damage”, “injury” and “compensation” interchangeably without regard for the long and rich jurisprudence that finds them to be different concepts.[37]

As per section 46(2) of the Act, the quasi-judicial adjudicating officer may impose penalties, thereby vesting him with some of the powers of a criminal court. The adjudicating officer can award compensation, the quantum of which is to be determined after taking into account factors including unfair advantage, loss suffered and repeat offences. The adjudicating officer may impose penalties for any of the offences described in section 43 of the Act. The law as to the appointment of the adjudicating officer and the procedure to be followed on all adjudications is prescribed by Information Technology (Qualification and Experience of Adjudicating Officers and the Manner of Holding Enquiry) Rules, 2003. Appeals are to be taken up by the Cyber Appellate Tribunal.

Section 43 provides for the following offences:

“(a) accesses or secures access to such computer, computer system or computer network or computer resource;

(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;

(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;

(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;

(e) disrupts or causes disruption of any computer, computer system or computer network;

(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;

(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;

(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,

(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;

(j) steal, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage.”

In respect of the aforesaid offences, as per section 66, the criminal punishment prescribed is a maximum of three years imprisonment and/or fine of Rs 5 lakhs. The jurisdiction lies with the Judicial Magistrate of First Class and the offence is both cognizable and non-bailable.

The Adjudicating officers have had a mixed record in deciding complaints. In most decisions, they have sought to literally apply the statute to the facts and awarded compensation. There have been at least 47 cases filed before the adjudicating officer in Maharashtra.[38] Of these cases, there are three decisions in which the adjudicating officer particularly interpreted the law relating to privacy.

Vinod Kaushik v. Madhvika Joshi[39] involved misuse of husband’s email access to take away his income details for the purpose of use in maintenance suit filed by the estranged wife. The first decision of the officer was that there was no violation of the Act because the wife had gained access owing to a special personal relationship of trust. On being challenged, in the Delhi High Court, the adjudicating officer finally re-decided that the lack of consent on the part of husband to allow access to his emails for the purpose intended by the wife was key to the case. Thus, it was a violation of the ITA. Delhi High Court, which was moved in appeal because the Cyber Appellate Tribunal was non-functional, upheld the final order in its decision of 27.01.2012.

In Nirmalkumar Bagherwal v. Minal Bagherwal[40] the facts were similar to the Vinod Kaushik complaint. The electronic records of bank account of the complainant was given away to the wife by the bank which was one of the respondents. A greater quantum of compensation was ordered by the adjudicating officer against the respondent bank. It is noteworthy that in its decision, the adjudicating officer reviewed decisions and laws from European Union and USA apart from the relevant consumer protection cases and RBI Master Circular.

Amit D. Patwardhan v. Rud India Chains[41] involved a claim against an employee who had revealed bank account statement of the complainant and other private data of the complainant to rival business before jumping ship. The confidentiality agreement had been violated by the respondent. The complainant specifically argued that his privacy had been violated. While accepting the contentions the adjudicating officer, granted only a token compensation liability on the respondent. The bank had not been made a party to the proceeding.

It is worth noting that the adjudicating officer’s jurisdiction does not extend to matters entailing loss beyond Rs 5 crores. This severely limits the ability of individuals to hold body corporates and governments liable for massive data theft or system breaches. Section 43A of the ITA and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (SPDI rules), do hold body corporates liable for misuse of sensitive personal data or information of users or customers. But this is fruitless in situations such as the one caused by the recent fiasco pertaining to the unauthorised Aadhaar verification for Airtel Payments Bank in which almost Rs 190 crores of subsidies got redirected to newly set up accounts without informed consent of Airtel consumers.[42]

UIDAI fined Airtel Rs. 2.5 crore.[43] However, owing to the quantum of loss being greater than Rs 5 crores, Airtel consumers may not be able to proceed against the company before the adjudicating officers. The rules on jurisdictional issues in relation to wrongdoing spanning across multiple states are also unclear in the SPDI rules. Redundant to add that the Government/government bodies are not within the bounds of either the ITA or SPDI rules.

Interception by governments under ITA

In terms of government interception of digital/electronic communication, the Interception Rules and sections 69 and 69B of the ITA now provide far greater surveillance powers to the Central Government and State Governments (the governments). Experts are unanimous about the fact that these powers are even greater than the powers granted by the Indian Telegraph Act, 1885 (Telegraph Act).[44] The erstwhile Indian Telegraph Act, 1885 had been challenged in PUCL v. Union of India[45] in which the Supreme Court adjudged that the grounds mentioned under section 5(2), namely public emergency, public safety or matters under Art. 19(2) ought to be strictly complied for a valid surveillance order to be made.

The judgement provided that there ought to be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government. The other mandates declare that the total duration of a surveillance order must not exceed 6 months, and the order itself is valid only for two months at a time. The Review Committee can reverse orders and order destruction of material obtained from interception.

The Interception Rules by and large mimic the aforesaid judgement and the Telegraph Act. The only competent authority for passing interception orders under the rules is the Home Secretary to the State government or Union government. Rules 11 and 22 similarly embody the PUCL restrictions on the use of the power. The grounds for ordering interception are defined under section 69 and also include “investigation of offence”, which is a significant departure from PUCL. There are no similar limits to a cyber-monitoring direction under section 69B except that it should be for preventing a “computer contaminant”. Rule 23 also obligates the security agency to destroy records within six months unless necessary for lawful purposes. 

