Cyber Security Capabilities Of India Must Be Strengthened

 

This Article was originally published on 9^th February 2012. However, due to DELIBERATE NEGATIVE TACTICS ADOPTED BY GOOGLE, this article was removed by Google despite clear indications that we are the copyright holders and source of original contribution.

Google is engaging in unethical and illegal behavior simply to favour few and working in derogation of others. For complete list of Google’s censorship and negative tactics, kindly visit Websites, Blogs And News Censorship By Google And India.  

Maintaining cyber security at the international level is a tedious task. This is so because cyberspace does not recognises any boundary and cyber attacks can be launched from any part of the world. While cyber attacks upon various computer systems and computer resources are cause of concern yet cyber attacks upon critical infrastructures is of grave concern.

Cyber security in India is at initial stage. Even the information technology act, 2000 (IT Act 2000), which is the sole cyber law of India, does not address the cyber crimes and cyber security issues effectively. We have no dedicated cyber security laws in India and we urgently need a dedicated cyber security legal framework in India.

Meanwhile, India is increasingly facing cyber attacks and cyber threats from foreign nationals. In fact, the cyber laws and cyber security trends of India 2011 by Perry4Law and Perry4Law Techno Legal Base (PTLB) has clearly showed the cyber security vulnerabilities of India. Cyber terrorism against India, cyber warfare against India, cyber espionage against India and cyber attacks against India have already increased a lot. Even the cyber law trends of India 2012 by PTLB have also projected an increased rate of cyber crimes in India and cyber attacks against India in the year 2012.

The biggest cyber threat against India is originating in the form of cyber attacks upon Indian critical infrastructures. Critical infrastructure protection in India requires a well formulated policy. Presently we have no critical infrastructure protection policy of India. Further, critical ICT infrastructure protection in India is one area that requires special attention of Indian government.

Fortunately, Indian government has decided to streamline cyber security of India. The Indian government is in the process of finalising an elaborate plan to strengthen India's cyber security capabilities. A national critical information infrastructure protection centre (NCIPC) of India has also been proposed by Indian government. It intends to ensure critical infrastructure protection and critical ICT infrastructure protection in India.

There are few prerequisites that can make the NCIPC of India successful. Firstly, there must be a centralised ICT command centre of India that can coordinate various cyber security issues. Secondly, specialised agencies and authorities must be constituted for critical infrastructure areas like power, telecom, defense, aviation, etc. These agencies and authorities must coordinate with the centralised command centre for cyber security related issues.

Ministry of communication and information technology (MCIT) has already taken certain initiatives in this regard. For instance, a central monitoring system (CMS) project of India has been launched by MCIT to monitor and intercept electronic communications, messages and information. Further, a national telecom network security coordination board (NTNSCB) of India has also been proposed to strengthen the national telecom security of India.

Now Indian government is planning to step up cyber security protection levels, putting in place real time command-and-control centers and delineating responsibilities among various agencies.

Among the proposals are establishment of dedicated command-and-control centers in India to monitor critical infrastructure in real time, constituting computer emergency response teams (CERTs) for key sectors such as power, aviations, etc and formulation of elaborate protocols for all stakeholders involved in the process of ensuring cyber security in India.

The Cabinet Committee on Security (CS) may approve in a few weeks the multi-layered security plans to protect India's critical infrastructure. The national security advisor (NSA) and the cabinet secretary are working on the final plan.

There would be a clear demarcation of responsibilities between Computer Emergency Response Team-India (CERT-In), National Technical Research Organisation (NTRO), Intelligence Bureau (IB), Military Intelligence (MI) and other agencies that have a role in fighting cyber intrusions. Protocols would be formulated to ensure that there is no overlap between the functions and obligations of various agencies fighting cyber attacks against India. The proposed protocol will also cover department of telecom, department of information technology, National Informatics Centre etc.

Under the proposal, the government will also regularly and proactively monitor and scan critical networks. Not just that, the levels of security for these networks will also be stepped up. CERT-In may also be creating its own real time monitoring centre to strengthen it cyber security initiatives. The responsibility for monitoring critical infrastructure will be divided between NCIPC and CERT-In. The government will also set up dedicated CERT for critical sectors such as power, aviation etc where no such national monitoring mechanism exists.

