Centre for Internet and Society

DesiSec: Cybersecurity and Civil Society in India

Laird Brown — 2015-06-29T16:25:43Z

As part of its project on mapping cyber security actors in South Asia and South East Asia, the Centre for Internet & Society conducted a series of interviews with cyber security actors. The interviews were compiled and edited into one documentary. The film produced by Purba Sarkar, edited by Aaron Joseph, and directed by Oxblood Ruffin features Malavika Jayaram, Nitin Pai, Namita Malhotra, Saikat Datta, Nishant Shah, Lawrence Liang, Anja Kovacs, Sikyong Lobsang Sangay and, Ravi Sharada Prasad.

Originally the idea was to do 24 interviews with an array of international experts: Technical, political, policy, legal, and activist. The project was initiated at the University of Toronto and over time a possibility emerged. Why not shape these interviews into a documentary about cybersecurity and civil society? And why not focus on the world’s largest democracy, India? Whether in India or the rest of the world there are several issues that are fundamental to life online: Privacy, surveillance, anonymity and, free speech. DesiSec includes all of these, and it examines the legal frameworks that shape how India deals with these challenges.

From the time it was shot till the final edit there has only been one change in the juridical topography: the dreaded 66A of the IT Act has been struck down. Otherwise, all else is in tact. DesiSec was produced by Purba Sarkar, shot and edited by Aaron Joseph, and directed by Oxblood Ruffin. It took our team from Bangalore to Delhi and, Dharamsala. We had the honour of interviewing: Malavika Jayaram, Nitin Pai, Namita Malhotra, Saikat Datta, Nishant Shah, Lawrence Liang, Anja Kovacs, Sikyong Lobsang Sangay and, Ravi Sharada Prasad. Everyone brought something special to the discussion and we are grateful for their insights. Also, we are particularly pleased to include the music of Charanjit Singh for the intro/outro of DesiSec. Mr. Singh is the inventor of acid house music, predating the Wikipedia entry for that category by five years. Someone should correct that.

DesiSec is released under the Creative Commons License Attribution 3.0 Unported (CC by 3.0). You can watch it on Vimeo: https://vimeo.com/123722680 or download it legally and free of charge via torrent. Feel free to show, remix, and share with your friends. And let us know what you think!

Video

For more details visit https://cis-india.org/internet-governance/blog/desi-sec-cybersecurity-and-civil-society-in-india

COVID-19 Charter Of Recommendations on Gig Work

Aayush Rathi and Ambika Tandon — 2020-05-13T08:53:02Z

Tandem Research and the Centre for Internet and Society organised a webinar on 9 April 2020, with unions representing gig workers and researchers studying labour rights and gig work, to uncover the experiences of gig workers during the lockdown. Based on the discussion, the participants of the webinar have drafted a set of recommendations for government agencies and platform companies to safeguard workers’ well being. Here are excerpts from this charter of recommendation shared with multiple central and state government agencies and platforms companies.

Summary of discussions from the COVID-19 and Gig Economy webinar, authored by Zothan Mawii, Tandem Research

Contributors

Aayush Rathi, Ambika Tandon and Tasneem Mewa, The Centre for Internet and Society, India
Aditi Surie, Indian Institute for Human Settlements
Anita Gurumurthy and Nandini Chami, IT for Change
Astha Kapoor, Aapti Institute
Dharmendra Vaishnav, Indian Delivery Lions (IDL)
Janaki Srinivasan, International Institute of Information Technology, Bangalore
Kaveri Medappa, University of Sussex
Pradyumna Taduri, Fairwork Foundation
Rakhi Sehgal, Gurgaon Shramik Kendra
Sangeet Jain, Researcher
Shaik Salauddin, Indian Federation of App-based Transport Workers (IFAT)
Shohini Sengupta, Assistant Professor of Research, Jindal School of Banking and Finance
Simiran Lalvani, Independent researcher
Tanveer Pasha, Ola, Taxi 4 Sure and Uber Drivers and Owners’ Association (OTU)
P. Vignesh Ilavarasan, Researcher and professor, IIT Delhi
Vinay Sarathy, United Food Delivery Partners’ Union (UFDPU)
Vinay K. Sreenivasa, Advocate, Alternative Law Forum
Zothan Mawii, Iona Eckstein and Urvashi Aneja, Tandem Research

Context

The nationwide lockdown in response to the ongoing COVID-19 pandemic has had a devastating impact on ‘gig workers’ working for on-demand service platforms such as those providing ride-hailing, home-based work and food delivery services and also e-commerce companies. Those driving for on-demand transportation companies have lost their source of livelihood as services remain suspended.

Workers for on-demand delivery and home-based services, on the other hand, have been deemed “essential” and continue to work although demand has fallen drastically. Earnings for delivery workers have fallen to as low as INR 100-300 per day for a whole day’s work. Workers face a high risk of contracting COVID-19 due to their exposure to multiple customers. Apprehensions are rising after a delivery worker for Zomato tested positive for COVID-19 in New Delhi. Demand has fallen further but delivery workers must continue to put themselves and their families’ health and safety at risk with limited or no provisions for personal protective equipment or other safety measures offered by companies.

The relief works announced by the central and state governments do not specifically provide for ‘gig workers’. At the same time, the measures announced by on-demand service companies are inadequate, ambiguous and inconsistent. The eligibility, manner and quantum of relief and the process of availing relief is unclear to workers.

We urge you to bolster the socio-economic and healthcare protections for ‘gig workers’ in India in light of the outbreak of COVID-19. Any efforts aimed at directing relief to ‘gig workers’ will have to be combined, involving the central and state governments and on-demand service companies.

We suggest that the measures adopted incorporate the recommendations outlined below. The recommendations have been drafted after discussion between civil society actors including labour unions from delivery and transportation sectors, researchers, and activists. A summary of the discussions leading to this charter of recommendations can be found here.

Charter of Recommendation on Gig Work

For more details visit https://cis-india.org/raw/covid-19-charter-of-recommendations

Your economy, our livelihoods: A policy brief by the All India Gig Workers’ Union

W.C. Shukla, Rikta Krishnaswamy, Rohin Garg, Gunjan Jena, and S.B. Natarajan — 2024-01-31T00:02:12Z

In this policy brief, the All India Gig Workers’ Union (AIGWU) presents its critique on NITI Aayog’s report on India’s platform economy. Through experiences from over 3 years of organising gig workers across India, they highlight fallacies in the report that disregard workers’ experiences and realities. They present alternative recommendations that are responsive to these realities, and offer pathways towards rights-affirming futures for workers in the platform economy.

Click to download the full report

Alternative recommendations towards rights-affirming futures for workers in the platform economy

Regulating the unchecked rise of platforms and the platform workforce

The rise of platforms will not only affect workers in blue collar or grey collar jobs but also engulf other service sectors that currently provide permanent and dignified employment. The platform and gig work paradigm must not be used as a way to further deregulate the Indian economy by subterfuge.

Robust regulatory mechanisms and worker protections must be extended to the gig economy and other forms of perennial employment threatened by the new Central labour codes. Gig workers must be recognised as employees with a clear test of employment enshrined in law.

A stronger push towards better paradigms of work can only come from alternative models of platform work. It is essential that the government foster the creation of platform cooperatives in certain service sectors. Such platform cooperatives will mitigate market concentration that results from the network effects of large private platforms, offer greater stability than profit-oriented private platforms, and offer genuine pro-people alternatives.

Securing data rights and employment security

Gig workers must be guaranteed individual and collective rights to their data collected and stored by platforms. Workers’ data should belong to the workers. Workers should be able to access verified records of their training (if any) and work contributions. The government should prescribe standards to ensure that these records are machine-readable and universally inter-operable. In addition, workers must have easy access to verified receipts for each successful task performed on the platform.

Centering gender-responsive protections for workers facing intersectional vulnerabilities

Platform work is uncritically accepted as a panacea for women without taking a deeper look at labour practices, and how women workers may be particularly vulnerable to workplace risks and exploitation.

Considering these vulnerabilities, there must be legal and regulatory measures enabling women to participate in the gig economy more fully—for example, creches, sexual harassment prevention measures, equal wages, and proper hours and working conditions. Crucially, there should be safety provisions for all gig workers, especially for women who face greater dangers of harassment. Importantly, accessible and efficient enforcement mechanisms must be introduced to operationalise schemes and rights for women workers.

Securing minimum social protection guarantees for all workers on digital platforms

Effective minimum wages of INR 26,000 per month must be enforced as demanded by the Joint Platform of Central Trade Unions in India. This figure must be used to determine the minimum earnings for an hour’s worth of work on a platform.

Provision for Provident Fund (PF) must be introduced, and a bank account that does not require minimum balances or related charges must also be guaranteed. Social insurance measures must be guaranteed including health insurance, personal accident insurance, pension, maternity benefits, and disability benefits. In addition, the state government must consider waiving off charges relating to fuel surcharges and parking expenses/ penalties for gig workers, while on duty.

Security and safety for women workers must be addressed by issuing government ID cards for gig workers. Gig workers are required to travel to unknown localities, where residents tend to be suspicious of them. The government ID card will help workers establish their identity and increase their credibility among the residents.

Social security legislation and a tripartite board (with representation of workers and worker organisations, government, and platforms) must be constituted to ensure registration of all platform-based gig workers and facilitate their access to social security. The law should cover all those persons who are engaged in professions that are using digital platforms for their last mile delivery.

Building accountability mechanisms for financial inclusion measures on platforms

While including gig workers into the formal banking system is essential, this must not be used as a pretext to ensnare them into debt traps. Should the government wish to use platforms as a lever for financial inclusion, it must mandate platforms to deposit a minimum amount above and beyond workers’ existing incomes towards their consumption. For platforms, existing schemes must be rejigged—Firstly, the burden of credit schemes must not be borne only by public sector banks; the private sector must also be directed to take on some of the lending. Secondly, interest rates may be lowered for such loans, but this reduced rate must be made conditional on ensuring a certain threshold of working conditions to gig workers.

Developing workforce estimation strategies that reflect workers’ realities

Workers in the gig economy must not blindly be lumped with the unorganised sector without an understanding of nuances within the broad definition of the gig economy. Assumptions that workers in the gig economy have alternate sources of income must be refuted. Rather, in the case of gig workers in the Indian context, ground realities show that this work actually constitutes primary sources of income.

Primary data must be collected across the country where platform work is seen as a clear option for individuals to choose as a profession. Thus, one can estimate the percentage of the population that depends on the gig economy in a consistent manner. Digital platforms must provide adequate data to state governments on the number of workers registered on the platform in every region (along with work time data) in order for governments to actively prepare for public infrastructure requirements required for such employment generation.

Contributors

Authors: W.C. Shukla, Rikta Krishnaswamy, Rohin Garg, Gunjan Jena, and S.B. Natarajan

Images: All India Gig Workers’ Union (AIGWU)

Design: Annushka Jaliwala

About the All India Gig Workers’ Union (AIGWU)

The All India Gig Workers’ Union (AIGWU) is a registered trade union for all food delivery, logistics, and service workers that work on any app-based platforms in India.

Contact: contactaigwu@gmail.com

Connect: Twitter; Facebook

The views and opinions expressed on this page are those of their individual authors. Unless the opposite is explicitly stated, or unless the opposite may be reasonably inferred, CIS does not subscribe to these views and opinions which belong to their individual authors. CIS does not accept any responsibility, legal or otherwise, for the views and opinions of these individual authors. For an official statement from CIS on a particular issue, please contact us directly.