The problems are threefold- firstly, there is no redressal mechanism for citizens to hold the government accountable if the requisite interception powers are used in a manner contrary to the aforesaid ITA and rules; secondly, the destruction of all intercepted data leads information relating to criminal activity to be permanently lost to citizens who may have an interest in obtaining this data under the Right to Information Act; thirdly, there are different thresholds that the government has to fulfil for interception under section 69 and section 69B even though the surveillance activity is, for all practical purposes, equivalent under both sections, thus making these provisions vulnerable to a constitutionality challenge based on Art. 14.

The Ratan Tata[46] writ petition against the Union government for the tapping of phone calls between the industrialist and a lobbyist named Nira Radia, tending to implicate both for shady lobbying for favourable 2G spectrum allocation is yet to be decided.  However, some significant issues are posed by the case. The phone tapping by the Income Tax Dept. may have been legal under the Telegraph Act. Yet, this could be reversed in light of recent KS Puttaswamy[47] judgement granting that right to privacy is a facet of Art. 21.

If the constitutionality of Aadhaar could be struck down on the basis of the same judgement, it is likely that the disproportionately conducted phone tapping could also be declared to be in violation of Art. 21. Alternatively, if the tapping was held legal the fact that the tapes ended up with the media could be construed to be a violation of privacy of Ratan Tata, caused by the government’s failure to comply with the legal duty under the Telegraph Act viz. to maintain security of information obtained from phone tapping.[48]

Conclusion

The Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union of India[49] has decisively held in favour of the right to privacy. Thus, right to privacy, the right to be free and protected from unwanted intrusion into one’s private life, is now a part of right to life and personal liberty under Article 21. It is worth noting that the judgment provides us profound conceptual insights into informational privacy while permitting necessary factual flexibility needed for deciding future disputes. It is definitely a step in the right direction for the apex court to steer public debate and constitutionality assessment of Aadhaar project on the touchstone of informational privacy. Unfortunately, for the astronomical expenditure incurred on the project, the Central Government may not succeed in defending the Aadhaar project because it is gravely vulnerable to any scrutiny based on the privacy test laid down by the Supreme Court. The Central Government’s record in protecting privacy is extremely poor and its Aadhaar project only adds to the existing problems in relation to privacy protection in India.

[1] (2017) 10 SCC 1.

[2] AIR 1954 SC 300.

[3] 1994 SCC (6) 632.

[4] Frost & Sullivan, Lawful Interception: A mounting challenge for service providers and governments https://wikileaks.org/spyfiles/docs/FROSTSULLIVAN-LawfInteA-en.pdf (last visited 14 Feb 2018).

[5] AIR 1997 SC 568.

[6] 1994 SCC (6) 632.

[7] Ronald Abraham, Elizabeth Bennet, et. al., State of Aadhaar Report 2016-2017, Omidyar Network http://stateofaadhaar.in/wp-content/uploads/State-of-Aadhaar-Full-Report-2016-17-IDinsight.pdf (last visited 12 Mar 2018).

[8] Id.

[9] World Bank Group, World Development Report 2016: Digital Dividends, 2-5.

[10] IANS, Aadhaar card projects over Rs.13,000 crore awarded without tenders, The Hindu, 19 Sept. 2015 http://www.thehindu.com/news/national/aadhaar-card-projects-over-rs13000-crore-awarded-without-tenders/article7668321.ece (last visited 12 Mar 2018).

[11] World Bank Group, World Development Report 2016: Digital Dividends, 2-5; Khanna, Tarun, and Anjali Raina; "Aadhaar: India's 'Unique Identification' System." Harvard Business School Case 712-412, January 2012. (Revised September 2012.); Amrit Raj, Aadhaar goes global, finds takers in Russia and Africa, LiveMint 19 Jul 2016 http://www.livemint.com/Politics/UEQ9o8Eo8RiaAaNNMyLbEK/Aadhaar-goes-global-finds-takers-in-Russia-and-Africa.html (last visited 12 Mar 2018).

[12] Prasanta Sahu, DBTL weeds out 3 crore bogus LPG connections, Financial Express, 27 April 2015 http://www.financialexpress.com/economy/dbtl-weeds-out-3-crore-bogus-lpg-connections/67103/ (last visited 12 Mar 2018).

[13] PTI, Aadhaar helped cancel 3 crore fake, duplicate ration cards: Minister, Indian Express, 26 Feb 2018 http://indianexpress.com/article/india/aadhaar-helped-cancel-3-crore-fake-duplicate-ration-cards-minister-5079183/ (last visited 12 Mar 2018).

[14] UNICEF, Why is birth registration important? http://unicef.in/Story/365/Why-is-birth-registration-important (last visited 12 Mar 2018); World Bank Group, World Development Report 2016: Digital Dividends, 2-5; Khanna, Tarun, and Anjali Raina; Jose Ragas, The Silent Revolution: How Id Cards are Changing the World, Harvard International Review, 38(2), 24-27.

[15] Ruchi Gupta, Justifying the UIDAI: A Case of PR over Substance? Economic and Political Weekly, Vol. 45, No. 40 (OCTOBER 2-8, 2010), pp. 135-136.

[16] (2014) 6 SCC 433.

[17] Prof. Jayanth R Varma, Why Aadhaar Transaction Authentication is like signing a blank paper, faculty.iima.ac.in/~jrvarma/blog/index.cgi/Y2017-18/adhaar.html (last visited 12 Mar 2018).

