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Big Data and Positive Social Change in the Developing World: A White Paper for Practitioners and Researchers
https://cis-india.org/internet-governance/blog/big-data-and-positive-social-change-in-developing-world
<b>I was a part of a working group writing a white paper on big data and social change, over the last six months. This white paper was produced by a group of activists, researchers and data experts who met at the Rockefeller Foundation’s Bellagio Centre to discuss the question of whether, and how, big data is becoming a resource for positive social change in low- and middle-income countries (LMICs).</b>
<hr />
<p style="text-align: justify; ">Bellagio Big Data Workshop Participants. (2014). “Big data and positive social change in the developing world: A white paper for practitioners and researchers.” Oxford: Oxford Internet Institute. Available online: <a class="external-link" href="http://ssrn.com/abstract=2491555">http://ssrn.com/abstract=2491555</a>.</p>
<h2>Summary</h2>
<p style="text-align: justify; ">Our working definition of big data includes, but is not limited to, sources such as social media, mobile phone use, digitally mediated transactions, the online news media, and administrative records. It can be categorised as data that is provided explicitly (e.g. social media feedback); data that is observed (e.g. mobile phone call records); and data that is inferred and derived by algorithms (for example social network structure or inflation rates). We defined four main areas where big data has potential for those interested in promoting positive social change: advocating and facilitating; describing and predicting; facilitating information exchange and promoting accountability and transparency.</p>
<p style="text-align: justify; ">In terms of <span class="ff5">advocating and facilitating</span>,<span class="_0 _"> </span> we discussed ways in which volunteered data may <span class="_0 _"> </span>help organisations to open up new public spa<span class="_0 _"></span>ces for discussion and awareness<span class="_0 _"></span>-building; how both aggregating data and working across different databa<span class="_0 _"></span>ses can be tools for building awa<span class="_0 _"></span>reness, and howthe digital data commons can also configure new<span class="_0 _"></span><span class="ff5"> </span>communities and actions<span class="_0 _"></span> (sometimes serendipitously) through data science and aggregation. Finally, we also<span class="_0 _"></span> looked at the problem of overexposure and ho<span class="_0 _"></span>wactivists and organisations can<span class="_0 _"></span> protect themselves and hide their digital footprin<span class="_0 _"></span>ts. The challenges w<span class="ls2">e</span> identified in this area were how to interpret data<span class="_0 _"></span> correctly when supplementary information may b<span class="_0 _"></span>e lacking; organisational capacity constraints aro<span class="_0 _"></span>und processing and storing data,<span class="_0 _"></span> and issues around data dissemination, i.e. the pos<span class="_0 _"></span>sible negative consequences of inadvertently ide<span class="_0 _"></span>ntifying groups or individuals<span class="_0 _"></span>.</p>
<p style="text-align: justify; ">Next, we looked at the way big data can help describe and predict, functions which are particularly important in the academic, development and humanitarian areas of work where researchers can combine data into new dynamic, high-resolution datasets to detect new correlations and surface new questions. With data such as mobile phone data and Twitter analytics, understanding the data’s comprehensiveness, meaning and bias are the main challenges, accompanied by the problem of developing new and more comprehensive ethical systems to protect data subjects where data is observed rather than volunteered.</p>
<p style="text-align: justify; ">The next group of activities discussed was facilitating information exchange. We looked at mobile-based information services, where it is possible for a platform created around a particular aim (e.g. agricultural knowledge-building) to incorporate multiple feedback loops which feed into both research and action. The pitfalls include the technical challenge of developing a platform which is lean yet multifaceted in terms of its uses, and particularly making it reliably available to low-income users. This kind of platform, addressed by big data analytics, also offers new insights through data discovery and allows the provider to steer service provision according to users’ revealed needs and priorities.</p>
<p style="text-align: justify; ">Our last category for big data use was accountability and transparency, where organisations are using crowdsourcing methods to aggregate and analyse information in real time to establish new spaces for critical discussion, awareness and action. Flows of digital information can be managed to prioritise participation and feedback, provide a safe space to engage with policy decisions and expose abuse. The main challenges are how to keep sensitive information (and informants) safe while also exposing data and making authorities accountable; how to make the work sustainable without selling data, and how to establish feedback loops so that users remain involved in the work beyond an initial posting. In the crowdsourcing context, new challenges are also arising in terms of how to verify and moderate real-time flows of information, and how to make this process itself transparent.</p>
<p style="text-align: justify; ">Finally, we also discussed the relationship between big and open data. Open data can be seen as a system of governance and a knowledge commons, whereas big data does not by its nature involve the idea of the commons, so we leaned toward the term ‘opening data’, i.e. processes which could apply to commercially generated as much as public-sector datasets. It is also important to understand where to prioritise opening, and where this may exclude people who are not using the ‘right’ technologies: for example, analogue methods (e.g. nailing a local authority budget to a town hall door every month) may be more open than ‘open’ digital data that’s available online.</p>
<p style="text-align: justify; ">Our discussion surfaced many questions to do with representation and meaning: must datasets be interpreted by people with local knowledge? For researchers to get access to data that is fully representative, do we need a data commons? How are data proprietors engaging with the power dynamics and inequalities in the research field, and how can civil society engage with the private sector on its own terms if data access is skewed towards elites? We also looked at issues of privacy and risk: do we need a contextual risk perspective rather than a single set of standards? What is the role of local knowledge in protecting data subjects, and what kinds of institutions and practices are necessary? We concluded that there is a case to be made for building a data commons for private/public data, and for setting up new and more appropriate ethical guidelines to deal with big data, since aggregating, linking and merging data present new kinds of privacy risk. In particular, organisations advocating for opening datasets must admit the limitations of anonymisation, which is currently being ascribed more power to protect data subjects than it merits in the era of big data.</p>
<p style="text-align: justify; ">Our analysis makes a strong case that it is time for civil society groups in particular to become part of the conversation about the power of data. These groups are the connectors between individuals and governments, corporations and governance institutions, and have the potential to promote big data analysis that is locally driven and rooted. Civil society groups are also crucially important but currently underrepresented in debates about privacy and the rights of technology users, and civil society as a whole has a responsibility for building critical awareness of the ways big data is being used to sort, categorise and intervene in LMICs by corporations, governments and other actors. Big data is shaping up to be one of the key battlefields of our era, incorporating many of the issues civil society activists worldwide have been working on for decades. We hope that this paper can inform organisations and<br />individuals as to where their particular interests may gain traction in the debate, and what their contribution may look like.</p>
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<p><b><a class="external-link" href="http://cis-india.org/internet-governance/blog/big-data-and-positive-social-change.pdf">Click to download the full white paper here</a></b>. (PDF, 1.95 Mb)</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/big-data-and-positive-social-change-in-developing-world'>https://cis-india.org/internet-governance/blog/big-data-and-positive-social-change-in-developing-world</a>
</p>
No publishernishantBig DataPrivacyInternet GovernanceFeaturedOpennessHomepage2014-10-01T03:52:35ZBlog EntryBanking Policy Guide
https://cis-india.org/internet-governance/blog/banking-policy-guide
<b>To gain a practical perspective on the existing banking practices and policies in India in this project, an empirical study of five separate and diverse banks has been conducted. The forms, policy documents, and other relevant and available documents of these banks have been analysed in this project.</b>
<p style="text-align: justify; ">These documents were obtained from the websites of the respective banks, and wherever they were lacking, from the branches of the banks themselves. Attempts were made to obtain any information required for the project that was not available on the website or in the forms from the officers of the respective banks.</p>
<p style="text-align: justify; ">The State Banks of India (hereinafter ‘SBI’), Central Bank of India (hereinafter ‘CBI’), ICICI Bank (hereinafter ‘ICICI’), IndusInd Bank (hereinafter ‘IndusInd’) and Standard Chartered Bank (hereinafter ‘SCB’) are the banks chosen for this project. As mentioned, these banks have been chosen to ensure a diverse sample pool. SBI is an Indian public multinational bank, CBI is an Indian public bank and it is not multinational, ICICI is an Indian private and multinational bank, IndusInd is an Indian private bank which isn’t multinational, and SCB is a British bank operating in India.</p>
<p style="text-align: justify; ">The forms and other documents of each of the banks have been compared against a template of twenty nine questions created from the nine principles given in <a class="external-link" href="http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf">Justice A.P. Shah Group of Experts’ Report on Privacy</a>.</p>
<p style="text-align: justify; ">The two services provided by these banks that have been analysed are Opening an Account and Taking out a Personal Loan. This comparison has been done keeping in mind the obligations of the banks under the Master Circular and the KYC Norms detailed in it, Code of Conduct, and the Rules under Section 43A of the IT Act. Attempts have been made to clarify the basis of the response as much as possible. An analysis of the obligations of the banks is present below, along with an explanation of the relevance of various parts of the two services that are analysed.</p>
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<p style="text-align: justify; ">Click to download:</p>
<ol>
<li><a href="https://cis-india.org/internet-governance/blog/banking-policy-guide.pdf" class="internal-link">Banking Policy Guide</a></li>
<li><a href="https://cis-india.org/internet-governance/blog/banking-policy-guide.xlsx" class="internal-link">Banking Practices</a></li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/banking-policy-guide'>https://cis-india.org/internet-governance/blog/banking-policy-guide</a>
</p>
No publisherKartik ChawlaBankingFeaturedInternet GovernancePrivacy2015-01-22T14:54:57ZBlog EntryBanking and Accessibility in India: A Report by CIS
https://cis-india.org/accessibility/blog/banking-and-accessibility-in-india-report
<b>The report gives an analysis of banking accessibility for persons with disabilities in India. Besides a detailed look at the legal provisions and guidelines on banking and technology, the report also provides a view on different disabilities in relation to banking and accessibility in India and contains case studies and guidelines from countries such as New Zealand, Australia, the United States of America, Canada and the Netherlands. The report sums up the analysis with suggestions and recommendations to improve banking accessibility for persons with disabilities in India.</b>
<h2>Executive Summary</h2>
<p style="text-align: justify; ">India is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), and has an obligation to provide equal opportunities and facilities to everyone, irrespective of any disabilities they might suffer from. This is guaranteed in the right to equality and the right to life, which are enshrined in the fundamental rights in the Constitution of India. There are specific Reserve Bank of India (RBI) notifications that mandate banks to offer banking facilities in a non-discriminatory manner to all customers. Nevertheless, there are many problems faced by people with disabilities while accessing banking and financial services in India. For instance, many banks and Automated Teller Machines (ATMs) are not physically accessible, staff has no training or expertise in dealing with customers who have special needs, and despite the existence of technology, and ATMs are not equipped to be used by people with disabilities.</p>
<p style="text-align: justify; ">There are several international guidelines which can be referred to while formulating policy on banking accessibility, such as guidelines on ATM construction and modification (USA) and guidelines on making websites accessible for people with disabilities (the Web Content Accessibility Guidelines), as well as voluntary standards that have been taken up by banking associations in countries like Australia and New Zealand in order to make banking more accessible to people with disabilities and the elderly population.</p>
<p style="text-align: justify; ">The adoption of accessibility features and technologies in Indian banks today is very low, despite there being a legislative as well as executive push for the same. Banks which do not follow these guidelines are not meeting their legal requirements, and it is important for them to understand not just their obligations, but also the benefits that will accrue to them if they follow the suggested guidelines. To that end, this report looks at the current notifications and guidelines that govern this area, the problems faced by people with disabilities, and looks at guidelines from other countries to suggest solutions that can be incorporated by different banks in India.</p>
<h2 style="text-align: justify; ">Introduction</h2>
<p style="text-align: justify; ">As per the 2001 Census, there are around 2.19 crore persons with disabilities in India. They constitute 2.13 per cent of the total population of the country.<a href="#fn1" name="fr1">[1]</a> This includes persons with visual, hearing, speech, locomotor and mental disabilities. Despite these numbers, there is a lack of understanding of their needs, and people with disabilities face a number of obstacles when it comes to living a normal life, and availing banking facilities is a big part of the problem. Consider the fact that only 50 out of the 1.04 lakh Automated Teller Machines (ATMs) in India are accessible to people with disabilities.<a href="#fn2" name="fr2">[2]</a> There is a general lack of infrastructure and awareness in India that permits people with disabilities to use banking services. This translates to problems not just in accessing a physical bank and seeking help from a bank official, but also extends to accessing services such as ATM machines and online banking options. The problem is exacerbated by the fact that around 75 per cent of persons with disabilities live in rural areas, and only around 49 per cent of the disabled population is literate and only 34 per cent is employed.<a href="#fn3" name="fr3">[3]</a> Although one may find some rare cases of disabled-friendly banking options in the metros, in the rural areas, there are neither facilities nor is there any sensitisation towards meeting the needs of the disabled.</p>
<p style="text-align: justify; ">India is a signatory to both the United Nations Convention on the Rights of Persons with Disabilities, 2006<a href="#fn4" name="fr4">[4]</a> (hereinafter, “UNCRPD”) and Biwako Millennium Framework towards an Inclusive, Barrier-free and Rights-based Society for PWDs in Asia and the Pacific, 2002<a href="#fn5" name="fr5">[5]</a> and thus has an international obligation to ensure equal access to all members of the population. This obligation extends to giving people with disabilities the right to conduct banking services. This has been recognised by several Reserve Bank of India (RBI) directives as well, although these guidelines have not been fully implemented so far.</p>
<p style="text-align: justify; ">Currently, it is very difficult for people with disabilities to use banking services in India. If a person who has a hearing disability walks into a branch for a home loan, the branch does not have a person who can understand or interpret sign language. More usually, the branch does not even have the resources or knowledge about whom to contact to facilitate the interaction by interpreting. These obstacles mean that a person with disability/ies always has to latch on to someone who is fully capable to help them. Without such help in the form of guarantors or co-borrowers who are fully capable, the chances of obtaining finance from the banks are low because bank's probably give a person with disability/ies a much lower credit rating based on their own internal criteria. These determinations automatically put the disabled at a disadvantage. A person with a learning disability, for example, dyslexia, will face severe difficulty filling out an application form (or any document for that matter) and banks are not disabled friendly in terms of the attitude of the staff towards such difficulties.</p>
<p style="text-align: justify; ">Making banking accessible for people with disabilities is both a best practice that should be followed, as well as a sound commercial decision. There are a large number of people in India with differing levels of disability, who would benefit from using banking services. Additionally, the number of people will only increase with time as India’s young population grows old, since incidence of disability increases with age.<a href="#fn6" name="fr6">[6]</a> The Internet, above all, is a tool for people with disabilities to bridge the differences between them and others, and all efforts must be made to ensure that they are not at a disadvantage when it comes to using services such as net banking. There is also the consideration that improving accessibility improves access for all users, and makes it possible for them to make use of more services. A lot of accessibility issues (such as the physical accessibility to branches and ATMs, signature mismatches due to hand tremors or strokes) are common to the disabled, the elderly and those with neurological conditions. Taken together, this constitutes a significant percentage of the customer base — so these issues should be addressed by banks for that reason alone.</p>
<p style="text-align: justify; ">This report will look at the legal imperatives that govern accessibility in banking services in India, and look at the various problems being faced by people with disabilities when trying to use banks. It will also look at sample guidelines from other countries and suggest best practices for banking institutions, as well as take a look at the various costs that could be incurred in trying to make their banks more accessible.</p>
<p style="text-align: justify; ">The scope of this report is restricted to covering only basic banking services in India, and other financial services, such as insurance and loans, have not been dealt with.</p>
<h2 style="text-align: justify; ">Legal Imperatives</h2>
<p style="text-align: justify; ">The rights of persons with disabilities have been recognised under various legal instruments, and it has been established that they are to be given the same services and privileges as other members of society.</p>
<h3 style="text-align: justify; ">Constitutional Provisions</h3>
<p style="text-align: justify; ">Part III of the Constitution of India, which deals with the fundamental rights of citizens, recognizes the principle of equality of all people. Article 14 states that the government must accord equal protection of the law to any person within the territory of India.<a href="#fn7" name="fr7">[7] </a>This recognition of the importance of non-discrimination means that the state must ensure that people with disabilities do not suffer disadvantages when it comes to accessing public services.</p>
<p style="text-align: justify; ">Article 15, which deals with prohibition of discrimination on various grounds states that no citizen is to be subject to any disability, liability or restriction with regard to access to shops, public restaurants, and other public places.<a href="#fn8" name="fr8">[8]</a></p>
<p style="text-align: justify; ">It is evident that this important constitutional protection extends to people with disabilities, and it is their right to gain equal and accessible access to all manner of services, including banking.</p>
<h3 style="text-align: justify; ">Legislation dealing with Disability</h3>
<p style="text-align: justify; ">There are several national laws that deal with the rights of people with disabilities, though not all of these laws have a direct bearing with banking.</p>
<h3 style="text-align: justify; ">The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995</h3>
<p style="text-align: justify; ">The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the PWD Act”) was enacted to give effect to the proclamation on the full participation and equality of people with disabilities on both central and state governments. The PWD Act has been enacted under Article 253 of the Constitution.<a href="#fn9" name="fr9">[9] </a>It has several provisions for people with disabilities, including education, employment, creation of barrier free environment, social security and similar overlooked areas. It provides for a three tier arrangement:</p>
<p style="text-align: justify; ">For evolution of policy for the benefit of persons with disabilities Implementation of the provisions of the Act and laws, policies, etc., and monitoring implementation and redressing grievances.</p>
<p style="text-align: justify; ">The implementation of the Act relies on collaboration between the appropriate governments, which includes various central ministries and departments, state and union territories, and local bodies.<a href="#fn10" name="fr10">[10]</a></p>
<p style="text-align: justify; ">Chapter VIII of the Act deals with non-discrimination, and one of the measures it recommends is making buildings accessible by simple measures such as curb cuts and slopes in the pavements for wheelchair users.</p>
<p style="text-align: justify; ">There are several problems with the enactment.<a href="#fn11" name="fr11">[11]</a> The terms "accessibility" and "disability" are not clearly defined. They are also not provided as a matter of right but are based on the economic capacity of the service provider. It also fails to consider the access to services and information. However, public banks need to be conscious, since they will usually be considered to have sufficient economic capacity, and might be bound to deliver their services to people with disabilities. This has often become an issue in other jurisdictions as well. In 2009, the Royal Bank of Scotland, for example, was forced to pay extensive damages to a disabled student who was unable to access the bank due to a lack of wheelchair lifts.<a href="#fn12" name="fr12">[12]</a></p>
<h3 style="text-align: justify; ">The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999</h3>
<p style="text-align: justify; ">The trust is intended to give complete care to people with mental retardation and cerebral palsy, and also manage the properties bequeathed to the trust. The trust supports programmes that promotes independence and address the concerns of these special persons, especially the ones who do not have family support. The trust is also empowered to receive grants, donations, benefactions, requests and transfers.<a href="#fn13" name="fr13">[13]</a></p>
<h3 style="text-align: justify; ">The Mental Health Act, 1987</h3>
<p style="text-align: justify; "><b> </b>The Act consolidates and amends the law relating to the treatment and care of mentally ill persons, in order to make better provisions with respect to their property and affairs, and other incidental matters.<a href="#fn14" name="fr14">[14]</a></p>
<h3 style="text-align: justify; ">The Rehabilitation Council of India Act, 1992</h3>
<p style="text-align: justify; "><b> </b>The Act was created to provide for the constitution of the Rehabilitation Council of India for regulating training of the rehabilitation professionals and maintaining of a central rehabilitation register. It also regulates the recognized rehabilitation qualifications, and prescribes minimum standards of education.<a href="#fn15" name="fr15">[15]</a></p>
<h3 style="text-align: justify; ">RBI Notifications</h3>
<p style="text-align: justify; ">The most important resource when it comes to banking guidelines is the RBI, which comes out with regular notifications. The RBI has been conferred wide powers under the Banking Regulation Act, 1949 (BRA),<a href="#fn16" name="fr16">[16]</a> under which it can supervise and control the various banking companies, and they are bound to follow its directions. Section 35A of the Act specifies that in public interest or in the interest of banking policy, the RBI can issue such directions as it deems fit, and the banking companies or the banking company, as the case may be, shall be bound to comply with such directions.<a href="#fn17" name="fr17">[17]</a></p>
<p style="text-align: justify; ">RBI has released several notifications dealing with the rights of the disabled.</p>
<h3 style="text-align: justify; ">Circular on grant of banking facilities to the visually challenged</h3>
<p style="text-align: justify; "><b> </b>In its Circular DBOD. No. Leg BC. 91 /09.07.005/2007-08 dated June 4, 2008,<a href="#fn18" name="fr18">[18]</a> the RBI mandated that banking facilities (including cheque book facility, operation of ATM, locker, etc.) cannot be denied to the visually challenged as they are legally competent to contract.</p>
<p style="text-align: justify; ">In the notification, the RBI recalled the order of the Chief Commissioner for Persons with Disabilities, which had earlier been passed by the Indian Banks’ Association (“IBA”) to its member banks. The Order instructed that banks should offer all the banking facilities including cheque book facility, ATM facility and locker facility to the visually challenged and also assist them in withdrawal of cash. This order has reiterated that there can be no denial of services just because there is an apprehension of risk in operating or using the facility; it said that a similar security threat exists for all members of the population.</p>
<p style="text-align: justify; ">As per the RBI notification, the banks are therefore bound to:<br />Ensure that all the banking facilities such as cheque books are offered to the visually impaired without any discrimination. These facilities should include third party cheques, ATM, net banking, locker, retail loan and credit card facilities.</p>
<p style="text-align: justify; ">Advise their branches to render all possible assistance to the visually impaired for availing the various banking facilities.</p>
<h3 style="text-align: justify; ">Circular on making ATMs accessible</h3>
<p style="text-align: justify; "><b> </b>The RBI had been receiving several suggestions to make branches and ATMs easily accessible to people with disabilities by providing ramps so that wheel chair users can access them and the height of the machine is also appropriate for them. It had also been receiving suggestions for installing speaking software and key pads with letters in Braille to facilitate use by persons with visual impairment. After considering these suggestions, the RBI passed a notification, directing the banks to implement such measures.</p>
<p style="text-align: justify; ">As per its Circular DBOD. No. Leg BC. 91 /09.07.005/2007-08 dated June 4, 2008, RBI has directed all banks to provide:</p>
<ul>
<li style="text-align: justify; ">Ramps to ATMs: Banks have to take necessary steps to provide all existing ATMs or future ATMs with ramps so that wheelchair users or persons with disabilities can easily access them and also make arrangements in such a way that the height of the ATM does not create an impediment in its use by a wheelchair user.</li>
<li style="text-align: justify; ">Ramps at bank entrances: Banks may also take appropriate steps including providing ramps at the entrance of the bank branches so that the persons with disabilities or wheelchair users can enter the bank branches and conduct business without much difficulty.</li>
<li style="text-align: justify; ">Accessible ATMs: Banks should make at least one third of new ATMs installed as talking ATMs with Braille keypads and place them strategically <span>in consultation with other banks</span> to ensure that at least one talking ATM with Braille keypad is generally available in each locality for catering to needs of visually impaired persons.</li>
<li style="text-align: justify; ">Information about the ATMs: Banks should also bring the locations of such talking ATMs to the notice of their disabled customers.</li>
</ul>
<h3 style="text-align: justify; ">Circular on implementation of the guidelines</h3>
<p style="text-align: justify; "><b> </b>These guidelines were strongly reiterated as recently as September 5, 2012, where the RBI by its notification numbered DBOD.No. Leg.BC. 38/09.07.005/2012-13<a href="#fn20" name="fr20">[20] </a>highlighted the abovementioned circulars. It said that it had been brought to their notice by the Office of the Chief Commissioner for Persons with Disabilities that visually challenged persons are facing problems in availing banking facilities like internet banking.</p>
<p style="text-align: justify; ">Banks were advised under this notification to strictly adhere to instructions contained in the above circulars and extend all banking facilities to persons with blindness, low-vision and other disabilities.</p>
<h3 style="text-align: justify; ">Circular on guardianship certificates</h3>
<p style="text-align: justify; "><b> </b>The RBI, by its Master Circular DBOD.No.Leg.BC.9/ 09.07.006/ 2009-10<a href="#fn21" name="fr21">[21]</a>dated July 1, 2009 on Customer Service, directed banks to accept guardianship certificates issued by local level committees set up under the National Trust Act, enabling persons with disabilities like autism and cerebral palsy to open and operate accounts. Banks were advised to rely on the guardianship certificate issued either by the district court under the Mental Health Act or by the local level committees under the National Trust Act for the purposes of opening and operating bank accounts<a href="#fn22" name="fr22">[22]</a> by the legal guardians for people with disabilities that is covered under the Act. Banks were also advised to ensure that their branches give proper guidance so that the parents or relatives of the person with disability/ies do not face any difficulties in this regard. It has also directed that information about the opening of such bank accounts be displayed conspicuously, in both English as well as the regional language, in its circular RBI /2009-10/142.<a href="#fn23" name="fr23">[23]</a><i> This notification was in response to a Delhi High Court decision that directed banks to put up such information</i>.</p>
<p style="text-align: justify; ">Banks are therefore directed to:</p>
<ul>
<li style="text-align: justify; ">Accept guardianship certificates: Banks can accept certificates issued by local level committees set up under the National Trust Act or district court under the Mental Health Act, so that persons with disabilities like autism and cerebral palsy can open and operate accounts.</li>
<li style="text-align: justify; ">Provide assistance: Banks should ensure that their branches give proper guidance so that the parents or relatives of the person with disability/ies do not face any difficulties.</li>
<li style="text-align: justify; ">Display information: Banks should ensure that information about the opening of such bank accounts be displayed conspicuously, in both English as well as the regional language.</li>
</ul>
<h3 style="text-align: justify; ">National Policy on Disability</h3>
<p style="text-align: justify; "><b> </b>The National Policy for Persons with Disabilities, which was published in 2006, recognizes the extent of problems faced by the disabled in India. The report also discusses the number of citizens who are affected by disability: “According to the Census 2001, there are 2.19 crore persons with disabilities in India who constitute 2.13 per cent of the total population. This includes persons with visual, hearing, speech, locomotor and mental disabilities. Seventy five per cent of persons with disabilities live in rural areas, 49 per cent of disabled population is literate and only 34 per cent are employed. The earlier emphasis on medical rehabilitation has now been replaced by an emphasis on social rehabilitation. There has been an increasing recognition of the abilities of persons with disabilities and emphasis on mainstreaming them in the society based on their capabilities.”<a href="#fn24" name="fr24">[24] </a>The policy endorses accessibility and says that a barrier-free environment enables people with disabilities to move about safely and freely, and use the facilities within the built environment. In the principle areas of intervention identified by the policy, it ensures that banking services are made barrier free and accessible.<a href="#fn25" name="fr25">[25] </a></p>
<p style="text-align: justify; ">The National Policy is intended to inform the disability plan to be incorporated in the 11th Five Year plan,<a href="#fn26" name="fr26">[26] </a>which will have a timeline and funds for programmes which can be allotted through the Finance Commission.</p>
<h2 style="text-align: justify; ">Explaining Disabilities</h2>
<p style="text-align: justify; ">There are many problems faced by people with disabilities when they consider banking and financial services. From the very beginning, banks are a complicated route to charter for people with disabilities. Banks often resort to complex schemes and pricing systems, which can be difficult to understand for people with cognitive disabilities.<a href="#fn27" name="fr27">[27] </a>Finding bank branches and ATMs in their neighbourhood which are disabled-friendly and can be accessible to them is another difficulty, especially in a place like India where finding information is often a problem. There might be problems with physical accessibility — lack of ramp which makes it impossible for a wheelchair-bound person to use a bank or uncomfortable height of an ATM which makes it unwieldy for a wheelchair-bound person to access it — which can extend to the virtual realm as well: if a bank’s website is not complying with the standards for web-accessibility (discussed below) and is difficult to use by people with disabilities, they will be unable to take recourse to internet banking, as well.</p>
<p style="text-align: justify; ">In many countries such as Australia<a href="#fn28" name="fr28">[28]</a> there is great reliance on phone banking, which can be especially helpful to blind customers, or on audio-based telephone devices, which can be used by deaf-blind or the deaf customers. However, neither technology is at present available in India; text-based alternatives or spoken prompts (TTY based telephone banking) are not used by any banks. It is therefore essential that if a customer is using the interactive voice response (“IVR”) system of a bank and speaking to a bank representative on the phone to get a transaction done that the communication be clear, precise and easy to follow — as anyone who has attempted phone banking in India would testify, that is certainly not the case.</p>
<p style="text-align: justify; ">Let us take a look at some specific disabilities and what banks can do to ensure accessibility to their customers:</p>
<h3 style="text-align: justify; ">Problems faced by the hearing impaired while banking</h3>
<p style="text-align: justify; "><b> </b>When a person who cannot hear goes to a bank, the first problem they face is the fact that unless they are proficient at lip reading, they will find it difficult to communicate with the bank officials or tellers even when undertaking simple tasks like withdrawing money or depositing cheques. An important point to remember is that most hearing impaired people are more familiar with sign language than with English, and so can get confused by the complicated language used by the banks in their brochures and information booklets. If a deaf customer is communicating with the bank official by writing out instructions, it could take a longer time than other customers and they might face problems with other customers.</p>
<p style="text-align: justify; ">Another problem that might occur is that error messages or other audio cues might not be picked up by customers who are using multimedia based banking services or ATM machines.<a href="#fn29" name="fr29">[29]</a> This problem is exacerbated when using customer care services for banks, which are usually available only on the phone. With a lack of technological options for the hearing impaired, they are unable to access the IVR systems, or interact with customer care executives, which make it difficult for them to avail of all banking service facilities.</p>