For more details visit https://cis-india.org/raw/your-econonomy-our-livelihoods-a-policy-brief-by-the-all-india-gigi-workers-union

(Updated) Information Security Practices of Aadhaar (or lack thereof): A documentation of public availability of Aadhaar Numbers with sensitive personal financial information

Amber Sinha and Srinivas Kodali — 2019-03-13T00:29:01Z

Since its inception in 2009, the Aadhaar project has been shrouded in controversy due to various questions raised about privacy, technological issues, welfare exclusion, and security concerns. In this study, we document numerous instances of publicly available Aadhaar Numbers along with other personally identifiable information (PII) of individuals on government websites. This report highlights four government projects run by various government departments that have made sensitive personal financial information and Aadhaar numbers public on the project websites.

Read the updated report: Download (pdf)

Read the first statement of clarification (May 16, 2017): Download (pdf)

Read the second statement of clarification (November 05, 2018): Link to page (html)

We are grateful to Yesha Paul and VG Shreeram for research support.

In the last month, there have been various reports pointing out instances of the public disclosure of Aadhaar number through various databases, accessible easily on Twitter under the hashtag #AadhaarLeaks. Most of these public disclosures reported contain personally identifiable information of beneficiaries or subjects of the non UIDAI databases containing Aadhaar numbers of individuals along with other personal identifiers. All of these public disclosures are symptomatic of a significant and potentially irreversible privacy harm, however we wanted to point out another large fallout of such events, those that create a ripe opportunity for financial fraud. For this purpose, we identified benefits disbursement schemes which would require its databases to store financial information about its subjects. During our research, we encountered numerous instances of publicly available Aadhaar Numbers along with other PII of individuals on government websites. In this paper, we highlight four government projects run by various government departments with publicly available financial data and Aadhaar numbers. Our research is focussed largely on the data published by or pertaining to where Aadhaar data is linked with banking information. We chose major government programmes using Aadhaar for payments and banking transactions. We found sensitive and personal data and information very easily accessible on these portals.

For more details visit https://cis-india.org/internet-governance/information-security-practices-of-aadhaar-or-lack-thereof-a-documentation-of-public-availability-of-aadhaar-numbers-with-sensitive-personal-financial-information-1

Global Accessibility Awareness Day 2017

praskrishna — 2017-05-16T05:51:45Z

The Centre for Internet & Society along with Prakat Solutions and Mitra Jyothi is co-hosting the Global Accessibility Awareness Day in Bengaluru on May 18, 2017.

Global Accessibility Awareness Day is celebrated across the world on the 3rd Thursday in May every year to create an awareness in making technology accessible and usable by persons with disabilities. While people may be interested in the topic of making technology accessible and inclusive, the reality is that they often do not know how or where to start, Awareness comes first.

The purpose of GAAD is to get everyone talking, thinking and learning about digital (web, software, mobile, etc.) access/inclusion and people with different disabilities.

To mark this day, Prakat Solutions will be hosting an event filled with lightning talks, workshops and a lot of other activities. You can also view a series of short videos about why accessibility is important with contributions from some of the greatest minds in accessibility today.For us as a company, Global Accessibility Awareness Day is quite special. Other awareness days that we participate in focus on a specific group of people. Today, is not about a specific group of people, today is about each and every one of us.

Watch the Video on What is GAAD

For more details visit https://cis-india.org/accessibility/events/global-accessibility-awareness-day-2017

Sameet Panda - Data Systems in Welfare: Impact of the JAM Trinity on Pension & PDS in Odisha during COVID-19

Sameet Panda — 2021-02-26T07:36:10Z

This study by Sameet Panda tries to understand the integration of data and digital systems in welfare delivery in Odisha. It brings out the impact of welfare digitalisation on beneficiaries through primary data collected in November 2020. The researcher is thankful to community members for sharing their lived experiences during course of the study. Fieldwork was undertaken in three panchayats of Bhawanipatna block of Kalahandi district, Odisha. Additional research support was provided by Apurv Vivek and Vipul Kumar, and editorial contributions were made by Ambika Tandon (Senior Researcher, CIS). This study was conducted as part of a project on gender, welfare, and surveillance, supported by Privacy International, UK.

Report: Download (PDF)

Extract from the Report

The COVID-19 pandemic has accelerated flaws in social institutions as never before - threatening food security, public health systems, and livelihood in the informal sector. At the time of writing this report, India is the second-worst affected country in the world with over 9.8 million confirmed cases and more than 1.4 hundred thousand deaths. Unemployment has been increasing at an alarming rate, from 6.67 to 7 percent in October...

Following the national lockdown, many families belonging to low-income groups and daily wage earners found themselves stranded without money, food or credit from their employers. During the strict lockdown of the economy between March to June 2020 lakhs of migrants faced starvation in cities and walked back home. The government responded with some urgent measures, although inadequate. To cope with the food and economic crisis the Government of India and state governments initiated several social protection schemes. In Odisha, The central government provided two kinds of support, cash transfer through Direct Benefit Transfer (DBT) MGNREGS, Pradhan Mantri Jan Dhan Yojana (PMJDY) and Pradhan Mantri Ujjwala Yojana (PMUJ), advance release of pension in cash to existing beneficiaries and cash support of Rs. 1000. The Odisha government provided cash support of Rs. 1000 to ration card holding families. Beneficiaries of the Public Distribution System also received free-of-cost food grain under the Pradhan Mantri Garib Kalyan Anna Yojana...

Over the last couple of years, along with making the Aadhaar mandatory, the government has also been working towards linking mobile numbers and bank accounts of beneficiaries. An increasing number of schemes are shifting to Direct Benefit Transfer from in-kind or cash benefits - 324 schemes under 51 ministries of the Government of India. Such schemes are relying on the linkage of Jan Dhan accounts, the Aadhaar, and mobile numbers (the “JAM trinity”) to facilitate access to Direct Benefit Transfers. The Economic Survey 2015-16 has pointed out that without improving mobile penetration and rural banking infrastructure making the JAM trinity mandatory would continue to lead to exclusions. The issues with each of the components of the JAM trinity worsened during the COVID-19 crisis with restrictions on physical movement, difficulties in topping up mobile phone accounts, and enrolling for the Aadhaar or addressing other technical issues.

This report assesses the role of the data system in welfare delivery. It focuses on the impact of the three components of the JAM trinity - Jan Dhan Account, mobile numbers and the Aadhaar on Direct Benefit Transfer, social security pension and the Public Distribution System. The objective of this study is to understand the challenges faced by beneficiaries in accessing PDS and pension as a result of digitisation processes. This includes failures in Direct Benefit Transfers and exclusions from databases, particularly during the COVID-19 pandemic. The study focuses on gender as a key component shaping the impact of digitisation on beneficiaries. The sample includes both men and women beneficiaries in order to identify such gendered differences. It will also identify infrastructural constraints in Odisha that impact the implementation of digital systems in welfare. Also, it will analyse policy frameworks at central and state levels, to compare their discourse with the impact on the ground.

For more details visit https://cis-india.org/raw/sameet-panda-jam-trinity-pension-pds-odisha-covid-19

Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response

nehaa — 2015-01-05T17:01:50Z

The procedure and tests surrounding software patenting in India have remained ambiguous since the Parliament introduced the term “per se” through the Patent (Amendment) Act, 2002. In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Through this post, CIS intern, Shashank Singh, analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses.

I. Introduction

In June, 2013 the Office of Controller General of Patents, Designs and Trademarks ('IPO'), released the Draft Guidelines for Examination of Computer Related Inventions ('Guidelines'). The aim of the Guidelines was to provide some much needed clarity around patentability of Computer Related Inventions ('CRI'). The Guidelines discuss the procedure to be adopted by the examiners while examining CRI patent applications. In response to the Guidelines, several stakeholders submitted their comments to either accept, reject or modify the interpretation provided by the IPO. Most of the comments circled around the phraseology of Section 3(k), Patents Act, 1970 ('Act'). In its current form, Section 3(k) reads as "a mathematical or business method or a computer programme per se or algorithms", and comes under Chapter III of the Act which lists inventions that are not patentable. Simply put, this means that software cannot be patented in India, unless it is embedded/combined in with some hardware. While this is the most widely accepted interpretation of this Section 3(k), there have been contradictory interpretations as well.

In this note, I shall look at the various ambiguities surrounding patent application for CRIs. The note has been divided into five parts. Part II briefly reiterates the legislative history behind Section 3(k) and CRI patenting. Part III would briefly summarize the various parts of the Guidelines where the IPO has given their interpretation and opinion on the various issues surrounding CRI patenting. Part IV would then map the position of the stakeholders on each ambiguous point. Lastly, Part V would give the conclusion.

II. Legislative History

Under the Patent Act, 1970, prior to the 2002 Amendment, there was no specific provision under which software could be patented. Nonetheless, there was no explicit embargo on software patenting either. For an invention to be patentable, under Section 2(1) (j) of the Act, which defines an invention, general criteria of novelty, non-obviousness and usefulness must be applied. Software is generally in the form of a mathematical formula or algorithm, both of which are not patentable under the Act as they do not produce anything tangible. However, if combined or embedded in a machine or a computer, the resultant product can be patented as it would pass the aforementioned criteria.

The Parliament, in 1999, sought to amend the Act to bring it in conformity with the changing technological landscape. Consequently, the Patent (Second Amendment) Bill, 1999 was introduced in the Parliament which was then referred to a Joint Parliamentary Committee ('JPC'). The ensuing Bill proposed Section 3(k) in its current phraseology. It reasoned that:

" In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose. "

The Bill was then enacted as the Patent (Amendment) Act, 2002 and reads in its current form as:

Section 3(k) - "a mathematical or business method or a computer programme per se or algorithm"

This created some ambiguity with respect to the interpretation of the term "per se". It was interpreted to mean that software cannot be patented unless it is combined with some hardware. This combination would then have to comply with all the tests of patentability under the Act.

In December, 2004 the Patent (Amendment) Ordinance, 2004 ('Ordinance') was enacted which amended Section 3(k) to divide it into two parts, namely Section 3(k) and Section 3(ka).

"(k) a computer programme per se other than its technical application to industry or a combination with hardware;

(ka) a mathematical method or a business method or algorithms; ".

In February, 2005 the Ordinance was introduced in the Parliament as the Patent (Amendment) Bill, 2005.This included the amendment to Section 3(k) as under the Ordinance. In the Objects and Reasons it clarified that the intention behind the amendment was to " modify and clarify the provisions relating to patenting of software related inventions when they have technical application to industry or in combination with hardware ". However, the final amending Act did not divide Section 3(k) as proposed by the Ordinance. In the press note, by the Ministry of Commerce and Industry it was noted that:

"It is proposed to omit the clarification relating to patenting of software related inventions introduced by the Ordinance as Section 3(k) and 3 (ka). The clarification was objected to on the ground that this may give rise to monopoly of multinationals."

Later, in the same year the IPO release a Manual of Patent Office Practice and Procedure, 2005. Here, it noted that "a computer readable storage medium having a program recorded thereon…irrespective of the medium of its storage are not patentable". This did nothing to clarify the ambiguity that existed.

Similarly, the Parliamentary Standing Committee on Commerce, 88^th Report on the Patent and Trademark System in India (2008) noted the uncertainty surrounding the term 'per se' and said that there was a need to clarify the same. It did not do anything in furtherance of pointing this out.

The 2011 Manual of Patent Office and Procedure, 2011 tried to elaborately deal with the ambiguity. Nonetheless, substantively it did not change the uncertainty. It stated that:

"If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products' are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention."

III. Draft Guidelines for Examination of Computer Related Inventions, 2013

The Draft Guidelines were released on June 28, 2013, following which stakeholders were invited to give comments.