[18] Prof. Jayanth R Varma, Why Aadhaar Transaction Authentication is like signing a blank paper, faculty.iima.ac.in/~jrvarma/blog/index.cgi/Y2017-18/adhaar.html (last visited 12 Mar 2018).

[19] Suranjana Roy, Aadhaar biometric data breach triggers privacy concerns, LiveMint, 25 Feb. 2017  http://www.livemint.com/Industry/IKgrYL5pg3eTgfaP253XKI/Aadhaar-data-breach-triggers-privacy-concerns.html (last visited 12 Mar 2018).

[20] Id.

[21] Suranjana Roy, Aadhaar biometric data breach triggers privacy concerns, LiveMint, 25 Feb. 2017  http://www.livemint.com/Industry/IKgrYL5pg3eTgfaP253XKI/Aadhaar-data-breach-triggers-privacy-concerns.html (last visited 12 Mar 2018).

[22] Anand Venkatanarayanan and Srikanth Lakshmanan, Aadhaar Mess: How Airtel Pulled Off Its Rs 190 Crore Magic Trick, The Wire https://thewire.in/206951/airtel-aadhaar-uidai/ (last visited 14 Feb 2018).

[23] UN Guidelines for the Regulation of Computerized Personal Data Files, General Assembly resolution 45/95 of 14 December 1990.

[24] Nethanel Gelernter, Senia Kalma, et. al, The Password Reset MitM Attack, accessible at: https://www.ieee-security.org/TC/SP2017/papers/207.pdf (last visited 12 Mar 2018).

[25] Nethanel Gelernter, Senia Kalma, et. al, The Password Reset MitM Attack, accessible at: https://www.ieee-security.org/TC/SP2017/papers/207.pdf (last visited 12 Mar 2018).

[26] Rachna Khaira, Rs 500, 10 minutes, and you have access to billion Aadhaar details, 4 Jan 2018,

http://www.tribuneindia.com/news/nation/rs-500-10-minutes-and-you-have-access-to-billion-aadhaar-details/523361.html (last visited 12 Mar 2018).

[27] Id.

[28] PTI, Over 22,000 Indian websites hacked between April 2017-Jan 2018, LiveMint http://www.livemint.com/Politics/KPLenpHmMKDwQvVlNRbgWI/Over-22000-Indian-websites-hacked-between-April-2017Jan-20.html (last visited 12 Mar 2018);PTI, 33,531 cyberattacks in India in 2014-16, LiveMint http://www.livemint.com/Politics/EsLu5w25R9oZY0cxys2ldK/33531-cyberattacks-in-India-in-201416.html (last visited 12 Mar 2018).

[29] Id.

[30] Aadhaar: Security Concerns Linger, BloombergQuint, 4 Jan 2018 https://www.bloombergquint.com/in-the-news/2018/01/04/aadhaar-security-concerns-linger (last visited 12 Mar 2018).

[31] Id.

[32] Kieran Clarke, Shruti Sharma, et. al., Ghost savings: Understanding the fiscal impacts of India’s LPG subsidy, http://www.iisd.org/blog/ghost-savings-understanding-fiscal-impacts-indias-lpg-subsidy (last visited 12 Mar 2018); Jean Drèze, Dipa Sinha, et. al., Ration Bachao: Why do Protesters in Ranchi Want Food not Cash? 1 March 2018 http://www.epw.in/engage/article/ration-bachao-why-do-protesters-in-ranchi-want-food-not-cash

[33] Report of the Comptroller and Auditor General of India on Implementation of PAHAL (DBTL) Scheme (Pratyaksh Hanstantrit Labh Yojana), Union Government (Commercial) Ministry of Petroleum and Natural Gas Report No. 25 of 2016 (Compliance Audit), accessible at:

http://www.cag.gov.in/sites/default/files/audit_report_files/Union_Commercial_Compliance_Full_Report_25_2016_English.pdf (last visited 12 Mar 2018).

[34] Jean Drèze, Reetika Khera, et. al., Aadhaar and Food Security in Jharkhand: Pain without Gain?, 16 Dec 2017, Economic & Political Weekly.

[35] Id.

[36] Jean Drèze, Reetika Khera, et. al., Aadhaar and Food Security in Jharkhand: Pain without Gain?, 16 Dec 2017, Economic & Political Weekly.

[37] State of Gujarat v. Shantilal Mangaldas AIR 1969 SC 634; Ranbir Kumar Arora v. State of Haryana, AIR 1983 P&H 431.

[38] Adjudicating Officer’s orders – http://it.maharashtra.gov.in/1089/IT-Act-Judgements (visited on 30 September 2017).

[39] Rajesh Aggarwal, Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra, 10.10.2011.

[40] Rajesh Aggarwal, Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra, 26.08.2013.

[41] Rajesh Aggarwal, Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra, 15.04.2013.

[42] Anand Venkatanarayanan and Srikanth Lakshmanan, Aadhaar Mess: How Airtel Pulled Off Its Rs 190 Crore Magic Trick, The Wire https://thewire.in/206951/airtel-aadhaar-uidai/ (last visited 14 Feb 2018).

[43] PTI, Airtel deposits ‘interim penalty’ of Rs 2.5 cr with UIDAI, The Hindu https://www.thehindubusinessline.com/money-and-banking/airtel-deposits-interim-penalty-of-rs-25-cr-with-uidai/article9996332.ece (last visited 14 Feb 2018).