This is a good step in the right direction and Perry4law and PTLB welcome this move. We also hope that with this the cyber security capabilities of India would be upgraded to the required levels.

Statement Of Administration Policy On Cyber Intelligence Sharing and Protection Act (CISPA)

This is the statement issued by the Obama Administration (PDF) regarding proposed Cyber Intelligence Sharing and Protection Act (CISPA). Perry4Law and Perry4Law Techno Legal Base (PTLB) wish to share the same with all the stakeholders.

The Administration is committed to increasing public-private sharing of information about cybersecurity threats as an essential part of comprehensive legislation to protect the Nation's vital information systems and critical infrastructure. The sharing of information must be conducted in a manner that preserves Americans' privacy, data confidentiality, and civil liberties and recognizes the civilian nature of cyberspace. Cybersecurity and privacy are not mutually exclusive. Moreover, information sharing, while an essential component of comprehensive legislation, is not alone enough to protect the Nation's core critical infrastructure from cyber threats. Accordingly, the Administration strongly opposes H.R. 3523, the Cyber Intelligence Sharing and Protection Act, in its current form.

H.R. 3523 fails to provide authorities to ensure that the Nation's core critical infrastructure is protected while repealing important provisions of electronic surveillance law without instituting corresponding privacy, confidentiality, and civil liberties safeguards. For example, the bill would allow broad sharing of information with governmental entities without establishing requirements for both industry and the Government to minimize and protect personally identifiable information. Moreover, such sharing should be accomplished in a way that permits appropriate sharing within the Government without undue restrictions imposed by private sector companies that share information.

The bill also lacks sufficient limitations on the sharing of personally identifiable information between private entities and does not contain adequate oversight or accountability measures necessary to ensure that the data is used only for appropriate purposes. Citizens have a right to know that corporations will be held legally accountable for failing to safeguard personal information adequately. The Government, rather than establishing a new antitrust exemption under this bill, should ensure that information is not shared for anti-competitive purposes.

In addition, H.R. 3523 would inappropriately shield companies from any suits where a company's actions are based on cyber threat information identified, obtained, or shared under this bill, regardless of whether that action otherwise violated Federal criminal law or results in damage or loss of life. This broad liability protection not only removes a strong incentive to improving cybersecurity, it also potentially undermines our Nation's economic, national security, and public safety interests.

H.R. 3523 effectively treats domestic cybersecurity as an intelligence activity and thus, significantly departs from longstanding efforts to treat the Internet and cyberspace as civilian spheres. The Administration believes that a civilian agency – the Department of Homeland Security – must have a central role in domestic cybersecurity, including for conducting and overseeing the exchange of cybersecurity information with the private sector and with sector-specific Federal agencies.

The American people expect their Government to enhance security without undermining their privacy and civil liberties. Without clear legal protections and independent oversight, information sharing legislation will undermine the public's trust in the Government as well as in the Internet by undermining fundamental privacy, confidentiality, civil liberties, and consumer protections. The Administration's draft legislation, submitted last May, provided for information sharing with clear privacy protections and strong oversight by the independent Privacy and Civil Liberties Oversight Board.

The Administration's proposal also provided authority for the Federal Government to ensure that the Nation's critical infrastructure operators are taking the steps necessary to protect the American people. The Congress must also include authorities to ensure our Nation's most vital critical infrastructure assets are properly protected by meeting minimum cybersecurity performance standards. Industry would develop these standards collaboratively with the Department of Homeland Security. Voluntary measures alone are insufficient responses to the growing danger of cyber threats.

Legislation should address core critical infrastructure vulnerabilities without sacrificing the fundamental values of privacy and civil liberties for our citizens, especially at a time our Nation is facing challenges to our economic well-being and national security. The Administration looks forward to continuing to engage with the Congress in a bipartisan, bicameral fashion to enact cybersecurity legislation to address these critical issues. However, for the reasons stated herein, if H.R. 3523 were presented to the President, his senior advisors would recommend that he veto the bill

E-Delivery Of Justice In India Needed

Electronic delivery of justice in India has failed to achieve what was desired. From 2003 to 2012 we have failed to establish e-courts in India. Till March 2012 we are still waiting for the establishment of first e-court of India. So for all practical purposes establishment of e-courts in India is still a distant dream.