<p style="text-align: justify; ">What can banks do?</p>
<ul>
<li>Training: Ensure that the bank staff is sensitised to the needs of the disabled and deaf customers, and know of a sign language translator who can be called if a customer requires it.</li>
<li style="text-align: justify; ">Ease of understanding: Make the instructions — both in the physical banks as well as in ATMs and websites — simple and precise, so they are easily understood. This will help all customers, not just those with disabilities.</li>
<li style="text-align: justify; ">Technical solutions: One solution available in some countries is using a phone-to-text machine or software that enables hearing impaired customers to use the phone banking and customer care services of a bank. For example, the Royal Bank of Scotland users can use a Typetalk or BT Textdirect service which will enable them to speak to an operator and so convey their messages.<a href="#fn30" name="fr30">[30]</a> If a bank feels that sufficient customers will benefit from such a technology, it should invest in it.</li>
<li style="text-align: justify; ">Sign language interpretation: A more low-tech solution is to offer interpretative services, where customers who need it can be assisted by someone who is proficient in sign language to help relay their point across to the bank.</li>
</ul>
<h3 style="text-align: justify; ">Problems faced by the visually impaired while banking</h3>
<p style="text-align: justify; ">Visually impaired customers can find it difficult to navigate and even reach their banks, if the path is not clear and if the building is not provided with enough ramps and clear entrances. Even understanding the terms and conditions of banks and their services are difficult to comprehend, because the language used to describe services and procedures is confusing and complicated. Often, a booklet with the terms and conditions is simply handed over with no concern for how the person is supposed to read them. Visually impaired people might also face problems in distinguishing details on cheques and other financial instruments which, unlike currency, do not have physically distinguishable marks on them.</p>
<p style="text-align: justify; ">Visually impaired customers often face a lot of problems while using ATMs, because the keys are not marked with recognisable lettering in Braille. Even when there is a token raised symbol on the middle key or Braille markings on the keypad for tactile recognition, there is still the problem that what is being displayed on the touchscreen, as well as the instructions on how to proceed with a transaction, are not capable of being communicated. Most ATMs in India are not equipped with an audio jack, and so can’t be used by blind customers who want to connect headphones and hear the display on the screen.</p>
<p style="text-align: justify; ">There is also the problem of signature mismatches, especially when it comes to opening accounts and signing cheques. Currently the bank’s solution is to not have the person with disability/ies sign the cheque, which is not a solution that works consistently, especially when a person with disabilities is running a company. There should be a separate process in place to facilitate issuance of cheques by the visually impaired.<a href="#fn31" name="fr31">[31]</a></p>
<p style="text-align: justify; ">The first and most obvious problem with the visually impaired using net banking and other services on the internet is that they won’t be able to see the screen. Similarly, when they attempt to use the ATM machines, the screen cannot be read and the keyboard functions are often unclear. The problem is often accentuated for people with low vision, because the improper lighting, low contrast print and other glares make it difficult to make out what the screen says.<a href="#fn32" name="fr32">[32]</a> Some sites have a security requirement where users have to input CAPTCHA (Completely Automated Public Turing test to tell Computers and Humans Apart) codes in order to validate their payment or to register for a particular service; using such security codes can be particularly problematic for blind customers.<a href="#fn33" name="fr33">[33]</a> Banks websites might have pop ups or automatic music playing, which makes it difficult for the visually impaired to use their screen readers. Another problem arises in the mobile applications (“apps”) that are used by various banks; the format is not supported by screen readers on smartphones, and so customers with disabilities can’t use the facility made available to others.</p>
<p style="text-align: justify; ">What can banks do?</p>
<ul>
<li style="text-align: justify; ">Training: Sensitise the staff to the needs of blind customers, and ensure that there is a customer care executive who is present when a visually impaired customer needs assistance with a particular service.</li>
<li style="text-align: justify; ">Accessible formats: Printing out bank documents or statements in large size fonts, Braille or in audio script format if required is the first thing that banks can do to assist their visually impaired customers. Banks can also try to migrate towards accessible e-text or DAISY formats for their disabled customers.</li>
<li style="text-align: justify; ">Banking Guide: Coming out with a bank note guide to help identify the different bank notes and counterfeits, if any, is also important for visually impaired people who rely on their sense of touch. Similarly, an accessible format guide that takes you through the various steps that are involved in withdrawing cash or using an ATM would greatly assist blind customers who are using a new format or type of bank machine for the first time. At the same time, increasing the screen size and resolution of ATM screens would go a long way in improving access to the customers.</li>
<li style="text-align: justify; ">Templates: Banks can also be encouraged to come out with cheque book templates, so that blind users can familiarise themselves with using such bank documents and the process of writing cheques becomes easier for them.<a href="#fn34" name="fr34">[34] </a>Banks should also develop a better solution to the problem of visually impaired customer’s inability to sign cheques.</li>
<li style="text-align: justify; ">Open format statements: Banks should also ensure that when they provide customers with statements, they are made available in open formats, such as HTML or RTF, so that they can easily be read by screen readers. </li>
<li style="text-align: justify; ">Technical solutions: There are some alternatives to the CAPTCHA codes available, such as audio codes or maths questions. Some sites have the option of hearing the codes, instead of just seeing them. There are also human aided accessible CAPTCHA services (such as Solona), where the customer can send a screenshot of the screen to an aide. However, this has several security and privacy implications, and so is not an ideal solution. Multimedia on the websites of banks should be made optional, with a clear possibility of turning the music or animation off, so that users can use the screen reader without any problems. </li>
<li style="text-align: justify; ">Mobile apps: Banks should work with their technology partners to ensure that their mobile apps are accessible on all devices and can be used by customers using assistive technology. </li>
<li style="text-align: justify; ">Improved ATMs: Several banks around the world are switching to ATMs which give output in multiple formats, such as audio and large-font print,<a href="#fn35" name="fr35">[35]</a> making them more user friendly. There are several guidelines in effect in various jurisdictions which describe better design for ATMs, which takes into account the physical needs of disabled customers; newer ATMs which are set up should be asked to conform to such standards. While this is slowly starting to take place, more banks need to expand and improve their building structures keeping such guidelines and needs in mind. This has been discussed in the next section on ATM Guidelines. </li>
<li style="text-align: justify; ">Sensitisation: Special care should be taken to explain terms and conditions to visually impaired persons — there should be an effort to ensure that the person who is opening an account has understood the various terms and conditions and not just heard them.</li>
</ul>
<h3 style="text-align: justify; ">Problems faced by those with physical disabilities while banking</h3>
<p style="text-align: justify; "><b> </b>In India, a major problem is the physical accessibility of banks, with hardly any buildings being equipped with ramps and elevators; even if the bank itself is made accessible via these architectural modifications, the area surrounding the bank, for example, the market place, might be difficult to reach for people in wheelchairs, ultimately making it very difficult for them to use banks.</p>
<p style="text-align: justify; ">People with physical disabilities might find controlling their limbs for prolonged periods to be a problem, and so would find it difficult to use not just the physical banking services, but also internet services which necessitate controlling a mouse for a long period of time.</p>
<p style="text-align: justify; ">What can banks do?</p>
<ul>
<li style="text-align: justify; ">Build ramps: The most important step that needs to be taken by different banking institutions is ensuring that their ATMs and branches are accessible through a ramp, so that it is physically possible to reach from the road or other public area.</li>
<li style="text-align: justify; ">Elevators: Where possible, elevators should also be provided.</li>
<li style="text-align: justify; ">Special measures: Within the bank, there should be special provisions for people in wheelchairs or crutches, such as a designated queue and teller, so that they do not have to wait in queue for a long period of time.</li>
</ul>
<h3 style="text-align: justify; ">Problems faced by those with cognitive disabilities while banking</h3>
<p style="text-align: justify; "><b> </b>People with cognitive disabilities might have lower attention spans and might have problems with understanding complicated bank procedures and requirements. If the steps involved in using an ATM or other physical transactions are not logical and simple, people with cognitive disabilities will be unable to handle them. As a lot of Indian banks are rather chaotic and the transactions lack a certain consistency, people with cognitive disabilities could face a lot of problems adjusting. People who have cognitive disabilities might also be relying on their guardians or parents to assist in operating their bank accounts, and legal and bureaucratic hurdles to doing so can be a big hassle.</p>
<p style="text-align: justify; ">The front staff at banks are often improperly trained and do not have a holistic understanding of how to deal with people with disabilities. It has also been observed that while banks can be helpful while opening accounts, they are not open-minded about granting loans to people with disabilities.<a href="#fn36" name="fr36">[36]</a></p>
<p style="text-align: justify; ">Customers who are autistic have hand function issues which can cause their signatures not to match the ones on record, which again causes problems when it comes to opening accounts or signing cheques which ultimately bounce.</p>
<p style="text-align: justify; ">What can banks do?</p>
<ul>
<li style="text-align: justify; ">Sensitisation: Sensitise the staff to the special needs of customers with cognitive disabilities.</li>
<li style="text-align: justify; ">Display of information: Information for guardians of such customers, on the requirements for opening bank accounts, should be prominently displayed in the branches of the bank (Refer to Section 4.3.4).</li>
<li style="text-align: justify; ">Uniformity in procedures: Banks should make uniform guidelines or procedures to be followed for each transaction, so that there is a certainty and regularity that eases the way for people with cognitive disabilities.</li>
<li style="text-align: justify; ">Clear language: Banks should also ensure that they use extremely simple and clear language in all their transactions as well as literature in order to mitigate confusion.<a href="#fn37" name="fr37">[37]</a> </li>
<li style="text-align: justify; ">Identity establishment: There need to be rules put in place to allow those who are unable to sign properly to establish identity in some other manner.</li>
</ul>
<h2 style="text-align: justify; ">Guidelines on Banking Services and Technology</h2>
<p style="text-align: justify; ">The previous section has looked at some of the problems being faced by people with disabilities when they access banking services in India. This section will look at some guidelines and best practices which are aimed at increasing the accessibility of services.</p>
<h3 style="text-align: justify; ">Mobile banking</h3>
<p>There is the possibility of accessing a variety of financial services through mobile devices, which are termed as mobile banking or “m-banking”. This accessibility means that a lot of people with disabilities who live in rural areas, who have earlier not been able to access banks, can now do so using their mobile phones. Mobile banking also makes it much easier for customers with bank accounts to access their details and do transactions — for people with disabilities, this is a big step forward, as it means they do not have to endure the hassle and inconvenience of going to a bank, where they may not find the assistance that they need.</p>
<p>Currently, mobile banking is not that prevalent in India; less than one per cent of current bank customers are covered under the mobile banking services.<a href="#fn38" name="fr38">[38]</a></p>
<p style="text-align: justify; ">However, the growth in mobile banking transactions has shown an increasing trend. For example, in the month of June 2012, 3.43 million transactions amounting to Rs. 3067.10 million were processed, as compared to 1.41 million transactions amounting to Rs. 984.66 million processed in June 2011 — an increase of about 143 per cent in volume and approximately 211 per cent in value terms.<a href="#fn39" name="fr39">[39]</a></p>
<p style="text-align: justify; ">The Reserve Bank of India has passed some operating guidelines for mobile banking transactions.<a href="#fn40" name="fr40">[40]</a> These guidelines specify the technology and security standards, as well as the requirements for interoperability between operators, transaction limits and procedure for grievance redressal. They also tackle customer protection issues.</p>
<p style="text-align: justify; ">Banks should leverage the flexibility and utility of mobile banking in increasing access to their customers who have disabilities, as it would mean lesser expenses for both the banks as well as the customers.</p>
<h3 style="text-align: justify; ">Internet banking</h3>
<p style="text-align: justify; ">Internet banking is increasingly popular with customers, due to its convenience and ease of use; it removes the necessity of physically going to a bank. Since physical banks are often difficult for people with disabilities to navigate, internet banking could provide the best solution (though there are several problems with this medium as well, as have been described in the previous chapter). However, banks can make their websites more accessible and follow the prescribed guidelines to ensure a better banking experience not just for their disabled customers, but for all customers.</p>
<p style="text-align: justify; ">The biggest obstacle that comes with developing net banking options which are accessible to all is the wide diversity in the people who are trying to access the banks’ websites, and it is here that universal design comes into play. “The goal of universal design is to have each web page accessible by all people, instead of providing separate web pages for people with disabilities. This requires, for example, for people who are blind, textual equivalents for all images, and reading order and structure compatible with screen reading; for people who are deaf, visual equivalents such as captions for all audio information; and for people with motor disabilities, means to navigate the page without fine motor control.”<a href="#fn41" name="fr41">[41]</a></p>
<p style="text-align: justify; ">There are a set of standards in place for website accessibility. The Web Content Accessibility Guidelines (“WCAG”) 2.0 specify the manner in which the material on any website is to be perceivable, operable, understandable and robust.<a href="#fn42" name="fr42">[42]</a> Under these four stated principles of web content accessibility, twelve guidelines have been given, which give the web content developers a framework and set of objectives to understand the needs of the disabled. There are also levels of conformance that are defined for each guideline, and a list of sufficient and advisory techniques has also been given.<a href="#fn43" name="fr43">[43]</a></p>
<p style="text-align: justify; ">The WCAG 2.0 Guidelines includes some basic steps, such as including text alternatives for all non-text objects, including descriptors or captioning for images, audio and animated sequences, and following a style sheet wherever possible, in order to maintain a consistent design. The guidelines deal with visibility and display (using contrasting colours for background and text; using relative sizing so that the text can be increased to upto 200 per cent), functionality (providing skip links such as “Back to Top”; ensuring that animation can be paused or switched off; ensuring keyboard as well as mouse functionality), and formatting (ensuring the text is not justified; setting the language attribute of each page; providing clear navigation mechanisms; ensuring that all mark up is validated and coded correctly), amongst others.<a href="#fn44" name="fr44">[44]</a></p>
<p style="text-align: justify; ">The National Informatics Centre (NIC) has developed some guidelines for government websites, which contain best practices for accessibility in website design; these guidelines were released in 2009, and are mandated for governmental websites. The guidelines are classified into three categories: mandatory, advisory and voluntary; a compliance matrix has been provided for various departments and organisations to assess their compliance with the guidelines.<a href="#fn45" name="fr45">[45]</a> It is crucial that banks comply with these guidelines to ensure that a certain basic minimum standard at web accessibility is met for the banking customers across all websites.</p>
<p style="text-align: justify; ">Another dimension which is unique to India is that of regional language; for banking customers who are not comfortable with English, it is recommended that bank websites be provided in major regional languages as well. The best way to display regional fonts is to use Unicode (UTF-8). Banks should ensure that Unicode is used to display the fonts, as otherwise the fonts can become garbled and a person using a screen reader will not be able to access the written material at all.</p>
<p style="text-align: justify; ">A critical guideline to be followed is that visual information should also be coupled with audio information, and that frequency and volume of the audible cues should be capable of being configured and controlled by the user.<a href="#fn46" name="fr46">[46]</a></p>
<h3 style="text-align: justify; ">Automated Teller Machines (ATMs)</h3>
<p style="text-align: justify; ">The number of ATMs and their penetration in India is very low: 63 ATMs and 497 points of sale per million population,<a href="#fn47" name="fr47">[47]</a> and a number of regulatory and commercial requirements have led to their relative low (though increasing) use in India. RBI has recently passed guidelines on operating White Label ATMs<a href="#fn48" name="fr48">[48] </a>which effectively open up most of the acquiring part of the process to non-bank independent players.<a href="#fn49" name="fr49">[49] </a>This should ensure that there is a greater increase in the number and penetration of ATMs in India, which will be beneficial for people with disabilities only if the ATM-makers ensure that minimum guidelines for the disabled are met with.</p>
<p style="text-align: justify; ">Currently there are no guidelines in India on how to construct ATMs in accordance with the needs of people with disabilities. However, banks can take guidelines from other jurisdictions as their guide and look at how other countries have handled the issue of making ATMs more accessible. It is hoped that this lacuna in the policy will be filled soon.</p>
<p style="text-align: justify; ">The American Department of Justice recently notified a final ruling on the standards of accessibility relating to ATMs under the Americans with Disability Act (“ADA”). Such standards range from requirements that signs be in Braille, a voice guidance system, and input controls for blind users.<a href="#fn50" name="fr50">[50]</a> These standards took effect in March 2011, and had a March 2012 compliance date. All ATM owners are to comply with these guidelines when constructing or altering ATMs.</p>
<p style="text-align: justify; ">Some salient features of these guidelines are:</p>
<ul>
<li style="text-align: justify; ">Height and reach: It is mandated that the ATM’s reach should be between 15 and 48 inches. Further, the graphic area where the touch commands are input needs to be lowered to the desired height. </li>
<li style="text-align: justify; ">The input device should be tactile, and so the surface of the keys should be different from the base and this should be apparent by touch. The keypad should also be arranged in a standard 12-key ascending or descending layout, as seen in telephones or computers. </li>
<li style="text-align: justify; ">ATMs must be equipped with both voice guidance systems as well as Braille language signage. This would mean adding a headphone jack to the machine, so the audio is heard only by the user and thus ensuring his privacy. </li>
<li style="text-align: justify; ">The display in the ATM needs to be clear; from an observation point 40 inches above the floor in front of the machine, the letters should appear in a sans serif font, with a minimum height of 3/16 inches, in a colour contrasting to the background. </li>
<li style="text-align: justify; ">There is also a requirement of equal services, which means that all services offered at any location through a bank’s ATM must also be provided by an “accessible” ATM in the same location. For this purpose, each installation is to be considered as a separate location.</li>
</ul>
<p style="text-align: justify; ">The Indian Banks’ Association (IBA) has issued a Standards document on Accessible ATMs for customers with disabilities, and has also released a work flow document to be followed by various banks. The IBA Standards documents states that:</p>
<blockquote class="quoted" style="text-align: justify; ">“The fundamental principle of an Accessible ATM for development, testing and implementation purposes is to ensure a machine which enable the user to complete all transactions successfully with a blank screen simply through voice guidance for totally blind users, permit independent use through clear screen data for low vision / partially sighted users and effective physical access for wheel chair users.”</blockquote>
<p style="text-align: justify; ">The document specifies different accessibility measures to be taken for each level of accessibility (for example: completely blind users and users with partial sight), with details about the size and measurement of various features that need to be incorporated. It also includes a workflow to be incorporated into the Speaking ATMs for the effective use by people with disabilities.</p>
<h3 style="text-align: justify; ">Currency</h3>
<p style="text-align: justify; ">For currency to be most effective as a means of payment, all users should have barrier-free access. The ability to conduct financial transactions using bank notes is crucial to independent living.<a href="#fn52" name="fr52">[52] </a>Yet this can pose significant challenges for individuals who are blind or partially sighted.</p>
<p style="text-align: justify; ">Physical currency (both notes and coins) are confusing and often cannot be distinguished from each other by merely feeling them. There is a great similarity between the hundred, five hundred and thousand rupee notes, as well as in the coins which are now completely confusing. Notes should also be discernible to the colour blind, which in their current form is not always possible. Various representations have been made to the Government of India on this regard and the change required is only a small one, though no changes have so far been forthcoming.</p>
<p style="text-align: justify; ">India can learn from the example of other countries which have experimented in the past with introducing currency which is friendlier to people with disabilities. Whether it is the printing of differently coloured notes, or the development of “raised-texture tactile features,”<a href="#fn53" name="fr53">[53]</a> there are several alterations that can be made to the currency. In India, the bank notes come with raised texture shapes to help the visually impaired to identify the different notes, and also come in different colours, though further improvements can be made. This problem is exacerbated in the coins — earlier, there was a differentiation in shape between them, but the newly minted coins of denominations Rs. 1, Rs. 2 and Rs. 5 are all very similar, and differentiating between them is a big problem.</p>
<p style="text-align: justify; ">In countries such as Canada, development of bank notes is based on a “continuous process that relies on scientific and empirical research, together with direct feedback from bank note user groups and experts. The bank consults Canadians living with blindness and low vision, as well as their representative organizations and vision experts, to identify the needs of this community and to explore potential solutions.”<a href="#fn54" name="fr54">[54] </a>It is this sort of consultative process that needs to be incorporated in India as well.</p>
<h3 style="text-align: justify; ">Telephone Banking</h3>
<p style="text-align: justify; ">Telephone banking is in its nascence in India and not all banks provide it. Furthermore, there are no guidelines in place to govern how telephone banking would take place. For people with disabilities, telephone banking could be very useful, if the proper tools are made available to them. Banks can look at the draft guidelines of other countries (refer to section 8 of the Report) which have provisions for phone banking to see what kind of procedure they should follow.</p>
<h2 style="text-align: justify; ">Converting to Accessibility in India</h2>
<p style="text-align: justify; ">Making banking accessible is not just in the commercial interest of the bank but is also in line with its commitments under various legislation and international conventions. In India, this has even been acknowledged by the RBI, which has issued a notification<a href="#fn55" name="fr55">[55]</a> suggesting that at least one-third of the new ATMs of all banks must be accessible.<a href="#fn56" name="fr56">[56]</a> Dinesh Kaushal has studied<a href="#fn57" name="fr57">[57]</a> some examples, such as the Punjab National Bank, which has set up some talking ATMs in Jaipur, or the State Bank of India which in 2010 announced plans of installing 7000 talking ATMs, but there is no news on the status of this goal. Currently the bare minimum target set by RBI is also not being met.</p>
<p style="text-align: justify; ">Subsequent to the RBI notifications, some positive developments have started taking place. The Union Bank of India has indicated that it will deploy over 100 Voice Guided ATMs — which not only allows access to visually impaired people but also people with physical disabilities through ramps for wheel chair access.<a href="#fn58" name="fr58">[58]</a></p>
<p style="text-align: justify; ">Half of these ATMs are to be put up in the banks, and the other half in passport offices. The ‘Talking ATM’ is designed as per Access for All (AFA) standards and comprise of accessible key pads, voice-guidance technology, Braille stickers and multi-lingual capability. When a visually challenged person attaches his headphone set to this ATM, he can hear the instruction which enables him to fill-in the required data using the numeric keypad. Apart from reading aloud screen messages, the machine provides complete orientation making it easy for the customer to use the machine. An important security feature of this ATM is that it provides the person an option to blank out the screen as a safety mechanism to avoid shoulder surfing by any bystander trying to access customer data during the transaction.<a href="#fn59" name="fr59">[59]</a> The bank recently completed setting up the 100th such ATM in the building of the National Association for the Blind.</p>
<p style="text-align: justify; ">The NCR Corporation India, which has a 47.5 per cent share in the country’s ATM business, has stated that it will install 50 ‘talking’ ATMs in various passport offices.<a href="#fn60" name="fr60">[60] </a>The company set up India’s first talking ATM in Ahmedabad for the visually impaired under the Union Bank of India initiative described above. Importantly, the managing director of the ATM company stated that while the hardware of the ATMs remains the same, the software customisations depend on the specific needs. Banks do not need to change their entire fleet of ATMs for installation of new solutions.<a href="#fn61" name="fr61">[61] </a></p>
<p style="text-align: justify; ">One concern that arises when we consider questions of accessibility is: what would be the cost of altering the present technology and infrastructure? If the cost of making banking accessible is too prohibitive, it would not be in the interests of the banks to do so.</p>
<p style="text-align: justify; ">“A talking ATM is the regular ATM with an additional module that allows a blind person to get the information in audio format. A talking ATM could be configured so that when a user plugs in a headphone in the audio jack, the ATM would start talking to the person with audio messages…Installing talking ATM technology is not very expensive. It might range anywhere between Rs. 25,000 and Rs. 50,000.”<a href="#fn62" name="fr62">[62] </a></p>
<p style="text-align: justify; ">There needs to be an evaluation of the present ATMs to see if merely upgrading the software would suffice in converting them to speaking ATMs — if this is the case, it can be done so with the help of the manufacturer at a low cost. The evaluation would also help the banks identify those machines which can be upgraded by the addition of some simple technology and hardware, while the others could be marked for eventual replacement. At the same time, the new machines that are set up by the banks should be audio-enabled; this should not be difficult as “all new ATM installations are audio enabled, as all major ATM manufacturers now produce talking ATMs including Triton, NCR, Wincor-Nixdorf, Diebold, and Fujitsu.”<a href="#fn63" name="fr63">[63] </a></p>
<p style="text-align: justify; ">Under the Americans with Disability Act, the determination of when an undue burden is placed on an establishment which has to make its services accessible is to be determined on a case by case basis, and would be considered keeping in mind factors such as the nature and cost of the upgrades, the availability of alternatives and the resources present with the financial institution in question.<a href="#fn64" name="fr64">[64] </a>Such a system should be incorporated in India as well, where the ability of the bank is considered when seeing the efforts it needs to make when converting its services to make them more accessible.</p>
<p style="text-align: justify; ">Union Bank of India’s Accessible and Talking ATM has brought in many initiatives for the first time, like the use of bilingual Indian accent text-to-speech (TTS) voices in English and Hindi, accessible infrastructure for the physically disabled and complete voice guidance support for ATM operation.<a href="#fn65" name="fr65">[65]</a> These should set the benchmark for other banks who want to improve the accessibility of their services as per the guidelines set forth by RBI.</p>
<h2 style="text-align: justify; ">Case studies and Guidelines in Other Countries</h2>
<p style="text-align: justify; ">Looking at the guidelines that are present in other countries can be helpful in determining how banks in India should go about improving their services. The following countries have specific provisions in place which regulate or instruct how banks should handle their disabled customers.</p>
<h3 style="text-align: justify; ">New Zealand</h3>
<p style="text-align: justify; ">The New Zealand Banker’s Association published a set of Voluntary Guidelines to meet the needs of older and disabled customers, which aim to improve access to banking services for such customers.<a href="#fn66" name="fr66">[66]</a> The guidelines recognise the increasing importance of older and disabled customers to banks as well as the importance of meeting their needs and demands. The guidelines direct the member banks to give training to the staff in order to better help the disabled customers, as well as to have specific procedures in place in case financial irregularities or abuse occur in bank accounts of people with disabilities. There are directions on improving physical accessibility (such as providing for low tables, ramps in ATMs, queuing aisles wide enough for wheelchairs and so on), as well as giving specific customer care help to those who need it, such as consulting the needs of the disabled when developing new services, having a provision for a reduction in fee if some customers are unable to use certain features, and having a provision for personal banking in special cases at no additional cost.</p>
<p style="text-align: justify; ">There are also specific provisions in the Guidelines for things such as ATM construction. Section 5.9 of the Guidelines specifies the factors to be kept in mind while designing ATMs: large screens, audible output, tactile differentiation in the keys, easy prompts in clear language and so on.<a href="#fn67" name="fr67">[67] </a>Section 5.10 talks about improving the accessibility of online banking and how bank websites should be designed, and recommends the use of international W3C web accessibility best practice standard, the accessibility-related New Zealand e-government web standards.<a href="#fn68" name="fr68">[68]</a> Finally, the Guidelines also talk about basics, such as clear and large font prints in their literature, and providing information in several formats (including Braille, DVD, and audio) wherever possible, to facilitate bank use by people with disabilities.<a href="#fn69" name="fr69">[69]</a></p>
<h3 style="text-align: justify; ">Australia</h3>
<p style="text-align: justify; ">The Disability Discrimination Act, 1992 (“DDA”) makes it unlawful to discriminate against a person on the grounds of a disability.<a href="#fn70" name="fr70">[70]</a> The objects of the DDA include eliminating, as far as possible, discrimination against people with disabilities and promoting recognition and acceptance within the community that people with disabilities have the same fundamental rights as the rest of the community. The law is administered by the Human Rights and Equal Opportunity Commission and sets out specific areas in which it is unlawful to discriminate. These areas include accommodation, employment, access to premises, and the provision of goods, services<a href="#fn71" name="fr71">[71]</a> and facilities. The HREOC administers the legislation, which includes complaints handling, public inquiries, policy development and education and training. The Commission has supported the development of several voluntary guidelines that determine accessibility in the sphere of banking.</p>
<p style="text-align: justify; ">The Australian Bankers’ Association (“ABA”) has worked with the community to produce voluntary Industry Standards in 2002 which aim to improve the accessibility of electronic banking. These standards cover a range of areas: ATMs, Electronic Funds Transfer at the Point of Sale, Automated Phone Banking and Internet banking.<a href="#fn72" name="fr72">[72]</a></p>
<p style="text-align: justify; ">The voluntary standards for ATMs<a href="#fn73" name="fr73">[73]</a> cover a broad range of topics, including their access and location, their operation, the method of swiping and removing the cards, the display, the keypad, the output, security and privacy for the users, and finally, installation and operating instructions. There is a checklist provided with the recommended detailed standards for each of the above areas.</p>
<p style="text-align: justify; ">Electronic Funds Transfer at Point of Sale<a href="#fn74" name="fr74">[74]</a> occurs when funds are directly transferred from a cardholder's bank account to the retailer, when the cardholder's magnetic stripe card is swiped in an EFTPOS terminal. Cardholder authentication occurs by signature or Personal Identification Number (PIN). These standards cover areas such as access and location of the EFTPOS terminals, process of swiping, inserting or removing the card, operating instructions, display, keypad and output options, amongst others. A helpful checklist has been provided for EFTPOS deployers to assess whether their machines are disabled-friendly.</p>
<p style="text-align: justify; ">The guidelines on phone banking<a href="#fn75" name="fr75">[75]</a></p>