[44] Frost & Sullivan, Lawful Interception: A mounting challenge for service providers and governments accessible at: https://wikileaks.org/spyfiles/docs/FROSTSULLIVAN-LawfInteA-en.pdf (last visited 14 Feb 2018).

[45] AIR 1997 SC 568.

[46] Writ Petitions (C) No. 398 Of 2010 With No. 16 Of 2011.

[47] Writ Petition (Civil) No. 494/2012.

[48] §§23 & 24, Indian Telegraph Act, 1885. 

[49] 1994 SCC (6) 632.

In today’s corporate world, the concept of Corporate Governance has attained substantial prominence for systematic and well-organized management of day to day corporate affairs and complying with legal and regulatory necessities.

It is universally known that nowadays, Corporate Governance is at the heart of the corporate management and has the power to dictate the success or failure of a company in so far as complying with the legal obligations, achieving business objects and ultimately reaching the targeted financial projections.

As a result, more and more companies are enunciating their Corporate Governance policies and procedures of its own delineating the protocols to be adhered for:

·        The administration of the company affairs;

·        Effective dispensing of company’s business operations;

·        Dealing with the conduct of company personnel (e.g., Prevention of Sexual Harassment at work);

·        Handling client management; and

·        Complying with rules and regulations formulated by the government and regulatory authorities.

While formulation of the Corporate Governance policies and procedures is one side of the coin, numerous companies are despondently dwindling in austere execution of the Corporate Governance policies and procedures.

What is the reason for certain companies’ failure to maintain or comply with the Corporate Governance standards?

The fundamental reason for certain companies’ dismal performance in preserving and complying with the Corporate Governance standards and ending up paying hefty price for non-compliance in the form of penalties is either not having a legal department in the organization structure or engagement of inefficient personnel in the company legal department.

Certain companies blatantly ignore the importance of the legal department and engagement of qualified legal and compliance professionals on board to ensure effective and efficient compliance with the legal, compliance and regulatory requirements. They tend to be penny wise and pound foolish and fail to do the cost – benefit analysis.

Such companies, however, do not grasp the importance of legal department (which plays strategic character in companies’ compliance with legal and regulatory requirements) until they end up getting punished by way of penalty and facing court proceedings as a consequence of non-compliance with mandatory legal and regulatory requirements.

Why is it very important for a company to have legal department with qualified professionals?

We are witnessing numerous instances of companies’ failure to comply with the legal and regulatory requirements and frauds committed by certain corporations. As a consequence, most of the companies face hefty penalties and prosecution for violating laws and end up as defunct companies, some even defrauding banks, shareholders, creditors and the economy at large.

Recently, in a major crackdown, the Indian government declared companies (2.26 lakhs) as defunct companies for non-compliance with mandatory legal and regulatory requirements imposed on these companies by the law. This shows the magnitude of the consequences that a company has to face for ignoring the obligation of compliance with legal and regulatory requirements.

Most of these companies overlooked the consequences for non-compliance with laws as a result wrecked up disqualified to conduct its business operations and guilt less independent directors barred from acting as directors for no fault of them. It is evident that if these companies entrusted competent legal and compliance professionals, they could have avoided the embarrassment of garnering the status of defunct companies. Now, many among the disqualified companies are seeking relief and condonation from the government.

Further, Indian government is also intensifying laws to stringently deal with the companies continuously falling short of complying with the mandatory legal and regulatory requirements.

Considering all this, one cannot undermine the critical role that a competent legal department could play in ensuring compliance with the laws and regulatory requirements.

Role of Legal Department in formulation and Implementation of Company Corporate Governance and other polices:

An effective execution of the Corporate Governance and related policies involves two parts:

Formulation:

·        It is very important to articulate strong corporate policies concerning Corporate Governance and other key protocols to ensure company complies with all of its legal, business and financial commitments.

·        The primary aspect in formulating the policy should be to employ a team of legal and compliance personnel who would be competent and qualified.

·        Such legal team will consult all the stakeholders involved (legal, business and finance team) and incorporate all the representations received from them in the draft policy.

·        Legal team will review and fine tune the policies covering interests of all stakeholders and protecting company’s business interest and ensure that such policy is in line with the objectives of the laws of the nation.

Implementation:

·        Articulating a strong Corporate Governance and other related polices will not by itself serve the objective for which such policies are enacted.

·        Proper implementation of such polices is equally important to ensure that objective of the policies is accomplished in veracity and to ensure that such polices won’t end up as paper presentation.

·        Legal and compliance team will play mammoth role in enunciation and austere implementation of company policies.

·        Legal and compliance team will be responsible to ensure that:

1.      Company policies are implemented in a well-organized manner to make certain that company is complying with all existing laws and regulatory regulations without fail.

2.      All the personnel of the Company are complying with the company internal policies and procedures.

It is evident that the legal department is the knight in shining armor of the Company for articulating company polices and well-organized execution of such polices without fail aiding companies to comply with mandatory legal and regulatory commitments without default.

Functions of a legal department in a company from the Corporate Governance aspect:

The legal department of a company is responsible to:

·        Make certain company is complying with existing laws and regulations without flop.

·        Educate the company management about cutting-edge development of laws and consequences for botch to comply with such laws.

·        Articulate company policies and procedures with the objective to inculcate the elements of accountability and responsibility into the organization workflow.

