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‘A Good Day for the Internet Everywhere': India Bans Differential Data Pricing
https://cis-india.org/internet-governance/blog/global-voices-subhashish-panigrahi-february-9-2016-a-good-day-for-the-internet-everywhere
<b>India distinguished itself as a global leader on network neutrality on February 8, when regulators officially banned “differential pricing”, a process through which telecommunications service providers could or charge discriminatory tariffs for data services offered based on content.</b>
<p style="text-align: justify; ">The article was published by <a class="external-link" href="https://globalvoices.org/2016/02/09/a-good-day-for-the-internet-everywhere-india-bans-differential-data-pricing/">Global Voices </a>on February 9, 2016</p>
<hr />
<p style="text-align: justify; ">In short, this means that Internet access in India will remain an open field, where users should be guaranteed equal access to any website they want to visit, regardless of how they connect to the Internet.</p>
<p style="text-align: justify; ">In their ruling, <a href="http://www.trai.gov.in/WriteReadData/WhatsNew/Documents/Regulation_Data_Service.pdf"><span>Telecommunication Regulatory Authority of India (TRAI) commented:</span></a></p>
<blockquote style="text-align: justify; ">
<p>In India, given that a majority of the population are yet to be connected to the internet, allowing service providers to define the nature of access would be equivalent of letting TSPs shape the users’ internet experience.</p>
</blockquote>
<blockquote class="twitter-tweet" style="text-align: justify; ">
<p dir="ltr"><a href="https://twitter.com/hashtag/TRAIFreesInternet?src=hash"><span>#TRAIFreesInternet</span></a> | Key take aways from TRAI’s ruling on Net Neutrality <a href="https://t.co/xlFsLb3bZ6"><span>pic.twitter.com/xlFsLb3bZ6</span></a></p>
<p>— CNN-IBN News (@ibnlive) <a href="https://twitter.com/ibnlive/status/696746896556032000"><span>February 8, 2016</span></a></p>
</blockquote>
<p style="text-align: justify; ">The decision of the Indian government has been welcomed largely in the country and outside. In support of the move, the World Wide Web Foundation's Renata Avila, also a Global Voices community member, <a href="http://webfoundation.org/2016/02/worlds-biggest-democracy-bans-zero-rating/?platform=hootsuite"><span>wrote:</span></a></p>
<blockquote style="text-align: justify; ">
<p>As the country with the second largest number of Internet users worldwide, this decision will resonate around the world. It follows a precedent set by Chile, the United States, and others which have adopted similar net neutrality safeguards. The message is clear: We can’t create a two-tier Internet – one for the haves, and one for the have-nots. We must connect everyone to the full potential of the open Web.</p>
</blockquote>
<h3 style="text-align: justify; ">A blow for Facebook's “Free Basics”</h3>
<p style="text-align: justify; ">While the new rules should long outlast this moment in India's Internet history, the ruling should immediately force Facebook to cancel the local deployment of “Free Basics”, a smart phone application that offers free access to Facebook, Facebook-owned products like WhatsApp, and a select suite of other websites for users who do not pay for mobile data plans.</p>
<p style="text-align: justify; ">Facebook's efforts to deploy and promote Free Basics as what they described as a remedy to India's lack of “digital equality” has encountered significant backlash. Last December, technology critic and Quartz writer<a href="http://qz.com/582587/mark-zuckerberg-cant-believe-india-isnt-grateful-for-facebooks-free-internet/"><span> Alice Truong reacted to Free Basics saying:</span></a></p>
<blockquote style="text-align: justify; ">
<p>Zuckerberg almost portrays net neutrality as a first-world problem that doesn’t apply to India because having some service is better than no service.”</p>
</blockquote>
<p style="text-align: justify; ">When TRAI solicited public comments on the matter of differential pricing, Facebook responded with an aggressive <a href="http://techcrunch.com/2015/12/17/save-free-basics/" target="_blank"><span>advertising campaign </span></a>on bill boards and in television commercials across the nation. It also embedded a campaign inside Facebook, asking users to write to TRAI in support of Free Basics.</p>
<p style="text-align: justify; ">TRAI <a href="http://www.ibtimes.co.uk/facebooks-free-basics-campaign-slammed-by-indian-regulator-1539261" target="_blank"><span>criticized</span></a> Facebook for what it seemed to regard as manipulation of the public. Facebook was also heavily challenged by many policy and open Internet advocates including non-profits like the <a href="http://www.fsmi.in/" target="_blank"><span>Free Software Movement of India</span></a> and the <a href="http://www.savetheinternet.in/" target="_blank"><span>Savetheinternet.in</span></a> campaign. The latter two collectives strongly discouraged Free Basics by bringing public opinion where Savetheinternet.in alone facilitated a campaign in which citizens sent over <a href="http://timesofindia.indiatimes.com/tech/tech%20news/Net-neutrality-Trai-gets-24-lakh-comments-on-differential-data-pricing-paper/articleshow/50493525.cms" target="_blank"><span>2.4 million emails</span></a> to TRAI urging the agency to put a stop to differential pricing.</p>