Terms/ Definitions used while dealing with CRIs

At the outset, the IPO put a caveat to say that the Guidelines do not constitute 'rule making'. Consequently, in case of a conflict between the Guidelines and the Act, the Act shall prevail. After the Introduction and Background, in Part I and Part II respectively, the Guidelines looked at the various definitions/terms that correspond to CRI patent claims in Part III. In all, there were 21 such definitions/terms that were sought to be clarified. These definitions can be branched into three categories.

Category I- Where the definition/term was borrowed from some other Indian stature.
Category II- Where the definition/term was construed according to the plain dictionary meaning. Category III- Where the Guidelines tried to give their interpretation to the term/definition.

Under Category I, there were seven definitions whose meaning was derived from some other stature. The meaning of Computer Network, Computer System, Data, Information and Function were derived from Information Technology Act, 2000 ('IT Act'). The definition of Computer Programme was taken from Copyright Act, 1957. Lastly, the definition of Computer was taken from both Copyright Act and IT Act.

Under Category II, the Guidelines underscored five definitions whose meaning was to be borrowed from the Oxford Dictionary. These were algorithm, software, per se, firm ware and hardware. Importantly, it was noted that these definitions have not been defined anywhere in Indian legislations. Lastly, under Category III the Guidelines tried to interpret certain terms according to their understanding. These terms included, Embedded Systems, Technical Effects, Technical Advancement, Mathematical Methods, Business Methods etc.

Categorization of CRI claims

In Part IV, the Guidelines tried to broadly group the various CRI patent applications under four heads. These categorizations tried to give an insight into what the patent examiners look for while rejecting a patent application.

Method/process:

Without defining what a method or process would entail, the Guidelines stated that any claim carrying a preamble with "method/process for..." shall not be patentable. It clarified that claims relating to mathematical methods, business methods, computer programme per se, algorithm or mental act are cannot be patented as they are prime illustrations of claims under this category. Further, the Guidelines gave specific examples of each of the aforementioned claims.

Apparatus/system

The second category consisted of claims whose preamble stated that the patent application was for an "apparatus/system". Under this, the patent application must not only comply with the standard tests of patentability- novelty, inventive step and industrial applicability, but also define the inventive constructional or hardware feature of the CRI. However, in contradictory statements, the Guidelines try to narrow down the prerequisites for a claim under this category, only to state that such claims cannot be patented.

Computer readable medium

While stating this as a category, the Guidelines do not elaborate on what this exactly means and what types of claims would be rejected being under this category.

Computer program product

This category includes computer programs that are expressed on a computer readable medium (CD, DVD, Signal etc.). Further, infusing ambiguity to the debate, the Guidelines failed to differentiate between Computer Readable Medium and Computer Program Product.

Examination Procedure used by IPO

The examination procedure for CRI patent application in the Guidelines is similar to other patent applications which look at novelty, inventive step and industrial applicability. However, claims relating to determination of specific subject matter under the excluded categories (Method/Process, Computer Readable Medium, Apparatus/system, and Computer Program Product) require specific examination skills from the examiner.

Under the excluded category itself, Method/Process requires subjective judgement by the examiner as to whether such a claim qualifies to be classified under this category or not. For investigating the inventive step involved in the 'method/process', the technical advancement over existing knowledge in the technological field has to be analyzed. Any patent claim from a non-technological field shall not be considered.

The Guidelines then tried to clarify the controversial Section 3(k) which eliminates the patenting of computer programmes per se. While previously stating that the definition of the term 'per se' as borrowed from the Oxford dictionary meant 'by itself', the Guidelines stated that computer programme loaded on a general purpose computer or related device cannot be patented. Nonetheless, while filing patent application for a novel hardware, with a loaded computer programme, the likelihood patenting the combination cannot be ruled out. Further, the stated hardware must be something more than a general purpose machine. Essentially, a patent for a novel computer programme combined with a novel hardware, which must be more than a general purpose machine, may be considered for patenting. It then gave several examples which were followed by flowcharts to further clarify ambiguities surrounding CRI patentability. Interestingly, all these examples and flowcharts only listed the inventions that are not patentable.

IV. Response by Stakeholders

Many and various comments were received from 36 stakeholders that including lawyers, civil society members, law firms, students, global and national trade bodies and industry representatives.

Our compilation (and the first level of analysis) of the Stakeholders' Responses is available here.

While all the stakeholders' applauded the much needed transparency in the IPO, substantively they differed considerably on various issues and highlighted some inconsistencies. In this part, I shall map the responses of the various stakeholders'. While doing so, I shall also try and find specific patterns to the responses corresponding to the following segments:

1. Civil Society

2. Law Firm/Advocates ('law Firms')

3. Industry/ Industry Representatives/Global Trade Body (Industry)

4. Students

These segments have been created on the assumption that each of the aforementioned segment would lobby for similar kind of policy.

Interpretation of Section 3(k)

One of the major points of deviation between the stakeholders was regarding the interpretation of Section 3(k) which encapsulates the term "computer programme per se".

The industry responded by critiquing the current CRI patenting regime in India as being "restrictive" ( FICCI , NASSCOM, US India Business Council and Bosch ). While some industry representatives sought clarifications due to uncertain phraseology, there was no industry representative that favored restricted interpretation to exclude software patenting altogether. While opposing the Guidelines, they sought assistance from the legislative history behind introduction of Section 3(k). It was pointed out that the term 'per se' was included to raise the threshold of patentability to something higher than the previous patentability standard, but it did not explicitly exclude patent protection for software.

The general perception of the stakeholders, keeping in mind the current Guidelines, was that for patenting software it had to be combined with some hardware. This combination would then be scrutinized against the triple test of novelty, inventive step and industrial application.

While the Guidelines noted that the hardware involved must not be general purpose hardware and that the chances of software patentability would increase significantly if novelty resides in the hardware; however, most of the industry and global trade bodies disagreed with this interpretation. They argued that if software in combination of hardware technically advances the existing technology, then such an innovation must be patentable, despite being combined with a general purpose machine (Bosch). Another explanation supporting expanded interpretation was that much of the technological innovation is accomplished through software development as compared to hardware innovation and novel software can achieve technical effect without the hardware developments ( BSA- The Software Alliance ). Consequently, software development that allows a general purpose machine to perform tasks that were once performed by a special machine must be incentivized. Some stakeholders interpreted the Guidelines to reason that hardware must be completely disregarded while examining patentability of software (Majumdar & Co. ).

Most of the responses from the civil society argued for a restricted interpretation of Section 3(k) ( Centre for Internet & Society). They concurred with the interpretation provided by the IPO to exclude software patentability. Most of the stakeholders responded seeking further clarification on the subject (Software Freedom Law Centre , K&S Partners and Xellect IP Solutions).

However, within each segments itself there was difference of opinion on the interpretation of Section 3(k). For instance, out of the five civil society members, four wanted to restrictive interpretation while one of them favoured expansive interpretation to include software patenting. Similarly, 13 law firms sought further clarification on the subject matter, while seven argued for expansive interpretation and one of them argued for restricted interpretation. The most consistent response was from the industry that clearly favoured software patenting and called the Guidelines "restrictive". Seven out of the nine industry representatives supported expansive interpretation and the other two sought further clarifications on the subject.

Section 5.4.6- Hardware

The interpretation of Section 3(k) until the release of the Guidelines was that software in combination with some hardware could be considered for patenting. However, the Guidelines increased the threshold stating that this hardware must be "something more than a general purpose machine". A stakeholder pointed out that increasing this threshold would go against the legislative intent as the requirement of a novel hardware has not been mentioned anywhere in the Act ( Anand & Anand ).

The industry's perspective on this matter was largely uniform. They pointed out the large technological field that would be eliminated from the scope of patentability if the interpretation provided by the Guidelines is adopted ( Bosch). Also, the investigation of novelty in the hardware would disincentives inventors in the field of CRIs ( Kan & Krishme ). Most of the stakeholders, across segments, sought more clarification on the role of hardware under Section 3(k) (Majumdar & Co. Centre for Internet & Society).

Comparative Analysis

Much of the criticism surrounding CRI patenting policy in India is based on the comparative inconsistency with similar laws in other jurisdictions. Comparative analysis on the subject has only been provided by the stakeholders that support software patentability. They point out that most countries like US, UK, Japan and the European Patent Convention allow patenting of software, and India must also do the same in order to comply with its international obligations under the TRIPs Agreement. Paradoxically, stakeholders who supported the current practice chose not to comparatively analyze CRI policy of other jurisdictions. While most of the stakeholders simply jumped to analyze comparative jurisprudence on the subject, only one of them gave a reasonable explanation for such a comparison ( LKS). It was noted that the Supreme Court of India and the Intellectual Property Appellate Board regularly borrow from foreign decisions to either accept or deny patents. Therefore, while formulating any policy on the matter, the position in other jurisdictions must be considered.

It was reasoned that the term 'per se' used in the Act, is similar to the European Patent Convention and UK Patent Act, 1977 where the term 'as such' has been used. Therefore, while juxtaposing both the terms, the interpretation of 'per se' must be similar to 'as such'. Consequently, software patenting must be allowed subject to the tests evolved by the courts. Similarly, the term 'as such' has been used by several Asian countries including China, Taiwan, South Korea and Japan. In these countries, software in concert with a specific hardware that resolves a technical problem thereby achieving a technical result can be patented ( Krishna and Saurastri Associates ).

Likewise, while comparing the jurisprudence of US, the landmark case Diamond vs. Diehr, which marked the beginning of software patenting was cited ( Subhojeet Ghosh and US India Business Council ). Several others argued that India must align their laws with global standards ( Bosch, Phillips Intellectual Property and Standards , Sun Smart IP Services , United Overseas Patent Firm).

Business Method

The Guidelines tried to narrow down the definition of 'Business Method' to clarify that such claims cannot be patented. It was urged that the Guidelines reconsider such a blanket embargo ( Legasis Partners- Advocates and Solicitors, Anand & Anand ). While judging patentability, a patent must not be rejected simply because it mentions business method or business method related terminology. What must be examined is whether the inventive step resides in the technical or non-technical part of the claim ( Legasis Partners- Advocates and Solicitors). A distinction must be made differentiating as to what software implementing business method and a software relating to the technical aspect of the transaction ( Anand & Anand ). While the former can be rejected, the latter must be accepted subject to the triple test of patenting.

It was pointed out that reevaluating a business method claim apart from a method involving financial transaction; monopoly claim over trade and new business strategies; monopoly claim over new types of carrying out business and method of increasing revenue; must be rejected (Law Offices of Mohan Associates , Remfry and Sagar, FICCI ). The more overarching opinion of the stakeholders was there is no objection to the exclusion of business method patents, but what constitutes business methods need more clarity (D. Moses Jeyakaran, Law Firm of Naren Thappeta , Japan Intellectual Property Association ).

Critique of Examples and Flowcharts

The Guidelines provided for several examples and flowcharts to foster a better understanding of the subject matter. However, a notable feature of each of these was that they only gave examples of what claims would be rejected. This was sufficiently pointed out by most of the stakeholders who sought more positive examples (Bosch, BSA- The Software Alliance , K&S Partners , FICCI , Xellect IP Solutions, Japan Intellectual Property Association , In-House Intellectual Property Professional Forum, NASSCOM , Obhan & Associates , Remfry & Sagar, Tata Consultancy Services ). It was pointed out that the examples have not sufficiently elaborated on their relation with Section 3(k) ( FICCI ), and some of them are "weak, obscure and incorrect" ( Software Freedom Law Centre). These examples also fail to elaborate on the tests that have previously been applied by the Patent Office ( LKS). Overall, the general perception was that, the examples were confusing and greater clarity along with positive examples was needed ( LKS, Anand & Anand ).