<p style="text-align: justify; ">deal with financial services which are available to the customer via the telephone, that can be used by the customer without having to converse with an employee of the financial institution. The guidelines look at certain design principles, best practices for input and navigation, output, documentation, the role of TTY Communications and Relay Operators, and dealing with timeouts and errors. Like with the other standards, a checklist with the best practices as per the guidelines has been provided.</p>
<p style="text-align: justify; ">The standards on internet banking<a href="#fn76" name="fr76">[76]</a></p>
<p style="text-align: justify; ">looks at various aspects of financial transactions taking place on the internet, and prescribe guidelines for design and implementation (for example: compliance with the WCAG1.0 standards), feedback and testing of accessibility, compatibility, enhanced usability (in areas such as navigation, registration, login, information redundancy and so on), consistency and user support. A specification checklist is also provided, so that owners can comfortably see whether their site is compliant with the guidelines or not.</p>
<p style="text-align: justify; ">There is an action plan for the above four set of guidelines, to check their implementation and to identify problems and barriers that may arise in the future.<a href="#fn77" name="fr77">[77]</a> Though these guidelines are voluntary, it is worthwhile to consider the example of such a detailed action plan, as implementation of any sort of guidelines will only become more efficient if something like this is followed.</p>
<p style="text-align: justify; ">The Australian Banker’s Association has also come up with a set of Guiding Principles for Accessible Authentication, which recognizes that “accessibility issues need to be considered in the deployment of authentication technologies, to ensure that people with disabilities and older people are not disadvantaged… The purpose of the Guiding Principles is to provide a framework for financial institutions to help reach a workable balance between security requirements, commercial strategies and equitable access to banking products and services.”<a href="#fn78" name="fr78">[78]</a> The Principles aim to follow certain universal design principles, of equitable and flexible use, minimal effort, simple and intuitive design, amongst others. They are as follows:<a href="#fn79" name="fr79">[79]</a></p>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><span>Accessibility of authentication technologies:</span> Financial institutions should ensure that authentication technologies are accessible to all customers, or where this is not possible, a human-based alternative authentication system needs to provide equivalent amenity and convenience.</li>
<li style="text-align: justify; "><span>Customer convenience:</span> All customers should be able to undertake their personal and business financial activities conveniently and safely.</li>
<li style="text-align: justify; "><span>Authentication planning:</span> Financial institutions should consider the accessibility needs of customers with disabilities and older customers as part of authentication technology planning.</li>
<li style="text-align: justify; "><span>Authentication testing</span>: Financial institutions should consult customers with disabilities and older customers as part of planning and testing accessibility of authentication technologies.</li>
<li style="text-align: justify; "><span>Registration, login and transaction procedures</span>: Financial institutions should ensure that registration; login and transaction procedures are as accessible as possible to all customers.</li>
<li style="text-align: justify; "><span>Messages and error recovery</span>: Financial institutions should ensure that online messages are unambiguous and written in “plain English” and that error recovery processes are efficient and accessible. </li>
<li style="text-align: justify; "><span>Staff and customer training</span>: Financial institutions should provide relevant customer support staff with appropriate disability awareness training so they are aware of the needs of customers with disabilities and older customers. In addition, financial institutions should provide customers with information and training in the use of available authentication technologies.</li>
<li style="text-align: justify; "><span>Raising staff, business and customer awareness:</span> Financial institutions should develop a strategy for enabling relevant management and staff awareness of these Guiding Principles. In addition, financial institutions should promote the availability of alternative accessible authentication technologies with their customers. </li>
<li style="text-align: justify; "><span>Confidentiality of customer information</span>: Financial institutions must ensure the confidentiality of information of customers with disabilities and older customers.</li>
</ul>
<h3>United States of America</h3>
<p style="text-align: justify; ">The 2010 Standards under the ADA have set out detailed requirements to make ATMs accessible, as was discussed in the previous section of the paper. These elements are considered by the Department of Justice to be Auxiliary Aids and Services (and not structural elements) and the safe harbour provision does not apply to them.<a href="#fn80" name="fr80">[80]</a></p>
<p style="text-align: justify; ">Though American ATMs have been equipped with text to speech functions and have been subject to height and space requirements for many years, the new rules provide for additional security and instructional features for disabled customers.<a href="#fn81" name="fr81">[81]</a></p>
<p style="text-align: justify; ">All the ATMs which come under the scope of the ruling will have to be speech enabled; further, there are specifications as to the height requirement (the machine should be between 15 and 48 inches in height). There is a requirement that the input area be not just touchscreen, and it should be tactilely discernible from the surrounding surface; the keypad should be arranged in a manner that is common and easy to remember. Instructions about the use of the ATMs should be given in Braille and equal services should be offered to all customers, irrespective of their disabilities.</p>
<p style="text-align: justify; ">Subsequent to the passing of the ruling, the American Bankers’ Association recommended that banks be aware of the legal requirements under the Americans with Disabilities Act; ABA advocated that banks make a careful audit of their existing machines, and compare them to the standards to which they need to conform. In case the machines need to be upgraded, the machine manufacturers would have to be contacted in order to make alterations, if necessary.</p>
<h3 style="text-align: justify; ">Canada</h3>
<p style="text-align: justify; ">Canada has issued standards for “self-service interactive devices”,<a href="#fn82" name="fr82">[82] </a>the umbrella term under which ATMs would fall, the purpose of which is to specify minimum accessibility and usability requirements for self-service interactive devices intended for public use. The standard specifies accessibility requirements for automated banking machines (ABMs) — both stand-alone and wall mounted — and ABM sites. There are specifications which give the various minimum dimensions that must be conformed to when constructing such self-service interactive devices. However, the standards do not look at the technological aspect, specifically excluding it from their purview and giving that responsibility to the relevant authority.<a href="#fn83" name="fr83">[83]</a> It is interesting to note that the steering committee that ultimately led to the adoption of the standards was pulled together by the Canadian Banker’s Association, and the committee included representatives from the major Canadian banks.<a href="#fn84" name="fr84">[84]</a> The committee recommended that there be a mandatory requirement for audible instructions and the provision for attaching headphones to an automated banking machine; it would be the duty of the financial institution to provide the headsets to the disabled customers, along with a list of machines where they could be used. The committee also looked into the issue of the cost of making the machines and other areas more accessible, and though they were waiting for more conclusive research, they were hesitant about the prohibitive cost of major redesigns.<a href="#fn85" name="fr85">[85]</a></p>
<h3 style="text-align: justify; ">Netherlands</h3>
<p style="text-align: justify; ">In 2007, the Dutch National Forum on the Payment System produced a document in English on "Guidelines for user-friendly payment terminals". These guidelines include advice on making payment terminals accessible and easy to use for people with disabilities and older people.<a href="#fn86" name="fr86">[86]</a> The guidelines describe certain standardised elements of the PIN payment procedure, the user interface and advocates practical values for the same.<a href="#fn87" name="fr87">[87]</a> The document then goes on to specify important design principles which must be kept in mind while considering the accessibility of payment gateways and banks; the guideline is designed in such a way that if the design principles are to be kept in mind, the subsequent ergonomic principles which have been described will be easy to meet.<a href="#fn88" name="fr88">[88]</a></p>
<h2 style="text-align: justify; ">Suggestions and Recommendations</h2>
<p>The report illustrates that though banks are mandated to ensure that there is accessibility in banking services in India, there is still a lot that needs to be done. There are several measures that can be taken up by banks, which will not be costly and which will be especially rewarding for customers with disabilities:</p>
<ul>
<li style="text-align: justify; ">Compliance with RBI Guidelines: Banks should ensure a basic minimum compliance with the guidelines set forth by RBI for increasing access to banking services as described in Section 4.3 of the Report. </li>
<li style="text-align: justify; ">Compliance with International norms: Banks also need to ensure a basic minimum compliance with international norms, such as the WCAG 2.0 standards for websites, so that people with disabilities can access the bank websites with ease.</li>
<li style="text-align: justify; ">Physical Accessibility: Banks need to ensure that as far as possible, there is at least physical accessibility to their branches — which would include building ramps, having wider lifts, and so on. Branches should, even if they cannot be located on the ground floor, at least make reasonable accommodations for the disabled, such as having a person who can assist them up to the branch or come down to meet them. Branches should be organised in an easily navigable manner and there should always be a plan for assistance in place — interpreters, special staff to assist with filling out of forms, physical assistance, and easily available information in the form of maps, diagrams, bold text explanations, etc. Banks should also focus more on creating avenues for disabled customers to use their services. This would include building usable and user-friendly voice systems, which is currently needed.<a href="#fn89" name="fr89">[89]</a> </li>
<li style="text-align: justify; ">Technical Solutions: Today there are many technological solutions to overcome some of the barriers faced by the visually challenged in the area of banking. Finger print identification technology<a href="#fn90" name="fr90">[90]</a> can be effectively explored to allow the use of thumb impressions while operating bank accounts.<a href="#fn91" name="fr91">[91]</a> For example, the XRCVC is in the process of developing a 'thumb print recognition software named as "e-Signs" with the help of CMC Ltd. (a TATA Enterprise) which can be applied across the banking system in partnership with the RBI to process cheques.<a href="#fn92" name="fr92">[92]</a> Most manufacturers now have accessible ATM models and banks must ensure that new ATMs have these models installed, and that old ATMs are retrofitted to become accessible. Banks should also work with their technology departments to ensure that their mobile apps are accessible on screen reader and other assistive technology software.</li>
</ul>
<ul>
<li style="text-align: justify; ">Promote the growth of banking services for people with disabilities: State and national governments should encourage opening of bank accounts by the disabled so that any funds or scholarships can be directly transferred into their account as opposed to being given to organisations which may not transfer it to the beneficiaries — this would help curb malpractices. Information on how people with disabilities can open an account — whether joint or single — and the formalities they need to fulfil should be made easily and readily available. This will encourage more people to open accounts for/with the disabled.</li>
<li style="text-align: justify; ">Adopt accessible formats for disabled customers: Banks should publish instruction manuals for ATMs as well as banking procedures in accessible formats such as Braille and DAISY. The banks can then take help of various volunteer organisations in producing and distributing the books to the relevant segments of the population. Such materials should also be made available for download, free of cost, on the bank’s website.</li>
<li style="text-align: justify; ">Training and sensitisation: Banks should not simply train and sensitise their employees and increase awareness of the various kinds of disability and the services to be provided to the disabled, but actively solicit those with special needs and make it clear that they "understand their needs" and welcome their business. Banks need to consider whether it makes sense to have separate or specially prepared paperwork for the disabled to fill out if the regular forms are difficult to read or understand.</li>
<li style="text-align: justify; ">Preferential Treatment: The Ministry of Finance should push for preferential treatment of all persons with disabilities along the same lines as the special rates of interest provided to the elderly. Public sector banks like the State Bank of India have a massive network and such visible and actively advertised preferential treatment will spread awareness not only at the bank level but in society as well. This will really encourage family members of the disabled to help them set up bank accounts and will foster independence.</li>
<li style="text-align: justify; ">“Know Your Customer” (KYC) procedures undertaken by banks should be clarified and made simpler — a one-time verification should take place rather than repeated calls, visits, questions, clarifications and summons to the office or branch.</li>
<li style="text-align: justify; ">Bank managers and staff should be proactive and watchful enough to monitor and check for abuse of power by those who are 'assisting' or administering the property and money of the disabled, who are even more susceptible to fraud than the average account holder, and therefore should be provided with stronger anti-fraud/theft services, such as more frequent SMS or email alerts for transactions.</li>
</ul>
<p style="text-align: justify; ">The most important aspect<a href="#fn93" name="fr93">[93] </a>that financial service providers need to understand is that accessibility— goes much beyond merely providing ramps and the financial service providers do not currently understand the variety of disabilities and the issues which are tied to each kind of disability. Consider ATMs — the way they are currently designed, the machines are too high for users who are in a wheelchair and the doors themselves are inaccessible to the orthopedically challenged; ATMs have neither voice support nor compatible software for the visually challenged. Thus, a basic and fundamental change in the way banks are catering to customers’ needs to take place.</p>
<p style="text-align: justify; ">Financial service providers should be more encouraging and should engage in outreach to make it easier and more attractive for those with less capability to open and operate accounts with their parents or guardians. Financial independence and control should be offered and facilitated to the maximum extent possible.</p>
<p style="text-align: justify; ">Accessibility should not be treated as a corporate social responsibility measure by the large banks and financial corporations, but as a responsibility to be fulfilled regardless of anything else. Further, public sector banks have the biggest responsibility to implement these measures — while they employ people with disabilities because they have a reservation <a href="#fn94" name="fr94">[94]</a> for them, their services are not accessible to their own employees! There needs to be an effort made to ensure that the internal banking software which is used is accessible for people with disabilities and can be accessed by them using the appropriate assistive technology like screen readers.</p>
<p style="text-align: justify; ">Financial service providers should tailor accessibility solutions to address each kind of disability and the range of problems faced by the persons affected by them; they should look at best practices from around the world and implement solutions on their own steam instead of minimum compliance with the government or RBI requirements. Ultimately, making financial services more accessible will only mean that their customer base will grow. Change needs to be top-down — rules and regulations first, then training, sensitisation, and then infrastructure. Schemes and offers should be put in place to attract the disabled as customers, assure them of good and competent service without discrimination, and incentives to invest or save (by offering special schemes such as those which currently exist for women and the elderly).</p>
<p style="text-align: justify; ">Building such systems would involve learning more about the customers and their particular situations and needs, and banks can take the help of various organisations that work with the disabled in order to get a better understanding of what they need to deliver. While there are some voluntary standards that can be used as a guide,<a href="#fn95" name="fr95">[95] </a>the most important aspect is to keep the basics in mind: simple and clear language, audible scripts, easy and non-confusing navigation and instructions and the ability to speak to someone in case of an error; these are all elements that will go a long way in ensuring that disabled customers are more equipped to use the financial services offered by a bank.</p>
<p style="text-align: justify; ">It would be helpful if there was a monitoring or evaluating mechanism to see how far banks are complying with the standards or guidelines that have been set forth before them. There needs to be a comparative study about how far, for example, the bank websites are compliant with the WCAG Guidelines on Web Accessibility or how easy it is for people with disabilities to access the bank counters and ATMs in different branches. Such a study would give good empirical evidence and serve as the starting point for improvement on the current scenario.<a href="#fn96" name="fr96">[96]</a></p>
<p style="text-align: justify; ">In the light of the above, some specific suggestions/ recommendations are made to the Department of Banking Operations in order to make banking more inclusive for persons with disabilities and senior citizens as under:</p>
<ol>
<li style="text-align: justify; ">The department may consider coming out with a policy/ Code requiring all banks to make their services accessible to persons with disabilities. The Policy/ Code may also identify good practices to be followed by banks with respect to areas such as websites, ATMs, mobile and phone banking services, website accessibility and customer care.</li>
<li style="text-align: justify; ">The Department may require RBI to stringently enforce its notification regarding accessibility of ATMs</li>
<li style="text-align: justify; ">The Department may ensure that accessibility be incorporated as a key strategy in all future policies and programmes planned by the Department and is also incorporated in any existing policy which is executed by the department.</li>
<li style="text-align: justify; ">The Department may involve persons with disabilities in executing its accessibility strategy and identify goals/ targets to be achieved over the next 5 years in terms of making banking services accessible in India. </li>
</ol>
<h2 style="text-align: justify; ">Bibliography</h2>
<ul>
<li style="text-align: justify; ">“Barriers to Using Automatic Teller Machines”, Tim Noonan, available at <a href="http://www.hreoc.gov.au/disability_rights/inquiries/ecom/atmpaper.htm">http://www.hreoc.gov.au/disability_rights/inquiries/ecom/atmpaper.htm</a>. </li>
<li style="text-align: justify; ">“Guidelines for Accessible and Usable Web Sites: Observing Users Who Work with Screen Readers”, Mary Theofranos and Janice Redish, available at <a href="http://redish.net/content/papers/interactions.html">http://redish.net/content/papers/interactions.html</a>.</li>
<li style="text-align: justify; ">“The Banking Experience: How to Make Financial Services Accessible for Blind and Partially Sighted People”, RNIB’s Handbook of Good Practices and Standards, at <a href="http://www.rnib.org.uk/aboutus/Research/reports/2012/Banking_Experience_CP.pdf">http://www.rnib.org.uk/aboutus/Research/reports/2012/Banking_Experience_CP.pdf</a>. </li>
<li style="text-align: justify; ">“Website Accessibility”, available at <a href="http://www.tiresias.org/research/guidelines/web.htm">http://www.tiresias.org/research/guidelines/web.htm</a>. </li>
<li style="text-align: justify; ">ABA Guiding Principles for Accessible Authentication, available at <a href="http://www.bankers.asn.au/ArticleDocuments/177/ABA-Guiding_Principles_for_Accessible_Authentication.doc.aspx">http://www.bankers.asn.au/ArticleDocuments/177/ABA-Guiding_Principles_for_Accessible_Authentication.doc.aspx</a></li>
<li style="text-align: justify; ">John Gill, “The Markets for the Adaptation of Self Service Terminals to be Accessible by People with Disabilities”, available at <a href="http://europa.eu/information_society/activities/einclusion/docs/worshop_atm/atm_markets_report.doc">http://europa.eu/information_society/activities/einclusion/docs/worshop_atm/atm_markets_report.doc</a></li>
<li style="text-align: justify; ">Carolyn Samuel, “Making Bank Notes Accessible for Canadians Living with Blindness or Low Vision”, available at <a href="http://www.bankofcanada.ca/wp-content/uploads/2011/08/samuel.pdf">http://www.bankofcanada.ca/wp-content/uploads/2011/08/samuel.pdf</a>. </li>
</ul>
<h2>Glossary of Terms</h2>
<ul>
<li>ABA - Australian Bankers’ Association</li>
<li>ABM - Automated Banking Machines</li>
<li>ADA - Americans with Disability Act</li>
<li>AFA - Access for All</li>
<li>BRA - Banking Regulation Act</li>
<li>BT - British Telecom</li>
<li>CAPTCHA - Completely Automated Public Turing test to tell Computers and Humans Apart</li>
<li>DDA - The Disability Discrimination Act (Australia)</li>
<li>EFTPOS - Electronic Funds Transfer at Point of Sale</li>
<li>HREOC - Human Rights and Equal Opportunity Commission</li>
<li>HTML - Hyper Text Markup Language</li>
<li>IBA - Indian Banks’ Association</li>
<li>IVR - Interactive Voice Response</li>
<li>NIC - National Informatics Centre</li>
<li>PIN - Personal Identification Number</li>
<li>PWD - People with Disabilities</li>
<li>PWDA - The People with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) <i>Act</i><i>,</i> 1995</li>
<li>RBI - Reserve Bank of India</li>
<li>RTF - Rich Text Format</li>
<li>TTS - Text to Speech</li>
<li>UNCRPD - United Nations Convention on Persons with Disabilities </li>
<li>WCAG - Web Content Accessibility Guidelines </li>
<li>XRCVC - Xavier’s Resource Centre for the Visually Challenged</li>
</ul>
<h2>Annexure 1 – Disability and Accommodations</h2>
<ul>
</ul>
<table class="vertical listing">
<tbody>
<tr style="text-align: center; ">
<th style="text-align: justify; ">Disability</th><th style="text-align: justify; ">Branch Banking</th><th style="text-align: justify; ">Phone Banking</th><th style="text-align: justify; ">Internet Banking</th><th style="text-align: justify; ">Payment Terminals and Kiosks</th><th style="text-align: justify; ">Mobile Banking<br /></th>
</tr>
<tr>
<td>Physical Disability</td>
<td style="text-align: justify; ">
<ul>
<li style="text-align: left; ">Bank branches are inaccessible to people using wheelchairs, as they are not provided with ramps, and often have steps at the entrance</li>
</ul>
<ul>
<li style="text-align: left; ">The queuing and counter system in place is not friendly for customers with disabilities; desks are not always at a height that can be accessed by someone in a wheelchair</li>
</ul>
<ul>
<li style="text-align: left; ">The staff is not sensitised to the needs of customers with physical disabilities</li>
</ul>
<b>Suggested Solution</b>:<br /><br />
<ul>
<li style="text-align: left; ">Conduct sensitisation and training programmes for the staff train them about the needs of customers with disabilities</li>
</ul>
<ul>
<li style="text-align: left; ">Construct ramps and walkways so that buildings are accessible by wheelchairs</li>
</ul>
<ul>
<li style="text-align: left; ">Ensure that the bank layout is accessible and as uniform as possible, ensuring ease of access for customers with disabilities</li>
</ul>
</td>
<td></td>
<td>
<ul>
<li style="text-align: left; ">Using websites which are not accessible could be a problem for a person who doesn’t have full use of their limbs</li>
</ul>
<b>Suggested Solution</b>:<br />
<ul>
<li style="text-align: left; ">Ensure websites are compatible with assistive technologies, such as alternate input devices. Standards such as the WCAG should be followed</li>
</ul>
<br /></td>
<td>
<ul>
<li style="text-align: left; ">ATM entrances are not accessible for people with wheelchairs as they are not provided with ramps</li>
</ul>
<ul>
<li>ATMs are often too high, and cannot be accessed by someone who is sitting in a wheelchair</li>
</ul>
<ul>
<li>Using keypads could be a problem for a person who doesn’t have full use of their limbs</li>
</ul>
<p align="left"><b>Suggested Solution:</b></p>
<ul>
<li>ATMs should be provided with ramps (with the appropriate slope) that can be accessed by customers in a wheelchair</li>
</ul>
<ul>
<li> ATMs should be at the appropriate height and should be designed keeping in mind the needs of people in wheelchairs</li>
</ul>
</td>
<td>
<ul>
<li>Using phone apps could be a problem for a person who doesn’t have full use of their limbs</li>
</ul>
<p><b>Suggested Solution</b>:</p>
<ul>
<li>Mobile apps should have a clean interface, which is not problematic to use and which can be controlled by voice commands</li>
</ul>
</td>
</tr>
<tr>
<td>Visual Disability</td>
<td>
<p align="left">Branches are not laid out in a uniform manner, and are difficult to navigate for someone who can’t see</p>
<ul>
<li>The signage is not done in raised texture maps, and so can’t be accessed by someone who can’t see</li>
</ul>
<ul>
<li>Coinage in India is not disabled-friendly, with the coin sizes being very similar to each other and difficult to demarcate</li>
</ul>
<ul>
<li>Bank literature is not available in large print or Braille formats and so can’t be read by people with low or no vision</li>
</ul>
<p align="left"><b>Suggested Solution:</b></p>
<ul>
<li>Conduct sensitisation and training programmes for the staff train them about the needs of customers with disabilities</li>
</ul>
<ul>
<li>Textured maps and signage should be made readily available at branch locations</li>
</ul>
<ul>
<li>The branch layout should be simplified so that someone with a visual disability is not at a disadvantage</li>
</ul>
<ul>
<li>In case the customer desires, bank literature, statements and other documents should be made available in alternate formats (eg: large print, Braille, PDF)</li>
</ul>
</td>
<td></td>
<td>
<ul>
<li>Websites are often not accessible using assistive technologies like screen readers, and are not navigable using non-traditional input devices</li>
</ul>
<p align="left"><b>Suggested Solution:</b></p>
<ul>
<li> Websites need to be made accessible and should comply with the Web Content Accessibility Guidelines (WCAG) which clearly specify how best to make the web interface usable for people with disabilities</li>
</ul>
</td>
<td>
<ul>
<li>There aren’t many speaking ATMs with audio jacks which can be used by people who can’t use the touchscreen</li>
</ul>
<ul>
<li>The number pad display is not uniform amongst various banks, and so can be problematic for people relying on tactile memory</li>
</ul>
<p align="left"><b>Suggested Solution:</b></p>
<ul>
<li> Banks should introduce more speaking ATMs, which have an audio jack that can be plugged into a listening device, which helps a customer with visual disability use an ATM</li>
</ul>
</td>
<td>
<ul>
<li>Mobile banking apps are not accessible using phone screen reading software</li>
</ul>
<br /><b>Suggested Solution:</b><br />
<ul>
<li>Phone apps need to be made accessible and should comply with the W3C Guidelines which specify how best to make the mobile interface usable for people with disabilities</li>
</ul>
<br /></td>
</tr>
<tr>
<td>Hearing Disability</td>
<td>
<ul>
<li>Branch officials have not been sensitised to the requirements of someone who is hearing impaired, who might require them to write down their statements</li>
</ul>
<ul>
<li>Sign language interpreters are not on call to help translate in case a person with disability needs them</li>
</ul>
<ul>
<li>Alert and announcements in banks are usually based on sound notifications, and so can often be missed by customers with hearing disabilities</li>
</ul>
<b>Suggested Solution:</b><br />
<ul>
<li>Conduct sensitisation and training programmes for the staff train them about the needs of customers with disabilities</li>
</ul>
<ul>
<li>Designated branches should have a sign language interpreter on call for assistance of customers with hearing disabilities</li>
</ul>
<ul>
<li>Notifications and announcements, such as at a teller, should be accompanied by a visual alert as well (eg: a blinking light, or a number flashing on a screen)</li>
</ul>
<br /></td>
<td>
<ul>
<li>There is great reliance on spoken directions and no option for a deaf customer to have a conversation about phone banking with their bank</li>
</ul>
<ul>
<li>No provision for options such as text relay that can be used by deaf customers to do banking transactions</li>
</ul>
<ul>
<li>The options on an automated VRS system at a bank’s call centre are often not clear and are incomprehensible</li>
</ul>
<p align="left"><b>Suggested Solution:</b></p>
<ul>
<li>Banks should attempt to introduce text relay services, which can be used by deaf customers to communicate with bank officials via the phone</li>
</ul>
<ul>
<li> The VRS system should be in clear, understandable and audible tones for the ease of customers</li>
</ul>
</td>
<td></td>
<td>
<ul>
<li>Alerts and notifications in an ATM are usually in the form of a loud noise or a beep, which will be missed by a person with hearing disability</li>
</ul>
<b>Suggested Solution:</b><br />
<ul>
<li>ATMs should have a light which flashes in case of a notification, which will come to the attention of the user</li>
</ul>
<br /></td>
<td></td>
</tr>
<tr>
<td>Cognitive Disability</td>
<td style="text-align: left; ">
<ul>
<li>Bank literature and documents are complicated and the language is not easy to comprehend; this could be a problem for someone with a learning disability</li>
</ul>
<ul>
<li>Banks have a bias against someone with a learning disability and despite rules against this, are reluctant to open account for customers with cognitive disabilities</li>
</ul>
<b>Suggested Solution:<br /></b>
<ul>
<li>Conduct sensitisation and training programmes for the staff train them about the needs of customers with disabilities</li>
</ul>
<ul>
<li>Bank documents, scheme information and so on should be in clear, easy to understand language </li>
</ul>
</td>
<td>
<ul>
<li>The options on an automated VRS system at a bank’s call centre are often not clear and are incomprehensible</li>
</ul>
<p><br /><b>Suggested Solution</b>:</p>
<ul>
<li>The VRS system should be in clear, understandable and audible tones for the ease of customers</li>
</ul>
<p> </p>
</td>
<td></td>
<td></td>
<td></td>
</tr>
</tbody>
</table>
<h2>Annexure 2 – Banking and Accessibility Guidelines</h2>
<table class="vertical listing">
<tbody>
<tr>
<th>Area of Banking</th><th>Guidelines/Recommendations</th>
</tr>
<tr>
<td>Mobile banking</td>
<td>
<p align="left">Web Accessibility Initiatives international guidelines on mobile accessibility: <a href="http://www.w3.org/WAI/mobile/">http://www.w3.org/WAI/mobile/</a></p>
</td>
</tr>
<tr>
<td>Internet banking</td>
<td>
<p align="left">The Web Content Accessibility Guidelines lay down the principles for making websites more accessible for people with disabilities: <a href="http://www.w3.org/TR/WCAG/">http://www.w3.org/TR/WCAG/</a></p>
<p align="left">Australian Industry Standards for Electronic Banking: <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-">http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-</a></p>
<p align="left">Royal National Institute for the Blind’s Good Practices and Standards for Electronic Banking: <a href="http://www.rnib.org.uk/aboutus/Research/reports/2012/Banking_Experience_CP.pdf">www.rnib.org.uk/aboutus/Research/reports/2012/Banking_Experience_CP.pdf</a></p>
</td>
</tr>
<tr>
<td>ATMs and payment kiosks</td>
<td>
<p align="left">Americans with Disabilities Act ATM Standards, 2010: <a href="http://www.firstdata.com/downloads/thought-leadership/atm_ada_accessibility.pdf">www.firstdata.com/downloads/thought-leadership/atm_ada_accessibility.pdf</a></p>
<p align="left">Australian Industry Standards for ATMs: <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/ATM-Standard">www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/ATM-Standard</a></p>
<p align="left">Canadian Guidelines on Self Service Interactive Devices: A summary is available at “Standard B651.1-09”, sourced from <a href="http://hub.eaccessplus.eu/wiki/Canadian_standard_for_accessible_design_for_automated_banking_machines">http://hub.eaccessplus.eu/wiki/Canadian_standard_for_accessible_design_for_automated_banking_machines</a></p>
<p align="left">Dutch Guidelines on Payment Terminals: <a href="http://hub.eaccessplus.eu/uploads/a/a1/Dutch_Guidelines_on_payment_systems.pdf">http://hub.eaccessplus.eu/uploads/a/a1/Dutch_Guidelines_on_payment_systems.pdf</a></p>
</td>
</tr>
<tr>
<td>Phone Banking</td>
<td>
<p align="left">Australian Industry Standards for Automated Phone Banking: <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Automated-Telephone-Banking-Standard">http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Automated-Telephone-Banking-Standard</a></p>
</td>
</tr>
<tr>
<td>Branch Banking</td>
<td>
<p align="left">New Zealand Banker’s Association Voluntary Guidelines on Meeting Needs of Older and Disabled Customers: <a href="http://www.nzba.org.nz/banking-standards/code-of-banking-practice/voluntary-guidelines-to-assist-banks-to-meet-the-needs-of-older-and-disabled-customers/">http://www.nzba.org.nz/banking-standards/code-of-banking-practice/voluntary-guidelines-to-assist-banks-to-meet-the-needs-of-older-and-disabled-customers/</a></p>
</td>
</tr>
</tbody>
</table>
<hr />
<p>[<a href="#fr1" name="fn1">1</a>]. Data taken from <a href="http://www.disabilityindia.com/html/facts.html">http://www.disabilityindia.com/html/facts.html</a>.</p>
<p>[<a href="#fr2" name="fn2">2</a>]. “NCR Corp to set up 50 Talking ATMs in Post Offices”, available at <a href="http://lflegal.com/2012/09/ncr-india/">http://lflegal.com/2012/09/ncr-india/</a>.</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. More data on disability can be seen at the World Bank Country Profile on Disability for India, available at <a href="http://siteresources.worldbank.org/DISABILITY/Resources/Regions/South%20Asia/JICA_India.pdf">http://siteresources.worldbank.org/DISABILITY/Resources/Regions/South%20Asia/JICA_India.pdf</a>.</p>
<p>[<a href="#fr4" name="fn4">4</a>]. Full text available at <a href="http://www.un.org/disabilities/default.asp?id=259">http://www.un.org/disabilities/default.asp?id=259</a>.</p>
<p>[<a href="#fr5" name="fn5">5</a>]. Full text available at <a href="http://www8.cao.go.jp/shougai/english/biwako/contents.html">http://www8.cao.go.jp/shougai/english/biwako/contents.html</a>.</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. See generally: “Guidelines for Accessible and Usable Web Sites: Observing Users Who Work with Screen Readers”, Mary Theofranos and Janice Redish, available at <a href="http://redish.net/content/papers/interactions.html">http://redish.net/content/papers/interactions.html</a>, last viewed on July 26.</p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. Article 14: Equality before law - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth).</p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth<br />(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them<br />(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to<br />(a) access to shops, public restaurants, hotels and palaces of public entertainment; or<br />(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. Article 253: Legislation for giving effect to international agreements - Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.</p>
<p>[<a href="#fr10" name="fn10">10</a>]. For more details on the legislation, along with the full text, refer to http://socialjustice.nic.in/policiesacts3.php.</p>
<p>[<a href="#fr11" name="fn11">11</a>]. See generally: <a href="http://www.accessability.co.in/access/files/Accessibility-in-India-Issues-Status-Way-Forward.pps">www.accessability.co.in/access/files/Accessibility-in-India-Issues-Status-Way-Forward.pps</a>.</p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. “Bank loses accessibility case”, available at <a href="http://www.fm-world.co.uk/news/fm-industry-news/bank-loses-accessibility-case/">http://www.fm-world.co.uk/news/fm-industry-news/bank-loses-accessibility-case/</a>.</p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. Singh, A. & Nizamie, S.H. (2004) Disability: the concept and related Indian legislations. <i>Mental Health Reviews,</i> accessed from http://www.psyplexus.com/mhr/disability_india.html on September 11, 2012.</p>