E-Courts in India are still in the first stage of computerisation in some of the aspects of the courts. Full fledged e-filing, submission of plaints and documents online, online evidence producing, etc. are still missing. Although the e-governance initiatives such as e-filing at Supreme Court, online case status, online judgments and online case lists have begun, yet the e-court initiative still has a long way to go.

The constitutional right to speedy trail is still a dream in India and speedy justice through e-courts is at most a fiction in India. Right to a speedy trial is contained in Article 21 of the Indian Constitution. It mandates a speedier and timely disposal of a case. Presently, India is facing a mammoth backlog of cases that can be reduced drastically by use of ICT and e-courts. The efforts for the establishment of e-courts in India are not sufficient and needs rejuvenation.

This is happening because the legislature and executive are not versed with the litigation and the legal fraternity is never consulted while making techno-legal laws. Even firms and individuals who can deal in e-courts related projects are limited in number. For instance, Perry4Law Techno Legal Base (PTLB) is managing the exclusive techno legal e-courts training and consultancy centre of India. There is no other e-courts training and consultancy centre in India and even abroad.

India has taken nine years and still e-courts have not been established. Time has come to take e-courts project of India seriously and start working in this direction.

Mobile Cyber Security In India

Mobile phones have become ubiquitous these days. They are used for multiple purposes ranging from personal use to mobile banking. Cyber criminals have also realised the importance of mobile phones for committing cyber crimes and financial frauds. This is also the reason why malware writers are also writing mobile phone specific malware to steal confidential and sensitive information.

Mobile cyber security in India has become a cause of concern these days. Mobile phones are now proposed to be used for mobile banking and mobile governance in India. Naturally, we must ensure robust mobile cyber security in India. An electronic authentication policy of India can help in more active and secure mobile usages in India. Mobile governance and e-authentication in India are also closely related and with the proposed electronic delivery of services in India this is also a must have requirement.

For the time being we have no implementable electronic delivery of services policy of India though it may be in pipeline. Indian government is working in the direction of ensuring electronic delivery of services in India. In fact a legal framework titled electronic delivery of services bill 2011 (EDS Bill 2011) has also been proposed by Indian government.

Once the EDS Bill 2011 becomes an applicable law, governments across the India would provide electronic services through various modes, including mobile phones. This requires putting a robust and reliable mobile security infrastructure in India.

However, using of mobile phones for commercial and personal transactions in India is also risky. For instance, the mobile banking in India is risky as the present banking and other technology related legal frameworks are not conducive for mobile banking in India. Similarly, we do not have a well developed e-governance infrastructure in India. As a result India is still not ready for m-governance.

We at Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that the biggest hurdles before the mobile related uses in India pertain to use of weak encryption standards and non use of mobile cyber security mechanisms in India. Absence of encryption laws in India has further made the mobile security very weak in India.

The ever evolving mobile malware are further increasing the woes of mobile users’ world wide. Recently 50 applications within Google’s official Android Market were found to be contaminated with DroidDream malware. The malware stole sensitive information like phone’s International Mobile Equipment Identity (IMEI) Number and the SIM card’s International Mobile Subscriber Identity (IMSI) number. It then sent it to a command-and-control server. Similarly, other spyware and bugs are also infecting mobile phones worldwide.

It is high time for India to seriously work upon mobile cyber security aspects as soon as possible. The policy decisions in this regard must be taken urgently and must be implemented as soon as possible.

Google, Facebook, Microsoft, Etc Must Appoint Nodal Officers In India

The Information Technology (Intermediaries Guidelines) Rules, 2011 of India prescribe stringent provisions regarding Internet intermediary liability in India. However, till now foreign companies and websites have not followed the Guidelines and Rules issued by Indian government in this regard. In fact, they are avoiding compliance with Indian laws.

Legal liability of foreign websites in India is now well established after the matter has been brought to the attention of Indian judiciary. A criminal complaint has been filed against companies like Google, Facebook, Microsoft, Yahoo, etc before a Trail Court for non observation of cyber due diligence by them. Even the Delhi High Court has not quashed the criminal complaint against these companies so far and in the absence of the same the representatives of these foreign companies would now personally appear before the Trail Court on 13th March 2012.

Another related problem that has to be addressed is that foreign companies and websites have not established a procedure that can deal with complaints and notifications arising out of the Information Technology act, 2000 (IT Act 2000) and Rules made there under. This is so even though companies like Google, Microsoft, Yahoo, etc have subsidiary companies and offices in India.