<p style="text-align: justify; ">Alongside these efforts, <a href="http://blog.savetheinternet.in/startups-pm-letter/" target="_blank"><span>500 Indian startups</span></a> including major ones like Cleartrip, Zomato, Practo, Paytm and Cleartax also wrote to India's prime minister Narendra Modi requesting continued support for <a href="https://en.wikipedia.org/wiki/Net_neutrality" target="_blank"><span>net neutrality</span></a>—on the Indian Republic Day January 26.</p>
<p style="text-align: justify; ">Stand-up comedians like <a href="https://www.youtube.com/watch?v=JSxB1mD7SdE&feature=youtu.be" target="_blank"><span>Abish Mathew</span></a> and groups like <a href="https://youtu.be/AAQWsTFF0BM" target="_blank"><span>All India Bakchod</span></a> and <a href="https://youtu.be/UCwaKje44fQ" target="_blank"><span>East India Comedy</span></a> created humorous and informative videos explaining the regulatory debate and supporting net neutrality which went viral.</p>
<p style="text-align: justify; ">Had differential pricing been officially legalized, it would have adversely affected startups and content-based smaller companies, who most likely could never manage to pay higher prices to partner with service providers to make their service available for free. This would have paved the way for tech-giants like Facebook to capture the entire market. And this would be no small gain for a company like Facebook: India represents the world's largest market of Internet users after the US and China, where Facebook remains blocked.</p>
<h3 style="text-align: justify; ">The Internet responds</h3>
<p style="text-align: justify; ">There have been mixed responses on social media, both supporting and opposing. Among open Internet advocates both in India and the US, the response was celebratory:</p>
<blockquote class="twitter-tweet" style="text-align: justify; ">
<p dir="ltr">This order shows the power of citizen involvement in policymaking. Policymakers are forced to listen if citizens engage. <a href="https://twitter.com/hashtag/NetNeutrality?src=hash"><span>#NetNeutrality</span></a></p>
<p>— Pranesh Prakash (@pranesh) <a href="https://twitter.com/pranesh/status/696720959974211586"><span>February 8, 2016</span></a></p>
</blockquote>
<blockquote class="twitter-tweet" style="text-align: justify; ">
<p>I think this is not just a good day for the Internet in India. It's a good day for the Internet everywhere <a href="https://twitter.com/hashtag/TRAI?src=hash"><span>#TRAI</span></a> <a href="https://twitter.com/hashtag/savetheinternet?src=hash"><span>#savetheinternet</span></a></p>
<p>— Anja Kovacs (@anjakovacs) <a href="https://twitter.com/anjakovacs/status/696657952946565121"><span>February 8, 2016</span></a></p>
</blockquote>
<blockquote class="twitter-tweet" style="text-align: justify; ">
<p>India is now the global leader on <a href="https://twitter.com/hashtag/NetNeutrality?src=hash"><span>#NetNeutrality</span></a>. New rules are stronger than those in EU and US. <a href="https://t.co/D6g68k2xaI"><span>https://t.co/D6g68k2xaI</span></a></p>
<p>— Josh Levy (@levjoy) <a href="https://twitter.com/levjoy/status/696716845290655744"><span>February 8, 2016</span></a></p>
</blockquote>
<p style="text-align: justify; ">There are also those like <a href="https://www.facebook.com/rajkiran.panuganti/posts/10153961592211457"><span>Panuganti Rajkiran</span></a> who opposed the ruling:</p>
<blockquote style="text-align: justify; ">
<p>A terrible decision.. The worst part here is the haves deciding for the have nots what they can have and what they cannot.</p>
</blockquote>
<blockquote class="twitter-tweet" style="text-align: justify; ">
<p>When you buy a car, it's fulfilment of aspiration. After that, the next guy who buys a car is just traffic. Let's regulate. <a href="https://twitter.com/hashtag/NetNeutrality?src=hash"><span>#NetNeutrality</span></a></p>
<p>— Ramesh Srivats (@rameshsrivats) <a href="https://twitter.com/rameshsrivats/status/696737409136926721"><span>February 8, 2016</span></a></p>
</blockquote>
<p style="text-align: justify; "><a href="https://www.facebook.com/soumya.manikkath/posts/10153386837235920"><span>Soumya Manikkath</span></a> says:</p>
<blockquote style="text-align: justify; ">
<p>So all is not lost in the world, for the next two years at least. Do come back with a better plan, dear Facebook, and we'll rethink, of course.</p>
</blockquote>
<p style="text-align: justify; ">The ruling leaves an open pathway for companies to offer consumers free access to the Internet, provided that this access is truly open and does not limit one's ability to browse any site of her choosing.</p>