<p>[<a href="#fr14" name="fn14">14</a>]. Id.</p>
<p>[<a href="#fr15" name="fn15">15</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. Full text of the legislation is available at The Banking Regulation Act, 1949, <a href="http://indiankanoon.org/doc/1129081/">http://indiankanoon.org/doc/1129081/</a></p>
<p style="text-align: justify; ">[<a href="#fr17" name="fn17">17</a>]. Section 35A: Power of the Reserve Bank to give directions-<br />(1) Where the Reserve Bank is satisfied that-<br />(a) in the public interest; or<br />(aa)in the interest of banking policy; or<br />(b) to prevent the affairs of any banking company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interests of the banking company; or<br />(c) to secure the proper management of any banking company generally; it is necessary to issue directions to banking companies generally or to any banking company in particular, it may, from time to time, issue such directions as it deems fit, and the banking companies or the banking company, as the case may be, shall be bound to comply with such directions.<br />(2) The Reserve Bank may, on representation made to it or on its own motion, modify or cancel any direction issued under sub- section (1), and in so modifying or cancelling any direction may impose such conditions as it thinks fit, subject to which the modification or cancellation shall have effect.</p>
<p>[<a href="#fr18" name="fn18">18</a>]. Available at http://rbi.org.in/scripts/NotificationUser.aspx?Id=4226&Mode=0</p>
<p>[<a href="#fr19" name="fn19">19</a>]. Available at <a href="http://rbi.org.in/scripts/NotificationUser.aspx?Id=4923&Mode=0">http://rbi.org.in/scripts/NotificationUser.aspx?Id=4923&Mode=0</a></p>
<p>[<a href="#fr20" name="fn20">20</a>]. Available at <a href="http://www.rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=7548">http://www.rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=7548</a></p>
<p>[<a href="#fr21" name="fn21">21</a>]. Available at <a href="http://rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=5071">http://rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=5071</a>.</p>
<p>[<a href="#fr22" name="fn22">22</a>]. “Banking Made Easier for People with Disabilities”, available at <a href="http://www.autism-india.org/india_legal.html">http://www.autism-india.org/india_legal.html</a>.</p>
<p>[<a href="#fr23" name="fn23">23</a>]. Available at <a href="http://rbi.org.in/scripts/NotificationUser.aspx?Mode=0&Id=5248">http://rbi.org.in/scripts/NotificationUser.aspx?Mode=0&Id=5248</a>.</p>
<p>[<a href="#fr24" name="fn24">24</a>]. National Policy for Persons with Disability, available at <a href="http://www.socialjustice.nic.in/nppde.php?format=print">http://www.socialjustice.nic.in/nppde.php?format=print</a>.</p>
<p style="text-align: justify; ">[<a href="#fr25" name="fn25">25</a>]. Principle Areas of Intervention VI (x): “Banking system will be encouraged to meet the needs to the persons with disabilities”, <i>Id.</i></p>
<p style="text-align: justify; ">[<a href="#fr26" name="fn26">26</a>]. See generally: Discussion on disability in the Mid Term Appraisal of the Eleventh Five Year Plan, Page 185, available at <a href="http://planningcommission.nic.in/plans/mta/11th_mta/chapterwise/Comp_mta11th.pdf">http://planningcommission.nic.in/plans/mta/11th_mta/chapterwise/Comp_mta11th.pdf</a>.</p>
<p style="text-align: justify; ">[<a href="#fr27" name="fn27">27</a>]. Tim Noonan, “Acceptable E-commerce in Australia: A Discussion Paper about the Effects of Electronic Commerce Developments on People With Disabilities”, available at <a href="http://www.timnoonan.com.au/ecrep10.htm">http://www.timnoonan.com.au/ecrep10.htm</a></p>
<p>[<a href="#fr28" name="fn28">28</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr29" name="fn29">29</a>]. “Barriers to Using Automatic Teller Machines”, Tim Noonan, available at <a href="http://www.hreoc.gov.au/disability_rights/inquiries/ecom/atmpaper.htm">http://www.hreoc.gov.au/disability_rights/inquiries/ecom/atmpaper.htm</a>, last viewed on July 26, 2012.</p>
<p>[<a href="#fr30" name="fn30">30</a>]. See generally: Accessibility at the RBS, available at <a href="http://www.bankofscotland.co.uk/accessibility/hearing-impaired/">http://www.bankofscotland.co.uk/accessibility/hearing-impaired/</a>, last viewed on July 20.</p>
<p style="text-align: justify; ">[<a href="#fr31" name="fn31">31</a>]. In conversation with Mr. George Abraham, CEO, SCORE Foundation. Ms. Radhika Alkazi, Managing Trustee of Aarth-Aastha also pointed out that in many instances, banks often ask persons with disabilities to bring someone else to sign for them (or operate the account on their behalf) even when the person is fully capable of signing and operating the account themselves. There is no fixed basis for the procedure, which varies from bank to bank.</p>
<p style="text-align: justify; ">[<a href="#fr32" name="fn32">32</a>]. “Barriers to Using Automatic Teller Machines”, Tim Noonan, available at <a href="http://www.hreoc.gov.au/disability_rights/inquiries/ecom/atmpaper.htm">http://www.hreoc.gov.au/disability_rights/inquiries/ecom/atmpaper.htm</a>, last viewed on July 26, 2012.</p>
<p style="text-align: justify; ">[<a href="#fr33" name="fn33">33</a>]. “The Challenges of Blind Internet Users”, available at <a href="http://www.evengrounds.com/blog/challenges-of-blind-internet-users">http://www.evengrounds.com/blog/challenges-of-blind-internet-users</a>, last viewed on July 15.</p>
<p style="text-align: justify; ">[<a href="#fr34" name="fn34">34</a>]. See generally: Accessibility at the RBS, available at <a href="http://www.bankofscotland.co.uk/accessibility/visually-impaired/">http://www.bankofscotland.co.uk/accessibility/visually-impaired/</a>, last viewed on July 20.</p>
<p style="text-align: justify; ">[<a href="#fr35" name="fn35">35</a>]. Consider the development of such ATMs by Wells Fargo bank in the USA; more details are available at https://www.wellsfargo.com/about/diversity/accessibility/.</p>
<p style="text-align: justify; ">[<a href="#fr36" name="fn36">36</a>]. In conversation with Mr. Anil Joshi, the Programme Director of Human Ability and Accessibility at IBM, who works with parents of children with Down’s Syndrome and other mental disabilities. He also pointed out that given that only a miniscule portion of people with disabilities are able to understand banking concepts, the few who do so invariably use banking facilities with the help of their parents or guardians.</p>
<p style="text-align: justify; ">[<a href="#fr37" name="fn37">37</a>]. “Barriers to Using Automatic Teller Machines”, Tim Noonan, available at <a href="http://www.hreoc.gov.au/disability_rights/inquiries/ecom/atmpaper.htm">http://www.hreoc.gov.au/disability_rights/inquiries/ecom/atmpaper.htm</a>, last viewed on July 26, 2012.</p>
<p style="text-align: justify; ">[<a href="#fr38" name="fn38">38</a>]. “Customising mobile banking in India: issues and challenges”, Address delivered by Shri Harun R. Khan, Deputy Governor, Reserve Bank of India, at the FICCI-IBA (FIBAC) 2012 Conference on-“Sustainable excellence through customer engagement, employee engagement and right use of technology” on September 5, 2012 at Mumbai, available at <a href="http://www.rbi.org.in/scripts/BS_SpeechesView.aspx?id=726">http://www.rbi.org.in/scripts/BS_SpeechesView.aspx?id=726</a>.</p>
<p>[<a href="#fr39" name="fn39">39</a>]. Id.</p>
<p>[<a href="#fr40" name="fn40">40</a>]. Available at <a href="http://www.rbi.org.in/Scripts/bs_viewcontent.aspx?Id=1660">http://www.rbi.org.in/Scripts/bs_viewcontent.aspx?Id=1660</a>.</p>
<p style="text-align: justify; ">[<a href="#fr41" name="fn41">41</a>]. Leonard R. Kasday, "<a href="http://www.acm.org/pubs/articles/proceedings/chi/355460/p161-kasday/p161-kasday.pdf">A Tool to Evaluate Universal Web Accessibility</a>" Posters, Proceedings of the 2000 International Conference on Intelligent User Interfaces 2000, pp. 161-162.</p>
<p>[<a href="#fr42" name="fn42">42</a>]. See generally: “WCAG 2 at a Glance”, available at <a href="http://www.w3.org/WAI/WCAG20/glance/">http://www.w3.org/WAI/WCAG20/glance/</a></p>
<p>[<a href="#fr43" name="fn43">43</a>]. See generally: “Website Accessibility”, available at <a href="http://www.tiresias.org/research/guidelines/web.htm">http://www.tiresias.org/research/guidelines/web.htm</a></p>
<p style="text-align: justify; ">[<a href="#fr44" name="fn44">44</a>]. For more details, see generally: “Website Accessibility”, available at <a href="http://www.tiresias.org/research/guidelines/web.htm">http://www.tiresias.org/research/guidelines/web.htm</a></p>
<p>[<a href="#fr45" name="fn45">45</a>]. The Compliance Matrix can be accessed at <a href="http://web.guidelines.gov.in/compliance.php">http://web.guidelines.gov.in/compliance.php</a>.</p>
<p style="text-align: justify; ">[<a href="#fr46" name="fn46">46</a>]. “Deaf and Hearing Impaired”, Woei-Jyh Lee, Handbook of Universal Usability in Practice, available at <a href="http://otal.umd.edu/UUPractice/hearing/">http://otal.umd.edu/UUPractice/hearing/</a>, last viewed on 23 July, 2012.</p>
<p style="text-align: justify; ">[<a href="#fr47" name="fn47">47</a>]. “ATM Usage very low in India, says RBI”, available at http://www.firstpost.com/economy/atm-usage-very-low-in-india-says-rbi-404198.html.</p>
<p>[<a href="#fr48" name="fn48">48</a>]. Available at <a href="http://rbi.org.in/scripts/NotificationUser.aspx?Id=7286&Mode=0">http://rbi.org.in/scripts/NotificationUser.aspx?Id=7286&Mode=0</a>.</p>
<p style="text-align: justify; ">[<a href="#fr49" name="fn49">49</a>]. Harsh Vardhan, “White Label ATMs”, available at <a href="http://ajayshahblog.blogspot.in/2012/08/white-label-atms.html">http://ajayshahblog.blogspot.in/2012/08/white-label-atms.html</a>.</p>
<p style="text-align: justify; ">[<a href="#fr50" name="fn50">50</a>]. “Department of Justice finalises New ATM Accessibility Standards”, available at <a href="http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf">http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf</a>, last viewed on July 12.</p>
<p style="text-align: justify; ">[<a href="#fr51" name="fn51">51</a>]. “Department of Justice Finalises New ATM Accessibility Standards”, available at <a href="http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf">http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf</a>, last viewed on July 12.</p>
<p>[<a href="#fr52" name="fn52">52</a>]. “Making Bank Notes Accessible for Canadians Living with Blindness or Low Vision”, Carolyn Samuel, available at <a href="http://www.bankofcanada.ca/wp-content/uploads/2011/08/samuel.pdf">http://www.bankofcanada.ca/wp-content/uploads/2011/08/samuel.pdf.</a></p>
<p>[<a href="#fr53" name="fn53">53</a>]. Id.</p>
<p>[<a href="#fr54" name="fn54">54</a>]. Carolyn Samuel, “Making Bank Notes Accessible for Canadians Living With Blindness or Low Vision”, available at <a href="http://www.bankofcanada.ca/wp-content/uploads/2011/08/samuel.pdf">http://www.bankofcanada.ca/wp-content/uploads/2011/08/samuel.pdf</a>.</p>
<p>[<a href="#fr55" name="fn55">55</a>]. (DBOD.No.Leg.BC.123 /09.07.005/2008-09).</p>
<p>[<a href="#fr56" name="fn56">56</a>]. Refer to Section 4.3 of the Report.</p>
<p style="text-align: justify; ">[<a href="#fr57" name="fn57">57</a>]. Dinesh Kaushal, “The Case for Accessible Banking”, available at <a href="https://cis-india.org/accessibility/accessible-banking">http://cis-india.org/accessibility/accessible-banking</a>.</p>
<p style="text-align: justify; ">[<a href="#fr58" name="fn58">58</a>]. NR Indran, “UBI to deploy Mumbai’s first Talking ATM for the visually challenged”, available at <a href="http://apnnews.com/2012/07/09/ubi-to-deploy-mumbai%E2%80%99s-first%E2%80%98talking-atm%E2%80%99-for-the-visually-challenged-powered-by-ncr/">http://apnnews.com/2012/07/09/ubi-to-deploy-mumbai%E2%80%99s-first%E2%80%98talking-atm%E2%80%99-for-the-visually-challenged-powered-by-ncr/</a></p>
<p>[<a href="#fr59" name="fn59">59</a>]. Id.</p>
<p>[<a href="#fr60" name="fn60">60</a>]. “NCR Corp to set up 50 Talking ATMs in passport offices”, available at http://lflegal.com/2012/09/ncr-india/.</p>
<p>[<a href="#fr61" name="fn61">61</a>]. “NCR Corp to set up 50 Talking ATMs in passport offices”, available at http://lflegal.com/2012/09/ncr-india/.</p>
<p style="text-align: justify; ">[<a href="#fr62" name="fn62">62</a>]. Dinesh Kaushal, “The Case for Accessible Banking”, available at <a href="https://cis-india.org/accessibility/accessible-banking">http://cis-india.org/accessibility/accessible-banking</a>.</p>
<p>[<a href="#fr63" name="fn63">63</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr64" name="fn64">64</a>]. “Department of Justice Finalises New ATM Accessibility Standards”, available at <a href="http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf">http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf</a>, last viewed on July 12.</p>
<p>[<a href="#fr65" name="fn65">65</a>]. See more details at <a href="http://www.unionbankofindia.co.in/personal_TalkingATMs.aspx">http://www.unionbankofindia.co.in/personal_TalkingATMs.aspx</a></p>
<p style="text-align: justify; ">[<a href="#fr66" name="fn66">66</a>]. These guidelines are available at <a href="http://www.nzba.org.nz/banking-standards/code-of-banking-practice/voluntary-guidelines-to-assist-banks-to-meet-the-needs-of-older-and-disabled-customers/">http://www.nzba.org.nz/banking-standards/code-of-banking-practice/voluntary-guidelines-to-assist-banks-to-meet-the-needs-of-older-and-disabled-customers/</a></p>
<p>[<a href="#fr67" name="fn67">67</a>]. Id.</p>
<p>[<a href="#fr68" name="fn68">68</a>]. Id.</p>
<p>[<a href="#fr69" name="fn69">69</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr70" name="fn70">70</a>]. Section 4 of the DDA defines disability in relation to a person as:<br />a. total or partial loss of the person's bodily or mental functions; or<br />b. total or partial loss of a part of the body; or<br />c. the presence in the body of organisms causing disease or illness; or<br />d. the presence in the body of organisms capable of causing disease or illness; or<br />e. the malfunction, malformation or disfigurement of a part of the person's body; or<br />f. a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or<br />g. a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that:<br />a. presently exists; or<br />b. previously existed but no longer exists; or<br />c. may exist in the future; or is imputed to a person.</p>
<p style="text-align: justify; ">[<a href="#fr71" name="fn71">71</a>]. Section 4 of the DDA defines a service as relating to, amongst other things, banking, insurance, superannuation and the provision of grants, loans, credit or finance, and including financial and information services provided, for example, through websites, telephones, ATMs and EFTPOS.</p>
<p style="text-align: justify; ">[<a href="#fr72" name="fn72">72</a>]. For a full list, please refer to: <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Industry-Standards---Accessibility">http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Industry-Standards---Accessibility</a>, last accessed on 12<sup>th</sup> August, 2012.</p>
<p style="text-align: justify; ">[<a href="#fr73" name="fn73">73</a>]. Refer to <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/ATM-Standard">http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/ATM-Standard</a></p>
<p style="text-align: justify; ">[<a href="#fr74" name="fn74">74</a>]. Refer to <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/EFTPOS-Standard">http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/EFTPOS-Standard</a></p>
<p style="text-align: justify; ">[<a href="#fr75" name="fn75">75</a>]. Refer to <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Automated-Telephone-Banking-Standard">http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Automated-Telephone-Banking-Standard</a></p>
<p style="text-align: justify; ">[<a href="#fr76" name="fn76">76</a>]. ABA Industry Standard on Electronic Banking, available at <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Internet-Banking-Standard">http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Internet-Banking-Standard</a></p>
<p style="text-align: justify; ">[<a href="#fr77" name="fn77">77</a>]. Refer to <a href="http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Australian-Banking-Industry-E-Commerce-Industry-Action-Plan">http://www.bankers.asn.au/Industry-Standards/ABAs-Accessibility-of-Electronic-Banking-/Australian-Banking-Industry-E-Commerce-Industry-Action-Plan</a></p>
<p style="text-align: justify; ">[<a href="#fr78" name="fn78">78</a>]. “Background to the Guiding Principles”, Section 1.1 of the ABA Guiding Principles for Accessible Authentication, available at <a href="http://www.bankers.asn.au/ArticleDocuments/177/ABA-Guiding_Principles_for_Accessible_Authentication.doc.aspx">http://www.bankers.asn.au/ArticleDocuments/177/ABA-Guiding_Principles_for_Accessible_Authentication.doc.aspx</a></p>
<p>[<a href="#fr79" name="fn79">79</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr80" name="fn80">80</a>]. “Department of Justice Finalises New ATM Accessibility Standards”, available at <a href="http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf">http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf</a>, last viewed on July 12</p>
<p style="text-align: justify; ">[<a href="#fr81" name="fn81">81</a>]. See generally: “Department of Justice finalizes new ATM accessibility standards”, available at <a href="http://www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf">www.diebold.com/solutions/atms/opteva/html/Diebold_AccessibilityStandards.pdf</a></p>
<p style="text-align: justify; ">[<a href="#fr82" name="fn82">82</a>]. A summary is available at “Standard B651.1-09”, sourced from <a href="http://hub.eaccessplus.eu/wiki/Canadian_standard_for_accessible_design_for_automated_banking_machines">http://hub.eaccessplus.eu/wiki/Canadian_standard_for_accessible_design_for_automated_banking_machines</a>, and a full text can be purchased from the Canadian Standards Association website.</p>
<p style="text-align: justify; ">[<a href="#fr83" name="fn83">83</a>]. “The extent to which technical requirements are applied is the responsibility of others, such as the authority having jurisdiction.”</p>
<p style="text-align: justify; ">[<a href="#fr84" name="fn84">84</a>]. “Barrier Free Banking”, available at <a href="http://www.abilities.ca/agc/article/article.php?pid=&cid=&subid=&aid=429">http://www.abilities.ca/agc/article/article.php?pid=&cid=&subid=&aid=429</a></p>
<p>[<a href="#fr85" name="fn85">85</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr86" name="fn86">86</a>]. “Dutch Guidelines for User Friendly payment terminals”, available at <a href="http://hub.eaccessplus.eu/wiki/Dutch_Guidelines_for_user-friendly_payment_terminals">http://hub.eaccessplus.eu/wiki/Dutch_Guidelines_for_user-friendly_payment_terminals</a></p>
<p style="text-align: justify; ">[<a href="#fr87" name="fn87">87</a>]. “Dutch Guidelines for Payment Systems”, available at <a href="http://hub.eaccessplus.eu/uploads/a/a1/Dutch_Guidelines_on_payment_systems.pdf">http://hub.eaccessplus.eu/uploads/a/a1/Dutch_Guidelines_on_payment_systems.pdf</a></p>
<p>[<a href="#fr88" name="fn88">88</a>]. Id.</p>
<p>[<a href="#fr89" name="fn89">89</a>]. Building User Friendly Voice Systems, Tim Noonan, available at <a href="http://www.timnoonan.com.au/ivrpap98.htm">http://www.timnoonan.com.au/ivrpap98.htm</a></p>
<p style="text-align: justify; ">[<a href="#fr90" name="fn90">90</a>]. See generally, “What are the possibilities”, the webpage for the Xavier’s Resource Centre for the Visually Challenged, available at <a href="http://www.xrcvc.org/fs_alternatives.php">http://www.xrcvc.org/fs_alternatives.php</a></p>
<p style="text-align: justify; ">[<a href="#fr91" name="fn91">91</a>]. In countries like Japan, even sighted people use what are known as signature stamps, Hanko and Inkan, instead of actual signatures, for signing of official documents. This is a practice that can also be incorporated by banks.</p>
<p style="text-align: justify; ">[<a href="#fr92" name="fn92">92</a>]. See generally, “What are the possibilities”, the webpage for the Xavier’s Resource Centre for the Visually Challenged, available at <a href="http://www.xrcvc.org/fs_alternatives.php">http://www.xrcvc.org/fs_alternatives.php</a>.</p>
<p style="text-align: justify; ">[<a href="#fr93" name="fn93">93</a>]. In conversation with Ms. Anubhuti Mittal, who works for HR Solutions for the Differently Abled, and runs a consultancy which works with people with disabilities, providing recruitment services to the disabled, doing access audits, job mapping, sensitization and training of employees at organisations.</p>
<p style="text-align: justify; ">[<a href="#fr94" name="fn94">94</a>]. Pursuant to Section 33 of the PWD Act, which states: Every appropriate government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent? each shall be reserved for persons suffering from:</p>
<ul style="text-align: justify; ">
<li>Blindness or low vision;</li>
<li>Bearing impairment;</li>
<li>Loco motor disability or cerebral palsy, in the posts identified for each disability: </li>
</ul>
<p style="text-align: justify; ">Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.</p>
<p>[<a href="#fr95" name="fn95">95</a>]. For example, the Australian and New Zealand Standards (AS/NZS 4263).</p>
<p style="text-align: justify; ">[<a href="#fr96" name="fn96">96</a>]. A good reference point would be “A Look at Internet Banking Accessibility in Australia”, Sofia Celic, Steven Faulkner, and Andrew Arch, available at <a href="http://ausweb.scu.edu.au/aw04/papers/refereed/celic/paper.html">http://ausweb.scu.edu.au/aw04/papers/refereed/celic/paper.html</a>, where the authors have studied the websites of different Australian banks to see how far they are complying with the WCAG1.0 guidelines and have rated them on different criteria. Unfortunately, the team found that “the overall status of the accessibility of Australian banking web sites, using the accessibility of their home pages as an indicator, is less than desirable. None of the banks assessed has met the <acronym>ABA</acronym> recommended timetable of addressing all applicable <acronym>WCAG</acronym> 1.0 Priority 1 and Priority 2 checkpoints within 18 months of the Standard being released (April 2002).”</p>
<hr />
<p><b>Contributors:</b></p>
<ul>
<li>Nirmita Narasimhan, Policy Director</li>
<li>Vrinda Maheshwari, Consultant</li>
</ul>
<p><a href="https://cis-india.org/accessibility/blog/banking-accessibility-report.pdf" class="internal-link">Click to download the entire report </a>(PDF) 802 Kb</p>
<ul>
</ul>
<ul>
</ul>
<ul>
</ul>
<ul style="text-align: justify; ">
</ul>
<p>
For more details visit <a href='https://cis-india.org/accessibility/blog/banking-and-accessibility-in-india-report'>https://cis-india.org/accessibility/blog/banking-and-accessibility-in-india-report</a>
</p>
No publishernirmitaFeaturedHomepageAccessibility2013-08-13T04:00:19ZBlog EntryBack When the Past had a Future: Being Precarious in a Network Society
https://cis-india.org/raw/digital-humanities/blogs/habits-of-living/aprja-net-researching-bwpwap-nishant-shah-back-when-the-past-had-a-future
<b>We live in Network Societies. This phrase has been so bastardised to refer to the new information turn mediated by digital technologies, that we have stopped paying attention to what the Network has become. Networks are everywhere. They have become the default metaphor of our times, where everything from infrastructure assemblies to collectives of people, are all described through the lens of a network.</b>
<hr />
<p style="text-align: justify; ">This article by Nishant Shah was published in a peer-reviewed newspaper <a class="external-link" href="http://www.aprja.net/wp-content/uploads/2013/01/researching_bwpwap_large.pdf">Researching BWPWAP</a>. The write-up is on Page 3.</p>
<hr />
<p style="text-align: justify; ">We are no longer just human beings living in socially connected, politically identified communities. Instead, we have become actors, creating archives of traces and transactions, generating traffic and working as connectors in the ever expanding fold of the network.</p>
<p style="text-align: justify; ">The network is an opaque metaphor, conflating description and explanation. So it becomes the object to be studied, the originary context that produces itself, and the explanatory framework that accounts for itself. In other words, the network was our past – it gives us an account of who we were, it is our present – it defines the context of all our activities, and it is our future – where we do everything to support the network because it is the only future that we can imagine for ourselves. It is this flattening characteristic of networks that are diagrammatically mapped, cartographically reproduced, and presented outside of and oblivious to temporality, that produces a condition of the future that can no longer be imagined through our everyday lives.</p>
<p style="text-align: justify; ">Networks neither promise nor deliver a flattened utopia of coexistence and decentralised power. Networks are, in fact, quite aware of the structures of inequity and conditions of privilege they create and perpetuate: the only way to recognise the existence of a network is to be outside of it, the only aspiration to belong to a network is to be kept outside of it when you recognise it. Networks create themselves as simultaneously ubiquitous and scarce, of everpresent and ephemeral, creating a new ontology for our being human – an ontology of precariousness, contingent upon erasure of our histories, archives of our present, and unimaginable futures; futures we are not ready for, and don’t have strategies to occupy.</p>
<p style="text-align: justify; ">I remember the times, before networks became the default conditions of being human, when kids, negotiating the variegated temporalities of their past-present-futures, would often begin their speculations on future, by saying, "When I grow up...". In that hope of growing up, was the potential for radical political action, the possibility of social reconstruction. In network societies, though, time has no currency. It has been replaced by attentions, flows of information and actions, and do not offer a tomorrow to grow into.</p>
<p style="text-align: justify; ">There is no future to help mitigate the exigencies of the present. And with the overwhelming emphasis on archiving the present, there is no more a coherent future that can be accounted for in the vocabulary that the network develops to explain itself, and the hypothetical world outside it.</p>
<p>
For more details visit <a href='https://cis-india.org/raw/digital-humanities/blogs/habits-of-living/aprja-net-researching-bwpwap-nishant-shah-back-when-the-past-had-a-future'>https://cis-india.org/raw/digital-humanities/blogs/habits-of-living/aprja-net-researching-bwpwap-nishant-shah-back-when-the-past-had-a-future</a>
</p>
No publishernishantFeaturedHabits of LivingResearchers at WorkDigital Humanities2013-02-12T06:16:12ZBlog EntryAvailability and Accessibility of Government Information in Public Domain
https://cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain
<b>The information provided on most Government websites such as Acts, notifications, rules, orders, minutes of meetings and consultations, etc. is usually in the form of electronic documents. However, these lack authenticity and accessibility and cannot be (text) searched., This policy brief identifies the problem areas with the current work flow being used to publish documents and proposes suitable modifications to make them easy to locate, authentic and accessible.</b>
<p style="text-align: justify; ">Prepared by Sunil Abraham, Nirmita Narasimhan, Beliappa, and Anandhi Viswanathan and with inputs from Dipendra Manocha, Saksham, and Deepak Maheshwari, Symantec. Download the text as<b> <a href="https://cis-india.org/accessibility/blog/policy-brief-availability-accessibility-govt-information-public-domain.pdf" class="external-link">PDF here</a></b>. (96 Kb)</p>
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<p style="text-align: justify; "><b>Problem Statement</b>: The information published on most government websites exist in the form of document files [including but not limited to the Acts, Rules and Regulations, Government Orders and Notifications, Consultation Papers, Reports etc.] which, even when published, more often than not lack authenticity and accessibility and cannot be (text) searched.</p>
<p style="text-align: justify; ">Analysis: The current workflow towards publishing documents on government websites is broadly as follows:</p>
<ol style="text-align: justify; ">
<li>The document is born digital – that means it is created on a computer.</li>
<li>The document is printed.</li>
<li>The document is stamped with the official seal and signed in ink by the authorized person(s).</li>
<li>The paper document is scanned.</li>
<li>The scanned image is converted into a PDF file.</li>
<li>The document is uploaded on the website and thereby published in the public domain.</li>
</ol>
<p style="text-align: justify; ">In fact, at times, even gazette notifications and other printed documents are also scanned as images.</p>
<p style="text-align: justify; ">This approach has numerous problems, including the following:</p>
<ol style="text-align: justify; ">
<li>First and foremost, such a practice is against the letter and spirit of Section 4 (1) (a) of the Right to Information Act, 2005.<a href="#fn1" name="fr1">[1] </a>that inter alia, mandates every public authority to “maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”.</li>
<li>This does not realize the enabling provision of the Information Technology Act, 2000<a href="#fn2" name="fr2">[2]</a> which gives legal sanctity to digital signatures. The digital image of a physical signature is not a digital signature in the eye of the law, though at times it is mistakenly believed to be so.</li>
<li>This does not address the problem of repudiation. That means a government official can say “I didn't sign that document” and there is no way to tell whether what he or she is saying is true. One of the key features of digital signatures is non-repudiability.</li>
<li>Scanned images of printed text cannot be searched for specific text (character, word or phrase) even by people without disabilities but for people with disabilities, the documents become totally inaccessible since the accessibility software cannot parse such scanned images – against the underlying tenets and objectives of the National Universal Electronic Accessibility Policy 2013.<a href="#fn3" name="fr3">[3] </a></li>
<li>As an extension, content of such documents cannot be indexed by search engines (such as Google, Bing and Raftaar, etc.) and hence, unlikely to be located even if technically the same are in the public domain.</li>
</ol>
<p style="text-align: justify; "><b>Proposed Solution</b>: The following work flow is proposed for publishing documents electronically on government websites:</p>
<ol style="text-align: justify; ">
<li>The document is born digital by preparing it in or through a computer system. Documents in Indian languages should be produced using Unicode based fonts.</li>
<li>The government official authorized to sign the same, must sign it digitally.</li>
<li>The document is uploaded in an open standard based format such as EPUB using a content management system and made available on the website such that it is available, accessible, indexable and searchable.</li>
</ol>
<p style="text-align: justify; ">This will ensure democratization of information in its truest sense – making available information to the public at large and ensuring that it can be easily located and remains accessible to one and all.</p>
<p style="text-align: justify; ">The process of formatting should be standardized in such a way that semantics (such as heading styles, lists and tables) can be added to the text of the document. The Web Style Guide provides information on good practices for creating well-structured documents:</p>
<p style="text-align: justify; ">Standardizing the formatting process by creating different templates for different types of documents will ensure uniform accessibility of the documents as well as provide a standard look and feel across government documents.</p>
<p style="text-align: justify; ">India became a global pioneer by making the legal provision for computerised, indexed and duly catalogued public records. It is high time that India takes the lead by living up to the legislative intent under the Right to Information Act, Information Technology Act and the National University of Educational Planning and Administration, and thereby establishes a global best practice.</p>
<p style="text-align: justify; ">Admittedly, legacy documents should also be converted electronically to accessible formats though before such a rendering, due editorial oversight may be necessary along with use of technologies such as Optical Character Recognition (OCR).</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. Government of India. The Right to Information Act, 2005. No. 22 of 2005. Retrieved on November 30, 2014 from <a class="external-link" href="http://rti.gov.in/webactrti.htm">http://rti.gov.in/webactrti.htm</a>.</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. Government of India. The Information Technology Act, 2000. No. 21 of 2000. Retrieved on November 30, 2014 from <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf">http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf</a></p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Government of India. National Policy on Universal Electronic Accessibility. 2013. Retrieved on November 30, 2014 from <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf">http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf</a></p>
<p>
For more details visit <a href='https://cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain'>https://cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain</a>
</p>
No publishersunilGovernment InformationAccessibilityFeaturedDigitisationHomepage2014-12-30T01:25:12ZBlog EntryAtmanirbhar Bharat Meets Digital India: An Evaluation of COVID-19 Relief for Migrants
https://cis-india.org/raw/migrant-workers-solidarity-network-and-cis-ankan-barman-atmanirbhar-bharat-meets-digital-india-an-evaluation-of-covid-19-relief-for-migrants
<b>With the onset of the national lockdown on 24th March 2020 in response to the outbreak of COVID-19, the fate of millions of migrant workers was left uncertain. In addition, lack of enumeration and registration of migrant workers became a major obstacle for all State Governments and the Central Government to channelize relief and welfare measures.</b>
<p style="text-align: justify; ">A majority of workers were dependent on relief provided by NGOs, Civil Society Organizations and individuals or credit via kinship networks. With mounting domestic and international pressures, various relief and welfare schemes were rolled out but they were too little, too late and more often than not characterised by poor implementation.</p>
<p style="text-align: justify; ">The aim of this report is to qualitatively assess health conditions of migrant workers and access to welfare during the first COVID-19 lockdown. The primary focus is on the host states of Tamil Nadu, Maharashtra and Haryana. 20 in-depth interviews were conducted remotely with migrant workers working in various sectors. Their access to welfare schemes of the Central Government as well as of their host states was ascertained. Emphasis was also laid on their access to healthcare facilities in relation to COVID-19 and non-COVID-19 ailments.</p>
<p style="text-align: justify; ">The findings of the report showcase a dismal state of affairs. No one in our sample group received any kind of dry ration or cooked food in a sustained manner and, in the rare occasions when they did, it was woefully inadequate. Of the three states considered, we found that relief distribution was the best in Tamil Nadu followed by Maharashtra and then Haryana. Even the Direct Cash Transfer Scheme of the Central Government under ‘<i>Atmanirbhar Bharat</i>’ did not reach the migrant workers. Moreover, the migrant workers were apprehensive to report any COVID-19 related symptom due to the draconian treatment that followed therein and the crumbling healthcare sector made it impossible to avail facilities in non-COVID-19 related issues. Lastly, a case has been made for the creation of bottom-level infrastructures to further dialogue between various stakeholders, including associations of migrant workers, for the implementation of schemes and policies which can consolidate migrant workers as a relevant political subject. As migrant workers reel from the impact of the second wave, pushing for on-ground infrastructure and supporting community-based organisations becomes even more urgent.</p>
<hr />
<p style="text-align: justify; "><a class="external-link" href="https://cis-india.org/raw/files/atmanirbhar-bharat-meets-digital-india.pdf">Click here to read the report</a> authored by Ankan Barman and edited by Ayush Rathi. [PDF, 882 kb]</p>
<p>
For more details visit <a href='https://cis-india.org/raw/migrant-workers-solidarity-network-and-cis-ankan-barman-atmanirbhar-bharat-meets-digital-india-an-evaluation-of-covid-19-relief-for-migrants'>https://cis-india.org/raw/migrant-workers-solidarity-network-and-cis-ankan-barman-atmanirbhar-bharat-meets-digital-india-an-evaluation-of-covid-19-relief-for-migrants</a>
</p>
No publisherankanRAW PublicationsResearchers at WorkCovid19FeaturedLabour FuturesAadhaarHomepage2021-06-03T12:53:57ZBlog EntryAre Indian Consumer Laws Ready for the Digital Age?