·        Provide sound legal advice to the company and its personnel in relation to any legal and compliance transaction and guide them in right path to preserve clean Corporate Governance standards within the organization.

·        Maintain all legal, financial and business records of the company up to date with clean and spotless information to prevent any violation of laws and leaving no latitude for any fraudulent deeds within the organization.

·        Conduct workshops on the importance of compliance with the existing laws and regulations along with internal policies and procedures to all departments of the company.

·        Build a robust mechanism to identify the fraudulent intent of any company personnel at grass root level and ensure that such personnel getting punished for bad vices and no longer working in the company or any other company.

Right mix of talent and experience:

·        Most of the companies do not pay attention to the importance of employing competent and qualified legal professionals. This is a dangerous practice that needs to be changed to catch up with the ever changing landscapes of the legal and compliance field.

·        As a consequence, such companies willingly or unwillingly one way or the other join the bandwagon of the default or defunct companies for violation of laws which is a bad omen for the reputation and business of such companies and the country at large.

·        It is thus very important for every company to comply with legal and regulatory commitments to employ a legal / compliance department with right mix of talented and experienced professionals and allocate adequate funds to run the legal department without any glitches.

·        Such team should service the companies in the best possible way to fulfil their legal and compliance commitments and salvage the company a lot of time, money and most importantly the humiliation from getting punished for violation of the laws.

Conclusion:

It is evident that every company needs to employ well organized and equipped legal and compliance department to maintain the Corporate Governance standards mandated by the law. It is also responsibility of the government and legal fraternity to educate companies about the prominence of the employing good Corporate Governance practices.

No company should ignore the strategic role that the legal / compliance department will play in a company’s ability to successfully comply with the laws and regulations of the nation and effective implementation of company’s internal and external policies and procedures.

To conclude, a legal department comprising of competent, talented and qualified professionals in the armor of company to guide the company in right direction and ensure that company complies with all relevant laws and salvage the company from the humiliation of facing the punishment for non-compliance with violation of laws.

On December 09, 2013, India enacted the bill on women safety at workplaces as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) to address the issue of women safety outside their homes especially when they are interacting in workplaces.

This Act recognizes the lack of structured and confidential medium for accessing any justice for sexual harassment experience, or inability of a woman to not to report such incidents to authorities. Keeping this in context, the Act has introduced several new roles at State, District and Organization level to provide an accessible, confidential, timeline and process driven access to seek redressal in instances of sexual harassment experienced by women at workplaces.

One of the roles that has become extremely crucial and relevant for lawyers and legal professionals is the role of External Member on Internal Complaints Committees of organizations. Workplaces are currently actively seeking a professional advisory for not only completing the guideline requirement under this Act but also a professional to guide the Internal Committee on proper investigation and redressal procedures.

Finding an appropriately qualified individual to fulfil the role of the external member in the Internal Complaints Committee is one particular task that poses quite a few difficulties for organisations as they struggle to find someone with appropriate legal knowledge of the Act, understanding of organizational complexities and practical insights of this role.

So, what does it take to become an advisor to the Internal Complaints Committee?

As a lawyer, do you have the experience to extend your practice to organizations as an External Member?

What all do you need to acquire as part of the knowledge and skills to become an “expert” External Member?

What are organizations looking for when they seek an External Member to on-board on their Internal Complaints Committee?

We, at Ungender, have been working with workplaces and government for years now and are offering our latest offering in the form of an Online Training Program for existing and interested professional who wish to work as External Members.

Key elements of the program:

1.    Learn online, from anywhere, any time;

2.    Learn the knowledge and skills required for this role;

3.    Practical insights from industry;

4.    Case studies based learning; and

5.    Assessment and Certification at the end of the program

            Duration: 3 months

            Cost: INR 9,999

You may read the full program brochure here and the FAQ document here.

If you wish to proceed to the payment, you can proceed to the payment page or for questions call us on +91 90155 47392.

With this program and its completion, we also invite you to become part of Ungender’s External Member Affiliate Network and receive client assignment.

For questions pertaining to this program and understand the working dynamics of this field, feel free to get in touch with us on +91 9015547392. You are also invited to register your interest at our program detail page here.

With over 10 lakhs registered companies in India, India Inc. needs more trained and qualified professionals in the field of gender laws compliance through Sexual Harassment of Women at Workplace Act, 2013.

Come and be part of this.

Cybercrime is defined as a crime in which an electronic device is the object of the crime (hacking, phishing, spamming) or is used as a tool to commit an offense (child pornography, hate crimes, etc.).

These days, too many people and organisations are becoming victims of cyber-crimes. Cyber attackers/hackers are opting cyber-hacking as a weapon to generate easy money in single stroke without much hassle by hacking and intruding into personal data of persons, companies and government agencies using virus such as ransom virus.

As a consequence, common people feel that no data or information is safe in this digitalized world which is terrorized by the cyber criminals.

According to the official reports 1, 44,496 cyber security attacks observed in the country during 2014-16 period.  5,693, 9,622 and 11,592 cyber-crime cases were registered during 2013, 2014 and 2015 respectively.

Tremendous upsurge in the utility of computers, smart phones and internet by citizens and lack of knowledge amid most of citizens on the aspect to safe guard their data and information is considered as the major component that contributed to raise in cyber-crime cases.