<p style="text-align: justify; ">Bangalore-based Internet policy expert Pranesh Prakash noted that this work must continue until India is truly — and equally — connected:</p>
<blockquote class="twitter-tweet" style="text-align: justify; ">
<p>The pro-<a href="https://twitter.com/hashtag/NetNeutrality?src=hash"><span>#NetNeutrality</span></a> campaign shouldn't rest until every poor family in India has full and free access to the Internet. <a href="https://twitter.com/hashtag/ZeroRating?src=hash"><span>#ZeroRating</span></a></p>
<p>— Pranesh Prakash (@pranesh) <a href="https://twitter.com/pranesh/status/696732814083907584"><span>February 8, 2016</span></a></p>
</blockquote>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/global-voices-subhashish-panigrahi-february-9-2016-a-good-day-for-the-internet-everywhere'>https://cis-india.org/internet-governance/blog/global-voices-subhashish-panigrahi-february-9-2016-a-good-day-for-the-internet-everywhere</a>
</p>
No publishersubhaNet NeutralityInternet Governance2016-02-25T01:21:27ZBlog Entry2014 showed the power of Twitter, now every Indian politician wants a handle
https://cis-india.org/internet-governance/news/the-telegraph-april-10-2016-2014-showed-the-power-of-twitter
<b>Twitter is fast turning into an effective political tool. As political parties fight another round of electoral battles, a new survey on the 2014 general elections states that those who tweeted well, fared well.</b>
<p style="text-align: justify; ">The article by T.V. Jayan, Smitha Verma,Sonia Sarkar and V. Kumara Swamy quoted Sumandro Chattapadhyay. <a class="external-link" href="http://www.abplive.in/india-news/2014-showed-the-power-of-twitter-now-every-indian-politician-wants-a-handle-319116">Click to read the original published by Telegraph on April 10</a>.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">Clean image? Tick. Right caste? Tick. Money to fund an election? Tick. Good rapport with the top brass? Tick. But no followers on Twitter or other social media sites? Sorry, then you are not going to get a ticket for the Uttar Pradesh Assembly polls next year, says Bharatiya Janata Party president Amit Shah.</p>
<p style="text-align: justify; ">There was a time when Twitter was what little old ladies – purportedly – did. Now it’s a veritable tool for politicians. As states go for Assembly elections this summer, politicians and their parties are tweeting like never before.</p>
<p style="text-align: justify; ">And perhaps rightly so, for a recently published study of the 2014 general elections indicates that the more you tweet, the brighter are your chances of winning. The BJP’s victory in 2014 – which came riding a social media wave – seems to have spurred other parties on.</p>
<p style="text-align: justify; ">Twitter, for those who came in late, is the micro-blogging social site that allows you to post, repost and comment on anything under the sun. These days, Twitter in India is abuzz with electoral comments and speculation.</p>
<p style="text-align: justify; ">Hashtags related to state elections have been dominating the site. The four major players in Bengal – the Trinamul Congress (TMC), the Communist Party of India (Marxist), the Congress and the BJP – have been giving updates about rallies, poll plans and issues. In Assam, the 81-year-old Congress chief minister, Tarun Gogoi, has started tweeting, too. His posts are mostly about his achievements and critical reviews of the BJP’s poll promises.</p>
<p style="text-align: justify; ">The CPI(M), which launched its Twitter handle only in February 2014, now has more than 20,000 followers, marginally more than the TMC’s approximately 19,500 followers. Party general secretary Sitaram Yechury is a relentless tweeter – posting comments on issues that range from fuel price hikes to drought and foreign policy. Other senior party leaders such as West Bengal state secretary Surya Kanta Mishra and Mohammad Salim in Bengal and Pinarayi Vijayan in Kerala have been giving regular updates of the party’s campaign on Twitter and Facebook.</p>
<p style="text-align: justify; ">“Twitter gives political organisations the ability to broadcast information on a worldwide stream (not just their subscribers), join any ongoing debates and discussions and have a two-way interaction with the public during political processes and campaigns,” notes the study – The 2014 Indian elections on Twitter: A comparison of campaign strategies of political parties. The study, conducted by researchers from the department of communications, University of California, Davis, and Nanyang Technological University, Singapore, was recently published online in the journal Telematics and Informatics.</p>
<p style="text-align: justify; ">India is the third largest user of Twitter in the world, with an estimated 23.2 million active users, up from 11.5 million in 2013. Market researcher group Emarketer estimates that Twitter will have around 40 million users in India by 2018.</p>