https://cis-india.org/a2k/blogs/are-indian-consumers-laws-ready-for-digital-age
<b>The Economic and Social Council of the United Nations, recognizing the need for protection of the rights of consumers, drafted a set of model guidelines on consumer protection which were adopted by the General Assembly in 1985. The United Nations Guidelines for Consumer Protection (UNGCP) act as an international reference point of the consumer movement, however since it has been over a quarter of a century since they were first drafted, there is a strong argument for revising them to bring them in line with new developments in technology and business practices.</b>
<p style="text-align: justify; ">It is for this reason that that <a class="external-link" href="http://unctad.org/en/Pages/Home.aspx">United Nations Conference on Trade and Development</a> has undertaken a revision of the UNGCP. <a class="external-link" href="http://www.consumersinternational.org/">Consumers International</a>, an international consumer rights organization has along with CIS and other groups been trying to represent the voice of consumers at the negotiations for this revision. As part of this effort, Consumers International has produced a book titled "<a class="external-link" href="http://www.consumersinternational.org/news-and-media/resource-zone/jeremy_digital_ungcp#.UgM5UaxWygg">Updating the UN Guidelines for Consumer Protection for Consumers in the Digital Age</a>". This blog has been produced through a filteration of the essence of some of the arguments and issues addressed in that book.</p>
<p style="text-align: justify; ">In December 2012 there was a news report that pegged the market for online commerce in India at roughly USD 14 billion,<a href="#fn1" name="fr1">[1]</a> which is why some of the poster children of online retail in India are getting stratospheric valuations even though they are yet to show any major profits, case in point, <a class="external-link" href="http://www.flipkart.com/">Flipkart</a> had a valuation of around USD 800 million<a href="#fn2" name="fr2">[2]</a> in 2012 and is looking for an IPO in around three to four years. Such huge numbers give a sneak peek into the size and scope of the Indian e-commerce marketplace which begs the question, if there are so many transactions occurring in the online marketplace and since a large number of those transactions are between retailers and domestic consumers, then are there any specific laws out there protecting the interests of consumers in the online world.</p>
<p style="text-align: justify; ">Apart from the <a class="external-link" href="http://eprocure.gov.in/cppp/sites/default/files/eproc/itact2000.pdf">Information Technology Act, 2000</a> and various<a class="external-link" href="http://www.rbi.org.in/scripts/bs_circularindexdisplay.aspx"> circulars by the Reserve Bank of India</a> regarding online banking and money transfer activities which are more generic in nature trying to secure the online space as a whole, there are no specific laws that seek to protect consumers in the online space. However, that does not necessarily mean that the consumers are left without any recourse and in this post we shall examine whether it is possible to use the <a class="external-link" href="http://www.ncdrc.nic.in/1_1.html">Consumer Protection Act, 1986</a> to protect consumer rights in the online environment as well.</p>
<p style="text-align: justify; ">The Consumer Protection Act, 1986 (“<b>COPRA</b>”) was enacted with the purpose of empowering consumers to take on the might of large corporations and preventing unscrupulous businessmen from taking undue advantage of the weak position which consumers are inherently placed in under the archaic Indian judicial system. It set up special tribunals, simpler procedures and enacted special provisions to help consumers get a better bargaining position vis-à-vis manufacturers and retailers, etc. However, since this law was enacted more than a quarter of a century ago and it is not entirely geared towards protecting consumer rights in the digital era. However, that does not mean it is entirely toothless in the online environment although it certainly needs some major provisions to come to grasp with the special circumstances and practices of the online marketplace, as the rest of the discussion will demonstrate.</p>
<p>For any transaction to come under the purview of COPRA, it should have the following three essential requirements:</p>
<ol>
<li>There should be a ‘good’ or ‘service’ sold or provided to a consumer;</li>
<li>Such good or service must be ‘sold’ i.e. there must be a ‘sale’;</li>
<li>There should be a ‘defect’ in the good or ‘deficiency’ in the service;</li>
</ol>
<p style="text-align: justify; ">We will now examine different types of e-commerce transactions and discuss whether they fulfill the requirements given above and therefore are amenable to the jurisdiction of COPRA.</p>
<p style="text-align: justify; "><b>There should be a ‘good’ or ‘service’</b><br />This is issue is not very complicated so far as digital purchases of physical items are concerned. Since a book or a mobile phone is considered as a ‘good’ then it will always be considered as a ‘good’ irrespective of whether it has been bought from a physical shop or an online retailer. However, the question does take on an air of some complexity when dealing with digital items such as mp3 files and software programmes. The <a class="external-link" href="http://trivandrum.gov.in/~trivandrum/images/pdfs/generalclausesact.pdf">General Clauses Act, 1897</a> states that all property which is not immovable property is considered as movable property. Since immovable property is defined as land and things attached to the land, therefore it is pretty clear that ‘computer software’ would in all likelihood be considered as movable property. Whether such movable property can be considered as a ‘good’ or not is a question which is yet to be tested in the courts of law in India, however it must be mentioned that in the context of the Sales Tax Act, the Supreme Court of India has held canned software to be a ‘good’. Laying down a test for determining whether a property is a ‘good’ or not, the Supreme Court in that case laid down the following test:</p>
<p class="callout" style="text-align: justify; ">“A 'goods' may be a tangible property or an intangible one. It would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of transmitted, transferred, delivered, stored and possessed. <span>If a software whether customized or non-customized satisfies these attributes, the same would be goods.</span>”<a href="#fn3" name="fr3">[3]</a></p>
<p style="text-align: justify; ">It must be emphasized again that the Supreme Court’s ruling was given in the context of the Sales Tax Act and it may not be accepted by a court deciding a case on COPRA. This is one issue which could and should be addressed under Indian laws to ensure that the large numbers of Indian consumers who buy items in the online marketplace are not left in a lurch and without the protection of the COPRA.</p>
<p style="text-align: justify; "><b>There must be a “Sale” of the good or service<br /></b>Just as the previous issue, this question again can be simple when asked in relation to sale of physical goods using the internet but may not be so when talking about digital goods. When a physical item is purchased using the internet, a sale may be said to have occurred when the ownership of the good passes from the seller (online retailer) to the buyer (consumer) and the payment and delivery are complete. However, the question whether sale of software (here we are using this generic term for all sorts of computer programmes and data because the reasoning and legal analysis can be applied to both types of data) in an online environment would actually constitute a ‘sale’ requires a little more analysis. A huge problem in labeling online software purchases as a ‘sale’ is that most of these ‘sales’ are made in the form of a license. The manufacturers or retailers would argue that such an online purchase is not really a sale since the consumer usually only gets a license to use the product under strict conditions and does not buy the product as an owner, further this is really the industry standard when it comes to software purchases. The argument on the other side is that most websites advertise these products as an outside sale, for example, if you go to the <a class="external-link" href="http://www.quickheal.com/">Quick Heal</a> antivirus website today and go to the page for “Home Users”<a href="#fn4" name="fr4">[4]</a> the page clearly shows a “Buy Now” tab and indicates the price at Rs. 1549/-. In fact in a number of cases you can actually buy the file containing the software without ever being shown the contractual terms of the agreement. These terms usually specify that you are only getting a license to use the product and may not have the right to resell or lend the product to others, rights which a traditional buyer of a product enjoys under law.</p>
<p style="text-align: justify; ">This issue was also discussed by a Full Bench of the Supreme Court of India in the case of <i>Tata Consultancy Services</i> v. <i>State of Andhra Pradesh</i>,<a href="#fn5" name="fr5">[5]</a> which ultimately held that the ‘sale’ of canned software (the term the court used for non customized software which is sold off the shelf) would be a sale of goods and therefore liable to be taxed under the Sales Tax Act. As is evident this decision was given in the context of the Sales Tax Act, but it could be argued that since tax statues are anyways supposed to be interpreted strictly and beneficial statutes such as the COPRA are required to be interpreted broadly, as per the accepted rules of legal interpretation, therefore it is possible that such a ‘license’ for computer software bought by an ordinary consumer could be considered as a ‘sale’ so as to bring the item within the ambit of the COPRA.</p>
<p>Here again we see that although there might be arguments which could be made to justify such licences for computer software as a ‘sale’, however it is still an untested issue and the COPRA certainly needs to take these issues into account if we want to protect the rights of the ever growing number of online consumers.</p>
<p style="text-align: justify; "><b>There should be a “defect” in the goods</b><br />If I order a pair of shoes from <a class="external-link" href="http://flpikart.com/">flpikart.com</a> and the shoes arrive with one of the soles torn off, it’s a pretty straightforward case of there being a defect. In such a scenario unless the retailer has a specified return policy (which incidentally flipkart has) the consumer would have a right to approach the consumer forum to lodge a compliant. Similarly, if I buy a software from a manufacturer for my personal use and the file has a bug in it, it can fairly easily be considered as a defect since any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard or the good can be considered as a defect.</p>
<p style="text-align: justify; ">This is where things get a little interesting. What if we argue that stringent Digital Rights Management techniques by some online retailers are actually a defect in the goods since they do give the consumer all the rights that a buyer of goods would traditionally have. For example, if I buy an e-book with DRMs which restrict lending and on-selling, then two of my rights as a traditional book buyer are straightaway rescinded. Let us now examine the issue in the traditional context of the term ‘defect’.</p>
<p style="text-align: justify; ">If an article bought has any fault, imperfection or shortcoming in the quality, etc., then it would be considered as a defective good. For example, if a person buys a generator which is creating excessive noise, then it can be said that there is a shortcoming in the quality or the standard which is required to be maintained. A generator may supply electricity perfectly well and there may not be any fault at the time of running the machine but while operating the machine if it is creating more noise than the prescribed level, it can be said that there is a defect in the manufacture. An e-book with DRMs may also let a consumer read its contents but that may not be the only criteria to determine whether an item is defective or not. Using the traditional definition of a ‘buyer’, we can argue that a traditional buyer commonly has rights such as the right to resale, the right to make copies for personal use, the right to lend, the right to gift, etc., which may not exist in a an e-book with DRMs. Thus, an argument could be made that such measures constitute a ‘defect’ in the goods under the COPRA.</p>
<p style="text-align: justify; ">Again, this is only an argument and it is entirely possible that a court of law may reject such an argument, especially in light of the fact that the consumer has entered into a license agreement while completing the transaction which specifically grants the consumer only specific and limited rights in regard to the item being purchased. A possible counter to this argument could be that the agreement is generally long and verbose and is only presented to the consumer towards the end of the transaction when the consumer generally does not have the time to read it. Further, there is hardly ever a situation where the consumer can negotiate the terms of the contract, it is usually a standard form of contract which is heavily tilted in favour of the seller and the consumer is given no real choice in this regard. This is why in common law jurisdictions the courts have laid down certain principles or extra conditions which a standard form of contract has to abide by for it to be enforceable viz.,:</p>
<ol>
<li style="text-align: justify; "><span>Sufficient notice</span>: This principle requires that the major and specially the unusual terms in a contract should be displayed in a sufficiently highlighted manner so that a reasonable consumer is not likely to miss these unusual terms.<a href="#fn6" name="fr6">[6]</a></li>
<li style="text-align: justify; "><span>Fundamental breach of contract</span>: If the contract is so drafted that it would impose additional obligations on the consumer or restrict the liability and obligations of the seller in such a way that it would result in breaching any of the fundamental or main terms or obligations that one expects in such a contract, then such a contract may not be enforceable.<a href="#fn7" name="fr7">[7]</a></li>
<li style="text-align: justify; "><span>Exclusion of unreasonable terms</span>: Another type of protection that is available to consumers is the principle which seeks to exclude unreasonable terms from a contract i.e. a term which would defeat the very purpose of the contract or if it is repugnant to the public policy.<a href="#fn8" name="fr8">[8]</a></li>
</ol>
<p style="text-align: justify; ">Relying on the above principles of standard form contracts, it is possible to at least argue that highly strict and limiting terms which are put into a long verbose standard form contract which backs the Technology Protection Measures on a protected software may not be entirely enforceable, in which case the alleged consent of the consumer for such DRMs gets negated and the software with all its DRM limitations could be considered as ‘defective’.</p>
<p style="text-align: justify; "><b>Conclusion</b><br />From the discussion above it is clear that the nature of online transactions and digital goods presents certain unique problems for the legal regime which seeks to protect consumer rights. The law needs to be amended to take into account the unique circumstances of this fledging marketplace that exists online and ensure that the legal regime is fully capable of facing the challenges thrown up by e-commerce. One of the initiatives in this regard is the effort by Consumers International to include amendments in the Model <a class="external-link" href="http://www.consumersinternational.org/who-we-are/un-guidelines-on-consumer-protection#.UgNj_6xWygg">United Nations Guidelines for Consumer Protection</a> to include various provisions which deal with the online marketplace and its unique challenges as well as issues relating to access to knowledge (A2K). Perhaps it is time for the establishment in India to also take this into account and bring our quarter of a century old consumer protection legislation in line with the digital age.</p>
<ol> </ol>
<hr />
<p>[<a href="#fr1" name="fn1">1</a>]. <a class="external-link" href="http://goo.gl/Mh74vB">http://goo.gl/Mh74vB</a></p>
<p>[<a href="#fr2" name="fn2">2</a>]. <a class="external-link" href="http://goo.gl/By5x3i">http://goo.gl/By5x3i</a></p>
<p>[<a href="#fr3" name="fn3">3</a>]. <i>Tata Consultancy Services</i> v. <i>State of Andhra Pradesh</i>, 5 November, 2004, available at <a class="external-link" href="http://goo.gl/Bn7KRp">http://goo.gl/Bn7KRp</a></p>
<p>[<a href="#fr4" name="fn4">4</a>]. <a class="external-link" href="http://goo.gl/lMdoI">http://goo.gl/lMdoI</a></p>
<p>[<a href="#fr5" name="fn5">5</a>].<a class="external-link" href="http://goo.gl/Bn7KRp">http://goo.gl/Bn7KRp</a></p>
<p>[<a href="#fr6" name="fn6">6</a>]. <i>Henderson</i> & others v.<i> Stevenson</i>, 1875 2 R (HL) 71, <i>Interfoto Picture Library</i> Ltd v<i>. Stiletto Visual</i> Programmes Ltd. [1988] 1 All ER 348.</p>
<p>[<a href="#fr7" name="fn7">7</a>]. <i>Harbutt's</i> "<i>Plasticine</i>" <i>Ltd. </i>v<i>. Wayne Tank and Pump Co Ltd</i> [1970] 1 QB 447.</p>
<p>[<a href="#fr8" name="fn8">8</a>]. <i>Lily White</i> v. <i>R. Mannuswami</i>, AIR 1966 Mad.13.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/are-indian-consumers-laws-ready-for-digital-age'>https://cis-india.org/a2k/blogs/are-indian-consumers-laws-ready-for-digital-age</a>
</p>
No publishervipulConsumer RightsFeaturedAccess to Knowledge2013-08-08T11:52:40ZBlog EntryArbitrary Arrests for Comment on Bal Thackeray's Death
https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A
<b>Two girls have been arbitrarily and unlawfully arrested for making comments about the late Shiv Sena supremo Bal Thackeray's death. Pranesh Prakash explores the legal angles to the arrests.</b>
<h2 id="facts-of-the-case">Facts of the case</h2>
<p>This morning, there was <a href="http://www.mumbaimirror.com/article/2/2012111920121119043152921e12f57e1/In-Palghar-cops-book-21yearold-for-FB-post.html">a short report in the Mumbai Mirror</a> about two girls having been arrested for comments one of them made, and the other 'liked', on Facebook about Bal Thackeray:</p>
<blockquote>
<p>Police on Sunday arrested a 21-year-old girl for questioning the total shutdown in the city for Bal Thackeray’s funeral on her Facebook account. Another girl who ‘liked’ the comment was also arrested.</p>
<p>The duo were booked under Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. Though the girl withdrew her comment and apologised, a mob of some 2,000 Shiv Sena workers attacked and ransacked her uncle’s orthopaedic clinic at Palghar.</p>
<p>“Her comment said people like Thackeray are born and die daily and one should not observe a bandh for that,” said PI Uttam Sonawane.</p>
</blockquote>
<h2 id="what-provisions-of-law-were-used">What provisions of law were used?</h2>
<p>There's a small mistake in Mumbai Mirror's reportage as there is no section "64(a)"<sup><a class="footnoteRef" href="#fn1" id="fnref1">1</a></sup> in the Information Technology (IT) Act, nor a section "295(a)" in the Indian Penal Code (IPC). They must have meant <a href="https://cis-india.org/internet-governance/resources/section-295a-indian-penal-code">section 295A of the IPC</a> ("outraging religious feelings of any class") and <a href="https://cis-india.org/internet-governance/resources/section-66A-information-technology-act">section 66A of the IT Act</a> ("sending offensive messages through communication service, etc."). (Update: The Wall Street Journal's Shreya Shah has confirmed that the second provision was section 66A of the IT Act.)</p>
<p>Section 295A of the IPC is cognizable and non-bailable, and hence the police have the powers to arrest a person accused of this without a warrant.<sup><a class="footnoteRef" href="#fn2" id="fnref2">2</a></sup> Section 66A of the IT Act is cognizable and bailable.</p>
<p>Update: Some news sources claim that <a href="http://www.vakilno1.com/bareacts/indianpenalcode/s505.htm">section 505(2) of the IPC</a> ("Statements creating or promoting enmity, hatred or ill-will between classes") has also been invoked.</p>
<h2 id="was-the-law-misapplied">Was the law misapplied?</h2>
<p>This is clearly a case of misapplication of s.295A of the IPC.<sup><a class="footnoteRef" href="#fn3" id="fnref3">3</a></sup> This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine's book <i>Shivaji: Hindu King in Islamic India</i> happened under s.295A, and the ban was subsequently held to have been unlawful by both the Bombay High Court as well as the Supreme Court. Indeed, s.295A has not been applied in cases where it is more apparent, making this seem like a parody news report.</p>
<p>Interestingly, the question arises of the law under which the friend who 'liked' the Facebook status update was arrested. It would take a highly clever lawyer and a highly credulous judge to make 'liking' of a Facebook status update an act capable of being charged with electronically "sending ... any information that is grossly offensive or has menacing character" or "causing annoyance or inconvenience", or under any other provision of the IT Act (or, for that matter, the IPC).<sup><a class="footnoteRef" href="#fn4" id="fnref4">4</a></sup> That 'liking' is protected speech under Article 19(1)(a) is not under question in India (unlike in the USA where that issue had to be adjudicated by a court), since unlike the wording present in the American Constitution, the Indian Constitution clearly protects the 'freedom of speech <b>and expression</b>', so even non-verbal expression is protection.</p>
<h2 id="role-of-bad-law-and-the-police">Role of bad law and the police</h2>
<p>In this case the blame has to be shared between bad law (s.66A of the IT Act) and an abuse of powers by police. The police were derelict in their duty, as they failed to provide protection to the Dhada Orthopaedic Hospital, run by the uncle of the girl who made the Facebook posting. Then they added insult to injury by arresting Shaheen Dhada and the friend who 'liked' her post. This should not be written off as a harmless case of the police goofing up. Justice Katju is absolutely correct in <a href="http://www.hindustantimes.com/India-news/NewDelhi/Katju-demands-action-against-Mumbai-cops-for-arresting-woman/Article1-961478.aspx">demanding that such police officers should be punished</a>.</p>
<h2 id="rule-of-law">Rule of law</h2>
<p>Rule of law demands that laws are not applied in an arbitrary manner. When tens of thousands were making similar comments in print (Justice Katju's article in the Hindu, for instance), over the Internet (countless comments on Facebook, Rediff, Orkut, Twitter, etc.), and in person, how did the police single out Shaheen Dhada and her friend for arrest?<sup><a class="footnoteRef" href="#fn5" id="fnref5">5</a></sup></p>
<h2 id="social-media-regulation-vs.-suppression-of-freedom-of-speech-and-expression">Social Media Regulation vs. Suppression of Freedom of Speech and Expression</h2>
<p>This should not be seen merely as "social media regulation", but as a restriction on freedom of speech and expression by both the law and the police. Section 66A makes certain kinds of speech-activities ("causing annoyance") illegal if communicated online, but legal if that same speech-activity is published in a newspaper. Finally, this is similar to the Aseem Trivedi case where the police wrongly decided to press charges and to arrest.</p>
<p>This distinction is important as it being a Facebook status update should not grant Shaheen Dhada any special immunity; the fact of that particular update not being punishable under s.295 or s.66A (or any other law) should.</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1">
<p>Section 64 of the IT Act is about "recovery of penalty" and the ability to suspend one's digital signature if one doesn't pay up a penalty that's been imposed.<a href="#fnref1">↩</a></p>
</li>
<li id="fn2">
<p>The police generally cannot, without a warrant, arrest a person accused of a bailable offence unless it is a cognizable offence. A non-bailable offence is one for which a judicial magistrate needs to grant bail, and it isn't an automatic right to be enjoyed by paying a bond-surety amount set by the police.<a href="#fnref2">↩</a></p>
</li>
<li id="fn3">
<p>Section 295A of the IPC has been held not to be unconstitutional. The first case to <a href="http://ibnlive.in.com/generalnewsfeed/news/pil-to-declare-sec-66a-as-unconstitutional-filed/1111666.html">challenge the constitutionality of section 66A of the IT Act</a> was filed recently in front of the Madurai bench the Madras High Court.)<a href="#fnref3">↩</a></p>
</li>
<li id="fn4">
<p>One can imagine an exceptional case where such an act could potentially be defamatory, but that is clearly exceptional.<a href="#fnref4">↩</a></p>
</li>
<li id="fn5">
<p>This is entirely apart from the question of how the Shiv Sena singled in on Shaheen Dhada's Facebook comment.<a href="#fnref5">↩</a></p>
</li>
</ol>
<hr />
<p>This blog entry has been re-posted in the following places</p>
<ul>
<li><a class="external-link" href="http://www.outlookindia.com/article.aspx?283033">Outlook</a> (November 19, 2012).</li>
<li><a class="external-link" href="http://kafila.org/2012/11/19/social-media-regulation-vs-suppression-of-freedom-of-speech-pranesh-prakash/">KAFILA</a> (November 19, 2012).</li>
</ul>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A'>https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A</a>
</p>
No publisherpraneshIPCIT ActFreedom of Speech and ExpressionFeaturedFacebookCensorship2013-01-02T03:42:37ZBlog EntryApp Developers Series: Products-Services Dichotomy & IP (Part I)
https://cis-india.org/a2k/blogs/app-developers-series-services-products-dichotomy-ip-2013-part-i
<b>Recently, the Centre for Internet and Society (CIS) held a series of interviews in attempts to better understand the ecosystem in which India's mobile app industry is emerging, how it is governed by India's current laws, and how mobile app developers are affected as a result. The following written series maps out the given responses and presents our findings from these interviews and accompanying conversations. </b>
<p align="justify">This preliminary round consisted of 10 interviews with app developers and an additional 6 with other individuals from differing perspectives within the mobile app development space; these being designers, lawyers, financial and legal advisers, and developer community mobilizers. Much insight was gained on the current legal practices of app developers within their work related to intellectual property rights (IPR), licensing, infringement and ownership. Through this preliminary research exercise, such practices are found to arise out of personal business models, sentiments towards the law, and how they are situated within the ecosystem to begin with.</p>
<h3><img src="https://cis-india.org/a2k/blogs/copy_of_infographic1.png/image_large" style="float: left;" title="Indian mobile app developers_Infographic1" height="597" width="346" alt="Infographic1" class="image-left image-inline" />Question 1: “What is your IP?”</h3>
<p align="justify">In the legal realm, mobile apps aren't simply mobile
apps, but a final product composite of numerous forms of intellectual
property (IP)—background processes, source code, user interface, brand,
content and more. But who owns the apps that are being made? Are they
protected, and if so, is this protection enforced? And how much do
developers know about IP anyway?</p>
<p align="justify">The first of the predetermined set of interview
questions begins to address these questions. Upon asking developers what
it is exactly that constituted their intellectual property, the most
frequent immediate responses consisted of “nothing” or one's own coding
for their mobile app product. Other responses included created content,
background processes, and works unpublished, as well as trademark and a
pending patent. Discussions to follow often pertained to one's
business model, as well as their different types of mobile app IP for
clients and of their own products.</p>
<p align="justify">So what did these responses reveal then?</p>
<ul><li>
<p align="justify"><strong>70% </strong>of app developers interviewed generally do
not own the products they create, and instead assign ownership of
their IP over to their clients</p>
</li><li>
<p style="text-align: justify;"><strong>80%</strong> of app developers interviewed have either moved away from the services sector to create their own products or would like to</p>
</li><li>
<p align="justify"><strong>75%</strong> of app developers interviewed within
services have their own mobile app products, two thirds of which are in
an early product phase</p>
</li></ul>
<h3>Services for SMEs</h3>
<p align="justify">Across developers carrying out app development services, clients were often said to be based all over India, as well as the US and Europe. Despite this occurring trend within our interviews sample, Business Financial Strategist and CEO of <a class="external-link" href="https://sites.google.com/site/outsourcedcfo/">Out Sourced CFO & Business Advisory Services</a>, Jayant Tewari stresses that out-sourced 'mobile app services' is marginal as a business model here in India. Due to the fact that “apps are reasonably small in terms of code length and complexity, the concept is more important to and deliverable by a small skilled team,” he says. For this reason, mobiles apps is relatively a small-medium enterprise (SME) space: “some SMEs have grown but the ethos and challenges faced are entirely distinct from the Large Corporate.”</p>
<p align="justify">Tewari's insights reflect the few of the larger mobile app enterprises that had participated within our interviews. Of all app developers interviewed, it has been found that 80% have either moved away from the services sector to create their own products or would like to. The remaining 20%, on the other hand, represent larger enterprises that have now scaled up with teams from 70 to over 200 developers—one of which focus strictly on services for social enterprises and non-profits as clients.</p>
<p align="justify">Tewari continues in saying that “unless you're a 1000 man enterprise, there's no economic benefit in services; as competition has driven pricing so low, everyone's struggling to deliver $12-14 per hour.”</p>
<p align="justify">So then, if this is the case in India's mobile app economy and off-shore app development is marginal, why have we found developers are doing it then?</p>
<p align="justify">Vivek Durai, formerly a lawyer and now Founder of startup, <a class="external-link" href="https://www.humblepaper.com/">HumblePaper</a>, implies that this business model is not by first choice: “every startup in mobile development, especially, is doing services to stay afloat and would like to move toward a product model.” Accordingly and as mentioned above, 75% of those interviewed within services had their own mobile app products, the majority of which were only in an early product phase—suggesting the inclination for app developers to gradually move away from the services sector in pursuit of their own projects, as they are able to.</p>
<h3><img src="https://cis-india.org/home-images/MobileappdevelopmentinIn.png/image_large" title="Infographic2" height="585" width="344" alt="Infographic2" class="image-right" />Understandings of IP (and lack of)</h3>
<p align="justify">Come the time for this transition away from services, however, app developer enterprises may be ill-equipped to sufficiently navigate this mobile app product space. Due to the fact that those within services assign ownership to their clients with the mere signing of a contract (if any), mobile app developers do not have any need to concern themselves with all the legal nuances related to ownership and licensing of IP. Put simply by Durai, “when you ask a question about IP to developers, they don't know what it means, because it doesn't have anything to do with what they're doing.”</p>
<p align="justify">Within the responses received, we have found that
across those interviewed exist different personal understandings of the
meaning of “IP.” Badrinath Kulkarni, <a href="https://plus.google.com/104550553343399000979/posts">Google Developer Group (GDG) Bangalore Coordinator</a>,
shares his concern regarding this area of greyed understanding in
saying that “developers often do not know what part of their app is
IP... there is a gap in understanding with respect to IP.”</p>
<p align="justify">For the most part, it seems, IP was considered to
refer to content or code across interviews, and was even confused at one
point with IPR within a response referring to an SME's trademark and
pending pending. Although a subtle error, such may reflect the lack of a
comprehensive understanding across individuals—even those that are
applying for a patent.</p>
<p align="justify">For those who appeared to be better versed in matters
related to IP, a recurring theme seemed to be the need for developers
to broaden their understanding of what parts of their work are IP.
Within a conversation with Samuel Mani, Founding Partner of <a class="external-link" href="http://www.mcmlaw.in/">Mani Chengappa & Mathur</a>,
Mani stresses that developers should recognize the value within not
just the product or software itself, but the background business
processes. According to Mani, the execution of the idea is the true
source of innovation; how one accesses the market, and maybe who the
market is as well.</p>
<h3>IP understanding in services: irrelevant or important?</h3>
<p>
So what is the importance of having a concrete
understanding of notions of intellectual property to begin with? Does it
matter at all that those within development services are not as
familiar with the concept since IP is irrelevant to them? Or can knowledge of IP work to one's advantage within a services agreement?</p>
<p>
As we continue to examine the responses given across interviews pertaining to protection of one's intellectual property, perhaps these questions will answer themselves.</p>
<p></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/app-developers-series-services-products-dichotomy-ip-2013-part-i'>https://cis-india.org/a2k/blogs/app-developers-series-services-products-dichotomy-ip-2013-part-i</a>
</p>
No publishersamanthaFeaturedAccess to Knowledge2014-07-21T01:43:06ZBlog EntryAnnouncement of a Three-Region Research Alliance on the Appropriate Use of Digital Identity
https://cis-india.org/internet-governance/blog/appropriate-use-of-digital-identity-alliance-announcement
<b>Omidyar Network has recently announced its decision to invest in establishment of a three-region research alliance — to be co-led by the Institute for Technology & Society (ITS), Brazil, the Centre for Intellectual Property and Information Technology Law (CIPIT) , Kenya, and the CIS, India — on the Appropriate Use of Digital Identity. As part of this Alliance, we at the CIS will look at the policy objectives of digital identity projects, how technological policy choices can be thought through to meet the objectives, and how legitimate uses of a digital identity framework may be evaluated.</b>
<p> </p>
<p>As governments across the globe are implementing new, digital foundational identification systems or modernizing existing ID programs, there is a dire need for greater research and discussion about appropriate design choices for a digital identity framework. There is significant momentum on digital ID, especially after the adoption of UN Sustainable Development Goal 16.9, which calls for legal identity for all by 2030. Given the importance of this subject, its implications for both the development agenda as well its impact on civil, social and economic rights, there is a need for more focused research that can enable policymakers to take better decisions, guide civil society in different jurisdictions to comment on and raise questions about digital identity schemes, and provide actionable material to the industry to create identity solutions that are privacy enhancing and inclusive.</p>
<p> </p>
<h4>Excerpt from the <a href="https://www.omidyar.com/blog/appropriate-use-digital-identity-why-we-invested-three-region-research%C2%A0alliance" target="_blank">blog post by Subhashish Bhadra</a> announcing this new research alliance</h4>
<p>...In the absence of any widely-accepted thinking on this issue, we run the risk of digital identity systems suffering from mission creep, that is being made mandatory or being used for an ever-expanding set of services. We believe this creates several risks. First, people may be excluded from services if they do not have a digital identity or because it malfunctions. Second, this approach creates a wider digital footprint that can be used to create a profile of an individual, sometimes without consent. This can increase privacy risk. Third, this approach increases the power of institutions versus individuals and can be used as rationale to intentionally deny services, especially to vulnerable or persecuted groups.</p>
<p>Three exceptional research groups have undertaken the effort of answering this complex and important question. Over the next six months, these think tanks will conduct independent research, as well as involve experts from across the globe. Based in South America, Africa, and Asia, these institutions represent the collective wisdom and experiences of three very distinct geographies in emerging markets. While drawing on their local context, this research effort is globally oriented. The think tanks will create a set of recommendations and tools that can be used by stakeholders to engage with digital identity systems in any part of the world...</p>
<p>This research will use a collaborative and iterative process. The researchers will put out some ideas every few weeks, with the objective of seeking thoughts, questions, and feedback from various stakeholders. They will participate in several digital rights and identity events across the globe over the next several months. They will also organize webinars to seek input from and present their interim findings to interested communities from across the globe. Each of these provide an opportunity for you to provide your thoughts and help this research program provide an independent, rigorous, transparent, and holistic answer to the question of when it’s appropriate for digital identity to be used. We need a diversity of viewpoints and collaborative dissent to help solve the most pressing issues of our times.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/appropriate-use-of-digital-identity-alliance-announcement'>https://cis-india.org/internet-governance/blog/appropriate-use-of-digital-identity-alliance-announcement</a>
</p>
No publisheramberDigital IDInternet GovernanceAppropriate Use of Digital IDFeaturedDigital IdentityHomepage2019-05-13T09:06:23ZBlog EntryAnalyzing the Latest List of Blocked URLs by Department of Telecommunications (IIPM Edition)
https://cis-india.org/internet-governance/blog/analyzing-latest-list-of-blocked-urls-by-dot
<b>The Department of Telecommunications (DoT) in its order dated February 14, 2013 has issued directions to the Internet Service Providers (ISPs) to block seventy eight URLs. The block order has been issued as a result of a court order. Snehashish Ghosh does a preliminary analysis of the list of websites blocked as per the DoT order.</b>
<hr />
<p>Medianama has <a class="external-link" href="http://www.medianama.com/wp-content/uploads/blocking-instruction-II-14-Feb-2013.pdf">published the DoT order</a>, dated February 14, 2013, on its website.</p>
<hr />
<h3>What has been blocked?</h3>
<p style="text-align: justify;">The block order contains seventy eight URLs. Seventy three URLs are related to the Indian Institute of Planning and Management (IIPM). The other five URLs contain the term “highcourt”. The order also contains links from reputed news websites and news blogs including The Indian Express, Firstpost, Outlook, Times of India, Economic Times, Kafila and Caravan Magazine, and satire news websites Faking News and Unreal Times. The order also directs blocking of a public notice issued by the University Grants Commission (UGC).</p>
<p>The block order does not contain links to any social media website. However, some content related to IIPM has been removed but it finds no mention in the block order. Pursuant to which order or direction such content has been removed remains unclear. For example, Google has removed search results for the terms <Fake IIPM> pursuant to Court orders and it carries the following notice:</p>
<p><em>"In response to a legal request submitted to Google, we have removed 1 result(s) from this page. If you wish, you may </em><a href="http://www.chillingeffects.org/notice.cgi?sID=432099"><em>read more about the request</em></a><em> at ChillingEffects.org."</em></p>
<h3>Are there any mistakes in the order?</h3>
<p style="text-align: justify;">The direction issued by the DoT is once again inaccurate and mired with errors. In effect, the DoT has blocked sixty one unique URLs and the block order contains numerous repetitions. By its order the DoT has directed the ISPs to block an entire blog [<a class="external-link" href="http://iipmexposed.blogspot.in">http://iipmexposed.blogspot.in</a>] along with URLs to various posts in the same blog.</p>
<h3 style="text-align: justify;">Reasons for Blocking Websites</h3>
<p style="text-align: justify;"><a href="http://economictimes.indiatimes.com/tech/internet/directed-by-gwalior-court-government-blocks-70-urls-critical-of-iipm/articleshow/18523107.cms">According to news reports</a>, the main reason for blocking of websites by the DoT is a Court order issued by a Court in Gwalior. The reason for issuing such a block order might have been a court proceeding with respect to defamation and removal of defamatory content thereof. However, the reasons for blocking of domain names containing the term ‘high court’, which is not at all related to the IIPM Court case is unclear. The DoT by its order has also blocked a link in the website of a internet domain registrar which carried advertisement for the domain name [<a class="external-link" href="http://www.highcourt.com">www.highcourt.com</a>].</p>