When these foreign companies and websites and their subsidiaries are deriving financial gains out of Indian operations, non following of Indian laws seems to be a grave disregard to Indian laws and regulations. These foreign companies and websites must follow Indian laws and this is the right time to do so.

We at Perry4Law and Perry4Law Techno Legal Base (PTLB) suggest that the best method to do so is to appoint a nodal officer who is responsible for managing cyber law due diligence issues arising out of Indian transactions. By not doing so, companies like Google, Facebook, Microsoft, etc are heading towards a big trouble. The sooner these nodal officers are appointed the better it would be for the larger interest of Internet intermediaries in India.

Online Education In India: Some Legal Considerations

Online education in India is still passing through a transformation. In India, a major focus is given to traditional institutionalised education system that requires establishment of big infrastructure not necessarily justifying its costs. On the other hand, online education can provide cost effective, timely, qualitative and transparent education system of India.

Another limitation of the traditional educational system of India is that it is largely academic in nature. Very few educational institutions of India are providing practical trainings and skills development courses while imparting education to their students and professionals.

This has resulted in mass unemployment for a large majority of educated masses of India. As per many studies and surveys, only 20-25% educated population is fit for employment purposes in India. We must stress more upon technical education in India and technical education skills development in India.

Skills development in India is an area that has still not got the attention of policy makers of India. This is more so regarding cyber skills development in India. Virtual campuses in India can solve many of educational problems of India. These problems include corruption, lack of transparency, lack of accountability, non qualitative education, monopolistic behaviours, etc. Virtual campuses can eliminate the corruption in higher education of India and bring fairness and competition among various stakeholders.

Higher education in India needs reform especially the higher legal education in India. PhDs in India are suffering due to corruption. Similarly, lack of skills and expertise is also affecting higher education in India.

Another area that has received limited attention of Indian government pertains to lifelong learning in India. For instance, till now Perry4Law Techno Legal Base (PTLB) is the exclusive techno legal lifelong learning institutions and centre of India. Professional continuing legal education in India is also missing.

Although efforts in the direction of conducting bar examinations in India were undertaken in 2011 yet they are not coherent and well designed and managed. Bar examinations in India need to be properly managed and scientifically undertaken. The focus should be to evaluate skills and knowledge of the students rather than introducing another hurdle that is more on the side of formality. A better option is to scrap the bar examination altogether or conduct a very qualitative bar examination in India.

Further issues have been introduced with the proposal to conduct Indian legal services examinations In India and Indian regulatory services examination In India. These examinations require a totally different outlook, orientation and preparation that are presently missing in India.

As online education in India is going to grow, contents creation and its management would be a big problem. For instance, legal research in India is no good and plagiarism in India and other places is widespread. Further, the growing use of online advertisement for online contents has increased the demand and value for educational and non educational contents. In order to earn money through advertisement and e-learning methods, many individuals and companies are violating the intellectual property rights (IPRs) like copyright of others.

Individuals and companies engaging in online business or transactions are required to observe cyber law due diligence in India. Cyber due diligence for companies in India requires that they avoid violating IPRs of others and also prevent the violation of the same at their own online platforms and websites.

Countries like United States have created dedicated laws like online copyright infringement liability limitation act (OCILLA) in this regard. However, in India we have no such dedicated law for dealing with online copyright violations cases. Even the copyright law of India is not expressly dealing with this issue. However, Internet intermediaries’ liability in India, under the information technology act 2000 (IT Act 2000), covers this issue.

The role and responsibility of Internet intermediaries in the field of copyright in India cannot be anymore ignored by various stakeholders. Even technological issues of IPRs in India must be kept in mind by all while dealing with others contents and IPRs. Liability of Internet intermediaries for copyright violations in India is very stringent under the cyber laws of India and contents of others should not be taken without their permissions.

Perry4Law Techno Legal Base (PTLB) has been providing various techno legal e-learning courses in India. These include online legal education in India, online cyber law education in India, online cyber law trainings in India, online cyber law courses in India, etc.

PTLB is providing the exclusive techno legal e-learning courses in India. The exclusive techno legal e-learning centre in India is also managed by PTLB. It is providing e-learning for lawyers in India, public legal awareness training in India, legal e-learning in India, online skills development in India , etc. There is no second opinion that Indian legal workforce needs to be skilled driven.