<p style="text-align: justify; ">That is a sizable number. No surprise then that political parties are reaching out to voters with the help of social media arms such as Twitter.</p>
<p style="text-align: justify; ">“Twitter is an important platform for the Congress to reach out to a certain section but the content has to be important,” agrees Congress leader Sachin Pilot, who joined Twitter in March 2014, but started tweeting actively four months ago. “We joined the medium late but we are using it positively and not to spread exaggerated promises or look at short-term gains,” he says.</p>
<p style="text-align: justify; ">Indeed, the Congress has been greatly outpaced by BJP in the race for tweets. According to the University of California study, the BJP posted 80,981 tweets during the 2014 elections, far ahead of any of the other political parties. The Aam Aadmi Party (AAP) came next with 7,980 tweets, followed by the TMC with 3,990 and the Congress with 2,890. The CPI(M) had 402 tweets.</p>
<p style="text-align: justify; ">“The 2014 general elections was the first time social media was being used for electoral campaigning in India and hence the disparity in usage between parties,” says Saifuddin Ahmed, the corresponding author of the study. “The next general elections would be a different game as most of the parties would be well-prepared going by the success of BJP’s 2014 social media campaign.”</p>
<p style="text-align: justify; ">The study found that the BJP’s Twitter feed dealt with campaign updates (28 per cent) and criticism of other political parties or moves (24 per cent). It also posted the second-highest in proportion and the highest in absolute numbers of self-promotion tweets (19 per cent as against AAP’s 35 per cent).</p>
<p style="text-align: justify; ">“We strongly believe that a message is effectively sent across when one has a credible message, a credible messenger and also a credible tool of communication. And Twitter is a credible tool,” asserts Dilip Pandey, AAP’s head of communications.</p>
<p style="text-align: justify; ">The study says the BJP often tweeted the words “thank you” while the Congress’s pet phrases included “Gandhi Gandhi” (in a single tweet). AAP used old emotional slogans such as ” Satyamev Jayate” and “Azaadi ladai”.</p>
<p style="text-align: justify; ">It concludes that the winning party’s electoral success [in 2014] is significantly associated with its use of Twitter for engaging voters.</p>
<p style="text-align: justify; ">“The BJP’s primary purpose was to use Twitter as a broadcasting medium, and they tweeted their party messages as shareable content, such as images, which users could share in their personal networks,” Ahmed points out.</p>
<p style="text-align: justify; ">Not surprisingly, others are embracing Twitter. In Maharashtra, the BJP state unit campaigned extensively on social media for Assembly elections – and ended up forming the government in the state.</p>
<p style="text-align: justify; ">“A tweet helps in changing mindset and perception. The urban population which never voted for BJP was targeted through Twitter to present the vision of our party,” says Jiten Gajaria, BJP social media head during Maharashtra elections.</p>
<p style="text-align: justify; ">Elsewhere, too, political leaders have been jumping on to the Twitter bandwagon. Nitish Kumar joined Twitter in May 2010, but remained almost inactive for most of his second term before springing back to life in 2015 before the elections. More than 95 per cent of his tweets were posted in the election year. There was even a question-answer-session with people on Twitter.</p>
<p style="text-align: justify; ">“Nitish ji in a way engaged with the media through his Twitter handle,” Janata Dal (United) spokesperson K.C. Tyagi says. “He would tweet something about the BJP or Modi and that became the talking point. The NDA was asked by the media to respond to the tweet.”</p>
<p style="text-align: justify; ">Modi joined Twitter in January 2009, and Kejriwal in 2011 before launching AAP. Among politicians, the two most active tweeters are Shashi Tharoor of the Congress and Derek O’Brien of the TMC. Rahul Gandhi’s first tweet was on May 7, 2015, about beginning a padayatra in Telangana’s Adilabad district.</p>
<p style="text-align: justify; ">Though a late entrant, the CPI(M), too, sees advantages of using the medium. “We don’t want to leave any stone unturned during the elections and being on Twitter is a part of the strategy,” says Rajya Sabha member Ritabrata Banerjee. “Although we don’t believe in hiring professionals, as the BJP does to prop itself up on Twitter, we believe people will follow us and listen to what we are saying.”</p>
<p style="text-align: justify; "><img width="555" height="201" src="http://www.telegraphindia.com/1160410/images/10now.jpg" /></p>
<p style="text-align: justify; ">However, Sumandro Chattopadhyay, research director, Centre for Internet and Society, Bangalore, is sceptical about linking electoral victories to Twitter usage.</p>