Interestingly, out of the 25 stakeholders' who commented on the illustrations, 16 sought positive examples. Further, most of the positive examples were sought by industry representatives and law firms who supported software patenting.

V. Conclusion

It has been over a year since IPO released the CRI Guidelines. On release, it invited suggestions in order to revise the Guidelines, but the revised version has still not been released by the IPO. The Guidelines were authored from a patent examiner's perspective; however, while doing so it obscured the matter further. It was argued that in totality the application of the Guidelines would now make the patentability of software stricter. It was also pointed out that the Guidelines have not taken into account the legislative history and the specific rejection of the Ordinance in the 2005 Amendment.

The responses received by IPO gave conflicting opinion on the same issue. In general, it can be concluded that the industry and law firms were in favour of allowing software patenting. They sought removal of the hardware requirement for software patentability. Most of the stakeholder's who favoured software patenting also undertook a comparative study of jurisdictions like US, UK, EU and Japan to point out the difference in the software patenting policy. Further, they also wanted the Guidelines to give positive examples wherein CRIs patenting has previously been allowed.

Admittedly, the Guidelines have no legal standing and much like the Patent Manual, they serve merely to guide the patent applicants and provide transparency patent examination. Overall, the Guidelines failed to explain the previous inconsistencies surrounding the subject matter. In conclusion the Guidelines mention that it would periodically release and update the Guidelines incorporating the stakeholder's comments. Considering the diverse set of opinions received by the IPO, it now needs to be seen which suggestions are accepted until the next round of comments.

For more details visit https://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions

Strategies to Organise Platform Workers

furtado — 2023-10-22T09:54:52Z

In 2022, the Centre for Internet and Society hosted a panel with Akkanut Wantanasombut, Ayoade Ibrahim, Rikta Krishnaswamy, and Sofía Scasserra at RightsCon, an annual summit on technology and human rights.

Click to download the full report

Event Report

This event report is based on proceedings from a panel hosted at the 2022 edition of RightsCon. Hosted by the labour and digitalisation team at CIS, the panel brought together seasoned labour organisers, activists, and researchers working across Thailand, Nigeria, India, and Argentina. The panellists represented a diverse group of worker organisations, including transnational federations, national unions, and informally organised movements.

Their experiences of organising in research and practice infused our discussion with insight into collective action struggles across varied sectors and platform economies in the global south. Collective resistance among platform workers has witnessed a sustained rise in these economies over the past three years, with demands for transparency and accountability from platforms, and for a guarantee of rights and protections from governments.

Through this panel, we sought to answer:

How have workers’ organisations overcome challenges in sustained collective action?
What have been unique aspects of organising in the global south?
Which strategies have been gaining traction for organising workers and mobilising other stakeholders?

Placing workers’ participation front and centre, the panellists incorporated common threads around campaigning, education, and mobilisation for increasing worker participation, as well as bargaining with the government for legal and social protections. The panellists highlighted that it’s the resilience and resistance led by workers that drive the way for sustained organising. This panel hoped to spotlight steps taken in that direction, where organising efforts strive to form, sustain, and champion worker-led movements.

Contributors

Panellists:
Akkanut Wantanasombut
Ayoade Ibrahim
Rikta Krishnawamy
Sofía Scasserra

Worker organisations in focus:
Tamsang-Tamsong
National Union of Professional App-based Transport Workers
International Alliance of App-based Transport Workers
All India Gig Workers’ Union
Federación Argentina de Empleados de Comercio y Servicios
Asociación de Personal de Plataformas

Conceptualisation and planning: Ambika Tandon, Chiara Furtado, Aayush Rathi, and Abhishek Sekharan

Author: Chiara Furtado
Reviewers: Ambika Tandon and Nishkala Sekhar
Designer: Annushka Jaliwala

This event report is part of research supported by the Internet Society Foundation under the ‘Labour futures’ grant.

For more details visit https://cis-india.org/raw/strategies-to-organise-platform-workers-rightscon

Availability and Accessibility of Government Information in Public Domain

sunil — 2014-12-30T01:25:12Z

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.

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 PDF here. (96 Kb)

Problem Statement: 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.

Analysis: The current workflow towards publishing documents on government websites is broadly as follows:

The document is born digital – that means it is created on a computer.
The document is printed.
The document is stamped with the official seal and signed in ink by the authorized person(s).
The paper document is scanned.
The scanned image is converted into a PDF file.
The document is uploaded on the website and thereby published in the public domain.

In fact, at times, even gazette notifications and other printed documents are also scanned as images.

This approach has numerous problems, including the following:

First and foremost, such a practice is against the letter and spirit of Section 4 (1) (a) of the Right to Information Act, 2005.[1] 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”.
This does not realize the enabling provision of the Information Technology Act, 2000[2] 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.
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.
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.[3]
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.

Proposed Solution: The following work flow is proposed for publishing documents electronically on government websites:

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.
The government official authorized to sign the same, must sign it digitally.
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.

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.

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:

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.

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.

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).

[1]. Government of India. The Right to Information Act, 2005. No. 22 of 2005. Retrieved on November 30, 2014 from http://rti.gov.in/webactrti.htm.

[2]. Government of India. The Information Technology Act, 2000. No. 21 of 2000. Retrieved on November 30, 2014 from http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf

[3]. Government of India. National Policy on Universal Electronic Accessibility. 2013. Retrieved on November 30, 2014 from http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf

For more details visit https://cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain

Future of the Commons: A Conversation on Artificial Intelligence, Indian Languages, and Archives Conference Report

Soni Wadhwa, Puthiya Purayil Sneha, Garima Agrawal and Nishant Shankar — 2024-08-06T03:24:53Z

We are pleased to share our report on the ‘Future of the Commons: A Conversation on Artificial Intelligence, Indian Languages, and Archives’ conference, held in July 2024 at the Maharashtra Knowledge Corporation Limited (MKCL) in Pune.

Organized by the Centre for Internet and Society, Bengaluru, and MKCL, the conference explored the development of localized or Indic generative AI models, state of digital commons, and the role of public institutions such as archives and digitization movements. It featured a mix of panel discussions, roundtables, and workshops, providing a platform for policymakers, civil society organizations, academia, researchers, technologists, archivists, and creative practitioners to exchange views and collaborate. The keynote address by P. Sainath, founder of the People's Archive of Rural India (PARI), dwelled on the importance of digitization and archives in India. He emphasized the role of human translators in maintaining the authenticity of stories and the socio-political implications of digitalization on low-resource languages.

The themes discussed at the conference included:

Ongoing Efforts and Innovations in AI:

Current state of research and development of localized generative AI systems.
Use-cases of generative AI products in Indian languages.
Challenges with the availability of training datasets and dependency on big tech.
Open-source development of generative AI models.

Development and Use of Digital Commons:

Digitizing, preserving, and using knowledge and cultural heritage for training AI models.
Practices and challenges in archives and digitization movements, especially in Indian languages.
Role of open knowledge movements and GLAM (Galleries, Libraries, Archives, and Museums) institutions.

Future of AI, including LLMs, in Indian Languages:

Designing AI systems that contribute to the digital commons.
Incentivizing expansion, foregrounding diversity, and safeguarding digital commons.
Role of law, policy, ethics, and algorithmic justice.

The conference concluded with participants emphasizing the need for multidisciplinary collaboration, fostering trust in AI applications, and importance of democratization of technology and data.

We invite you to read the full report for a comprehensive view of the discussions and recommendations that emerged.

If you would like to participate in further discussions on this topic, please write to us at anubha@cis-india.org.

For more details visit https://cis-india.org/raw/report-on-the-future-of-the-commons

CIS Comments on TRAI Consultation Paper on Promoting Local Telecom Equipment Manufacturing

sinha — 2017-11-26T02:56:15Z

The Centre for Internet & Society (CIS) sent comments to the TRAI Consultation Paper on promoting telecom equipment manufacturing. CIS submission drew primarily from the research done in the Pervasive Technologies project.

Read TRAI's Consultation Paper on Promoting Local Telecom Equipment Manufacturing

Preliminary

This submission presents comments by the Centre for Internet and Society, India ("CIS") on the Consultation Paper on Promoting Local Telecom Equipment Manufacturing dated 18.09. 2017, released by the Telecom Regulatory Authority of India (TRAI), under Department of Telecom, Ministry of Communications and Information Technologies (“the TRAI Consultation Paper”).
We commend TRAI for its efforts at seeking inputs from various stakeholders on this important and timely issue and are thankful for the opportunity to put forth our views.
We have addressed questions 3 and 5 of the TRAI Consultation Paper. Question numbers referred to in our submission correspond to those in the TRAI Consultation Paper.
Further, the Department of Industrial Planning and Promotion (DIPP) invited comments on SEPs and their availability on FRAND terms on 01. 03. 2016.[1] CIS submitted a detailed response to the consultation, and our present submission will draw significantly from our earlier response[2], as well as new empirical research concluded in the since the time of the consultation.

About CIS

CIS[3] is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. Our areas of focus include IP rights, openness, internet governance, telecommunication reform, free speech, intermediary liability, digital privacy, cyber-security, and accessibility for persons with diverse abilities.
We strive to maximise public benefit, useful innovation, vibrant competition and consumer welfare. This submission is consistent with our commitment to the domestic goals (as enumerated in Make in India and Digital India), and the protection of India's national interest at the international level.

Submission on the Issues for Resolution

“Q.3 Are the existing patent laws in India sufficient to address the issues of local manufacturers? If No, then suggest the measures to be adopted and amendments that need to be incorporated for supporting the local telecom manufacturing industry.”

We submit that amendments to the Patents Act, 1970 may not be preferred, presently. It may be noted that there have been no judgments concluded by Indian courts on disputes relating to licensing of SEPs, yet. Justice Bakhru’s landmark order in Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India (2016) provided valuable clarity on the issue of conflict between remedies under Patents Act, 1970 and Competition Act, 1970. As various other matters are yet to be conclusively decided, and given the complex legal questions involved around the interpretation of Patents Act, 1970 and Competition Act, 2002, and constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts, we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.

However, to support the local telecom manufacturing industry the Government of India may adopt and implement the following measures:

Develop Model Guidelines to improve the working of Indian Standard Setting Organisations (SSOs): Given the increasing complexity and time-consuming nature of SEP litigation in India, there is a tangible threat of the abuse of the FRAND process, it might be useful for the government to make suggestions on the working of Indian SSOs. The functioning of Indian SSOs has not been satisfactory and it is suggested that the government develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements. The India specific requirements include a large and exponentially growing mobile device market which has made it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin. We believe that this measure will also enable the fulfillment of the objectives of the Make in India and Digital India initiatives.

We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the Indian Patent Office, the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.

In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.
Initiate the formation of a patent pool of critical mobile technologies and cap royalty payments: In light of the observed inadequacies in the IPR policies of various SSOs in India, as well the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the government intervene in the setting of royalties and FRAND terms by setting up a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Further, patent pools should be required to offer FRAND licenses on the same terms to both members and nonmembers of the pool.

Our motivations for this proposal are manifold. In our opinion, it is nearly impossible for potential licensees to avoid inadvertent patent infringement. As a part of our research on technical standards applicable to mobile phones sold in India, we have found nearly 322 standards so far.[4] It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, homegrown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.

Further, how did we arrive at a cap of 5 percent? The rationale for this figure is the royalty cap imposed by India in the early 1990s. As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to “high priority industries”.[5] Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government. While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009.[6] It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other’s patent portfolios. Dynamics in the Indian market differ – with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, homegrown.