These official statistics expose the imminent need to take certain immediate measures to build a robust cyber mechanism in place which will be well armored and equipped with right tools to hunt down the cyber criminals.

In order to sternly deal with cyber criminals who are habituated to commit cyber-crimes such as financial frauds, circulation of communal and pornographic contents, the Central Government is deliberating to establish an Indian cyber-crime coordination centre in Delhi - with the underlying intent to repose the lost confidence of common man about the safety of data or information stored in cyberspace.

States governments are also mandated to establish State cyber-crime coordination cells at the headquarter-level and also establish district cyber-crime cells.

Central government has further allocated funds to constitute a cyber-forensic laboratory-cum-training centre for police officials in each state.

As a part of its efforts to eradicate (or at lease reduce and minimize) cyber-crimes Central Government will preserve a list of suspects and the leads generated via cyber-crime cases investigations and share such list with law enforcement agencies.

Going forward, cyber hackers need to be aware of the hefty price they are going to pay for committing cyber-crimes as Central government will initiate stringent action against such hackers and websites which contravene India's laws and circulate child porn, and communally and racially sensitive content.

It is hoped that with the establishment of the Indian Cyber Crime Coordination Centre at Central level and associated bodies at State level will strengthen the cyber mechanism in the country and punish the cyber criminals with stringent punishment – ultimately triumph the end objective (i.e to make common man feel confident again that the data or information owned by them in cyberspace is secure, safe and free of cyber threats).

Research and inputs by Paruchuri Baswanth Mohan

In the corporate world, restructuring or re-organization of the corporates is a substantial and corporate practice in existence for the corporate entities business development and expansion - to effectively handle with various internal and external threats posed and to survive the stiff competition faced by these entities from the contemporaries in their line of business.

For such re-organization or restructuring of listed corporates are in requisite to concoct a scheme of arrangement and have to comply with certain stringent regulatory procedures for sanction and implementation of the scheme.

A scheme of arrangement (Scheme) is a court-approved agreement between a company and its shareholders or creditors. It may affect mergers and amalgamations and may alter shareholder or creditor rights. 

The Securities Exchange Board of India (SEBI) issued a directive reducing to bare bones certain procedures related to Scheme with the objective to shorten the compliance process for facilitating hassle-free Scheme approval and execution by the listed entities.

The underlying intent in issuance of the directive is to speed up the dispensation of draft schemes and averting any misuse of schemes to bypass regulatory requirements.

Relaxation of the norms related to scheme of arrangement is reflection of receipt of representations of various stakeholders emphasizing the necessity to strengthen existing regulatory charter and simplify the norms related to Scheme.

Glimpse of key amendments introduced by SEBI in relation to Scheme of arrangement for the benefit of listed entities:

·       Mandatory obligation of filing certain documents related to Scheme by listed entities with the stock changes following the approval of Scheme by National Company Law Tribunal is detached with the intent to elude duplication of such filings.

·       Clause 37 filing requirements will no longer be applicable to merger of wholly owned subsidiary or its division with the parent company. 

·        If Scheme composed of listed and unlisted entities - for evaluating 25 percent of public shareholding in the merged entity - shareholding percentage of public shareholders of the merged entity (post Scheme) to be calculated without considering dilution on account of outstanding convertible securities. . 

·       Shareholding percentage of pre-scheme public shareholders of the listed entity and qualified institutional buyers (QIBs) of the unlisted entity shall not be less than 25 per cent on fully diluted basis in the merged entity.

·       Lock-in provision shall be applicable to reverse merger (merger of a listed entity into an unlisted entity and demerger of a listed company into an unlisted entity). 

·       Entities are permitted to pledge locked-in shares with banks / public financial institutions.

·       Promoters has been granted the freedom to transfer Locked-in shares inter-se amid promoters.

·       The locked-in shares shall continue in hands of transferee promoter entity for the balance period. 

·       Duration is extended to 60 days following the receipt of NCLT order approval of Scheme to commence listing and trading transactions by the listed entities.

One can look forward to a serious implementation of these relaxed norms as it will certainly accelerate the process of sanction and execution of the Scheme by removing outdated steps involved in the process.

Research and inputs by Paruchuri Baswanth Mohan

HOW TO RECOVER YOUR MONEY ?

1- In a case where we dont have a bounced cheque or the limitation of filling 138 case has been crossed in that case also we can approach the Hon'ble Court and file RECOVERY SUIT. 

Even though RECOVERY SUIT is a civil case, at the time of execution, we can get the orders of property attachment against the defendant. It means that if the other party is unable to pay the  dues/fees/salary/recovery amount etc, the court will attach his property and further the attached property can also be auctioned to recover the amount from the defendant. Thus, in any case, the amount will be recovered. 

2- The second option is we can file a criminal complaint under section 420 IPC in police station. If the IO does not accepts the complaint and denies to register FIR, then we can get the FIR registered through Court also and then the trial will be initiated before Hon'ble Court. 

PROOF'S WE NEED:

1- Any cheque given by the accused/defendant or

2- Any signed agreement or

3- Any self-written statement or

4- Chats over whatsapp/ messages which proves the liability.

5- Phone call recordings

6- Conversation via mails/ facebook/ any social media site. 

"ANY ONE PROOF IS SUFFICIENT FOR INITIATING A CASE"

KANIKA BHARDWAJ

ADVOCATE

NEW DELHI

9582000415

The antitrust case – Ohio v. American Express Co. – pending before the Supreme Court of the United States has given rise to a debate over antitrust laws. Although, the case is related to the credit card industry, analysts have observed that the case could have sweeping consequences for the ways in which antitrust law is being applied concerning the tech giants.