Similarly, online education in India needs to be developed urgently. However, in order to achieve this task, we must do proper planning and actual implementation. The sooner it is done the better it would for all the stakeholders involved.

E-Courts In India Must Be Expedited

Pendencies of cases in Indian courts are normal phenomenon these days. Delay in resolution of disputes adversely affects the confidence of business community and international investors. While traditional litigation system of India cannot be reformed overnight yet effective steps in this direction must be urgently taken.

Technology can be a viable option for resolving judicial problems in India. For instance online dispute resolution (ODR) mechanism can be effectively used to resolve many disputes in an online environment. Similarly, e-courts in India can be established to reduce corruption and irregularities of Indian judicial system.

There is no second opinion that e-courts in India needed. However, establishment of e-courts in India is still a dream as e-courts project of India has failed to provide the necessary impetus in this regard. There are many reasons why e-courts in India failed to take off. The chief among them is the absence of necessary expertise to manage and implement e-courts project of India.

For instance, we have a single techno legal e-courts training and consultancy centre in India. It is managed by Perry4Law Techno Legal Base (PTLB). We need more such specialised institutions to successfully manage the e-courts project of India.

Recently on the occasion of Law Day, Union law minister Salman Khurshid shared his desire for making court proceedings paperless. He asked whether Indian Supreme Court can be paperless. Citing the example of Brazil he stressed that India needs to move in that direction as well.

The idea is good provided India has necessary expertise and will to implement the e-court project of India. Presently that seems to be missing and this make the paperless court a distant dream in India.

Online Dispute Resolution And International Response

Online dispute resolution (ODR) is growingly seen as an effective alternative dispute resolution mechanism world over. Traditional litigation methods are time consuming, expensive and unproductive. ODR is not only speedier but is also economical and effective.

Online dispute resolution in India is still in its infancy stage. This is so because even the alternative dispute resolution in India is not free from troubles and procedural formalities.

However, success of ODR in India is still doubtful. To be successful, ODR in India needs urgent rejuvenation. This has happened because legal enablement of ICT systems in India is missing. ADR and ODR services in India are still evolving. There are very few ODR service providers in India.

Naturally, online dispute resolution services in India are still evolving. We have very few online dispute resolution centers in India. Further, Perry4Law Techno Legal Base (PTLB) is the sole techno legal ADR and ODR services provider in India.

Techno legal ODR services have become necessary due to growing use of information technology for business and commercial purposes world over. For instance, ODR and cross border e-commerce transactions are also interrelated. Similar is the case regarding dispute resolution of cross border technology transactions.

Similarly Online dispute resolution in Asia is still evolving. Online dispute resolution in Asian countries is largely confined to a single or two countries that also to a limited extent. Clearly online dispute resolution standards of practice for India and Asia need to be developed urgently.

However, nothing can strengthen ODR more than international efforts and international coordination activities. International legal standards for online dispute resolution (ODR) and international harmonisation of ODR is urgently required.

United Nations can play am important role in international development and international harmonisation of ODR. United Nations and online dispute resolution are closely related in this regard. In fact, UNCITRAL, ODR and India are interconnected.

Thus, it is clear that whether it is India, Asia, Europe, United States or any other international country or territory, ODR would play a very important role in effective, economical and speedier dispute resolution. Of course, United Nations has to play a more pro active role in this regard at the international level.

Draft National Competition Law Policy Of India

Competition Law of India is incorporated in the Competition Act 2002. It intends to regulate unfair business and commercial transactions and bring order in the otherwise disordered and manipulated business environment. The law also deals with anti-competitive agreements, unfair practices and abuse of dominant position.

In order to further strengthen the competition regime in India, the Ministry of Corporate Affairs has decided to formulate the draft National Competition Policy of India. This is a good step in the right direction and we at Perry4Law and Perry4Law Techno Legal Base (PTLB) support this initiative of Indian Government.

The Policy is aimed at laying down an overarching policy framework for infusing competition principles in various policies, statutes and regulations and promoting a competitive market structure in the economy, thereby striving to achieve maximum economy efficiency in various spheres, and public welfare. This Policy also includes some suggestions on the methodology and parameters for undertaking Competition Impact Assessment of concerned policies, regulations and procedures.