In June, 2013, we had recommended to the erstwhile Hon’ble Minister for Human Resource Development[7] that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon’ble Prime Minister.[8] We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license.[9] As we have stated in our request to the Hon’ble Prime Minister, we believe that such a pool would “possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anticompetitive practices.”[10] We believe that such a measure will not be in breach of our international obligations under the TRIPS Agreement.
Increase transparency in the patent system by making patentees comply with the law: The Patents Act, 1970 requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year.[11] Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of “working”. A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that “working” is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. Indeed, as the decision[12] in Natco Pharma v. Bayer Corporation[13] reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent “working” information in a timely manner.

However, there has been little compliance of this requirement by the patentees, despite the Indian Patent Office (IPO) reiterating the importance of compliance through the issuance of multiple public notices[14] (suo motu and in response to a public interest litigation filed in 2011[15]), and, reminding the patentees that noncompliance is punishable with a heavy fine.[16] Findings of research submitted by one of the parties[17] in the writ of the 2011 public interest litigation Shamnad Basheer v. Union of India and others[18] reveal as follows. First, a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. Second, a large number of filings in the telecom sector remain incomplete.

In 2015, CIS queried the IPO website for Form 27s of mobile device patents to arrive at a similar conclusion. We obtained 4,916 valid Form 27s, corresponding to 3,126 mobile device patents from public online records. These represented only 20.1% of all Forms 27 that should have been filed and corresponded to only 72.5% of all mobile device patents for which Forms 27 should have been filed. Forms 27 were missing for almost all patentees, and even among Forms 27 that were obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules.[19]

Further, in our study, we observed that patentees adopted drastically different positions regarding the definition of patent working, some arguing that importation of products into India or licensing of Indian suppliers constituted working, while others even went so far as to argue that the granting of a worldwide license to a non-Indian firm constituted working in India. Several significant patentees claimed that they or their patent portfolios were simply too large to enable the provision of information relating to individual patents, and instead provided gross revenue and product sale figures, together with historical anecdotes about their long histories in India.

The Indian government has made little or no effort to monitor or police compliance with Form 27 filings, undoubtedly leading to significant non-compliance. We also propose the alteration of the Form 27 template[20] to include more disclosures.[21] Presently, patentees are required to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.
Require royalty rates to be decided on the basis of the Smallest Saleable Patent Practicing Component: Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000.[22] A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India.[23] It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined. Thus, we submit that royalty rates for SEPs should be based on the smallest saleable patent practising component, and not on the net price of the downstream product.

The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al[24] have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties.[25] In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company’s cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government’s objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme.[26] It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking.[27]

“Q.5 Please suggest a dispute resolution mechanism for determination of royalty distribution on FRAND (Fair Reasonable and Non Discriminatory) basis.”

The licensing of SEPs on FRAND terms requires the parties to negotiate “reasonable” royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into binding arbitration. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.

Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser “to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose.”[28] Such an independent adviser may inform the court on the technical nuances of the matter.

Further, under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves first, a prima facie case of infringement; second, that the balance of convenience tilts in plaintiff’s favour; and, third, that if an injunction is not granted the plaintiff shall suffer irreparable damage. However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. First, in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. Second, especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that “irreparable damage” has been caused to the patent owner on account of infringement. Third, we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder.[29] Fourth, we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator.[30] Further, as Contreras (2015)[31] observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.

Concluding Remarks

We are thankful to TRAI for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these comments with the TRAI; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.

[1] Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms, available at https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms (last accessed November 13, 2017)

[2] Anubha Sinha, Nehaa Chaudhari and Rohini Lakshane, “CIS’ Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms” (April 23, 2016); available at https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms

[3] www.cis-india.org

[4] Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 13 November, 2017).

[5] Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at http://www.businessstandard.com/article/economypolicy/newsonroyaltypaymentbringscheerinnewyear11001 0400044_1.html (last accessed 13 November, 2017).

[6] See Sanjana Govil, Putting a Lid on Royalty Outflows How the RBI Can Help Reduce India’s IP Costs , available at http://cisindia.org/a2k/blogs/lidonroyaltyoutflows (last accessed 13 November, 2017) for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.

[7] Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low cost Access Devices through Compulsory

Licenses, available at http://cisindia.org/a2k/blogs/letterforestablishmentofpatentpoolforlowcostaccessdevices (last accessed 13 November, 2017).

[8] See Rohini Lakshané, Open Letter to PM Modi, available at http://cisindia.org/a2k/blogs/openlettertoprimeministermodi (last accessed 13 November, 2017) for further details of CIS’ proposal.

[9] Rohini Lakshané, FAQ: CIS’ proposal to form a patent pool of critical mobile technology, September 2015, available at http://cisindia.org/a2k/blogs/faqcisproposalforcompulsorylicensingofcriticalmobiletechnologies (last accessed 13 November, 2017).

[10] Id.

[11] Section 146(2) of the Patents Act, 1970.

[12] Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at http://spicyip.com/2013/02/patentofficefinallytakesform27s.html (last accessed 13 November, 2017).

[13] Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at http://www.ipab.tn.nic.in/0452013.htm (last accessed 13 November, 2017).

[14] Intellectual Property India, Public Notice, available at

http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf ((last accessed 13 November, 2017) and Intellectual Property India, Public Notice, available at http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf (last accessed 13 November, 2017).

[15] Supra note 11.

[16] Id.

[17] See research findings available at http://spicyip.com/wpcontent/uploads/2015/05/FORM27WP1Rcopy.pdf (last accessed 13 November, 2017).

[18] In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, Patent Working in India: Delhi HC issues notice in Shamnad Basheer v. Union of India & Ors. – I , available at http://spicyip.com/2015/09/patentworkinginindiadelhihcissuesnoticeinshamnadbasheervunionofindiaorsi.html (last accessed 13 November, 2017).

[19] Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3004283

[20] Form 27, The Patents Act, available at http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20%20html/Forms/Form27.pdf (last accessed November 13, 10`7).

[21] However, we came across some complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement - namely, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents are not necessarily amenable to the individual-level data requested by Form 27. See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3004283

[22] Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. at 2015 ; See also, for e.g.,

RPX Corporation, Amendment No. 3 to Form Sl,11 Apr. 2011, at 59, available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm (last accessed 22 April, 2016), quoting “Based on our research, we believe there are more than 250,000 active patents relevant to today’s

smartphones…” .; See further Steve Lohr, Apple Samsung Case Shows Smartphone as Legal Magnet, New York Times, 25 Aug. 2012, available at http://www.nytimes.com/2012/08/26/technology/applesamsungcaseshowssmartphoneaslawsuitmagnet.html (last accessed November13, 2017).

[23] Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486 (last accessed 13 November, 2017).

[24] Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The SmartphoneRoyalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/TheSmartphoneRoyaltyStackArmstrongMuellerSyrett.pdf (last accessed 13 November, 2017)

[25] Florian Mueller, Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at http://www.fosspatents.com/2014/01/ericssonexplainedpubliclywhyits.Html (last accessed 13 November, 2017).

[26] Romit Guha and Anandita Singh Masinkotia, PM Modi’s Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at http://articles.economictimes.indiatimes.com/20140825/news/53205445_1_digitalindiaindiatodayfinancialservices (last accessed 13 November, 2017).

[27] Nehaa Chaudhari, Standard Essential Patents on Low Cost Mobile Phones in India: A Case to Strengthen Competition Regulation? available at http://www.manupatra.co.in/newsline/articles/Upload/08483340C1B94BA4B6A9D6B6494391B8.pdf (last accessed 13 November, 2017).

[28] Section 115 of the Patents Act, 1970.

[29] Huawei Technologies Co. Ltd v. ZTE Corp. and ZTE Deutschland , Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C170/13.

[30] Third Party United States Fed. Trade Commission’s Statement on the Public Interest, In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, U.S. Int’l Trade Comm’n, Inv. No. 337TA745 (Jun. 6, 2012).

[31] Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens , 80 Antitrust Law Journal 39 (2015), available at h ttp://ssrn.com/abstract=2374983 or http://dx.doi.org/10.2139/ssrn.2374983 (last accessed 13 November, 2017).

For more details visit https://cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing

Comments by the Centre for Internet and Society on the Report of the Committee on Medium Term Path on Financial Inclusion

vipul — 2016-03-01T13:53:38Z

Apart from item-specific suggestions, CIS would like to make one broad comment with regard to the suggestions dealing with linking of Aadhaar numbers with bank accounts. Aadhaar is increasingly being used by the government in various departments as a means to prevent fraud, however there is a serious dearth of evidence to suggest that Aadhaar linkage actually prevents leakages in government schemes. The same argument would be applicable when Aadhaar numbers are sought to be utilized to prevent leakages in the banking sector.

The Centre for Internet and Society (CIS) is a non-governmental organization which undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives.

In the course of its work CIS has also extensively researched and witten about the Aadhaar Scheme of the Government of India, specially from a privacy and technical point of view. CIS was part of the Group of Experts on Privacy constituted by the Planning Commission under the chairmanship of Justice AP Shah Committee and was instrumental in drafting a major part of the report of the Group. In this background CIS would like to mention that it is neither an expert on banking policy in general nor wishes to comment upon the purely banking related recommendations of the Committee. We would like to limit our recommendations to the areas in which we have some expertise and would therefore be commenting only on certain Recommendations of the Committee.

Before giving our individual comments on the relevant recommendations, CIS would like to make one broad comment with regard to the suggestions dealing with linking of Aadhaar numbers with bank accounts. Aadhaar is increasingly being used by the government in various departments as a means to prevent fraud, however there is a serious dearth of evidence to suggest that Aadhaar linkage actually prevents leakages in government schemes. The same argument would be applicable when Aadhaar numbers are sought to be utilized to prevent leakages in the banking sector.

Another problem with linking bank accounts with Aadhaar numbers, even if it is not mandatory, is that when the RBI issues an advisory to (optionally) link Aadhaar numbers with bank accounts, a number of banks may implement the advisory too strictly and refuse service to customers (especially marginal customers) whose bank accounts are not linked to their Aadhaar numbers, perhaps due to technical problems in the registration procedure, thereby denying those individuals access to the banking sector, which is contrary to the aims and objectives of the Committee and the stated policy of the RBI to improve access to banking.

Individual Comments

Recommendation 1.4 - Given the predominance of individual account holdings, the Committee recommends that a unique biometric identifier such as Aadhaar should be linked to each individual credit account and the information shared with credit information companies. This will not only be useful in identifying multiple accounts, but will also help in mitigating the overall indebtedness of individuals who are often lured into multiple borrowings without being aware of its consequences.

CIS Comment: The discussion of the committee before making this recommendation revolves around the total incidence of indebtedness in rural areas and their Debt-to-Asset ratio representing payment capacity. However, the committee has not discussed any evidence which indicates that borrowing from multiple banks leads to greater indebtedness for individual account holders in the rural sector. Without identifying the problem through evidence the Committee has suggested linking bank accounts with Aadhaar numbers as a solution.

Recommendation 2.2 - On the basis of cross-country evidence and our own experience, the Committee is of the view that to translate financial access into enhanced convenience and usage, there is a need for better utilization of the mobile banking facility and the maximum possible G2P payments, which would necessitate greater engagement by the government in the financial inclusion drive.

CIS Comment: The drafting of the recommendation suggests that RBI is batting for the DBT rather than the subsidy model. However an examination of the discussion in the report suggests that all that the Committee has not discussed or examined the subsidy model vis-à-vis the direct benefit transfer (DBT) model here (though it does recommend DBT in the chapter on G-2-P payments), but only is trying to say is that where government to people money transfer has to take place, it should take place using mobile banking, payment wallets or other such technologies, which have been known to be successful in various countries across the world.