<h3 style="text-align: justify;">Are the blocks legitimate?</h3>
<p style="text-align: justify;">The block order may have been issued by the DoT under Rule 10 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.</p>
<p style="text-align: justify;">The Court order seems to be an interim injunction in a defamation suit. Generally, Courts exercise utmost caution while granting interim injunction in defamation cases. According to the Bonnard Rule (Bonnard v. Perryman, [1891] 2 Ch 269) in a defamation case, “interim injunction should not be awarded unless a defence of justification by the defendant was certain to fail at trial level.” Moreover, in the case of Woodward and Frasier, Lord Denning noted “that it would be unjust to fetter the freedom of expression, when actually a full trial had not taken place, and that if during trial it is proved that the defendant had defamed the plaintiff, then should they be liable to pay the damages.” The Delhi High Court in <em><a href="http://www.indiankanoon.org/doc/562656/">Tata Sons Ltd. v. Green Peace International</a></em> followed the Bonnard Rule and the Lord Denning’s judgements and ruled against the award of interim injunction for removal of defamatory content and stated:</p>
<p style="text-align: justify;">“The Court notes that the rule in Bonnard is as applicable in regulating grant of injunctions in claims against defamation, as it was when the judgment was rendered more than a century ago. This is because the Courts, the world over, have set a great value to free speech and its salutary catalyzing effect on public debate and discussion on issues that concern people at large. The issue, which the defendant’s game seeks to address, is also one of public concern. The Court cannot also sit in value judgment over the medium (of expression) chosen by the defendant since in a democracy, speech can include forms such as caricature, lampoon, mime parody and other manifestations of wit.”</p>
<p style="text-align: justify;">Therefore, it appears that the Court order has moved away from the settled principles of law while awarding an interim injunction for blocking of content related to IIPM. It is also interesting to note that in <em>Green Peace International</em>, the Court also answered the question as to whether there should be different standard for posting or publication of defamatory content on the internet. It was observed by the Court that publication is a comprehensive term, ‘embracing all forms and medium – including the Internet’.</p>
<h3 style="text-align: justify;">Blocking a Public Notice issued by a Statutory Body of Government of India</h3>
<p style="text-align: justify;">The block order mentions a URL which contains a public notice issued by University Grants Commission (UGC) related to the derecognition of IIPM as a University. The blocking of a public notice issued by the statutory body of the Government of India is unprecedented. A public notice issued by a statutory body is a function of the State. It can only be blocked or removed by a writ order issued by the High Court or the Supreme Court and only if it offends the Constitution. However, so far, ISPs such as BSNL have not enforced the blocking of this URL.</p>
<h3 style="text-align: justify;">Implementation of the order by the ISPs</h3>
<p style="text-align: justify;">As pointed out in my previous <a href="https://cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii">blog post</a> on blocking of websites, the ISPs have again failed to notify their consumers the reasons for the blocking of the URLs. This lack of transparency in the implementation of the block order has a chilling effect on freedom of speech.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/analyzing-latest-list-of-blocked-urls-by-dot'>https://cis-india.org/internet-governance/blog/analyzing-latest-list-of-blocked-urls-by-dot</a>
</p>
No publishersnehashishSocial MediaFreedom of Speech and ExpressionInternet GovernanceFeaturedCensorshipHomepage2013-02-17T07:35:25ZBlog EntryAnalysis of the Report of the Group of Experts on Developments in the Field of Information and Telecommunications in the Context of International Security and Implications for India
https://cis-india.org/internet-governance/blog/analysis-report-experts-information-telecommunications-security-implications-india
<b>This paper analyses the report of the Group of Experts and and India’s compliance with its recommendations based on existing laws and policies. Given the global nature of these challenges and the need for nations to holistically address such challenges from a human rights and security perspective, CIS believes that the Group of Experts and similar international forums are useful and important forums for India to actively engage with.</b>
<p> </p>
<p>The United Nations Group of Experts on ICT issued their report on Developments in the Field of Information and Telecommunications in the Context of International Security in June, 2015. This paper analyses the report of the Group of Experts and and India’s compliance with its recommendations based on existing laws and policies. CIS believes that the report of the Group of Experts provides important minimum standards that countries could adhere to in light of challenges to international security posed by ICT developments. Given the global nature of these challenges and the need for nations to holistically address such challenges from a human rights and security perspective, CIS believes that the Group of Experts and similar international forums are useful and important forums for India to actively engage with.</p>
<p><strong>Download: <a href="https://cis-india.org/internet-governance/files/ict-paper.pdf" class="internal-link">PDF</a> (627 kb)</strong></p>
<hr />
<p>1. <a href="#1">Introduction</a></p>
<p>2. <a href="#2">Analysis of the Recommendations</a></p>
<p>2a. <a href="#2a">Consistent with the purposes of the United Nations, including to maintain international
peace and security, States should cooperate in developing and applying measures to increase stability and security in the use of ICTs and to prevent ICT practices that are acknowledged to be harmful or that may pose threats to international peace and security</a></p>
<p>2b. <a href="#2b">In case of ICT incidents, States should consider all relevant information, including the
larger context of the event, the challenges of attribution in the ICT environment and the nature and extent of the consequences</a></p>
<p>2c. <a href="#2c">States should not knowingly allow their territory to be used for internationally wrongful acts using ICTs; of the Recommendations</a></p>
<p>2d. <a href="#2d">States should consider how best to cooperate to exchange information, assist each other, prosecute terrorist and criminal use of ICTs and implement other cooperative measures to address such threats. States may need to consider whether new measures need to be developed in this respect</a></p>
<p>2e. <a href="#2e">States, in ensuring the secure use of ICTs, should respect Human Rights Council resolutions 20/8 and 26/13 on the promotion, protection and enjoyment of human rights on the Internet, as well as General Assembly resolutions 68/167 and 69/166 on the right to privacy in the digital age, to guarantee full respect for human rights, including the right to freedom of expression</a></p>
<p>2f. <a href="#2f">A State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public</a></p>
<p>2g. <a href="#2g">States should take appropriate measures to protect their critical infrastructure from ICT threats, taking into account General Assembly resolution 58/199 on the creation of a global culture of cybersecurity and the protection of critical information infrastructures, and other relevant resolutions</a></p>
<p>2h. <a href="#2h">States should respond to appropriate requests for assistance by another State whose critical infrastructure is subject to malicious ICT acts. States should also respond to appropriate requests to mitigate malicious ICT activity aimed at the critical infrastructure of another State emanating from their territory, taking into account due regard for sovereignty</a></p>
<p>2i. <a href="#2i">States should take reasonable steps to ensure the integrity of the supply chain so that end users can have confidence in the security of ICT products. States should seek to prevent the proliferation of malicious ICT tools and techniques and the use of harmful hidden functions</a></p>
<p>2j. <a href="#2j">States should encourage responsible reporting of ICT vulnerabilities and share associated information on available remedies to such vulnerabilities to limit and possibly eliminate potential threats to ICTs and ICT-dependent infrastructure</a></p>
<p>2k. <a href="#2k">States should not conduct or knowingly support activity to harm the information systems of the authorized emergency response teams (sometimes known as computer emergency response teams or cyber security incident response teams) of another State. A State should not use authorized emergency response teams to engage in malicious international activity</a></p>
<p>3. <a href="#3">Conclusion</a></p>
<hr />
<h3 id="1">1. Introduction</h3>
<p style="text-align: justify;">Cyberspace<a name="_ftnref1" href="#_ftn1">[1]</a> touches every aspect of our lives, has enormous benefits, but is also accompanied by a number of risks. The international community at large has realized that cyberspace can be made stable and secure only through international cooperation. Traditionally, though there are a number of bilateral agreements and forms of cooperation the foundation of this cooperation has been the international law and the principles of the Charter of the United Nations.</p>
<p style="text-align: justify;">To this end, on December 27, 2013 the United Nations General Assembly adopted Resolution No. 68/243 requesting the" <em> Secretary General, with the assistance of a group of governmental experts,…… to continue to study, with a view to promoting common understandings, existing and potential threats in the sphere of information security and possible cooperative measures to address them, including norms, rules or principles of responsible behaviour of States and confidence-building measures, the issues of the use of information and communications technologies in conflicts and how international law applies to the use of information and communications technologies by States……. and to submit to the General Assembly at its seventieth session a report on the results of the study.</em> "In pursuance of this resolution the Secretary General established a Group of Experts on Developments in the Field of Information and Telecommunications in the Context of International Security; the report was agreed upon by the Group of Experts in June, 2015. On 23 December 2015, the UN General Assembly unanimously adopted resolution 70/237<a name="_ftnref2" href="#_ftn2">[2]</a> which welcomed the outcome of the Group of Experts and requested the Secretary-General to establish a new GGE that would report to the General Assembly in 2017.</p>
<p style="text-align: justify;">The report developed by governmental experts from 20 States addresses existing and emerging threats from uses of ICTs, by States and non-State actors alike. These threats have the potential to jeopardize international peace and security. The experts gave recommendations which have built on consensus reports issued in 2010 and 2013, and offer ideas on norm-setting, confidence-building, capacity-building and the application of international law for the use of ICTs by States. Among other recommendations, the Report lays down recommendations for States for voluntary, non-binding norms, rules or principles of responsible behaviour to promote an open, secure, stable, accessible and peaceful ICT environment.</p>
<p style="text-align: justify;">As larger international dialogues around cross border sharing of information and cooperation for cyber security purposes take place between the US and EU, it is critical that India begin to participate in these discussions.<a name="_ftnref3" href="#_ftn3">[3]</a> It is also necessary to take cognizance of the importance of implementing internal practices and policies that are recognized and set strong standards at the international level.</p>
<p style="text-align: justify;">This paper marks the beginning of a series of questions we will be asking and processes we will be analysing with the aim of understanding the role of international cooperation for cyber security and the interplay between privacy and security. The report analyses the existing norms in India in the backdrop of the recommendations in the Report of Experts to discover how interoperable Indian law and policy is vis-à-vis the recommendations made in this report as well as making recommendations towards ways India can enhance national policies, practices, and approaches to enable greater collaboration at the international level with respect to issues concerning ICTs and security.</p>
<h3 id="2">2. Analysis of the Recommendations</h3>
<p style="text-align: justify;">The Group of Experts took into account existing and emerging threats, risks and vulnerabilities, in the field of ICT and offered the following recommendations for consideration by States for voluntary, non-binding norms, rules or principles of responsible behaviour.</p>
<h4 id="2a">2a. Consistent with the purposes of the United Nations, including to maintain international peace and security, States should cooperate in developing and applying measures to increase stability and security in the use of ICTs and to prevent ICT practices that are acknowledged to be harmful or that may pose threats to international peace and security</h4>
<p style="text-align: justify;">1. India has been working with a number of countries such as Belarus, Canada, China, Egypt, and France on a number of ICT-related isues thereby increasing international cooperation in the ICT sector, such as:</p>
<p style="text-align: justify;">(i) setting up the India-Belarus Digital Learning Centre (DLC-ICT) to promote</p>
<p style="text-align: justify;">development of ICT in Belarus;</p>
<p style="text-align: justify;">(ii) sending an official business delegation to Canada to attend the 2<sup>nd</sup>Joint Working Group meeting in ICTE;</p>
<p style="text-align: justify;">(iii) holding Joint Working Groups on ICT with China.<a name="_ftnref4" href="#_ftn4">[4]</a></p>
<p style="text-align: justify;">As can be seen from this, most of the cooperation with other countries is currently government to government (or government institution to government institution) cooperation. However, it must be noted that the entire digital revolution, including ICT necessarily involves ICT companies, and thus the role of the private sector in participating in these negotiations as well as the responsibilities of private sector ICT companies in cross border cooperation. Furthermore, the above examples are a few of the many agreements, Memoranda of Understanding (MOU), and negotiations that India has with other countries on cross border cooperation. It is important that, to the extent possible, these negotiations and transparent and easily publicly available.</p>
<p style="text-align: justify;">2. The primary legislation governing ICT in India is the Information Technology Act, 2000 ("IT Act") which was passed to provide legal recognition for the transactions carried out by means of electronic data interchange and other means of electronic communication. The IT Act contains a number of provisions that declare illegal activities that threatenICT infrastructure, data, and individuals as illegal and provide for penalties for the same. These activities are:</p>
<p style="text-align: justify;"><strong>Section 43 - </strong> <em>Penalty and Compensation for damage to computer, computer system, etc.: </em> If any person without permission: (i) accesses a computer, computer system or network; (ii) downloads, copies or extracts any data from such computer, computer system or network; (iii) introduces any computer contaminant or computer virus into, destroys, deletes or alters any information on, damages or disrupts any computer, computer system or network; (iv) denies or causes the denial of access to any computer, computer system or network by any means; (v) helps any person to access a computer, computer system or network in contravention of the Act; (vi) charges the services availed of by a person to the account of another person through manipulation; or (vii) Steals, 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, he shall be liable to pay damages by way of compensation to the person so affected.</p>
<p style="text-align: justify;"><strong>Section 66 </strong> <em>- Computer Related Offences: </em> If any person, dishonestly, or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to two three years or with fine which may extend to Rs. 5,00,000/- or with both.</p>
<p style="text-align: justify;"><strong>Section 66B </strong> <em>- Punishment for dishonestly receiving stolen computer resource or communication device:</em> Whoever dishonestly receives or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to Rs. 1,00,000/- or with both.</p>
<p style="text-align: justify;"><strong>Section 66C - </strong> <em>Punishment for identity theft:</em> Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.</p>
<p style="text-align: justify;"><strong>Section 66D - </strong> <em>Punishment for cheating by personation by using computer resource:</em> Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to Rs. 1,00,000/-.</p>
<p style="text-align: justify;"><strong>Section 66E - </strong> <em>Punishment for violation of privacy:</em> Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding Rs. 2,00,000 or with both.</p>
<p style="text-align: justify;"><strong>Section 66F - </strong> <em>Punishment for cyber terrorism:</em> (1) Whoever,- (A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by -</p>
<ul style="text-align: justify;">
<li>Denying or cause the denial of access to computer resource; or</li>
<li>Attempting to penetrate a computer resource; or</li>
<li>Introducing or causing to introduce any computer contaminant and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure, or</li></ul>
<p style="text-align: justify;">(B) knowingly or intentionally penetrates a computer resource and by by doing so obtains access to information that is restricted for reasons of the security of the State or foreign relations; or any restricted information with reasons to believe that such information may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.</p>
<p style="text-align: justify;">(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life.</p>
<p style="text-align: justify;"><strong> Section 67 - </strong> <em>Publishing of information which is obscene in electronic form:</em> Whoever publishes or transmits in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons, shall be punished on first conviction with a maximum imprisonment upto 2 years and a maximum fine upto Rs. 5,00,000 and for a second or subsequent conviction with a maximum imprisonment upto 5 years and also a maximum with fine upto Rs. 10,00,000.</p>
<p style="text-align: justify;"><strong> Section 67A - </strong> <em>Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form:</em> Whoever publishes or transmits in the electronic form any material which contains sexually explicit act or conduct shall be punished on 1st conviction with a maximum imprisonment for 5 years and a maximum fine of upto Rs. 10,00,000 and for a 2nd or subsequent conviction with a maximum imprisonment of 7 years and a maximum fine upto Rs. 10,00,000.</p>
<p style="text-align: justify;"><strong>Section 67B - </strong> <em>Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form: </em> Whoever,- (a) publishes or transmits material in any electronic form which depicts children engaged in sexually explicit act or conduct; or (b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or (c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or (d) facilitates abusing children online; or (e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with a maximum imprisonment upto 5 years and a maximum fine upto Rs. 10,00,000 and in the event of a 2nd or subsequent conviction with a maximum imprisonment upto 7 years and also a maximum fine upto Rs. 10,00,000.<a name="_ftnref5" href="#_ftn5">[5]</a></p>
<p style="text-align: justify;"><strong>Section 72 - </strong> <em>Breach of confidentiality and privacy: </em> Any person who, in pursuance of any of the powers conferred under this Act, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses the same to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to Rs. 1,00,000 or with both.</p>
<p style="text-align: justify;"><strong>Section 72-A - </strong> <em>Punishment for Disclosure of information in breach of lawful contract:</em> Any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses such material to any other person shall be punished with imprisonment for a term which may extend to three years, or with a fine which may extend to Rs. 5,00,000 or with both.</p>
<p style="text-align: justify;">3. The broad language and wide terminology used IT Act seems to cover most of the cyber crimes faced in India as of now, though the technical abilities to prevent the crimes still leave a lot to be desired. The prevention of cyber crime is not the domain of the IT Act and is rather the responsibility of the law enforcement authorities (note: there is no specific authority created under the IT Act, the Act is enforced by the police and other law enforcement authorities). That said, it may be a useful exercise to briefly compare these provisions with the crimes mentioned in the Convention on Cybercrime, 2001 (Budapest Convention), an international treaty that seeks to addresses threats in cyber space by promoting the harmonization of national laws and cooperation across jurisdictions, to examine if there are any that are not covered by the IT Act. A comparison of the principles in Budapest Convention and the IT Act is below:</p>
<table style="text-align: justify;" class="grid listing">
<tbody>
<tr>
<td>
<p>S. No.</p>
</td>
<td>
<p>Article of the Budapest Convention</p>
</td>
<td>
<p>Provisions of the IT Act which cover the same</p>
</td>
</tr>
<tr>
<td>
<p>1</p>
</td>
<td>
<p>Article 2 - Illegal Access</p>
</td>
<td>
<p>Section 43(a) read with Section 66</p>
</td>
</tr>
<tr>
<td>
<p>2</p>
</td>
<td>
<p>Article 3 - Illegal Interception</p>
</td>
<td>
<p>Section 69 of the IT Act read with section 45 as well as Section 24 of the Telegraph Act, 1885</p>
</td>
</tr>
<tr>
<td>
<p>3</p>
</td>
<td>
<p>Article 4 - Data interference</p>
</td>
<td>
<p>Sections 43(d) and 43(f) read with section 66</p>
</td>
</tr>
<tr>
<td>
<p>4</p>
</td>
<td>
<p>Article 5 - System interference</p>
</td>
<td>
<p>Sections 43(d), (e) and (f) read with section 66</p>
</td>
</tr>
<tr>
<td>
<p>5</p>
</td>
<td>
<p>Article 6 - Misuse of devices</p>
</td>
<td>
<p>Not specifically covered</p>
</td>
</tr>
<tr>
<td>
<p>6</p>
</td>
<td>
<p>Article 7 - Computer related forgery</p>
</td>
<td>
<p>Computer related forgery is not specifically covered, but it is possible that when such a case comes to light, the provisions of Section 43 read with section 66 as well as provisions of the Indian Penal Code, 1860 would be pressed into service to cover such crimes</p>
</td>
</tr>
<tr>
<td>
<p>7</p>
</td>
<td>
<p>Article 8 - Computer related fraud</p>
</td>
<td>
<p>While not specifically covered by the IT Act, it is possible that when such a case comes to light, the provisions of Section 43 read with section 66 as well as provisions of the Indian Penal Code, 1860 would be pressed into service to cover such crimes</p>
</td>
</tr>
<tr>
<td>
<p>8</p>
</td>
<td>
<p>Article 9 - Offences relating to child pornography</p>
</td>
<td>
<p>Section 67B</p>
</td>
</tr>
</tbody>
</table>
<p style="text-align: justify;">As can be seen from the above discussion, most of the criminal acts elucidated in the Budapest Convention are covered under the IT Act except for the provision on misuse of devices, which requires the production, dealing, trading, etc. in devices whose sole objective is to violate the provisions of the IT Act, though it is possible that provisions of the Indian Penal Code, 1860 dealing with conspiracy and aiding and abetment may be pressed into service to cover such incidents.</p>
<p style="text-align: justify;">4. Further, there are a number of laws which deal with critical infrastructure in India, however since these are mostly sectoral laws dealing with specific infrastructure sectors, the one most relevant to ICT is the Telegraph Act, 1885, which makes it illegal to interfere with or damage critical telegraph infrastructure. The specific penal provisions are listed below:</p>
<p style="text-align: justify;"><strong>Section 23 - </strong> <em>Intrusion into signal-room, trespass in telegraph office or obstruction: </em> If any person - (a) without permission of competent authority, enters the signal room of a telegraph office of the Government, or of a person licensed under this Act, or (b) enters a fenced enclosure round such a telegraph office in contravention of any rule or notice not to do so, or (c) refuses to quit such room or enclosure on being requested to do so by any officer or servant employed therein, or (d) wilfully obstructs or impedes any such officer or servant in the performance of his duty, he shall be punished with fine which may extend to Rs. 500.</p>
<p style="text-align: justify;"><strong>Section 24</strong> - <em>Unlawfully attempting to learn the contents of messages:</em> If any person does any of the acts mentioned in section 23 with the intention of unlawfully learning the contents of any message, or of committing any offence punishable under this Act, he may (in addition to the fine with which he is punishable under section 23) be punished with imprisonment for a term which may extend to one year.</p>
<p style="text-align: justify;"><strong>Section 25</strong> - <em>Intentionally damaging or tampering with telegraphs: </em>If any person, intending - (a) to prevent or obstruct the transmission or delivery of any message, or (b) to intercept or to acquaint himself with the contents of any message, or (c) to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof, he shall be punished with imprisonment for a term which may extend to three years, or with fine or with both.</p>
<p style="text-align: justify;"><strong>Section 25A - </strong> <em>Injury to or interference with a telegraph line or post: </em> If, in any case not provided for by section 25, any person deals with any property and thereby wilfully or negligently damages any telegraph line or post duly placed on such property in accordance with the provisions of this Act, he shall be liable to pay the telegraph authority such expenses (if any) as may be incurred in making good such damage, and shall also, if the telegraphic communication is by reason of the damage so caused interrupted, be punishable with a fine which may extend to Rs. 1000:</p>
<p style="text-align: justify;">5. The telecom service providers in India have to sign a license agreement with the Department of Telecommunications for the right to provide telecom services in various parts of India. The telecom regulatory regime in India has gone through a lot of turmoil and evolution and currently any service provider wanting to provide telecom services is issued a Unified License (UL) and has to abide by the terms of the UL. Whilst most of the prohibited activities under the UL refer to specific terms under the UL itself such as non payment of fees and not fulfilling obligations under the UL, section 38 provides for certain specific prohibited activities which may be relevant for the ICT sector. These prohibited activities include:</p>
<p style="text-align: justify;">(i) Carrying objectionable, obscene, unauthorized or any other content, messages or communications infringing copyright and intellectual property right etc., which may be prohibited by the laws of India;</p>
<p style="text-align: justify;">(ii) Provide tracing facilities to trace nuisance, obnoxious or malicious calls, messages or communications transported through his equipment and network, to the authorised government agencies;</p>
<p style="text-align: justify;">(iii) Ensuring that the Telecommunication infrastructure or installation thereof, carried out by it, should not become a safety or health hazard and is not in contravention of any statute, rule, regulation or public policy;</p>
<p style="text-align: justify;">(iv) not permit any telecom service provider whose license has been revoked to use its services. Where such services are already provided, i.e. connectivity already exists, the license is required to immediately sever connectivity immediately.</p>
<h4 id="2b">2b. In case of ICT incidents, States should consider all relevant information, including the larger context of the event, the challenges of attribution in the ICT environment and the nature and extent of the consequences</h4>
<p style="text-align: justify;">The Department of Electronics and Information Technology (DEITY) has released the XIIth Five Year Plan on the information technology sector and the report of the Sub-Group on Cyber Security in the plan recognizes that cyber security threats emanate from a wide variety of sources and manifest themselves in disruptive activities that target individuals, businesses, national infrastructure and Governments alike. <a name="_ftnref6" href="#_ftn6">[6]</a> The primary objectives of the plan for securing the country's cyber space are preventing cyber attacks, reducing national vulnerability to cyber attacks, and minimizing damage and recovery time from cyber attacks. The plan takes into account a number of focus areas to achieve its stated objectives, which are described briefly below:</p>
<ul style="text-align: justify;">
<li><em>Enabling Legal Framework</em> - Setting up think tanks in Public-Private mode to identify gaps in the existing policy and frameworks and take action to address them including addressing the privacy concerns of online users.</li>
<li><em>Security Policy, Compliance and Assurance</em> - Enhancement of IT product security assurance mechanism (Common Criteria security test/evaluation, ISO 15408 & Crypto Module Validation Program), establishing a mechanism for national cyber security index leading to national risk management framework.</li>
<li><em>Security Resarch&Development (R&D)</em> - Creation of Centres of Excellence in identified areas of advanced Cyber Security R&D and Centre for Technology Transfer to facilitate transition of R&D prototypes to production, supporting R&D projects in thrust areas.</li>
<li><em>Security Incident</em> - Early Warning and Response - Comprehensive threat assessment and attack mitigation by means of net traffic analysis and deployment of honey pots, development of vulnerability database.</li>
<li><em>Security awareness, skill development and training</em> - Launching formal security education, skill building and awareness programs.</li>
<li><em>Collaboration</em> - Establishing a collaborative platform/ think-tank for cyber security policy inputs, discussion and deliberations, operationalisation of security cooperation arrangements with overseas CERTs and industry, and seeking legal cooperation of international agencies on cyber crimes and cyber security.</li></ul>
<h4 id="2c">2c. States should not knowingly allow their territory to be used for internationally wrongful acts using ICTs</h4>
<p style="text-align: justify;">As mentioned in response to (a) above, the primary legislation in India that deals with information technology and hence ICT as well is the Information Technology Act, 2000. The IT Act contains a number of penal provisions which make it illegal to indulge in a number of practices such as hacking, online fraud, etc. which have been recognised internationally as wrongful acts using ICT ( <em>Please refer to answer under section (a) above for details of the penal provisions</em>). Further section 1(2) of the IT Act provides that it also applies to any offence or contravention hereunder committed outside India by any person. This means that the IT Act also covers internationally wrongful acts using ICTs.</p>
<h4 id="2d">2d. States should consider how best to cooperate to exchange information, assist each other, prosecute terrorist and criminal use of ICTs and implement other cooperative measures to address such threats. States may need to consider whether new measures need to be developed in this respect</h4>
<p style="text-align: justify;">There are a number of ways in which states can share information by using widely accepted formal processes precisely for this purpose. Some of the most common methods of international exchange used by India are given below.</p>
<p style="text-align: justify;"><strong>MLATs</strong></p>
<p style="text-align: justify;">Although the exact process by which intelligence agencies in India share information with other agencies internationally is unclear, India is a member of Interpol and the Central Bureau of Investigation, which is a Federal/Central investigating agency functioning under the Central Government, Department of Personnel & Training and is designated as the National Central Bureau of India. A very useful tool in the effort to establish cross-border cooperation is Mutual Legal Assistance Treaties (MLATs). MLATs are extremely important for law enforcement agencies, governments and the private sector, since they act as formal mechanisms for access to data which falls under different jurisdictions. India currently has MLATs with the following 39 countries <a name="_ftnref7" href="#_ftn7">[7]</a></p>
<p style="text-align: justify;">Although MLATs are considered to be a useful mechanism to ensure international cooperation, there are certain criticisms of the MLAT mechanism, such as:</p>
<ul><li><strong>The Lack of Clear Time Tables:</strong> Although MLATs do provide for broad time frames, they do not provide for more specific time tables and usually do not have any provision for an expedited process, for eg. it is believed that for requests to the U.S., processing can take from six weeks (for requests with minimal issues complying with U.S. legal standards) to 10 months.<a name="_ftnref8" href="#_ftn8">[8]</a> Such a long time frame is clearly a burden on the investigation process and has been criticised for being ineffectual as they may not provide information fast enough;</li>
<li><strong>Variation in Legal Standards:</strong> The legal standards for requesting information, for eg. the circumstances under which information can be requested or what information can be requested, differ from jurisdiction to jurisdiction. These differences are often not understood by requesting nations thus causing problems in accessing information;<a name="_ftnref9" href="#_ftn9">[9]</a></li>
<li><strong>Inefficient Legal Process:</strong> The legal process to carry out requests through the MLAT process is often considered too cumbersome and inefficient.</li>
<li><strong>Non-incorporation of Technological Challenges:</strong> MLATs have not been updated to meet the challenges brought about by technology, especially with the advent of networked infrastructure and ICT which raise issues of attribution and cross-jurisdictional access to information. <a name="_ftnref10" href="#_ftn10">[10]</a></li></ul>
<p style="text-align: justify;"><strong>Extradition</strong></p>
<p style="text-align: justify;">Extradition generally refers to the surrender of an alleged or convicted criminal by one State to another. More precisely, it may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial <s> and punishment </s> or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State. Extradition plays an important role in the international battle against crime and owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. India currently has extradition treaties with 37 countries and extradition arrangements with an additional 8 countries.<a name="_ftnref11" href="#_ftn11">[11]</a></p>
<p style="text-align: justify;"><strong>Letters Rogatory</strong></p>
<p style="text-align: justify;">A Letter Rogatory is a formal communication in writing sent by the Court in which an action is pending to a foreign court or Judge requesting that the testimony of a witness residing within the jurisdiction of that foreign court be formally taken under its direction and transmitted to the issuing court making the request for use in a pending legal contest or action. This request entirely depends upon the comity of courts towards each other and usages of the court of another nation.</p>
<p style="text-align: justify;">Apart from the above methods, India also regularly signs Bilateral MoUs with various countries on law enforcement and information sharing specially in cases related to terrorism. India also regularly helps and gets helps from Interpol, the International Criminal Police Organisation for purposes of investigation, arrests and sharing of information.<a name="_ftnref12" href="#_ftn12">[12]</a></p>
<p style="text-align: justify;">Other than these formal methods states sometimes share information on an informal basis, where the parties help each other purely on the basis of goodwill, or sometimes even coercion. A recent example of informal cooperation between the security agencies of India and Nepal, although not in the realm of cyber space, was the arrest of YasinBhatkal, leader of the banned organisation Indian Mujahideen (IM) where the Indian security agencies allegedly sought informal help from their Neapaelese counterparts to arrest a person who was wantedhad long been wanted by the Indian security agencies for a long time. <a name="_ftnref13" href="#_ftn13">[13]</a></p>
<p style="text-align: justify;">In the current environment of growing ICT and increased cross-border information sharing between individuals, the role of private companies who carry this information has become much more pronounced. This changed dynamic raises new problems, especially because manyin light of thesefact that a number of these companies do not have a physical presence in all the countries where they offer services over the internet. This leads to problems for states in terms of law enforcement, speciallyespecially if they want information from these companies who do not have an incentive or desire to provide itagainst their will. These circumstances lead to a number of prickly situations where states are often frustrated in using legal and formal means and often resort to informal pressure to get the companies to agree to data localization requests, encryption/decryption standards and keys, back doors, and other requests. etc., Tthe most famous of these in the Indian context being the disagreement/ heated exchange between the Indian government and Canada based Blackberry Limited (formerly Research in Motion) for data requests on their Blackberry enterprise platform.</p>
<h4 id="2e">2e. States, in ensuring the secure use of ICTs, should respect Human Rights Council resolutions 20/8 and 26/13 on the promotion, protection and enjoyment of human rights on the Internet, as well as General Assembly resolutions 68/167 and 69/166 on the right to privacy in the digital age, to guarantee full respect for human rights, including the right to freedom of expression</h4>
<p><strong>Right to Privacy</strong></p>
<ol><li>
<p style="text-align: justify;">The right to privacy has been recognised as a constitutionally protected fundamental right in India through judicial interpretation of the right to life which is specifically guaranteed under the Constitution of India. Since the right to privacy was read into the constitution by judicial pronouncements, it could be said that the right to privacy in India is a creature of the courts at least in the Indian context. For this reason it may be useful to list out some of the major cases which deal with the right to privacy in India:</p>
<p style="text-align: justify;">i. <em>Kharak Singh</em> v. <em>Union of India</em>¸<a name="_ftnref14" href="#_ftn14">[14]</a> (1962)</p>
<p style="text-align: justify;">a. For the first time, the courts recognized the right to privacy as a fundamental right, although in a minority opinion.</p>
<p style="text-align: justify;">b. The decision lLocated the right to privacy under both the right to personal liberty as well as freedom of movement.</p>
<p style="text-align: justify;">ii. <em>Govind</em> v. <em>State of M.P.</em>,<a name="_ftnref15" href="#_ftn15">[15]</a> (1975)</p>
<p style="text-align: justify;">a. Adopted the minority opinion of <em>Kharak Singh </em>as the opinion of the Supreme Court and held that the right to privacy is a fundamental right.</p>
<p style="text-align: justify;">b. An individual deDerivesd the right to privacy from both the right to life and personal liberty as well as freedom of speech and movement.</p>
<p style="text-align: justify;">c. The right to privacy was said to encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing.</p>
<p style="text-align: justify;">d. The court established that the rRight to privacy can be violated in the following circumstances (i) important countervailing interest which is superior, (ii) compelling state interest test, and (iii) compelling public interest.</p>
<p style="text-align: justify;">iii. <em>R. Rajagopal</em> v. <em>Union of India</em>,<a name="_ftnref16" href="#_ftn16">[16]</a> (1994)</p>
<p style="text-align: justify;">a. Recognised that the rRight to privacy is a part of the right to personal liberty guaranteed under the constitution.</p>
<p style="text-align: justify;">b. Recognizeds that the right to privacy can be both a tort (actionable claim) as well as a fundamental right.</p>