Competition refers to a situation in a market place in which firms/ entities or sellers independently strive for the patronage of buyers in order to achieve a particular business objective, such as profits, sales, market share etc. By responding to demand for goods and services with lower prices and higher quality, competing businesses are pressured to reduce costs, innovate in processes and products, invest in technology and better managerial practices and increase productivity. This process leads to achievement of static, dynamic as also resource/allocative efficiencies, sustainable economic growth, development, and poverty alleviation.

Competition is not an end unto itself, rather a means to achieve economic efficiency and welfare objectives. Importantly, competition is not automatic, and requires to be promoted, protected and nurtured through appropriate regulatory frameworks, by minimising market restrictions and distortions, and provision of related productive inputs such as infrastructure services, finance, human capital etc. However, a Competition Policy has to be evolved to imbibe the principles of competition in various endeavours of the Government, of course in alignment with the national strategic objectives, along with social, environmental, public safety, and other considerations.

Competition Policy means government measures, policies, statutes, and regulations including a competition law, aimed at promoting competitive market structure and behavior of entities in an economy. Competition Law is but a sub-set of the Competition Policy. Thus, Competition Policy is a broader term which includes all government policies and laws whereas competition law is specific statute with a predefined mandate to adjudicate on violation(s) of the law. In India, the Competition Act, 2002 deals with anti-competitive agreements such as price fixing, bid rigging, joint boycotts, etc; abusive practices undertaken by dominant entities such as predatory pricing, abusive conditions of supply, etc, and regulation of combinations. It would be seen that a competition law is a regulatory instrument to check the prevalence of anti-competitive practices whereas a competition policy is a proactive and positive effort to build a competition culture in an economy.

The Constitution of India seeks to ensure for its citizens—social, economic and political justice. Article 19(1) (g) of the Indian Constitution provides “freedom to practice any profession, or to carry on any occupation, trade or business”. Articles 301-304 further elucidate the issues. In a judgment3 the Supreme Court held that Article 301 provides freedom not from all laws but freedom from such laws which restrict or affect activities of trade and commerce among and within the States; and that Article 301 refers to freedom from laws which go beyond regulations which burdens, restricts or prevents the trade movements between states and within states.

Competition Policy is widely recognised as a powerful tool to promote freedom of trade, efficient use of scarce resources, enhance productive efficiency, add to the static and dynamic efficiency of the economy, maximise economic growth and contribute to the welfare of the common man. The basic premise of the National Competition Policy (NCP) is to unlock fuller growth potential of Indian economy, which among other things could also help in tapping the opportunities arising from the demographic dividend in our country. It would seek to inculcate a competition culture across various sectors to induct greater efficiency and dynamism, bringing in innovation and technology, delivering goods and services which are competitive, thus contributing to accessibility for consumers and consumption and thereby accelerating economic development, global competitiveness, unleashing entrepreneurial energy, creating more jobs and opportunities to raise the living standards of people, thus ensuring inclusive growth.

National Competition Policy may also help to promote good governance by transparency, accountability through competing responses and avoidance of rent seeking. It would also have a positive co-relation with other strategic national objectives like employment, R&D efforts and environmental objectives. It also respects the sovereign functions of the State like defence and security etc, and would seek to encourage competition related measures only in matters having economic impact on the market.

In this background, the National Competition Policy will endeavour to:

(a) Preserve the competition process, to protect competition, and to encourage competition in the domestic market so as to optimise efficiency and maximise consumer welfare. This would also make domestic firms competitive globally,

(b) Promote, build and sustain a strong competition culture within the country through creating awareness, imparting training and consequently capacity building of stakeholders including public officials, business, trade associations, consumers associations, civil society etc.,

(c) Achieve harmonisation in policies, laws and procedures of the Central Government, State Government and sub-State Authorities in so far as the competition dimensions are concerned with focus on greater reliance on well-functioning markets,

(d) Ensure competition in regulated sectors and to ensure institutional mechanism for synergised relationship between and among the sectoral regulators and/or the CCI and prevent jurisdictional grid locks,

(e) Strive for single national market as fragmented markets are impediments to competition, and

(f) Ensure that consumers enjoy greater benefits in terms of wider choices and better quality of goods and services at competitive prices.