The observation came in light of the bipartisan consensus that has formed around the idea that big tech platforms must be subject to greater scrutiny. Further the US Senator Elizabeth Warren in a recent speech, “charged tech giants with using their heft to snuff out competition,” which renewed the debate over antitrust laws.

However, the decision in the antitrust case (currently before the Supreme Court) could shield America's largest tech platforms from serious antitrust scrutiny.

Court Proceedings So Far

The U.S. Supreme Court on Monday heard the case of Ohio v. American Express, regarding the nature of antitrust law with reference to two-sided markets. The case raises concerns about the exercise of market power by large organizations that serve multiple groups of users.

In general, the SC case centers around the credit card industry giants like American Express, Visa, and Mastercard for imposing anticompetitive restrictions on merchants – that prevents them from driving customers into using other cards (such as Discover).

Irrespective of millions of merchants and a significant number of cardholders, the credit card business is still controlled by four firms; this is, suffice to say that the credit card industry is a classic case of oligarchy. Merchants who require payment networks don’t have any real bargaining power, and are rather stuck paying high rates to the larger firms. As a result, higher costs ultimately get passed on to consumers.

The case was first brought by the United States Department of Justice (DOJ) that filed a civil anti-trust lawsuit against Visa, MasterCard, and American Express in the district court.

The district court ruled in favor of the Justice Department and the states, after finding that American Express’s “anti-steering provisions stifled price competition and violated the antitrust laws”. While Mastercard and Visa settled with the DOJ before trial, American Express however, defended its practice and continued to fight the lawsuit in the Appeals Court.

The Appeals court ruled in favor of American Express in the antitrust law, and introduced a special set of rules, making it a lot more difficult to win important antitrust cases and to stop anticompetitive behavior. Although the suit was dropped by the Department of Justice and other states, eleven states filed a petition in the Supreme Court demanding to hear the case “on how anti-trust measures should be applied a two-sided market”.

If the Supreme Court approves the Second Circuit decision, it would create de facto antitrust immunity for the dominant platforms. Since technology has enabled the growth of big tech companies like Amazon, Apple, Facebook, and Uber that serve multiple groups of users, the firms are set to become prime beneficiaries of the Second Circuit’s warped analysis.

For instance, Amazon could claim a two-sided platform status as it helps buyers and sellers of goods connect with each other; Google can claim such status because it facilitates a market between advertisers and search users.

Considering that an industry trade group representing the America’s tech platforms filed an amicus brief in favor of American Express, could be the reason behind why tech giants are lining up behind the Second Circuit’s approach. Clearly, if the approach is ratified it would become much more difficult to use the antitrust laws against the tech platforms.

The High Court at Calcutta is the oldest High Court in India. It is steeped in tradition and its awe inspiring construction, albeit a bit shaky now, has withstood the ravages of time. Now what remains to be seen is whether this grand old institution comes out as a winner in the latest crisis which appears to be unfolding – a test of arrogance of the Executive against the legitimate expectations of the litigants. Years of apathy towards the institution by the parties in power has reduced the strength of Judges who preside over cases to 30 Judges instead of the sanctioned strength of 72 Judges. The Members of the Bar have been raising the issue of appointment of adequate number of Judges for several months. Yet there are only deaf ears all around. Is it a mere coincidence or should we read between the lines?

Since January 2017 till date thirteen Judges have superannuated / retired whereas there have been only six new appointments at the High Court at Calcutta. While the names of five Judges were recommended by the Collegiums of the Supreme Court of India for appointment as Judges of the High Court at Calcutta on 6th December 2017, the Government of India is yet to approve those recommendations. As a result, not only is the institution suffering for the acute shortage of Judges, but thirteen others names are pending before the Collegium till the first lot of five Judges are appointed. The situation deteriorated so much so that Learned Judges were being allotted three to four different determinations to handle on a daily basis. As a result, frustration and exasperation was writ large as the patchwork was not producing any effective results.

The working strength of Judges in the High Court at Calcutta, as in several other High Courts in the country, is no secret to the Ministry of Law and Justice or the Prime Minister’s Office. Despite multiple requests being made to ameliorate the situation, there was complete lack of response. This compelled the Members of the Bar to cease work from 19th February 2018 to 25th February 2018 initially. During that phase the officer bearers of the three wings of the Bar met His Excellency the Governor of West Bengal and also handed over a memorandum seeking His Excellency’s intervention to overcome the crisis. His Excellency promised the Members that he will put in a word with the Law Minister. Written representations were sent to His Excellency the President of India, The Hon’ble Prime Minister of India and the Chief Justice of India.

Faced with total lack of interest shown by the high offices in New Delhi, the Members were constrained to extend the cease work from 26th February 2018 till 5th March 2018. A letter was dispatched on 26th February 2018 to the Hon’ble Law Minster seeking an appointment at the earliest and drawing his immediate attention to the plight of the litigants. Till date the PMO or the Law Minister has not even bothered to acknowledge the letters written to them. However, on Friday the 2nd instant, newspaper reports suggested that three out of the five names recommended by the Collegium have been approved by the Government of India to be appointed as Judges. Is this enough to withdraw the demand for immediate appointment of Judges to fill up the vast number of vacancies? The perceived arrogance of the Law Minster and the PMO are tell-tale signs of things to come.