<p style="text-align: justify;">c. Established that aA citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters and nobody can publish anything regarding the same unless (i) he consents or voluntarily thrusts himself into controversy, (ii) the publication is made using material which is in public records (except for cases of rape, kidnapping and abduction), or (iii) he is a public servant and the matter relates to their discharge of official duties.</p>
<p style="text-align: justify;">iv. <em>People's Union for Civil Liberties</em> v. <em>Union of India</em>,<a name="_ftnref17" href="#_ftn17">[17]</a> (1996)</p>
<p style="text-align: justify;">a. Extended the right to privacy to include communications privacy..</p>
<p style="text-align: justify;">b. Laid down guidelines which form the backbone for checks and balances in interception provisions.</p>
<p style="text-align: justify;">v. <em>District Registrar and Collector, Hyderabad and another</em> v. <em>Canara Bank and another</em>, <a name="_ftnref18" href="#_ftn18">[18]</a> (2004)</p>
<p style="text-align: justify;">a. Refers to personal liberty, freedom of expression and freedom of movement as the fundamental rights which give rise to the right to privacy.</p>
<p style="text-align: justify;">b. The rRight to privacy deals with persons and not places.</p>
<p style="text-align: justify;">c. Intrusion into privacy may be by - (1) legislative provisions, (2) administrative/executive orders and (3) judicial orders.</p>
<p style="text-align: justify;">vi. <em>Selvi and others</em> v. <em>State of Karnataka and others</em>,<a name="_ftnref19" href="#_ftn19">[19]</a> (2010)</p>
<p style="text-align: justify;">a. The Court acknowledged the distinction between bodily/physical privacy and mental privacy</p>
<p style="text-align: justify;">b. Subjecting a person to techniques such as narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test without consent violates the subject's mental privacy</p>
</li>
<li>
<p style="text-align: justify;">Although the judgements in the above cases (except for the case of <em>People's Union for Civil Liberties</em> v. <em>Union of India</em>) were pronounced given in a non telecomnot delivered in a telecommunications context, however the ease with which these principles were applied in the case of <em>People's Union for Civil Liberties</em> v. <em>Union of India</em>, suggests that these principles, where applicable, would be applied even in the context of ICT and are not limited to only the non-digital world.</p>
</li>
<li>
<p style="text-align: justify;">It must however be noted that dueDue to some incongruities in the interpretation of the earlier judgments, the Supreme Court has recently referred the matter regarding the existence and scope of the right to privacy in India to a larger bench so as to bring clarity regarding the exact scope of the right to privacy in Indian law. The very concept that the Constitution of India guarantees a right to privacy was challenged due to an "unresolved contradiction" in judicial pronouncements. This "unresolved contradiction" arose because in the cases of <em>M.P. Sharma & Others v. Satish Chandra & Others</em>,<a name="_ftnref20" href="#_ftn20">[20]</a> and <em>Kharak Singh v. State of U.P. & Others,</em> <a name="_ftnref21" href="#_ftn21">[21]</a>(decided by<em>Eigh</em>eight<em>t</em>andsix<em>Six</em>Judges respectively) the majority judgment of the Supreme Court had categorically denied the existence of a right to privacy under the Indian Constitution.</p>
<p style="text-align: justify;">However somehow the later case of Gobind v. <em>State of M.P. and another</em>,<a name="_ftnref22" href="#_ftn22">[22]</a> (which was decided by a two Judge Bench of the Supreme Court) relied upon the opinion given by the minority of two judges in <em>Kharak Singh </em>to hold that a right to privacy does exist and is guaranteed as a fundamental right under the Constitution of India without addressing the fact that this was a minority opinion and that the majority opinion had denied the existeance of the right to privacy. Thereafter a large number of cases have held the right to privacy to be a fundamental right, the most important of which are <em>R. Rajagopal& Another </em>v. <em>State of Tamil Nadu & Others</em>,<a name="_ftnref23" href="#_ftn23">[23]</a> (popularly known as <em>Auto Shanker's case</em>) and <em>People's Union for Civil Liberties (PUCL) </em>v. <em>Union of India & Another</em>.<a name="_ftnref24" href="#_ftn24">[24]</a> However, as was noticed by the Supreme Court in its August 11, 2015 order, all these judgments were decided by two or three Judges only which could not have overturned the judgments given by larger benches.<a name="_ftnref25" href="#_ftn25">[25]</a> It was to resolve this judicial incongruity that the Supreme Court referred this issue to a larger bench to decide on the existence and scope of the right to privacy in India.</p>
</li></ol>
<p><strong>Freedom of Expression</strong></p>
<ol start="4"><li>
<p style="text-align: justify;">Freedom of expression is one of the most important fundamental rights guaranteed under the constitution and has been vehemently protected by the judiciary on a number of occasions whenever it has been threatened. With the advent of social media, the entire dynamics of the freedom of speech and expression have changed in that it is now possible for every individual, with an internet connection and a Facebook/Twitter/Whatsapp account to reach millions of people without spending any extra money. This ability to reach a much larger and wider audience also led to greater friction between people holding different opinions. As the ease of the internet removed the otherwise filtering effects of geography and made it easier for people to communicate with each other, the advent of social media made it easier for them to communicate with a larger number of people at the same time. This ability to communicate within a group also gave rise to "debates" which often turngot ugly, highlighting giving way to concerns of how easy it is to harass people on social media.</p>
</li>
<li>
<p style="text-align: justify;">This concern over of harassment led a number of people to call for greater censorship of social media and it was perhaps this concern which gave rise to the biggest challenge to the freedom of speech and expression in the online world, in the form of section 66A of the Information Technology Act, 2000 which made it an offense to send information which was "grossly offensive" (s.66A(a)) or caused "annoyance" or "inconvenience" while being known to be false (s.66A(c)). This section was used widely seen by Oonline activists, including the Centre for Internet and Society, widely considered this section as a tool for the government to silence those who criticised it. In fact, statistics compiled by the National Crime Records Bureau from 2014 revealed that 2,402 people, including 29 women, were arrested in 4,192 cases under section 66A which accounted for nearly 60% of all arrests under the IT Act, and 40% of arrests for cyber crimes in 2014. <a name="_ftnref26" href="#_ftn26">[26]</a></p>
</li>
<li>
<p style="text-align: justify;">The section was finally struck down by the Supreme Court in 2015 in the case of <em>Shreya Singhal</em>v. <em>Union of India</em>, <a name="_ftnref27" href="#_ftn27">[27]</a> on the ground of being too vague. This decision was seen as a huge victory for the campaign for freedom of speech and expression in the virtual world since this section was frequently used by the state (or rather government in power) to muzzle free speech against the incumbent government or political leaders. The offending section 66A made it an offence to send any information that was "grossly offensive or has menacing character" or "which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by makinguse of such computer resource or a communication device,". These terms quoted above were held by the Court to be too vague and wide and falling foul of the limited restrictions constitutionally imposed on the freedom of expression. The Supreme Court therefore, and were therefore struck down section 66A by the Supreme Court.</p>
</li></ol>
<h4 id="2f">2f. A State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public</h4>
<p style="text-align: justify;">The researchers of this report could not locate any norms in India which address this issue. To the best of their knowledge, India does not support any ICT activity that intentionally damages critical infrastructure or impairs the use and operation of critical infrastructure.</p>
<h4 id="2g">2g. States should take appropriate measures to protect their critical infrastructure from ICT threats, taking into account General Assembly resolution 58/199 on the creation of a global culture of cybersecurity and the protection of critical information infrastructures, and other relevant resolutions</h4>
<p style="text-align: justify;">1. Section 70 of the IT Act gives the government the authority to declare any computer system which directly affects any critical information infrastructure to be a protected system. The term "critical information infrastructure" (CII) is defined in the IT Act "the computer resource, the incapacitation or destruction of which, shall have debilitating impact on national security, economy, public health or safety." Once the government declares any computer resource as a protected system it gets the authority to prescribe information security practices for such as system as well as identify the persons who are authorised to access such systems. Any person who accesses a protected system in contravention of the provision of Section 70 of the IT Act shall be liable to be imprisoned for a maximum period of 10 years and also pay a fine. Further, section 70A of the IT Act gives the government the power to name a national nodal agency in respect of CII and also prescribe the manner for such agency to perform its duties. In pursuance of the powers under sections 70A the government has designated the National Critical Information Infrastructure Protection Centre (NCIIPC) situated in the JNU campus as the nodal agency <a name="_ftnref28" href="#_ftn28">[28]</a>. This agency is a part of and under the administrative control of the National Technical Research Organisation (NTRO) <a name="_ftnref29" href="#_ftn29">[29].</a></p>
<p style="text-align: justify;">2. The functions and manner of performing such functions by the NCIIPC has been prescribed in the Information Technology (National Critical Information Infrastructure Protection Centre and Manner of Performing Functions and Duties) Rules, 2013.<a name="_ftnref30" href="#_ftn30">[30]</a> According to these Rules the functions of the NCIIPC include, inter alia, (i) the protecting and giving advice to reduce the vulnerabilities of CII against cyber terrorism, cyber warfare and other threats; (ii) identification of all critical infrastructure elements so that they can be notified by the government; (iii) providing strategic leadership and coherence across the government to respond to cyber security threats against CII; (iv) coordinating, sharing, monitoring, analysing and forecasting national level threats to CII for policy guidance, expertiese sharing and situational awareness for early warning alerts; (v) assisting in the development of appropriate plans, adoption of standards, sharing best practices and refinining procurement processes for CII; (vi) undertaking and funding research and development to innovate future technologies and collaborate with PSUs, academia and international partners for protection of CII; (vii) organising training and awareness programmes and development of audit and certification agencies for protection of CII; (viii) developing and executing national and international cooperation strategies for protection of CII; (ix) issuing guidelines, advisories and vulnerability notes relating to CII and practices, procedures, prevention and responses in consultation with CERT-In and other organisations; (x) exchanging information with CERT-In, especially in relation to cyber incidents; and (xi) calling for information and giving directions to critical sectors or persons having a critical impact on CII, in the event of any threat to CII.<a name="_ftnref31" href="#_ftn31">[31]</a></p>
<p style="text-align: justify;">3. The NCIIPC had in the year 2013 released (non publicly) Guidelines for the Protection of National Critical Information Infrastructure <a name="_ftnref32" href="#_ftn32">[32]</a> (CII Guidelines) which presented 40forty controls and respective guiding principles for the protection of CII. It is expected that these controls and guiding principles will help critical sectors to draw a CII protection roadmap to achieve safe, secure and resilient CII for India. The 'Guidelines for forty Critical Controls' is considered by the NCIIPC to be a significant milestone in its efforts for the protection of nation's critical information assets. These fort controls can be found in Section 6 (Best Practices, Controls and Guidelines) of the CII Guidelines. It must be noted that the CII Guidelines were drafted after taking inputs from a number of stakeholders such as the national Stock Exchange, the Airports Authority of India, National Thermal Power Corporation, Reserve Bank of India, Indian Railways, Telecom Regulatory Authority of India, Bharat Sanchar Nigam Limited, etc. This exercise of taking inputs from different stakeholders as well as developing a standard of as many as 40forty aspects of security seems to suggest that the NCIIPC is taking steps in the right direction.</p>
<p style="text-align: justify;">4. The Recommendations on Telecommunication Infrastructure Policy issued by the Telecom Regulatory Authority of India in April, 2011 are silent on the issue of security of critical information infrastructure.s. However, the National Policy on Information Technology, 2012 (NPIT) does address the issue of security of cyber space by saying that the government should make efforts to do the following:</p>
<p style="text-align: justify;">"9.1 To undertake policy, promotion and enabling actions for compliance to international security best practices and conformity assessment (product, process, technology & people) and incentives for compliance.</p>
<p style="text-align: justify;">9.2 To promote indigenous development of suitable security techniques & technology through frontier technology research, solution oriented research, proof of concept, pilot development etc. and deployment of secure IT products/processes</p>
<p style="text-align: justify;">9.3 To create a culture of cyber security for responsible user behavior & actions including building capacities and awareness campaigns.</p>
<p style="text-align: justify;">9.4 To create, establish and operate an 'Information Security Assurance Framework'."</p>
<p style="text-align: justify;">5. The Department of Information and Technology has formed the Computer Emergency Response Term of India (CERT-In) to enhance the security of India's Communications and Information Infrastructure through proactive action and effective collaboration. The Information Security Policy on Protection of Critical Infrastructure released by the CERT-In considers information recorded, processed or stored in electronic medium as a valuable asset and is geared towards protection of such "valuable asset". The policy recognises the importance of critical information infrastructure network and says that any disruption of the operation of such networks is likely to have devastating effects. The policy prescribes that personnel with program delivery responsibilities should also recognise the importance of security of information resources and their management. Thus Ddue to this recognition of the growing networked nature of government as well as critical organisations and the need to have a proper vulnerability analysis as well as effective management of information security risks, the Department of Technology prescribes the following information security policy:</p>
<p style="text-align: justify;">"In order to reduce the risk of cyber attacks and improve upon the security posture of critical information infrastructure, Government and critical sector organizations are required to do the following on priority:</p>
<ul style="text-align: justify;">
<li>Identify a member of senior management, as Chief Information Security Officer (CISO), knowledgeable in the nature of information security & related issues and designate him/her as a 'Point of contact', responsible for coordinating security policy compliance efforts and to regularly interact with the Indian Computer Emergency Response Team (CERT-In), Department of Information Technology (DIT), which is the nodal agency for coordinating all actions pertaining to cyber security;</li>
<li>Prepare information security plan and implement the security control measures as per ISI/ISO/IEC 27001: 2005 and other guidelines/standards, as appropriate;</li>
<li>Carry out periodic IT security risk assessments and determine acceptable level of risks, consistent with criticality of business/functional requirements, likely impact on business/ functions and achievement of organisational goals/objectives;</li>
<li>Periodically test and evaluate the adequacy and effectiveness of technical security control measures implemented for IT systems and networks. Especially, Test and evaluation may become necessary after each significant change to the IT applications/systems/networks and can include, as appropriate the following:</li></ul>
<p style="text-align: justify;">➢ Penetration Testing (both announced as well as unannounced)</p>
<p style="text-align: justify;">➢ Vulnerability Assessment</p>
<p style="text-align: justify;">➢ Application Security Testing</p>
<p style="text-align: justify;">➢ Web Security Testing</p>
<ul style="text-align: justify;">
<li>Carry out Audit of Information infrastructure on an annual basis and when there is major upgradation/change in the Information Technology Infrastructure, by an independent IT Security Auditing organization;..........</li></ul>
<ul style="text-align: justify;">
<li>Report to CERT-In the cyber security incidents, as and when they occur and the status of cyber security, periodically."</li></ul>
<p style="text-align: justify;">6. The Department of Electronics and Information Technology (DEITY) released the National Policy on Electronics in 2012 which contained the government's take on the electronics industry in India. Section 5 of the said policy talks about cCyber sSecurity and states that to create a complete secure cyber eco-system in the country, careful and due attention is required for creation of well-d defined technology and systems, use of appropriate technology and more importantly development of appropriate products and& solutions. The priorities for action should be suitable design and development of indigenous appropriate products through frontier technology/product oriented research, testing and& validation of security of products meeting the protection profile requirements needed to secure the ICT infrastructure and cyber space of the country.</p>
<p style="text-align: justify;">7. In addition the CERT-In has issued an Information Security Management Implementation Guide for Government Organisations. <a name="_ftnref33" href="#_ftn33">[33]</a> CERT-In has also prescribed progressive steps for implementation of Information Security Management System in Government & Critical Sectors as per ISO 27001. The steps prescribed are as follows:</p>
<ul style="text-align: justify;">
<li>Identification of a Point-of-Contact (POC) / Chief Information Security Officer (CISO) for coordinating information security policy implementation efforts and communication with CERT-In</li>
<li>Information Security Awareness Programme</li>
<li>Determination of general Risk environment of the organization (low / medium / hHigh) depending on the nature of web and& networking environment, criticality of business functions and impact of information security incidents on the organization, business activities, assets / resources and individuals</li>
<li>Status appraisal and gap analysis against ISO 27001 based best information security practices</li>
<li>Risk assessment covering evaluation of threat perception and technical and &operational vulnerabilities</li>
<li>Comprehensive risk mitigation plan including selection of appropriate information security controls as per ISO 27001 based best information security practices</li>
<li>Documentation of agreed information security control measures in the form of information security policy manual, procedure manual and work instructions</li>
<li>Implementation of information security control measures (Managerial, Technical and& operational)</li>
<li>Testing & evaluation of technical information security control measures for their adequacy & effectiveness and audit of IT applications/systems/networks by an independent information security auditing organization (penetration testing, vulnerability assessment, application security testing, web security testing, LAN audits, etc)</li>
<li>Information Security Management assessment and certification against ISO 27001 standard, preferably by an independent & accredited organization</li></ul>
<p style="text-align: justify;">8. The Unified License for providing various telecommunication services also discusses contains certain terms which talk about how to engagedeal with telecommunication infrastructure in light of national security, which include the following recommendations:</p>
<ul style="text-align: justify;">
<li>Providing necessary facilities to the Government to counteract espionage, subversive act, sabotage or any other unlawful activity;</li>
<li>Giving full access to its network and equipment to the authorised persons for technical scrutiny and inspection;</li>
<li>Obtaininggettting security clearance for all foreign nationals deployed on for installation, operation and maintenance of the network;</li>
<li>Being completely responsible for the security of its network and having organizational policy on security and security management of its network including Network forensics, Network Hardening, Network penetration test, Risk assessment;</li>
<li>Auditing its network or getting the network audited from security point of view once in a financial year from a network audit and certification agency;</li>
<li>Inducting only those network elements into its telecommunications network, which have been got tested according tos per relevant contemporary Indian or International Security Standards;</li>
<li>Including all contemporary security related features (including communication security) as prescribed under relevant security standards while procuring the equipment and implementing all such contemporary features into the network;</li>
<li>Keeping requisite records of operations in the network;</li>
<li>Monitoring of all intrusions, attacks and frauds on his technical facilities and provide reports on the same to the Licensor.</li></ul>
<p style="text-align: justify;">Further statutory restrictions on tampering critical infrastructure are already contained in the Telegraph Act and have been discussed above, though the penalties provided may need to be increased if they are to act as a deterrent in this age where the stakes are much higher.</p>
<h4 id="2h">2h. States should respond to appropriate requests for assistance by another State whose critical infrastructure is subject to malicious ICT acts. States should also respond to appropriate requests to mitigate malicious ICT activity aimed at the critical infrastructure of another State emanating from their territory, taking into account due regard for sovereignty</h4>
<p style="text-align: justify;">There is yet to be a publicly acknowledged request from a foreign government asking the Indian government to take steps to prevent malicious ICT acts originating from its territory.</p>
<h4 id="2i">2i. States should take reasonable steps to ensure the integrity of the supply chain so that end users can have confidence in the security of ICT products. States should seek to prevent the proliferation of malicious ICT tools and techniques and the use of harmful hidden functions;
<p> </p>
<p style="text-align: justify;">Section 4 of the National Electronics Policy, 2012 talks about "Developing and Mandating Standards" and says that in order to curb the inflow of sub-standard and unsafe electronic products the government should mandate technical and safety standards which conform to international standards and do the following:</p>
<ul style="text-align: justify;">
<li>Develop Indian standards to meet specific Indian conditions including climatic, power supply, and handling and other conditions etc., by suitably reviewing existing standards.</li>
<li>Mandate technical standards in the interest of public health and safety.</li>
<li>Set up an institutional mechanism within Department of Information Technology for mandating compliance to standards for electronics products.</li>
<li>Develop a National Policy Framework for enforcement and use of Standards and Quality Management Processes.</li>
<li>Strengthen the lab infrastructure for testing of electronic products and encouraging development of conformity assessment infrastructure by private participation.</li>
<li>Create awareness amongst consumers against sub-standard and spurious electronic products.</li>
<li>Build capacity within the Government and public sector for developing and mandating standards.</li>
<li>Actively participate in the international development of standards in the Electronic System Design and Manufacturing sector.</li></ul>
</h4>
<h4 id="2j">2j. States should encourage responsible reporting of ICT vulnerabilities and share associated information on available remedies to such vulnerabilities to limit and possibly eliminate potential threats to ICTs and ICT-dependent infrastructure</h4>
<p style="text-align: justify;">Under section 70B of the IT Act, India has established a Computer Emergency Response Team (CERT-In) to serve as the national agency for incident responses. The functions mandated to be performed by CERT-In as per the IT Act are:</p>
<ul style="text-align: justify;">
<li>Collection, analysis and dissemination of information on cyber incidents;</li>
<li>Forecasting and alerts of cyber security incidents;</li>
<li>Emergency measures for handling cyber security incidents;</li>
<li>Coordination of cyber incidents response activities;</li>
<li>Issuing ofe guidelines, advisories, vulnerability notes and white papers relating to information security practices, procedures, prevention, response and reporting of cyber incidents;</li>
<li>Such other functions relating to cyber security as may be prescribed. </li></ul>
<p style="text-align: justify;">CERT-In also publishes information regarding various cyber threats on its websites so as to keep internet users aware of the latest threats in the online world. Such information can be accessed both on the main page of the CERT-In website or under the Advisories section on the website. <a name="_ftnref34" href="#_ftn34">[34]</a></p>
<h4 id="2k">2k. States should not conduct or knowingly support activity to harm the information systems of the authorized emergency response teams (sometimes known as computer emergency response teams or cyber security incident response teams) of another State. A State should not use authorized emergency response teams to engage in malicious international activity.</h4>
<p style="text-align: justify;">There are no official or public reports of India using its CERT-In to harm the information systems of another state, although it is highly unlikely that any state would publicly acknowledge such activities even if it was indulging in them.</p>
<h3 id="3">3. Conclusion</h3>
<p style="text-align: justify;">As can be seen from the discussion above, the statutory, regulatory and policy regime in India does seem to address most of the cyber security norms in some manner or the other, but these efforts almost always fall short of meeting some of the norms. While the Information Technology Act along with the Rules thereunder, as being the umbrella legislation for digital transactions in India, does address some of the issues mentioned above, it does not address some of the problems that arise out of a greater reliance on the internet such as spamming, trolling, and, online harassment, etc. Although some of these acts may be addressed by regular legislation by applying them in the online world however this does not always take into account the unique features and complexities of committing these acts/crimes in the online world.</p>
<p style="text-align: justify;">In the area of exchange of information between states, India has entered into a number of MLATs and extradition treaties, and frequently issues Letters of Rogatory. Yet however these mechanisms may not be adequate to address the needs of crime prevention of crimes in the age of ICT, as crime prevention it often requires exchange of information inon r a real time basis which is not possible with the bureaucratic procedures involved in the MLAT process. There also needsd to be stronger standards which are applicable to ICT equipment, including imported equipment especially in light of the fact that security concerns related to Chinese ICT equipment that from China have been raised quite frequently in the past. There also needs to be a better system of reporting ICT vulnerabilities to CERT-In or other authorized agencies so that mitigation measure can be implemented in time.</p>
<p style="text-align: justify;">It should be noted that the work of the Group of Experts is not complete since the General Assembly has asked the Secretary General to form a new Group of Experts which would report back to the Secretary General in 2017. It is imperative that the Government of India realise the importance of the work being done by the Group of Experts and take measures to ensure that a representative from India is included in or atleast the comments and concerns of India are included and addressed by the Group of Experts. Meanwhile, India can begin by strengthening domestic privacy safeguards, improving transparency and efficiency of relevant policies and processes, and looking towards solutions that respect rights and strengthen security. Brutent force solutions such as demands for back doors, unfair and unreasonable encryption regulation, and data localization requirements will not help propel India forward in international discussions, dialogues, or agreements on cross-border sharing of information. Though the recommendations from the Group of Experts are welcome, beyond a preliminary mention of privacy and freedom of expression, the rights of individuals - and the ways in which these can be protected, various components that go into supporting those rights including redress, transparency, and due process measures - was inadequately addressed.</p>
<div style="text-align: justify;">
<hr />
<div id="ftn1">
<p><a name="_ftn1" href="#_ftnref1">[1]</a> The terms "cyberspace" has been defined in the Oxford English Dictionary as the notional environment in which communication over computer networks occurs. Although the scope of this paper is not to discuss the meaning of this term, it was felt that a simple definition of the term would be useful to better define the parameters of the discussion.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2" href="#_ftnref2">[2]</a> <a href="https://s3.amazonaws.com/unoda-web/wp-content/uploads/2016/01/A-RES-70-237-Information-Security.pdf"> https://s3.amazonaws.com/unoda-web/wp-content/uploads/2016/01/A-RES-70-237-Information-Security.pdf </a></p>
</div>
<div id="ftn3">
<p><a name="_ftn3" href="#_ftnref3">[3]</a> https://www.justsecurity.org/29203/british-searches-america-tremendous-opportunity/</p>
</div>
<div id="ftn4">
<p><a name="_ftn4" href="#_ftnref4">[4]</a> <a href="http://deity.gov.in/content/country-wise-status">http://deity.gov.in/content/country-wise-status</a></p>
</div>
<div id="ftn5">
<p><a name="_ftn5" href="#_ftnref5">[5]</a> Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-</p>
<p>(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or</p>
<p>(ii) which is kept or used for <em>bona fide</em> heritage or religious purposes</p>
<p>Explanation: For the purposes of this section, "children" means a person who has not completed the age of 18 years.</p>
</div>
<div id="ftn6">
<p><a name="_ftn6" href="#_ftnref6">[6]</a> <a href="http://deity.gov.in/sites/upload_files/dit/files/Plan_Report_on_Cyber_Security.pdf"> http://deity.gov.in/sites/upload_files/dit/files/Plan_Report_on_Cyber_Security.pdf </a></p>
</div>
<div id="ftn7">
<p><a name="_ftn7" href="#_ftnref7">[7]</a> List of the countries is available at <a href="http://cbi.nic.in/interpol/mlats.php">http://cbi.nic.in/interpol/mlats.php</a></p>
</div>
<div id="ftn8">
<p><a name="_ftn8" href="#_ftnref8">[8]</a> <a href="https://www.lawfareblog.com/mlat-reform-some-thoughts-civil-society"> https://www.lawfareblog.com/mlat-reform-some-thoughts-civil-society </a></p>
</div>
<div id="ftn9">
<p><a name="_ftn9" href="#_ftnref9">[9]</a> Peter Swire<sup> </sup>& Justin D. Hemmings, "Re-Engineering the Mutual Legal Assistance Treaty Process", <a href="http://www.heinz.cmu.edu/~acquisti/SHB2015/Swire.docx">http://www.heinz.cmu.edu/~acquisti/SHB2015/Swire.docx</a>, <em>cf. </em> <a href="https://www.lawfareblog.com/mlat-reform-some-thoughts-civil-society"> https://www.lawfareblog.com/mlat-reform-some-thoughts-civil-society </a> .</p>
</div>
<div id="ftn10">
<p><a name="_ftn10" href="#_ftnref10">[10]</a> MLATS and International Cooperation for Law Enforcement Purposes, available at <a href="http://cis-india.org/internet-governance/blog/presentation-on-mlats.pdf"> http://cis-india.org/internet-governance/blog/presentation-on-mlats.pdf </a></p>
</div>
<div id="ftn11">
<p><a name="_ftn11" href="#_ftnref11">[11]</a> The full list of the countries with which India has agreed an MLAT is available at <a href="http://cbi.nic.in/interpol/extradition.php">http://cbi.nic.in/interpol/extradition.php</a></p>
</div>
<div id="ftn12">
<p><a name="_ftn12" href="#_ftnref12">[12]</a> <a href="http://cbi.nic.in/interpol/assist.php">http://cbi.nic.in/interpol/assist.php</a></p>
</div>
<div id="ftn13">
<p><a name="_ftn13" href="#_ftnref13">[13]</a> <a href="http://www.firstpost.com/india/how-the-police-tracked-and-arrested-im-founder-yasin-bhatkal-1071755.html"> http://www.firstpost.com/india/how-the-police-tracked-and-arrested-im-founder-yasin-bhatkal-1071755.html </a></p>
</div>
<div id="ftn14">
<p><a name="_ftn14" href="#_ftnref14">[14]</a> <a href="http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=3641">http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=3641</a></p>
</div>
<div id="ftn15">
<p><a name="_ftn15" href="#_ftnref15">[15]</a> <a href="http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=6014">http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=6014</a></p>
</div>
<div id="ftn16">
<p><a name="_ftn16" href="#_ftnref16">[16]</a> <a href="http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=11212">http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=11212</a></p>
</div>
<div id="ftn17">
<p><a name="_ftn17" href="#_ftnref17">[17]</a> <a href="http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=14584">http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=14584</a></p>
</div>
<div id="ftn18">
<p><a name="_ftn18" href="#_ftnref18">[18]</a> <a href="http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=26571">http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=26571</a></p>
</div>
<div id="ftn19">
<p><a name="_ftn19" href="#_ftnref19">[19]</a> <a href="http://dspace.judis.nic.in/bitstream/123456789/26592/1/36303.pdf">http://dspace.judis.nic.in/bitstream/123456789/26592/1/36303.pdf</a></p>
</div>
<div id="ftn20">
<p><a name="_ftn20" href="#_ftnref20">[20]</a> AIR 1954 SC 300. In para 18 of the Judgment it was held: "A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction."</p>
</div>
<div id="ftn21">
<p><a name="_ftn21" href="#_ftnref21">[21]</a> AIR 1963 SC 1295. In para 20 of the judgment it was held: "… Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III."</p>
</div>
<div id="ftn22">
<p><a name="_ftn22" href="#_ftnref22">[22]</a> (1975) 2 SCC 148.</p>
</div>
<div id="ftn23">
<p><a name="_ftn23" href="#_ftnref23">[23]</a> (1994) 6 SCC 632.</p>
</div>
<div id="ftn24">
<p><a name="_ftn24" href="#_ftnref24">[24]</a> (1997) 1 SCC 301.</p>
</div>
<div id="ftn25">
<p><a name="_ftn25" href="#_ftnref25">[25]</a> <a href="http://cis-india.org/internet-governance/blog/right-to-privacy-in-peril"> http://cis-india.org/internet-governance/blog/right-to-privacy-in-peril </a></p>
</div>
<div id="ftn26">
<p><a name="_ftn26" href="#_ftnref26">[26]</a> <a href="http://cis-india.org/internet-governance/news/hindustan-times-august-20-2015-aloke-tikku-stats-from-2014-reveal-horror-of-scrapped-section-66-a-of-it-act"> http://cis-india.org/internet-governance/news/hindustan-times-august-20-2015-aloke-tikku-stats-from-2014-reveal-horror-of-scrapped-section-66-a-of-it-act </a></p>
</div>
<div id="ftn27">
<p><a name="_ftn27" href="#_ftnref27">[27]</a> <a href="http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf"> http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf </a></p>
</div>
<div id="ftn28">
<p><a name="_ftn28" href="#_ftnref28">[28]</a> <a href="http://deity.gov.in/sites/upload_files/dit/files/S_O_18(E).pdf">http://deity.gov.in/sites/upload_files/dit/files/S_O_18(E).pdf</a></p>
</div>
<div id="ftn29">
<p><a name="_ftn29" href="#_ftnref29">[29]</a></p>
</div>
<div id="ftn30">
<p><a name="_ftn30" href="#_ftnref30">[30]</a> <a href="http://deity.gov.in/sites/upload_files/dit/files/GSR_19(E).pdf">http://deity.gov.in/sites/upload_files/dit/files/GSR_19(E).pdf</a></p>
</div>
<div id="ftn31">
<p><a name="_ftn31" href="#_ftnref31">[31]</a> Rule 4 of the Information Technology (National Critical Information Infrastructure Protection Centre and Manner of Performing Functions and Duties) Rules, 2013.</p>
</div>
<div id="ftn32">
<p><a name="_ftn32" href="#_ftnref32">[32]</a> Since these Guidelines were not publicly released they are not available on any government website. In this paper we have relied on a version available on a private website at <a href="http://perry4law.org/cecsrdi/wp-content/uploads/2013/12/Guidelines-For-Protection-Of-National-Critical-Information-Infrastructure.pdf"> http://perry4law.org/cecsrdi/wp-content/uploads/2013/12/Guidelines-For-Protection-Of-National-Critical-Information-Infrastructure.pdf </a></p>
</div>
<div id="ftn33">
<p><a name="_ftn33" href="#_ftnref33">[33]</a> Available at <a href="http://www.cert-in.org.in/">http://www.cert-in.org.in/</a></p>
</div>
<div id="ftn34">
<p><a name="_ftn34" href="#_ftnref34">[34]</a> <a href="http://www.cert-in.org.in/">http://www.cert-in.org.in/</a></p>
</div>
</div>
<hr />
<h2>List of Acronyms</h2>
<ul>
<li><strong>ICTs</strong> – Information Communication Technologies</li>
<li><strong>GGE</strong> – Group of Experts</li>
<li><strong>EU</strong> – European Union</li>
<li><strong>DLC-ICT</strong> – India-Belarus Digital Learning Center</li>
<li><strong>IT Act</strong> – Information Technology Act, 2000</li>
<li><strong>UL</strong> - Unified License</li>
<li><strong>DEITY</strong> – Department of Electronics and Information Technology</li>
<li><strong>IT</strong> – Information Technology</li>
<li><strong>ISO</strong> – International Organization for Standardisation</li>
<li><strong>CERT</strong> – Computer Emergency Response Team</li>
<li><strong>CERT-In</strong> - Computer Emergency Response Team, India</li>
<li><strong>MLAT</strong> – Mutual Legal Assistance Treaty</li>
<li><strong>CII</strong> – Critical Information Infrastructure</li>
<li><strong>NCIIPC</strong> - National Critical Information Infrastructure Protection Centre</li>
<li><strong>NTRO</strong> - National Technical Research Organisation</li>
<li><strong>NPIT</strong> - National Policy on Information Technology</li>
<li><strong>CISO</strong> - Chief Information Security Officer</li></ul>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/analysis-report-experts-information-telecommunications-security-implications-india'>https://cis-india.org/internet-governance/blog/analysis-report-experts-information-telecommunications-security-implications-india</a>
</p>
No publisherElonnai Hickok and Vipul KharbandaFeaturedHomepageInternet GovernancePrivacy2016-08-11T09:58:59ZBlog EntryAnalysis of the Copyright (Amendment) Bill, 2010
https://cis-india.org/a2k/blogs/copyright-bill-analysis
<b>CIS analyses the Copyright (Amendment) Bill, 2010, from a public interest perspective to sift the good from the bad, and importantly to point out what crucial amendments should be considered but have not been so far.</b>
<p>
The full submission that CIS and 21 other civil society organizations made to the Rajya Sabha Standing Committee on HRD (which is studying the Bill) is <a title="Copyright Bill Analysis" class="internal-link" href="http://www.cis-india.org/advocacy/ipr/upload/copyright-bill-submission">available here</a>. Given below is the summary of our submissions:</p>
<h2 class="western">Existing Copyright Act</h2>
<p align="JUSTIFY">The Indian Copyright
Act, 1957 has been designed from the perspective of a developing
country. It has always attempted a balance between various kinds of
interests. It has always sought to ensure that rights of authors of
creative works is carefully promoted alongside the public interest
served by wide availability and usability of that material. For
instance, our Copyright Act has provisions for: </p>
<ul><li>
<p align="JUSTIFY">compulsory and
statutory licensing: recognizing its importance in making works
available, especially making them available at an affordable rate.</p>
</li><li>
<p align="JUSTIFY">cover versions:
recognizing that more players lead to a more vibrant music industry.</p>
</li><li>
<p align="JUSTIFY">widely-worded
right of fair dealing for private use: recognizing that individual
use and large-scale commercial misuse are different.</p>
</li></ul>
<p align="JUSTIFY">These provisions of