Recommendation 3.1 - The Committee recommends that in order to increase formal credit supply to all agrarian segments, the digitization of land records should be taken up by the states on a priority basis.

Recommendation 3.2 - In order to ensure actual credit supply to the agricultural sector, the Committee recommends the introduction of Aadhaar-linked mechanism for Credit Eligibility Certificates. For example, in Andhra Pradesh, the revenue authorities issue Credit Eligibility Certificates to Tenant Farmers (under ‘Andhra Pradesh Land Licensed Cultivators Act No 18 of 2011'). Such tenancy /lease certificates, while protecting the owner’s rights, would enable landless cultivators to obtain loans. The Reserve Bank may accordingly modify its regulatory guidelines to banks to directly lend to tenants / lessees against such credit eligibility certificates.

CIS Comment: The Committee in its discussion before the recommendation 3.2 has discussed the problems faced by landless farmers, however there is no discussion or evidence which suggests that an Aadhaar linked Credit Eligibility Certificate is the best solution, or even a solution to the problem. The concern being expressed here is not with the system of a Credit Eligibility Certificate, but with the insistence on linking it to an Aadhaar number, and whether the system can be put in place without linking the same to an Aadhaar number.

Recommendation 6.11 - Keeping in view the indebtedness and rising delinquency, the Committee is of the view that the credit history of all SHG members would need to be created, linking it to individual Aadhaar numbers. This will ensure credit discipline and will also provide comfort to banks.

CIS Comment: There is no discussion in the Report on the reasons for increase in indebtedness of SHGs. While the recommendation of creating credit histories for SHGs is laudable and very welcome, however there is no logical reason that has been brought out in the Report as to why the same needs to be linked to individual Aadhaar numbers and how such linkage will solve any problems.

Recommendation 6.13 - The Committee recommends that bank credit to MFIs should be encouraged. The MFIs must provide credit information on their borrowers to credit bureaus through Aadhaar-linked unique identification of individual borrowers.

CIS Comment: Since the discussion before this recommendation clearly indicates multiple lending practices as one of the problems in the Microfinance sector and also suggests better credit information of borrowers as a possible solution, therefore this recommendation per se, seems sound. However, we would still like to point out that the RBI may think of alternative means to get borrower credit history rather than relying upon just the Aadhaar numbers.

Recommendation 7.3 - Considering the widespread availability of mobile phones across the country, the Committee recommends the use of application-based mobiles as PoS for creating necessary infrastructure to support the large number of new accounts and cards issued under the PMJDY. Initially, the FIF can be used to subsidize the associated costs. This will also help to address the issue of low availability of PoS compared to the number of merchant outlets in the country. Banks should encourage merchants across geographies to adopt such applicationbased mobile as a PoS through some focused education and PoS deployment drives.

Recommendation 7.5 - The Committee recommends that the National Payments Corporation of India (NPCI) should ensure faster development of a multi-lingual mobile application for customers who use non-smart phones, especially for users of NUUP; this will address the issue of linguistic diversity and thereby promote its popularization and quick adoption.

Recommendation 7.8 - The Committee recommends that pre-paid payment instrument (PPI) interoperability may be allowed for non-banks to facilitate ease of access to customers and promote wider spread of PPIs across the country. It should however require non-bank PPI operators to enhance their customer grievance redressal mechanism to deal with any issues thereof.

Recommendation 7.9 - The Committee is of the view that for non-bank PPIs, a small-value cashout may be permitted to incentivize usage with the necessary safeguards including adequate KYC and velocity checks.

CIS Comments: While CIS supports the effort to use technology and mobile phones to increase banking penetration and improve access to the formal financial sector for rural and semi-rural areas, sufficient security mechanisms should be put in place while rolling out these services keeping in mind the low levels of education and technical sophistication that are prevalent in rural and semi-rural areas.

Recommendation 8.1 - The Committee recommends that the deposit accounts of beneficiaries of government social payments, preferably all deposits accounts across banks, including the ‘inprinciple’ licensed payments banks and small finance banks, be seeded with Aadhaar in a timebound manner so as to create the necessary eco-system for cash transfer. This could be complemented with the necessary changes in the business correspondent (BC) system (see Chapter 6 for details) and increased adoption of mobile wallets to bridge the ‘last mile’ of service delivery in a cost-efficient manner at the convenience of the common person. This would also result in significant cost reductions for the government besides promoting financial inclusion.

CIS Comment: While the report of the Committee has already given several examples of how cash transfer directly into the bank accounts (rather than requiring the beneficiaries to be at a particular place at a particular time) could be more efficient as well as economical, the Committee is making the same point again here under the chapter that deals specifically with government to person payments. However even before this recommendation, there has been no discussion as to the need for linking or “seeding” the deposit accounts of the beneficiaries with Aadhaar numbers, let alone a discussion of how it would solve any problems.

Recommendation 10.6 - Given the focus on technology and the increasing number of customer complaints relating to debit/credit cards, the National Payments Corporation of India (NPCI) may be invited to SLBC meetings. They may particularly take up issues of Aadhaar-linkage in bank and payment accounts.

CIS Comment: There is no discussion on why this recommendation has been made, more particularly; there is no discussion at all on why issues of Aadhaar linkage in bank and payment accounts need to be taken up at all.

For more details visit https://cis-india.org/internet-governance/blog/comments-by-the-centre-for-internet-and-society-on-the-report-of-the-committee-on-medium-term-path-on-financial-inclusion

Announcement of a Three-Region Research Alliance on the Appropriate Use of Digital Identity

amber — 2019-05-13T09:06:23Z

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.

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.

Excerpt from the blog post by Subhashish Bhadra announcing this new research alliance

...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.

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...

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.

For more details visit https://cis-india.org/internet-governance/blog/appropriate-use-of-digital-identity-alliance-announcement

Survey on Data Protection Regime

Aditi Chaturvedi and Elonnai Hickok — 2017-02-10T10:47:00Z

We request you to take part in this survey aimed at understanding how various organisations view the changes in the Data Protection Regime in the European Union. Recently the General Data Protection Regulation (EU) 2016/679 was passed, which shall replace the present Data Protection Directive DPD 95/46/EC. This step is likely to impact the way of working for many organisations. We are grateful for your voluntary contribution to our research, and all information shared by you will be used for the purpose of research only. Questions that personally identify you are not mandatory and will be kept strictly confidential.

The survey form below can also be accessed here.

For more details visit https://cis-india.org/internet-governance/blog/survey-on-data-protection-regime

Locating Constructs of Privacy within Classical Hindu Law

Ashna Ashesh and Bhairav Acharya — 2015-01-01T13:56:04Z

This white paper seeks to locate privacy in Classical Hindu Law, and by doing so, displace the notion that privacy is an inherently ‘Western’ concept that is the product of a modernist legal system.

Introduction: Conceptions of Privacy

Because of the variance exhibited by the various legal, social, and cultural aspects of privacy, it cannot be easily defined. As a legal concept, privacy may form a constitutional claim, a statutory entitlement, a tortious action or an equitable remedy. As a constitutional claim, privacy is either an explicitly recognised right that is capable of independent enforcement, read into a pre-existing right , or located within the penumbra of a larger right. Statutory recognition of privacy may be afforded by both criminal and civil statutes. The offence of criminal defamation for instance, is perceived as an act of violating an individual's privacy by tarnishing his or her reputation. Similarly the provision of in camera trials for divorce proceedings is an illustration of a civil statute implicitly recognising privacy. As a tortious claim the notion of privacy is commonly understood in terms of the right against trespass of property. Equity, co-terminus with a statutory mandate or in isolation, may also be a source of privacy.

Most legal conceptions of privacy in everyday use in India originated from the English common law. Other constitutional and statutory constructions of privacy, even when not found in the common law, arise within a broader modernist system of law and justice that originated in Europe. During the European colonisation of India, the British (and, in a different manner, the French ) attempted to recreate the common law in India through the establishment of a new legal and courts system, and the wholesale importation of the European idea of law. The very notion of privacy, as well as its legal conception, is a product of this legal modernity. In post-colonial societies, the argument against the right to privacy is usually premised on its perceived alien-ness - as a foreign idea brought by colonisers and imposed on a traditionalist society that favoured communitarian living over individual rights - in an effort to discredit it.

The fallacy of this argument lies in its ignorance of the cultural plurality of privacy. To begin with, the idea that is connoted by the modernist notion of privacy pre-dated the introduction of common law in India. By the time of the Enlightenment, Hindu law and Islamic law were established legal systems with rich histories of jurisprudence and diverse schools of law within them, each with their own juristic techniques and rules of interpretation. While neither Hindu law nor Islamic law use a term that readily translates to "privacy", thereby precluding a neat transposition of meanings between them, the notion of privacy existed and can be located in both the legal traditions. In this paper, the term 'privacy' is used to describe both the modernist notion that arises from the principle of personal autonomy as well as the diverse pre-modern concepts in Hindu and Islamic jurisprudence that resemble or relate to this notion. These pre-modern concepts are diverse, and do not permit an easy analysis. For instance, the Manusmriti, which is a source of classical Hindu law, prohibits bathing in tanks that belong to other men. Additionally it prohibits the use of wells, gardens, carriages, beds, seats and houses without the owner's permission. These prohibitions are not driven by the imperatives of privacy alone. The rationale is that in using others' belongings one appropriates a portion of their sins. Hence, these privacy protections are linked to an ideal of purity. Islamic law also restricts the use or misappropriation of another's property. However, this prohibition is designed to protect private property; it has no ideological link to purity.

This paper attempts to locate constructs of privacy in classical Hindu law. The purpose of this exercise is not to privilege one legal system over another. Therefore, we do not intend to normatively assess the existing modernist discourse on privacy. We simply seek to establish the existence of alternate notions of privacy that pre-date modernity and the common law.

The scope of the paper is confined to locating privacy in classical Hindu law. The materials within the realm of classical Hindu law, relevant to this exercise are- the sruti, smriti, and acara. Sruti comprises of the Vedas, Brahmanas, Aranyakas and the Upanishads. It is considered to symbolise the spirit of Hindu law and is not the source of any positivist command as such. Smriti involves various interpretations of the sruti, We have however restricted ourselves to the Dharmashastras in this realm. Acara refers to the body of customary practices.

The review of the material at hand however, is not exhaustive. The reasons for this are twofold- first, given the vast expanse of Hindu jurisprudence, the literature review has been limited; second, there is a limited availability of reliable English translations of ancient legal treatises.

This paper is divided into two parts. The first part of this paper deals with the interface of colonisation with Hindu law and elucidates the nature of Hindu law. With the advent of colonialism, classical Hindu law was gradually substituted by a modernist legal system. Exploring the characteristics of modernity, the factors that contributed to the displacement of classical Hindu law will be identified.

One of the factors that contributed to the displacement was the uncertainty that characterised classical Hindu law. Classical Hindu law was an amalgamation of three sources, as. In an attempt to rule out the uncertainty, and the lack of positive command, the modernisation of Hindu law was brought about. Accordingly this part shall also examine the nature of Hindu law. Furthermore it shall determine whether the application of codified modern Hindu law, is informed by the precepts of classical Hindu law.

Having explicated the nature of Hindu law, the next part will focus on identifying instances of privacy in classical Hindu law.

Before ascertaining specific instances, however, this part will lay down a general understanding of privacy as it existed then. It will be demonstrated that regardless of the absence of an equivalent term, an expectation of privacy existed.

The specific illustrations of privacy will then be mapped out.

Given the different aspects wherein an expectation of privacy exists, there is also a possibility of competing claims. In the event that such conflicts arise, this part will attempt to resolve the same.