The High Courts are the sentinel of the civil liberties of the citizens. It has wide powers not only to supervise the functioning of the subordinate judiciary but to also check any excess or injustice on the part of the Executive. It has ample powers to strike down any law for being ultra vires the Constitution of India. It is the protector of the common man from the high and mighty. It is that infallible pillar of democracy that ensures that the other two branches of administration remain within checks and also guarantee a free voice to the fourth pillar, the Press. So under the present circumstances, will it be unfair to suggest that there is a planned effort to stymie this institution so that the party in power and their ideological mentors can have a free run? Is it possible to establish “Ram Rajya” within the confines of our present Constitution or will “New India” be a step back into medieval times?

With its brand of misplaced theological nationalism, is the present day Government of India, headed for a direct confrontation with the Constitution and hence the High Courts? If that be the mission, the efforts to curtail the powers of the High Courts and to intervene in the appointment of Judges would seem very attractive and apt.

The public considers the lawyers to be a mischievous lot, who abstain from working every now and then. While this reputation is not founded entirely on thin air, the present set of facts provides a very legitimate concern in the way the appointment of Judges is being deliberately ignored. A glimpse of the arrogance and aloofness of the present day Government in New Delhi can be had from the fact that despite the knowledge of the cease work and on receipt of multiple representations, far from addressing these concerns they have not even bothered to acknowledge the receipt of the communications or to grant an interview. To add insult to injury, details seem to have been shared with the Press that only three out of the five candidates recommended for Judgeship by the Supreme Court of India have been approved. This is an affront to the spirit of the legitimate demands being made by the members of the Bar. All that the Government of India needs to do to diffuse this crisis is to hear the representation of the members and to make a commitment about the manner in which they propose to fill up the vacancies within a timeline. This is a very legitimate demand and made in the public interest. The Bar will also make efforts to suggest suitable names from amongst its members so that the problem of the vacancies can be address. Who best would know the proficiency of a practitioner than his/ her learned colleagues and the Judges who hear the arguments made? However, the attitude of the Government makes it amply clear that they are not interested whatsoever in any consultative procedure to tide over this mammoth crisis. In the light of the developments, is it fair to withdraw the agitation till the Government of India publishes in the public interest its commitment to take steps to immediately appoint Judges at the High Courts?

The purpose of the cease work was not only to draw the Government’s long due attention to the Constitutional crisis unfolding in Calcutta but also to garner public opinion so that the step-motherly treatment towards the Judiciary is withdrawn forthwith. The lawyers earn a living practicing before the High Court. It is not, and it cannot be, in their interest to continue with an agitation which directly hinders their bread and butter. The denial of justice to the litigant because of the agitation is a matter of far severe consequences than the loss of income of the lawyers. A problem which could have been solved simply by publicly acknowledging the crisis in the High Court and making a public declaration that the shortage will be filled-up within a timeframe is being unnecessarily aggravated because of the attitude of the Law Minster and the PMO towards the fate of the Calcutta High Court. They are forcing the hands of the lawyers at the expense of the litigant who are yet to fathom the depths of the sinister motive behind crippling the Constitutional Institutions. The time has come to generate mass interest and concern about the fate of the Judiciary and to compel the Government to empower, modernize and strengthen the very institution that will rightfully wield a stick to keep them in place.

There are forces about who have hatched a conspiracy to change the nature and character of the Constitution and our way of life. There are parochial preachers close to the powers that be who are no longer leaving it to our imagination as to what their visions are for the future of the largest democracy in the world. Crippling the Indian Judiciary seems to be the first steps towards achieving this goal – eliminate the watchdog and adopt a lapdog. The present highhanded conduct of the Government and it total lack of response to the demands of the members of the Bar of the High Court at Calcutta seems to reaffirm this suspicion. Therefore, it is high time that the members of the public take up this concern on every forum and in order to safeguard their own rights, have their voices heard in the corridors of power in New Delhi so that the efforts to hinder the efficacy, majesty and the dignity of the High Courts are curtailed in the public interest. The present conduct is a sneak peek into things to expect from those that propound the formation of Hindu Pakistan. Beware.

Fugitive Economic Offenders Bill, 2018. On 01.03.2018,  the Union Cabinet approved the Fugitive Economic Offenders Bill, 2018 in the parliament. As per Section 4(1)(e) of the Bill, "Fugitive Economic Offender" means any individual against whom arrest warrant in relation to a scheduled offence has been issued by any court in India, who (i) leaves or has left India so as to avoid criminal prosecution or (ii) refuses to return to India to face criminal prosecution. Schedule to the Bill  specifies offences under various statutes as specified offences.  There are A.  29 offences under various sections of Indian Penal Code,1860 B.   5 offences under Prevention of Corruption Act, 1988 C.  2 offences under SEBI Act, 1992 including insider trading. D.  1 offence under Section 135 of the Customs Act, 1962 E.   6 offences under the Companies Act, 2013 F    1 offence under Section Section 30(2) of the LLP Act, 2008 G.   1 offence under Section 69 of the Insolvency & Bankruptcy Code,        2016 i.e. punishment for transactions defrauding creditors for         defrauding creditors.   If FEO surrenders to the court in India, proceedings under this proposed Act will be cease by law. 

POCSO / 354 n 354 D IPC  FIR quashed by Delhi High Court.