our Act <a class="external-link" href="http://a2knetwork.org/watchlist/report/india">have been lauded</a>,<sup><a class="sdfootnoteanc" name="sdfootnote1anc" href="#sdfootnote1sym"></a></sup>
and India has been rated as <a class="external-link" href="http://a2knetwork.org/summary-report-2010">the most balanced copyright system in a
global survey</a><sup><a class="sdfootnoteanc" name="sdfootnote2anc" href="#sdfootnote2sym"></a></sup>
conducted of over 34 countries by <a class="external-link" href="http://www.consumersinternational.org/">Consumers International</a><sup><a class="sdfootnoteanc" name="sdfootnote3anc" href="#sdfootnote3sym"></a></sup>.</p>
<p align="JUSTIFY">The Indian Parliament
has always sought to be responsive to changing technologies by paying
heed to both the democratisation of access as well as the securing of
the interests of copyright holders. This approach needs to be lauded,
and importantly, needs to be maintained.</p>
<p align="JUSTIFY"><br /></p>
<h2 class="western">Proposed Amendments</h2>
<h3 class="western">Some positive amendments</h3>
<ul><li>
<p align="JUSTIFY"><strong>Fair
Dealings, Parallel Importation, Non-commercial Rental</strong>: All works
(including sound recordings and cinematograph films) are now covered
the fair dealings clause (except computer programmes), and a few
other exceptions; parallel importation is now clearly allowed; and
non-commercial rental has become a limitation in some cases.</p>
</li><li>
<p align="JUSTIFY"><strong>Persons with
disabilities</strong>: There is finally an attempt at addressing the
concerns of persons with disabilities. But the provisions are
completely useless the way they are currently worded.</p>
</li><li>
<p align="JUSTIFY"><strong>Public
Libraries</strong>: They can now make electronic copies of works they
own, and some other beneficial changes relating to public libraries.</p>
</li><li>
<p align="JUSTIFY"><strong>Education</strong>:
Some exceptions related to education have been broadened (scope of
works, & scope of use).</p>
</li><li>
<p align="JUSTIFY"><strong>Statutory and
compulsory licensing</strong>: Some new statutory licensing provisions
(including for radio broadcasting) and some streamlining of existing
compulsory licensing provisions.</p>
</li><li>
<p align="JUSTIFY"><strong>Copyright
societies</strong>: These are now responsible to authors and not owners
of works.</p>
</li><li>
<p align="JUSTIFY"><strong>Open
licences</strong>: Free and Open Source Software and Open Content
licensing is now simpler.</p>
</li><li>
<p align="JUSTIFY"><strong>Partial
exemption of online intermediaries</strong>:
Transient and incidental storage of copyrighted works has
been excepted, mostly for the benefit of online intermediaries.</p>
</li><li>
<p align="JUSTIFY"><strong>Performer’s
rights</strong>: The general, and confusing, exclusive right that
performers had to communicate their performance to the public has
been removed, and instead only the exclusive right to communicate
sound/video recordings remains.</p>
</li><li>
<p align="JUSTIFY"><strong>Enforcement</strong>:
Provisions on border measures have been made better, and less prone
to abuse and prevention of legitimate trade.</p>
</li></ul>
<h3 class="western"><br /></h3>
<h3 class="western">Some negative amendments</h3>
<ul><li>
<p align="JUSTIFY"><strong>WCT and WPPT
compliance</strong>: India has not signed either of these two treaties,
which impose TRIPS-plus copyright protection, but without any
corresponding increase in fair dealing / fair use rights.</p>
</li><li>
<p align="JUSTIFY"><strong>Increase in
duration of copyright</strong>: This will significantly reduce the public
domain, which India has been arguing for internationally.</p>
</li><li>
<p align="JUSTIFY"><strong>Technological
Protection Measures</strong>: TPMs, which have been shown to be
anti-consumer in all countries in which they have been introduced,
are sought to be brought into Indian law.</p>
</li><li>
<p align="JUSTIFY"><strong>Version
recordings</strong>: The amendments make cover version much more
difficult to produce.</p>
</li><li>
<p align="JUSTIFY"><strong>Moral rights</strong>:
Changes have been made to author’s moral rights (and performer’s
moral rights have been introduced) but these have been made without
requisite safeguards.</p>
</li></ul>
<h3 class="western"><br /></h3>
<h3 class="western">Missed opportunities</h3>
<ul><li>
<p align="JUSTIFY"><strong>Government-funded
works</strong>: Taxpayers are still not free to use works that were paid
for by them. This goes against the direction that India has elected
to march towards with the Right to Information Act.</p>
</li><li>
<p align="JUSTIFY"><strong>Copyright
terms</strong>: The duration of all copyrights are above the minimum
required by our international obligations, thus decreasing the
public domain which is crucial for all scientific and cultural
progress.</p>
</li><li>
<p align="JUSTIFY"><strong>Criminal
provisions</strong>: Our law still criminalises individual,
non-commercial copyright infringement.</p>
</li><li>
<p align="JUSTIFY"><strong>Libraries and
archives</strong>: The exceptions for ‘public libraries’ are still
too narrow in what they perceive as ‘public libraries’.</p>
</li><li>
<p align="JUSTIFY"><strong>Educational
exceptions</strong>: The exceptions for education still do not fully
embrace distance and digital education.</p>
</li><li>
<p align="JUSTIFY"><strong>Communication
to the public</strong>: No clear definition is given of what constitute a
‘public’, and no distinction is drawn between commercial and
non-commercial ‘public’ communication.</p>
</li><li>
<p align="JUSTIFY"><strong>Internet
intermediaries</strong>: More protections are required to be granted to
Internet intermediaries to ensure that non-market based
peer-production projects such as Wikipedia, and other forms of
social media and grassroots innovation are not stifled.</p>
</li><li>
<p align="JUSTIFY"><strong>Fair dealing
and fair use</strong>: We would benefit greatly if, apart from the
specific exceptions provided for in the Act, more general guidelines
were also provided as to what do not constitute infringement. This
would not take away from the existing exceptions.</p>
</li></ul>
<p align="JUSTIFY"> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/copyright-bill-analysis'>https://cis-india.org/a2k/blogs/copyright-bill-analysis</a>
</p>
No publisherpraneshAccess to KnowledgeConsumer RightsCopyrightFair DealingsPublic AccountabilityIntellectual Property RightsRTIFeaturedBroadcastingPublicationsSubmissionsTechnological Protection Measures2011-09-21T06:01:54ZBlog EntryAnalysis of the Copyright (Amendment) Bill 2012
https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012
<b>There are some welcome provisions in the Copyright (Amendment) Bill 2012, and some worrisome provisions. Pranesh Prakash examines five positive changes, four negative ones, and notes the several missed opportunities. The larger concern, though, is that many important issues have not been addressed by these amendments, and how copyright policy is made without evidence and often out of touch with contemporary realities of the digital era.</b>
<p>The <a class="external-link" href="http://164.100.24.219/BillsTexts/RSBillTexts/PassedRajyaSabha/copy-E.pdf">Copyright (Amendment) Bill 2012</a> has been passed by both Houses of Parliament, and will become law as soon as the President gives her assent and it is published in the Gazette of India. While we celebrate the passage of some progressive amendments to the Copyright Act, 1957 — including an excellent exception for persons with disabilities — we must keep in mind that there are some regressive amendments as well. In this blog post, I will try to highlight those provisions of the amendment that have not received much public attention (unlike the issue of lyricists’ and composers’ ‘right to royalty’).</p>
<h2>Welcome Changes</h2>
<h3>Provisions for Persons with Disabilities</h3>
<p>India now has amongst the most progressive exception for persons with disabilities, alongside countries like Chile. Under the amendments, sections 51(1)(zb) and 31B carve out exceptions and limitations for persons with disabilities. Earlier s.52(1)(zb) dealt only with formats that were “special designed only for the use of persons suffering from visual, aural, or other disabilities”. Thanks to a campaign mounted by disability rights groups and public interest groups such as CIS, it now covers “any accessible format”. Section 52(1)(zb) allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. Even for-profit businesses are allowed to do so if they obtain a compulsory licence on a work-by-work basis, and pay the royalties fixed by the Copyright Board. The onerousness of this provision puts its utility into question, and this won’t disappear unless the expression “work” in s.31B is read to include a class of works.</p>
<p>Given that the Delhi High Court has — wrongly and <a class="external-link" href="http://en.wikipedia.org/wiki/Per_incuriam">per incuriam</a>, since it did not refer to s.14(a)(ii) as it was amended in 1994 — held parallel importation to be barred by the Copyright Act, it was important for Parliament to clarify that the Copyright Act in fact follows international exhaustion. Without this, even if any person can facilitate access for persons with disabilities to copyrighted works, those works are restricted to those that are circulated in India. Given that not many books are converted into accessible formats in India (not to mention the costs of doing so), and given the much larger budgets for book conversion in the developed world, this is truly restrictive.</p>
<h3>Extension of Fair Dealing to All Works</h3>
<p>The law earlier dealt with fair dealing rights with regard to “literary, dramatic, musical or artistic works”. Now it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.</p>
<h3>Creative Commons, Open Licensing Get a Boost</h3>
<p>The little-known s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.</p>
<h3>Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too</h3>
<p>Everywhere that the word “hire” occurs (except s.51, curiously), the word “commercial rental” has been substituted. This has been done, seemingly, to bring India in conformance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The welcome side-effect of this is that the legality of lending by non-profit public libraries has been clarified. The amendment states:</p>
<p class="discreet">"2(1)(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution."</p>
<p>Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.</p>
<p>Another welcome provision is the amended s.52(1)(n), which now allows “non-commercial public libraries” to store an electronic copy of a work if it already has a physical copy of the work. However, given that this provision says that the storage shall be “for preservation”, it seems limited. However, libraries might be able to use this — in conjunction with the fact that under s.14 of the Copyright Act lending rights of authors is limited to “commercial rental” and s.51(b) only covers lending of “infringing copies” — to argue that they can legally scan and lend electronic copies of works in the same manner that they lend physical copies. Whether this argument would succeed is unclear. Thus, India has not boldly gone where the European Commission is treading with talks of a European Digital Library Project, or where scholars in the US are headed with the Digital Public Library of America. But we might have gone there quietly. Thus, this amendment might help foster an Indian <a class="external-link" href="http://internetarchive.org/">Internet Archive</a>, or help spread the idea of the <a class="external-link" href="http://openlibrary.org/">Open Library</a> in India.</p>
<p>On a final note, different phrases are used to refer to libraries in the amendment. In s.2(1)(fa), it talks about "non-profit library"; in s.52(1)(n) and (o), it refers to "non-commercial public library"; and in s.52(1)(zb), it talks of "library or archives", but s.52(1)(zb) also requires that the works be made available on a "non-profit basis". The differentiation, if any, that is sought to be drawn between these is unclear.</p>
<h3>Limited Protection to Some Internet Intermediaries</h3>
<p>There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to 'transient or incidental' storage of a work or performance. Section 52(1)(b) allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public", hence applying primarily to Internet Service Providers (ISPs), VPN providers, etc. Section 52(1)(c) allows for "transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy". This seems to make it applicable primarily to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word 'incidental'.</p>
<h3>Compulsory Licensing Now Applies to Foreign Works Also</h3>
<p>Sections 31 ("compulsory licence in works withheld from public") and 31A ("compulsory licence in unpublished Indian works") used to apply to Indian works. Now they apply to all works, whether Indian or not (and now s.31A is about "compulsory licence in unpublished or published works", mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.</p>
<h2>Worrisome Changes</h2>
<h3>Term of Copyright for Photographs Nearly Doubled</h3>
<p>The term of copyright for photographs has now gone from sixty years from publication to sixty years from the death of the photographer. This would mean that copyright in a photograph clicked today (2012) by a 20 year old who dies at the 80 will only expire on January 1, 2133. This applies not only to artistic photographs, to all photographs because copyright is an opt-out system, not an opt-in system. Quite obviously, most photoshopping is illegal under copyright law.</p>
<p>This has two problems. First, there was no case made out for why this term needed to be increased. No socio-economic report was commissioned on the effects of such a term increase. This clause was not even examined by the Parliamentary Standing Committee. While the WCT requires a ‘life + 50′ years term for photographs, we are not signatories to the WCT, and hence have no obligation to enforce this. We are signatories to the Berne Convention and the TRIPS Agreement, which require a copyright term of 25 years for photographs. Instead, we have gone even above the WCT requirement and provide a life + 60 years term.</p>
<p>The second problem is that it is easier to say when a photograph was published than to say who the photographer was and when that photographer died. Even when you are the subject of a photograph, the copyright in the photograph belongs to the photographer. Unless a photograph was made under commission or the photographer assigned copyright to you, you do not own the copyright in the photographs. (Thanks to <a href="http://deviantlight.blogspot.com">Bipin Aspatwar</a>, for pointing out a mistake in an earlier version, with "employment" and "commission" being treated differently.) This will most definitely harm projects like Wikipedia, and other projects that aim at archiving and making historical photographs available publicly, since it is difficult to say whether the copyright in a photograph still persists.</p>
<h3>Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals</h3>
<p>The present amendments have brought about the following changes, which make it more difficult to produce cover versions:</p>
<ol>
<li> Time period after which a cover version can be made has increased from 2 years to 5 years.</li>
<li>Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.</li>
<li>Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.</li>
<li>While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated".</li>
<li>All cover versions must state that they are cover versions.</li>
<li>No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.</li>
<li>Alterations were allowed if they were "reasonably necessary for the adaptation of the work" now they are only allowed if it is "technically necessary for the purpose of making of the sound recording".</li>
</ol>
<p>This ignores present-day realities. Kolaveri Di was covered numerous times without permission, and each one of those illegal acts helped spread its popularity. The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. It is indeed ironic that T-Series, the company that broke HMV’s stranglehold over the Indian recording market thanks to cover versions, is itself one of the main movers behind ever-more stringent copyright laws.</p>
<h3>Digital Locks Now Provided Legal Protection Without Accountability</h3>
<p>As I have covered the issue of Technological Protection Measures (TPM) and Rights Management Information (RMI), which are ‘digital locks’ also known as Digital Rights Management (DRM), <a href="https://cis-india.org/a2k/blogs/tpm-copyright-amendment" class="external-link">in great detail earlier</a>, I won’t repeat the arguments at length. Very briefly:</p>
<ol>
<li>It is unclear that anyone has been demanding the grant of legal protection to DRMs in India, and We have no obligation under any international treaties to do so. It is not clear how DRM will help authors and artists, but it is clear how it will harm users.</li>
<li>While the TPM and RMI provisions are much more balanced than the equivalent provisions in laws like the US’s Digital Millennium Copyright Act (DMC), that isn’t saying much. Importantly, while users are given certain rights to break the digital locks, they are helpless if they aren’t also provided the technological means of doing so. Simply put: music and movie companies have rights to place digital locks, and under some limited circumstances users have the right to break them. But if the locks are difficult to break, the users have no choice but to live with the lock, despite having a legal right.</li>
</ol>
<h3>Removal of Parallel Importation</h3>
<p>In past blog posts I have covered <a href="https://cis-india.org/a2k/blogs/parallel-importation-of-books" class="external-link">why allowing parallel imports makes sense in India</a>. And as explained above, the Delhi High Court acted per incuriam when holding that the Copyright Act does not allow parallel importation. The Copyright Act only prohibits import of infringing copies of a work, and a copy of a book that has been legally sold in a foreign country is not an “infringing copy”. The government was set to introduce a provision making it clear that parallel importation was allowed. The Parliamentary Standing Committee heard objections to this proposal from a foreign publishers’ association, but decided to recommend the retention of the clause. Still, due to pressure from a few publishing companies whose business relies on monopolies over importation of works into India, the government has decided to delete the provision. However, thankfully, the HRD Minister, Kapil Sibal, has assured both houses of Parliament that he will move a further amendment if an<a class="external-link" href="http://www.ncaer.org/"> NCAER</a> report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.</p>
<h3>Expansion of Moral Rights Without Safeguards</h3>
<p>Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without adequate safeguards. The changes might allow the legal heir of an author, artist, etc., to object to ‘distortion, mutilation, modification, or other act’ of her ancestors work even when the ancestor might not have. By this amendment, this right continues in perpetuity, even after the original creator dies and even after the work enters into the public domain. It seems Indian policymakers had not heard of <a class="external-link" href="http://en.wikipedia.org/wiki/Stephen_James_Joyce">Stephen Joyce</a>, the grandson of James Joyce, who has “brought numerous lawsuits or threats of legal action against scholars, biographers and artists attempting to quote from Joyce’s literary work or personal correspondence”. Quoting from his Wikipedia page:</p>
<p class="callout">In 2004, Stephen threatened legal action against the Irish government when the Rejoyce Dublin 2004 festival proposed public reading of excerpts of Ulysses on Bloomsday. In 1988 Stephen Joyce burnt a collection of letters written by Lucia Joyce, his aunt. In 1989 he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. After 1995 Stephen announced no permissions would be granted to quote from his grandfather’s work. Libraries holding letters by Joyce were unable to show them without permission. Versions of his work online were disallowed. Stephen claimed to be protecting his grandfather’s and families reputation, but would sometimes grant permission to use material in exchange for fees that were often "extortionate".</p>
<p>Because in countries like the UK and Canada the works of James Joyce are now in the public domain, Stephen Joyce can no longer restrict apply such conditions. However now, in India, despite James Joyce’s works being in the public domain, Stephen Joyce’s indefensible demands may well carry legal weight.</p>
<h3>Backdoor Censorship</h3>
<p>As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:</p>
<p class="callout">Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;</p>
<p>There are two things to be noted here. First, that without proof (or negative consequences for false complaints) the service provider is mandated to prevent access to the copy for 21 day. Second, after the elapsing of 21 days, the service provider may 'put back' the content, but is not mandated to do so. This would allow people to file multiple frivolous complaints against any kind of material, even falsely (since there is no penalty for false compalaints), and keep some material permanently censored.</p>
<h2>Missed Opportunities</h2>
<h3>Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities</h3>
<p>The following important changes should have been made by the government, but haven’t. While on some issues the Standing Committee has gone beyond the proposed amendments, it has not touched upon any of the following, which we believe are very important changes that are required to be made.</p>
<ul>
<li> Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.</li>
<li>Fair dealing guidelines: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions, but would act as a more general framework for those cases which are not covered by the specific exceptions.</li>
<li>Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection could simply allow for “the reproduction, communication to the public, or publication of any government work” as being non-infringing uses.</li>
<li>Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.</li>
<li>Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.</li>
<li>Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.</li>
<li>Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled. Importantly, after the terrible judgment passed by Justice Manmohan Singh of the Delhi High Court in the Super Cassettes v. Myspace case, any website hosting user-generated content is vulnerable to payment of hefty damages even if it removes content speedily on the basis of complaints.</li>
</ul>
<h2>Amendments Not Examined</h2>
<p>For the sake of brevity, I have not examined the major changes that have been made with regard to copyright societies, lyricists and composers, and statutory licensing for broadcasters, all of which have received considerable attention by copyright experts elsewhere, nor have I examined many minor amendments.</p>
<h2>A Note on the Parliamentary Process</h2>
<p>Much of the discussions around the Copyright Act have been around the rights of composers and lyricists vis-à-vis producers. As this has been covered elsewhere, I won’t comment much on it, other than to say that it is quite unfortunate that the trees are lost for the forest. It is indeed a good thing that lyricists and composers are being provided additional protection against producers who are usually in a more advantageous bargaining position. This fact came out well in both houses of Parliament during the debate on the Copyright Bill.<br /><br />However, the mechanism of providing this protection — by preventing assignment of “the right to receive royalties”, though the “right to receive royalties” is never mentioned as a separate right anywhere else in the Copyright Act — was not critically examined by any of the MPs who spoke. What about the unintended consequences of such an amendment? Might this not lead to new contracts where instead of lump-sums, lyricists and music composers might instead be asked to bear the risk of not earning anything at all unless the film is profitable? What about a situation where a producer asks a lyricist to first assign all rights (including royalty rights) to her heirs and then enters into a contract with those heirs? The law, unfortunately at times, revolves around words used by the legislature and not just the intent of the legislature. While one cannot predict which way the amendment will go, one would have expected better discussions around this in Parliament.</p>
<p>Much of the discussion (in both <a class="external-link" href="http://164.100.47.5/newdebate/225/17052012/Fullday.pdf">the Rajya Sabha</a> and <a class="external-link" href="http://164.100.47.132/newdebate/15/10/22052012/Fullday.pdf">the Lok Sabha</a>) was rhetoric about the wonders of famous Indian songwriters and music composers and the abject penury in which some not-so-famous ones live, and there was very little discussion about the actual merits of the content of the Bill in terms of how this problem will be overcome. A few MPs did deal with issues of substance. Some asked the HRD Minister tough questions about the Statement of Objects and Reasons noting that amendments have been brought about to comply with the WCT and WPPT which were “adopted … by consensus”, even though this is false as India is not a signatory to the WCT and WPPT. MP P. Rajeeve further raised the issue of parallel imports and that of there being no public demand for including TPM in the Act, but that being a reaction to the US’s flawed Special 301 reports. Many, however, spoke about issues such as the non-award of the Bharat Ratna to Bhupen Hazarika, about the need to tackle plagiarism, and how the real wealth of a country is not material wealth but intellectual wealth.</p>
<p>This preponderance of rhetoric over content is not new when it comes to copyright policy in India. In 1991, when an amendment was presented to increase term of copyright in all works by ten years (from expiring 50 years from the author’s death to 60 years post-mortem), the vast majority of the Parliamentarians who stood up to speak on the issue waxed eloquent about the greatness of Rabindranath Tagore (whose works were about to lapse into the public domain), and how we must protect his works. Little did they reflect that extending copyright — for all works, whether by Tagore or not — will not help ‘protect’ the great Bengali artist, but would only make his (and all) works costlier for 10 additional years. Good-quality and cheaper editions of Tagore’s works are more easily available post-2001 (when his copyright finally lapsed) than before, since companies like Rupa could produce cheap editions without seeking a licence from Visva Bharati. And last I checked Tagore’s works have not been sullied by them having passed into the public domain in 2001.</p>
<p>Further, one could find outright mistakes in the assertions of Parliamentarians. In both Houses, DMK MPs raised objections with regard to parallel importation being allowed in the Bill — only in the version of the Bill they were debating, parallel importation was not being allowed. One MP stated that “statutory licensing provisions like these are not found anywhere else in the world”. This is incorrect, given that there are extensive statutory licensing provision in countries like the United States, covering a variety of situations, from transmission of sound recordings over Internet radio to secondary transmission of the over-the-air programming.</p>
<p>Unfortunately, though that MP did not raise this issue, there is a larger problem that underlies copyright policymaking in India, and that is the fact that there is no impartial evidence gathered and no proper studies that are done before making of policies. We have no equivalent of the Hargreaves Report or the Gowers Report, or the studies by the Productivity Council in Australia or the New Zealand government study of parallel importation.</p>
<p>There was no economic analysis conducted of the effect of the increase in copyright term for photographs. We have evidence from elsewhere that copyright terms <a class="external-link" href="http://williampatry.blogspot.in/2007/07/statute-of-anne-too-generous-by-half.html">are already</a> <a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2024588">too long</a>, and all increases in term are what economists refer to as <a class="external-link" href="http://en.wikipedia.org/wiki/Deadweight_loss">deadweight losses</a>. There is no justification whatsoever for increasing term of copyright for photographs, since India is not even a signatory to the WCT (which requires this term increase). In fact, we have lost precious negotiation space internationally since in bilateral trade agreements we have been asked to bring our laws in compliance with the WCT, and we have asked for other conditions in return. By unilaterally bringing ourselves in compliance with WCT, we have lost important bargaining power.</p>
<h2>Users and Smaller Creators Left Out of Discussions</h2>
<p>Thankfully, the Parliamentary Standing Committee went into these minutiae in greater detail. Though, as I have noted elsewhere, the Parliamentary Standing Committee did not invite any non-industry groups for deposition before it, other than the disability rights groups which had campaigned really hard. So while changes that would affect libraries were included, not a single librarian was called by the Standing Committee. Despite comments having been submitted <a href="https://cis-india.org/a2k/publications/copyright-bill-submission" class="external-link">to the Standing Committee on behalf of 22 civil society organizations</a>, none of those organizations were asked to depose. Importantly, non-industry users of copyrighted materials — consumers, historians, teachers, students, documentary film-makers, RTI activists, independent publishers, and people like you and I — are not seen as legitimate interested parties in the copyright debate. This is amply clear from the the fact that only one MP each in the two houses of Parliament raised the issue of users’ rights at all.</p>
<h2>Concluding Thoughts</h2>
<p>What stands out most from this process of amendment of the copyright law, which has been going on since 2006, is how out-of-touch the law is with current cultural practices. Most instances of photoshopping are illegal. Goodbye Lolcats. Cover versions (for which payments have to be made) have to wait for five years. Goodbye Kolaveri Di. Do you own the jokes you e-mail to others, and have you taken licences for quoting older e-mails in your replies? Goodbye e-mail. The strict laws of copyright, with a limited set of exceptions, just do not fit the digital era where everything digital transaction results in a bytes being copied. We need to take a much more thoughtful approach to rationalizing copyright: introduction of general fair dealing guidelines, reduction of copyright term, decriminalization of non-commercial infringement, and other such measures. If we don’t take such measures soon, we will all have to be prepared to be treated as criminals for all our lives. Breaking copyright law shouldn’t be as easy as breathing, yet thanks to outdated laws, it is.</p>
<p><a class="external-link" href="http://infojustice.org/archives/26243">This was reposted in infojustice.org on May 25, 2012</a></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012'>https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012</a>
</p>
No publisherpraneshAccess to KnowledgeFair DealingsPiracyIntellectual Property RightsEconomicsIntermediary LiabilityFeaturedTechnological Protection Measures2013-11-12T14:13:04ZBlog EntryAnalysis of DIT's Response to Second RTI on Website Blocking
https://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking
<b>In this blog post, Pranesh Prakash briefly analyses the DIT's response to an RTI request on website blocking alongside the most recent edition of Google's Transparency Report, and what it tells us about the online censorship regime in India.</b>
<h2 id="what-the-dits-response-tells-us-and-what-it-doesnt"><br /></h2>
<h2 id="what-the-dits-response-tells-us-and-what-it-doesnt">What the DIT's Response Tells Us, and What It Doesn't</h2>
<p>We at the Centre for Internet and Society had sent in a right to information request to the Department of Information Technology (DIT) asking for more information about website blocking in India. The <a href="https://cis-india.org/internet-governance/dit-response-2nd-rti-blocking" class="internal-link" title="Text of DIT's Response to Second RTI on Website Blocking">response we got from the DIT</a> was illuminating in many ways. The following are the noteworthy points, in brief:</p>
<ul>
<li>Six government officials, and one politician have so far made requests for 'disabling access' to certain online content under s.69A of the Information Technology (IT) Act.</li>
<li>68 individual items have been requested to be blocked, those being 64 websites (domain-level blocking), 1 sub-domain, and 3 specific web pages. Seemingly, none of these requests have been accepted.</li>
<li>The data provided by the government seemingly conflicts with the data released by the likes of Google (via its Transparency Report).</li>
<li>India's law enforcement agencies are circumventing the IT Act, the Indian Penal Code (IPC), and ultimately the Constitution, by not following proper procedure for removal of online content.</li>
<li>Either the DIT is not providing us all the relevant information on blocking, or is not following the law.</li></ul>
<p> </p>
<h2 id="conflicting-data-on-censorship-requests">Conflicting Data on Censorship Requests</h2>
<p>The latest <a href="http://www.google.com/transparencyreport/governmentrequests/IN/">Google Transparency Report</a>, released on October 25, 2011, shows that there were 68 written requests (imaginably taking the form of forceful requests/orders) from Indian law enforcement agencies for removal of 358 items from Google's various. If you take the figures since January 2010, it adds up to over 765.</p>
<p>However, the official government statistics show only eight separate requests having been made to the DIT (which, under the IT Act, is the only authority that can order the blocking of online content), adding up to a total of 64 websites (domain-level), 1 sub-domain, and 3 specific web pages. Of these only 3 are for Google's services (2 for Blogger, and 1 for YouTube).</p>
<p>If classified according to presumable reason for seeking of the block, that would be 61 domains hosting adult content; 1 domain (tamil.net.in), 1 sub-domain (ulaginazhagiyamuthalpenn.blogspot.com), and 2 specific pages (video of a speech by Bal Thackeray on YouTube and Wikipedia page for Sukhbir Singh Badal) for political content; 1 for religious content (a blog post titled "Insults against Islam" in Malay); and 1 domain hosting online gambling (betfair.com). It is unclear for why one of the requests was made (topix.net).<sup><a id="fnref1" class="footnoteRef" name="fnref1" href="#fn1">1</a></sup></p>
<h2 id="content-removal-vs.-content-blocking">Content Removal vs. Content Blocking</h2>
<p>Section 69A of the IT Act provides the Central Government the power to "direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource". The only person through whom this power can be exercised is the 'Designated Officer' (currently Dr. Gulshan Rai of the DIT), who in turn has to follow the procedure laid down in the rules drafted under s.69A ("Information Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009", the 'Blocking Rules').</p>
<p>Because of this, we see everyone from the Secretary of the Public Law and Order Department of Tamil Nadu to the Joint Commissioner of Police of Mumbai and the State President of the Bharatiya Janata Minority Morcha approaching the Designated Officer for blocking of websites.</p>
<p>However, as the data from Google shows, there are many times more requests being sent to remove content. The only explanation for this is that an order to 'block for access... or cause to be blocked for access by the public' is taken to be different from an order for removal of content. Nothing in the IT Act, nor in the Blocking Rules actually address this issue.<sup><a id="fnref2" class="footnoteRef" name="fnref2" href="#fn2">2</a></sup></p>
<p>Thus, there is a possibility that the forcible removal of content is treated separately from blocking of content. That would mean that while blocking is regulated by the IT Act, forcible removal of content is not. Thus, it would seem that forcible removal of online content is happening without clear regulation or limits.<sup><a id="fnref3" class="footnoteRef" name="fnref3" href="#fn3">3</a></sup></p>
<h2 id="role-of-the-indian-penal-code-and-code-of-criminal-procedure">Role of the Indian Penal Code and Code of Criminal Procedure</h2>
<p>There are existing provisions in the Indian Penal Code that provide the government the power to censor book, pamphlets, and other material on varied grounds, including obscenity, causing of enmity between communities, etc. The police is provided powers to enforce such governmental orders. Section 95 of the Code of Criminal Procedure allows the State Government to declare (through an official notification) certain publications which seem to violate the Indian Penal Code as 'forfeited to the Government' and to issue search warrants for the same. After this the police can enforce that notification.</p>
<p>It is clear that this is not the case for any of the content removal requests that were sent to Google.</p>
<h2 id="police-are-defeating-the-constitution-and-the-it-act">Police Are Defeating the Constitution and the IT Act</h2>
<p>Therefore, it would seem that law enforcement agencies are operating outside the bounds set up under the Indian Penal Code, the Code of Criminal Procedure, as also the Information Technology Act, when they send requests for removal of content to companies like Google. While a company might comply with it because it appears to them to violate their own terms of service (which generally include a wide clause about content being in accordance with all local laws), community guidelines, etc., it would appear that it is not required under the law to do so if the order itself is not legal.</p>
<p>However, anecdotal evidence has it that most companies comply with such 'requests' even when they are not under any legal obligation to do so.</p>
<p>This way the intention of Parliament in enacting s.69A of the IT Act—to regulate government censorship of the Internet and bring it within the bounds laid down in the Constitution—is defeated.</p>
<h2 id="dit-either-evasive-or-not-following-rules">DIT Either Evasive or Not Following Rules</h2>
<p>The DIT did not provide answers on:</p>
<ul>
<li>Whether any block ordered by the DIT has ever been revoked</li>
<li>On what basis DIT decides which intermediary (web host, ISP, etc.) to send the order of blocking to</li></ul>
<p>It also provided the minutes for only one meeting<sup><a id="fnref4" class="footnoteRef" name="fnref4" href="#fn4">4</a></sup> of the committee that decides whether to carry out a block, when we had requested for minutes of all the meetings it has ever held. That committee (the Committee for Examination of Requests, constituted under Rule 8(4) of the Blocking Rules) has to consider every single item in every single request forwarded to the Designated Officer, and 68 items were sent to the Designated Officer in 6 requests. Quite clearly something doesn't add up. Either the Committee is not following the Blocking Rules or the DIT is not providing a full reply under the RTI Act.</p>
<p> </p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1">
<p>A request was made to block http://www.topix.net, by the 'Commmissioner, Maharashtra State, Colaba, Mumbai—400001', presumably the Commissioner of State Intelligence Department of Maharashtra, whose office is located in Colaba. <a title="Jump back to footnote 1" class="footnoteBackLink" href="#fnref1">↩</a></p>
</li>
<li id="fn2">
<p>However, the Blocking Rules require the person or the hosting intermediary being contacted for a response. This provides the person/intermediary the opportunity to remove the content voluntarily or to oppose the request for blocking.</p>
<p>"Rule 8. Examination of request: (1) On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the information or part thereof which have been requested to be blocked for public access, he shall issue a notice by way of letters or fax or e-mail signed with electronic signatures to such person or intermediary in control of such computer resource to appear and submit their reply and clarifications if any, before the committee referred to in rule 7, at a specified date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary." <a title="Jump back to footnote 2" class="footnoteBackLink" href="#fnref2">↩</a></p>
</li>
<li id="fn3">
<p>While it is possible to imagine that the Indian Penal Code and the Code of Criminal Procedure lay down limits, it is clear from the Google Transparency Report that the requests from removal are not coming based only on court orders, but from the executive and the police. The police have no powers under the IPC or the CrPC to request removal of content without either a public notification issued by the State Government or a court order. <a title="Jump back to footnote 3" class="footnoteBackLink" href="#fnref3">↩</a></p>
</li>
<li id="fn4">
<p>The minutes of the meeting held on August 24, 2010, on the request for blocking of www.betfair.com were sent as 'Annexure III' of the DIT response. This request was not granted. <a title="Jump back to footnote 4" class="footnoteBackLink" href="#fnref4">↩</a></p>
</li></ol>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking'>https://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking</a>
</p>
No publisherpraneshFeaturedInternet GovernanceCensorship2011-12-02T09:26:11ZBlog Entry