Part 1: The Transmogrification of the Nature of Hindu Law

The evolution of Hindu jurisprudence can be charted through three phases- classical, colonial, and modern.

In the classical phase, it was embodied by the Dharmashastra which elaborated on customary practices, legal procedure, as well as punitive measures. The Dharamshastra was accompanied by the Vedas, and acara. Whether this body of jurisprudence could be called 'law' in the strict modernist sense of the term is debatable.

Modernity has multifarious aspects. However, we are concerned with modernity in the context of legal systems, for the purpose of this paper. The defining attribute of a modernist legal system is the need for positivist precepts that are codified by a legislature. The underlying rationale for formalised legislation is the need for certainty in law. Law is to be uniformly applied within the territory. The formalised legislation is to be enforced by hierarchized courts. Furthermore this codified law can be modified through provisions for amendment, if need be.

This modernist understanding is what informs the English common law. With the advent of colonialism, common law was imported to India. The modernist legal system was confronted by plural indigenous legal systems here that were starkly different in nature. In the given context, the relevant indigenous system is classical Hindu law. The classical precepts were interpreted by the British. These interpretations coupled with the sources of Classical Hindu law, constituted colonial Hindu law.

It is pertinent to note that these interpretations were undertaken through a modernist lens. The implication was the attempted modernisation of a traditional legal system.

The traditional system of Classical Hindu law did not exhibit any of the introduced features. To begin with not all of classical Hindu law was text based. The problem with the textual treatises was threefold. First, they were not codes enacted by a legislature, but written by various scholars. Second, they were not phrased as positivist precepts. Third, their multiplicity was accompanied with the lack of an established hierarchy between these texts.

Additionally classical Hindu law was the embodiment of dharma, which in itself was an amorphous concept. The constitutive elements ofdharma were law, religious rites, duties and obligations of members of a community, as well as morality. These elements do not however, exhaustively define dharma. There exist varying definitions of dharma, and in some cases even ancient texts dealing with dharma fail to articulate its definition. This is on account of the fact that the meaning of dharma, varied depending on the in which it is used Owing to the fact that classical Hindu jurisprudence was informed by dharma, the former was an amalgamation of law, religion and morality. Therefore it was categorised as jurisprudence that lacked the secularity exhibited by modern positivist law.

The co-existence of law and morality in classical Hindu law has led to various debates regarding its nature. Before explicating the nature of classical Hindu law, its sources must be elaborated on. As referred to, the sources are sruti, smriti, and acara.

Sruti is constituted by the Vedas, Brahmanas, Aranyakas, and Upanishads. Vedas are divine revelations that contain no positive precept per se. They are considered as the spirit of law, and believed to be the source of the rules of dharma. The Vedas are constituted by the Rigveda, Samveda, Yajurveda and Athravaveda. Based on the Vedic texts, treatises have been written elucidating religious practices. These texts are known as the Brahmanas. The Aranyakas and the Upanishads engage in philosophical enquiries of the revelation in the Vedas.

Interpretations of the Sruti by various scholars are embodied in the Smriti. The connotations of smriti are twofold. First, it implies knowledge transmitted through memory, as opposed to knowledge directly revealed by divinity. Additionally, it is the term used to collectively reference the Dharmasutras and Dharmashastra.

Dharmasutras were essentially interpretations of revelation in only prose form, or a mixture of prose and verse. They detailed the duties and rituals to be carried out by a person, through the four stages, of his or her life. The duties laid down also varied depending on the caste of a person. They also laid down guidelines for determining punishments.

Dharmasastras on the other hand were in the verse form. Though their subject matter coincided with the Dharmasutra in terms of domestic duties and rituals, they had a wider ambit. The Dharmasastras also dealt with subjects such as statecraft, legal procedure for adjudicating disputes. In a limited way, they marked the diversification from strictly religious precepts, from those that were legal in nature. For instance the Manusmriti was an amalgamation of law and ritual. The Yajnawalkya Samhita however, has separate parts that deal with customary practices, legal procedure, and punitive measures. The Narada Smriti, in turn deals only with legal procedure and rules of adjudication.

It is opined that in due course of time, the Aryan civilisation diversified. Their life and literature were no longer limited to sacrificial practices, but took on a more 'secular' form. The Arthashastra is evidence of such diversification. Unlike the Dharmashastra, it deals with strategies to be employed in governance, regulations with regard to urban planning, commercialisation of surrogacy, espionage, among other things.

The third source of classical Hindu law, acara refers to customary practices and their authoritativeness was determined by the people. Their prevalence over textual tradition is contentious. Some opine that acara prevails over textual traditions. However, the opposing school of thought believes that customary practices prevail only if the text is unclear or disputed.

Other sources of classical Hindu law include the itihas (epics such as the Mahabharata and Ramayana), and digests written by scholars.

Given the diversity of sources and its non-conformity to positivism, the nature of classical Hindu law is a heavily contested issue. For instance, with regard to the legal procedure in the Dharmashastra, Maynes opines that these rules qualified as law in the modernist sense. Ludo Rocher however, opines that textual treatises would not qualify as law. Classical Hindu law can admittedly not be identified as strictly legal or strictly moral. However, it does in a limited way recognise the distinction between legal procedure and morality. This is to say, it is not merely a source of rituals, but also lays down precepts that are jurisprudentially relevant.

On account of its non-conformity with characteristics of a modernist legal system, classical Hindu law was displaced by its colonial version. The British attempted to accomplish this though the process of codification. The colonial attempts to codify Hindu law were carried forward by the Indian government post-independence. The result was the Hindu Code Bill. The context in which this codification took place must be examined in order to better comprehend this transmogrification. Post-independence, the idea of a Uniform Civil Code had been debated. However it was at odds with the Nehruvian notion of secularity. The codification of Hindu personal law was an attempt at modernising it, without infringing on the religious freedom of Hindus. The idea was to confine the influence of religion to the private sphere. What emerged was the Hindu Code Bill, which served as the blueprint for the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and, the Hindu Adoption and Maintenance Act. Colonial Hindu law was thus displaced by modern Hindu law.

As Galanter observes however, modernisation through legislations may formalise or even modify classical precepts, but cannot erase them completely. For instance, Section 7 of the Hindu Marriage Act, which prescribes the ceremonial requirements for a Hindu marriage, replicates those prescribed in Classical Hindu law. Additionally a plethora of judicial decisions have relied on or taken into consideration, precepts of ancient Hindu jurisprudence.

It is evident thus that ancient precepts still inform modern Hindu law. Given their relevance, it would be erroneous to write off classical Hindu law as completely irrelevant in a modernist context.

Part II: Precepts of Privacy in Classical Hindu Law

As referred to, we have not come across a terminological equivalent of the term 'privacy' in the course of our research. The linguistic lacuna is admittedly a hurdle in articulating the pre-modern understanding of privacy as found in Hindu jurisprudence. It is not however, an argument against the very existence of privacy. The lack of pre-modern terminology necessitates the usage of modern terms in classifying the aspects of privacy detailed in Hindu jurisprudence.

Thus, broadly speaking, the aspects of privacy we have culled out from the material at hand are those of physical space/ property, thought, bodily integrity, information, communication, and identity. As will be demonstrated these aspects overlap on occasion and are by no means an exhaustive indication. In order to contextualise these aspects within the realm of Hindu jurisprudence, they are detailed below through specific illustrations.

A. Privacy of physical Space/ property

Akin to the modern legal system that first understood privacy in proprietary terms, Hindu jurisprudence too accorded importance to privacy in terms of physical space. This is further illustrated by the similarity between the common law notion of a man's house being his castle, and the institutional primacy accorded by the Naradsmriti to the household . The common denominator here is the recognition of a claim to privacy against the sovereign. This claim operated against society at large as well. For instance, an individual caught trespassing on someone else's property was liable to be fined.

These religious precepts were supplemented by those reflected in texts such as the Arthashastra. By way of illustration the house building regulations prescribed by it are largely informed by the recognition of a need for privacy. To begin with, a person's house should be built at a suitable distance from a neighbour's house, to prevent any inconvenience. In addition the house's doors and windows should ideally not face a neighbours doors and windows directly. The occupants of the house should ensure the doors and windows are suitably covered. Furthermore in the absence of a compelling justification, interference in a neighbour's affairs is penalised.Juxtaposed to religious texts that often perceived privacy as a concept driven by the imperative of purity, the Arthashastra is reflective of a secular connotation of privacy.

Though the household was privileged as the foundational institution in Hindu jurisprudence, claims of privacy extend beyond one's house to other physical objects as well, regardless of whether they were extensions of the household or not. For instance, both the Yajnawalkya Samhita and the Manusmriti condemn the usage of another person's property without his or her permission.

What is noteworthy in the context of personal property is that in an era infamous for the denigration of women, Hindu jurisprudence recognised a woman's claim over property. This property, also known as Stridhana, had varied definitions. In the Yajnawalkya Samhita for instance, it is conceptualised as, "What has been given to a woman by the father, the mother, the husband or a brother, or received by her at the nuptial fire, or given to her on her husband's marriage with another wife, is denominated Stridhana or a woman's property". In the Manusmriti, it is defined as "What was given before the nuptial fire, what was given on the bridal procession, what was given in token of love, and what was received from her brother, mother, or father, that is called the sixfold property of a woman".

Beyond mere cognizance of proprietary rights however, these precepts were also informed by the notion of exclusivity. Consequently, a woman's husband or his family were precluded from using her Stridhana, unless they were in dire straits. Additionally it was a sin for a woman's relatives to use her wealth even if the same was done unknowingly.

B. Privacy of Thought

In addition to the aspect of physical space, a claim to privacy vis-a-vis the intangible realm of thought was afforded by Hindu jurisprudence. In the modern context the link between solitude and privacy has been recognised as early as 1850 by Warren and Brandeis. The key distinction is that in the modern era this need for solitude was seen as a function of the increasing invasion of privacy. In the pre-modern era however, solitude was considered essential for self-actualisation, and not as a response to the increasing invasion of the private realm. Meditation in solitude was perceived as enabling existence in the highest state of being. In fact a life in solitude was identified as a pre-requisite for being liberated.

Though solitude itself is intangible, engaging in meditation would require a tangible solitary space. This is where the privacy of thought overlapped with the aspect of privacy of space. Accordingly, the Arthashastra prescribed that forest areas be set aside for meditation and introspection. It also recognised the need for ascetics to live within these spaces harmoniously, without disturbing each other.

It is evident, that as far as the aspects of privacy were concerned, there were no watertight compartments.

C. Privacy with respect to bodily integrity

A claim to privacy of thought can only be substantively realised when complemented by the notion of privacy with respect to bodily integrity, as corporeal existence serves as a precursor to mental well-being. The inference drawn from the relevant precepts concerning this aspect is that they were largely women-centric. Arguably they were governed by a misplaced patriarchal notion that women's modesty needed to be protected. At best they could be considered as implicit references to an expectation of privacy.

The Manusmriti states, "But she who…goes to public spectacles or assemblies, shall be fined six krishnalas". Restrictions operating during a woman's menstruation were twofold. Her family was prohibited from seeing her. Additionally cohabitation with such a woman was also forbidden. It should be pointed out that that these constructs had little to do with a woman's expectation of privacy. They were forbidden due to the attached implications of impurity that would vest in the defaulter. A woman's autonomy with regard to her body was not regarded as a factor meriting consideration.