Taking into account the needs of and priorities for promoting a healthy competition culture the principles of the National Competition Policy are:

(a) Fair market process: Market regulation procedures should be rule bound, transparent, fair and non-discriminatory. Public interest tests are to be used to assess the desirability and proportionality of policies and regulations, and these would be subject to regular independent review.

(b) Institutional separation between policy making, operations and regulation i.e. operations in and regulation of a sector should be independent of the government branch which deals with policy formulation in the sector and is accountable to the Legislature.

(c) ‘Competitive neutrality’, such as adoption of policies which establish a ‘level playing field’ where government businesses compete with private sector and vice versa.

(d) Fair pricing and inclusionary behaviour, particularly of public utilities and intellectual property rights holders, which could be imbued with monopolistic characteristics and a large part of the consumers could be excluded.

(e) Third party access to ‘essential facilities’, i.e. requiring dominant infrastructure owners to grant to third parties access (e.g., electricity, communications, gas pipe lines, railway tracks etc) to their infrastructure on agreed terms and conditions and at regulated prices, aligned with competition principles. Such treatment can be given to intellectual property rights as well if the IPR concerned possesses essential infrastructure characteristics.

(f) Public Policies and programmes to work towards promotion of competition in the market place; and

(g) National, regional and international co-operation in the field of competition policy enforcement and advocacy.

The following initiatives are envisaged to effectively generate a culture of competition and to enhance competition in the domestic markets with the involvement of all the stakeholders:

(a) Several existing policies, statutes and regulations of the Government restrict or undermine competition. A review of such policies, statutes and regulations from the competition perspective will be undertaken with a view to removing or minimising their competition restricting effect.

(b) Proposed policies, statutes or regulations that affect competition should be subject to Competition Impact Assessment.

(c) Where a regulatory regime is justified, it should provide that the principles of competition would be taken into account in the regulation. Regulation needs to be diluted progressively as competition becomes effective in the regulated sector.

(d) The competition authorities need to be functionally autonomous and financially independent.

(e) In order to ensure effective competition, third party access to essential facilities in the infrastructure sector owned by dominant enterprise on reasonable and fair terms should be provided.

(f) Incorporate competition clauses in bilateral and regional trade agreements, which will go a long way in preventing anti-competitive behaviour and potential anti-competitive cross-border conduct.

Media Forensics In India

Digital Forensics Solutions in India are assuming importance. Whether it is the Corporate World or Government Departments or Legal and Judicial Fraternity, the use of Digital Forensics is increasingly advocated for various purposes in India. However, India has still to cover a long gap before Digital Forensics can be effectively used for various purposes.

Today, Forensics field in the Information and Communication Technology (ICT) related issues has developed many “Specialised Segments” like Digital Forensics, Cyber Forensics, Computer Forensics, Networking Forensics, Media Forensics, etc. These independent and specilaised segments have yet to be incorporated into Indian Laws and Judicial and Legal Proceedings.

Traditionally, Indian courts have dealt with digital or mechanical Evidence in the form of Tape Recorded or Video Evidences. This field has now transformed as Audio/Video Forensics and Media Forensics in India. Now the issue is no more just proving the “Admissibility” of such Tape/Video Recorded Evidence but their proving as a “Scientific Evidence” that requires additional efforts and expertise. Expert Opinions are now sought for matters of Audio and Video Evidences through their “Forensics Analysis”.

Even the Law Firms are now considering issues pertaining to Cyber Law, Cyber Security, Cyber Forensics, etc as potential source of legal assignments. This has changed the very equation of these Techno Legal fields and Law Firms are now playing an active role in the Development of Techno Legal Field.

The process of Media Forensics generally involves the following steps:

(1) Establishing the Legality of Audio/Video Recorded Evidence as per the Law of a Nation,

(2) Authentication and Certification of the Digital Evidence acquired by such Media, and

(3) Admissibility of such Digital Evidence in Courts.

It is very important to maintain a “Chain of Custody” and “Proper Documentation” of the Acquisition of such Digital Evidence and a Media Forensics Professionals must ensure that the Evidence Acquired by him is “Admissible” in a Court of Law.

Sooner or later Media Forensics would become an indispensable part of the Judicial Proceeding in India and establishing “Best Practices” in this regard is a sensible option. Perry4Law Techno Legal Base (PTLB) would come up with the “Best Practices” in this regard very soon.