However, there were constructs, albeit limited, which were more egalitarian in their approach and did recognise her autonomy. They established that women do have an expectation of privacy in terms of bodily integrity. Sexual assault was considered as an offence. Evidence of this is found in the Yajnawalkya Samhita which states, "If many persons know a woman against her will, each of them should be made to pay a fine of twenty four panas". In addition, the Arthashastra vested in commercial sex workers the right to not be held against their will. Further it expressly states that even a commercial sex worker cannot be forced to engage in sexual intercourse.

Women could make a claim to privacy not only against society at large, but also against their husbands. Ironically, while our contemporary legal system (i.e., the Indian legal system) fails to criminalise marital rape, the Manusmriti considered it an offence. Additionally, husbands were also prohibited from looking at their wives when the latter were in a state of relaxation.

D. Privacy of Information and Communication

While the three aspects explicated above were by and large restricted to the individual, the privacy of information and communication has been largely confined by Hindu jurisprudence to the realm of the sovereign. Both the Manusmriti and the Arthashastra acknowledge the importance of a secret council that aids the king in deliberations. These deliberations are to be carried on in a solitary place that was well-guarded. The decisions made in these deliberations are to be revealed on a need to know basis. That is to say, only persons concerned with the implementation of these decisions are to be informed. The Manusmriti also provides for private deliberation by the king on matters not involving governance. It provides, "At midday or midnight , when his mental and bodily fatigues are over, let him deliberate, either with himself alone or with his ministers on virtue, pleasure, and wealth".

Apart from governance, privacy of information also pertained to certain types of documents that were considered private in nature. These are documents that involve transactions such as partition, giving of a gift, purchase, pledge and debt. What is interesting about this precept is the resemblance it bears to the common law notion of privity. The common characteristic of the documents referred to, is that they concerned transactions undertaken between two or more persons. The rights or obligations arising from these transactions were confined to the signatories of these documents. It could be possible that the privatisation of these documents was aimed at guarding against disruption of transactions via third party intrusions.

The limited reference to private communications is found within the realm of governance, within the context of privacy of information. The only illustration of this that we have come across is the precept in the Arthashastra that requires intelligence to be communicated in code.

E. Privacy of Identity

The final aspect that warrants detailing is the privacy of identity. The notion of privacy of identity can be understood in two ways. The first deals with protection of personal information that could be traced back to someone, thus revealing his or her identity. The second recognises the component of reputation. It seeks to prevent the misappropriation or maligning of a person's identity and thus reputation. In ancient Hindu jurisprudence there is evidence of recognition of the latter. An illustration of the same is offered by the precept which states "For making known the real defects of a maiden, one should pay a fine of a hundred panas". Another precept prescribes that false accusations against anyone in general are punishable by a fine. Additionally, there is also a restriction operating against destroying or robbing a person of his or her virtue. In the modern context, the above would be understood under the rubric of defamation. These precepts are indicative of the fact that defamation was recognised as an offence way before the modern legal system afforded cognizance to the same.

Conclusion

The dominant narrative surrounding the privacy debate in India is that of the alien-ness of privacy. This paper has attempted to displace the notion that privacy is an inherently 'Western' concept that is the product of a modernist legal system. No doubt the common understanding of the legal conception of privacy is informed by modernity. In fact, the research conducted in support of this paper has been synthesised from privacy information through a modernist lens. The fact still remains however, that privacy is an amorphous context, and its conceptions vary across cultures.

To better appreciate the relevance of Classical Hindu law in a modernist context, the nature of Hindu law must be examined first. While Hindu jurisprudence might not qualify as law in the positivist sense of the term, its precepts continue to inform India's statues and judicial pronouncements.

Privacy is subjective and eludes a straitjacketed definition. On occasion this elusiveness is a function of its overlapping and varying aspects. At other times it stems from a terminological lacuna that complicates the explication of privacy. These impediments notwithstanding, it is abundantly clear that the essence of privacy is reflected in Hindu culture and jurisprudence. This may give pause to thought to those who seek to argue that 'collectivist' cultures do not value privacy or exhibit the need for it.

Daniel J. Solove, A Taxonomy of Privacy, University of Pennsylvania Law Review, Vol. 154(3), January 2006.

Id.

Upendra Baxi, Who Bothers About the Supreme Court: The Problem of Impact of Judicial Decisions, available at http://clpr.org.in/wp-content/uploads/2013/08/whobothersabouttheSupremeCourt.pdf (Last visited on December 23, 2014) (The enforceability of rights often sets their individual enjoyment apart from their jurisprudential value); In India, the reading of privacy into Article 21 has not resulted in a mechanism to enforce a standalone right to privacy, See R.H. Clark, Constitutional Sources of the Penumbral Right to Privacy, available at http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=2046&context=vlr (Last visited on December 23, 2014) (In the United States, the right to privacy was located in the penumbra of the right to personal autonomy).

See PUCL v. Union of India, AIR 1997 SC 568.

See Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 558 (2003).

See The Indian Penal Code, 1850, Section 499.

See The Hindu Marriage Act, 1955 Section 22; The Special Marriage Act, 1954, Section 33.

Bhairav Acharya & Vidushi Marda, Identifying Aspects of Privacy in Islamic Law, available at http://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law (Last visited on December 23, 2014).

See Robert Lingat, The Classical Law of India (1973).

Donald R. Davis, Jr., The Spirit of Hindu Law (2010) (This importation must be viewed against the backdrop of the characteristics of the era of Enlightenment wherein primacy was accorded to secular reason and the positivist conception of law. Davis observes "One cannot deny the increasing global acceptance of a once parochial notion of law as rules backed by sanctions enforced by the state. This very modern, very European notion of law is not natural, not a given; it was produced at a specific moment in history and promulgated systematically and often forcibly through the institutions of what we now call the nation-state, especially those nations that were also colonial powers.)"; But see Alan Gledhill, The Influence of Common Law and Equity on Hindu Law Since 1800, available at http://www.jstor.org/stable/755588 (Last visited on December 23, 2014); Werner Menski, Sanskrit Law: Excavating Vedic Legal Pluralism, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1621384 (Last visited on December 23, 2014) (However, this replacement of traditional legal systems did not extend to personal laws. Personal laws in India continue to be community-based, sometimes un-codified, draw from a diverse set of simultaneously applicable sources and traditional schools of jurisprudence.).

Supra note 8, Acharya & Marda.

Privacy International, A New Dawn: Privacy in Asia, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013) ("It is only recently that the debate around privacy was stuck in this "collectivist" vs. "individualistic" cultural discourse…we discovered that privacy concerns and the need for safeguards were often embedded deeply in a nation, and not just as a response to a modern phenomenon.").

Privacy International, A New Dawn: Privacy in Asia, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013)

J. Duncan M. Derrett, The Administration of Hindu Law by the British, available at http://www.jstor.org/stable/177940 (Last visited on December 23, 2014).

Manusmriti, Chapter IV, 201.

Manusmriti, Chapter IV, 202.

Id.

Wael B. Hallaq, An Introduction to Islamic Law 31 (2009).

Donald R. Davis, Jr., The Spirit of Hindu Law (2010).

Marc Galanter, The Displacement of Traditional Law in Modern India, Journal of Social Issues, Vol. XXIV, No. 4, 1968.

Id.

Supra note 20, Galanter.

Supra note 10, Menski.

Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).

Id.

Ashcroft as cited in Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).

Supra note 20, Galanter.

Id.

Id .

Supra note 19, Davis.

Id.

Id .

J. Duncan M. Derrett, Introduction to Modern Hindu Law (1963); Supra note 19, Davis.

Supra note 9, Lingat.

Id.

John D. Mayne, Hindu Law (1875).

Id.

Supra note 49, Mayne.

Id.

Supra note 19, Davis.

Id.

Supra note 49, Mayne.

Ludo Rocher, Studies in Hindu Law and Dharamasastra (2012).

For instance the Yajnawalkya Samhita has clear delineations in its chapters, segregating customary practices, legal procedure and punitive measures.

Madhu Kishwar, Codified Hindu Law: Myth and Reality, available at http://www.jstor.org/stable/4401625 (Last visited on December 23, 2014).

Id .

Supra note 59.

Id.

Supra note 20, Galanter.

See The Hindu Marriage Act, 1955, Section 7.

Saroj Rani v. Sudarshan Kumar Chadda, AIR 1984 SC 1562 (reflected the importance accorded by classical Hindu law to marital stability); M Govindaraju v. K Munisami Goundu 1996 SCALE (6) 13(The Supreme Court looked to ancient Shudra custom to adjudicate on a matter of adoption); Rajkumar Patni v. Manorama Patni, II (2000) DMC 702 (The Madhya Pradesh High Court, relied on the definition of Stridhan by Manu.).

Supra note 8, Acharya & Marda.

Semayne v. Gresham, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604).

As cited in Julius Jolly, The Minor Law Books 164 (1889), ("A householder's house and field are considered as the two fundamentals of his existence. Therefore let not the king upset either of them; for that is the root of the householders").

Manmath Nath Dutt, The Dharamshastra - Hindu Religious Codes, Volume 1, 103 (1978) (Yajnawalkya Samhita, Chapter II 235-236: "He…who opens the doors of a closed house [without the permission of the master]…should be punished with fifty panas. Such is the law.").

L.N. Rangarajan, Kautalya: The Arthashastra 371 (1992) ("O be built at a suitable distance from the neighbours property so as not to cause inconvenience to the neighbour").

Id ., ("…doors and windows shall be made so as not to cause annoyance by facing a neighbour's door or window directly").

Supra note 72, Rangarajan, ("when the house is occupied the doors and windows shall be suitably covered").

Id., 376.

See Manusmriti, Chapter IV, 201-202.

Supra note 71, Dutt, 27 (Yajnawalkya Samhita, Chapter I , 160: "One should avoid the bed, seat, garden-house and the conveyance belonging to another person.").

Supra note 71, Dutt, 89 (Yajnawalkya Samhita, Chapter II, 146).

Manusmriti, Chapter IX, 194.

Supra note 71, Dutt Volume 2, 276 (Angiras Samhita, Chapter I, 71).

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, Harvard Law Review, Vol. IV, December 15, 1890, No.5.

Id.

Manusmriti, Chapter IV, 258; Supra note 71, Dutt, 134 (Yajnawalkya Samhita Chapter III, 111: "Having withdrawn the mind, understanding, retentive faculty and the senses from all their objects, the soul, the lord…should be meditated upon.").

Manu Chapter VI, 44.

Supra note 71, Dutt, 186 (Harita Chapter VII, 6: "Situated in a solitary place with a concentrated mind, he should, till death mediate on the atman, that is situated both in the mind and the external world… ").

Supra note 72, Rangarajan, (Arthashastra, 2.2.2).

Supra note72, Rangarajan, (Arthashastra 3.16.33-36).

Manusmriti IX, 84

Supra note 71, Dutt, Volume 2, 350 (Samvarta Samhita,163).

Supra note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 291).

Supra note 71, Dutt, Volume 1, 113 (Yajnawalkya Samhita, Chapter II, 294).

Supra note 72, Ranjarajan (Arthashastra 2.27.14).

Supra note 72, Rangarajan (Arthashastra 4.13.38).

Manusmriti, X, 62

Manusmriti Part VII, Supra note 101, Rangarajan (Arthashastra 1.15.2-5, 1.15.13-17).

Supra note 72, Rangarajan (Arthashastra 1.15.2-5 : The scrutiny of governance related affairs was take place in a secluded and well-guarded spot, where it could not be overheard. No unauthorised person was allowed to approach these meetings.).

Supra note 72, Rangarajan (Arthashastra 1.15.13-17: "…Only those who have to implement it should know when the work is begun or when it has been completed.").

Supra note 72, Rangarajan.

Supra note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 292).

Supra note 71, Dutt, Volume 4, 919 (Vishnu Samhita, Chapter LII, 16).

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