<p style="text-align: justify; ">“There are many variables such as Internet penetration, media device availability and media exposure. Rich states always perform better in these parameters,” Chattopadhyay says.</p>
<p style="text-align: justify; ">Politicians also stress that Twitter is just one of the tools of a campaign. “The social media is one part of a 360-degree electoral strategy. Twitter probably is only 10 degrees of the overall electoral strategy,” O’Brien states.</p>
<p style="text-align: justify; ">And not all politicians look at Twitter as the virtual equivalent of traditional campaigns.</p>
<p style="text-align: justify; ">“What we see on Twitter is exaggerated hysteria,” says a BJP leader who is also active on Twitter. “Twitter is a double-edged sword. It is an effective tool for putting your message to an expanding and bigger audience. But at the same time, we don’t know if what we are being told is true because we cannot verify the source.”</p>
<p style="text-align: justify; ">A member of the CPI(M)’s communications team stresses that traditional modes of campaigning still outrank social media campaigns. “We believe that as far as our connection with the people is concerned, there is no alternative to the traditional way of reaching out to the masses,” he says. “Twitter can only publicise what we do on the ground.”</p>
<p style="text-align: justify; ">In the final analysis, does popularity on Twitter translate into votes? Shah seems to believe so – he is not giving away tickets to BJP members if they don’t have enough followers on Twitter or Facebook. But the Twitter-savvy BJP leader, who seeks anonymity, doesn’t agree.</p>
<p style="text-align: justify; ">“It could be one of the factors to influence voters. Maybe a fraction of voters form their opinion based on what they see on Twitter. But it is certainly not the most decisive factor,” he says.</p>
<p style="text-align: justify; ">Meanwhile, as politicians battle it out, Twitter is making the most of the poll fervour. The site has said it will launch an exclusive emoji for the Tamil Nadu Assembly elections, which will come up on counting day in May. Did we just hear Twitter crow?</p>
<hr />
<p style="text-align: justify; ">– T.V. Jayan, Smitha Verma,Sonia Sarkar and V. Kumara Swamy report.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/the-telegraph-april-10-2016-2014-showed-the-power-of-twitter'>https://cis-india.org/internet-governance/news/the-telegraph-april-10-2016-2014-showed-the-power-of-twitter</a>
</p>
No publisherpraskrishnaSocial MediaInternet Governance2016-04-20T02:33:00ZNews Item2012: Privacy Highlights in India
https://cis-india.org/internet-governance/privacy-highlights-in-india
<b>In this blog post, Elonnai Hickok summarizes the top privacy moments of 2012 in India. In doing so she lists out the major ones like the Report of Group of Experts on Privacy, the RIM Standoff, the Nira Radia controversy, the Centralized Monitoring System, Unmanned Aerial Vehicles, NATGRID, CCTNS, the growth of CCTVs, the leaked DNA Profiling Bill, and the UID project.</b>
<p style="text-align: justify; "><b>The Report of Group of Experts on Privacy:</b> In October 2012 the "Report of Group of Experts on Privacy" was published by a governmental committee chaired by Justice A.P. Shah. The report contains recommendations for comprehensive privacy legislation, including defining nine privacy principles, establishing a regulatory framework consisting of privacy commissioners at the regional and central level, and self regulatory organizations, and analyzing the present challenges to privacy in India.<a href="#fn1" name="fr1">[1]</a></p>
<p style="text-align: justify; ">Before the report was published, two draft privacy bills had been leaked to the public, and a concept paper drafted in 2010. The report received mixed reviews from the media, including questions about the relationship between the Right to Information and the Right to Privacy. Before the publishing of the Report, Prime Minister Manmohan Singh recognized that disclosures under the RTI Act could, in some instances, violate individual privacy. In a statement to the public, the Prime Minister stated <i>"citizens<ins cite="mailto:Author" datetime="2012-11-16T15:34">’</ins> right to know should definitely be circumscribed if disclosure of information encroaches upon someone's personal privacy. But where to draw the line is a complicated question"</i>.<a href="#fn2" name="fr2">[2]</a></p>
<p style="text-align: justify; ">Three months before the report was published, the EU had publicly stated that current data protection provisions in India are not sufficient enough, and that India is not considered to be 'data secure'.<a href="#fn3" name="fr3">[3]</a> If the recommendations in the report are turned into legislation, among other things, individuals in India will have a right to privacy and a right to redress for violations of privacy.</p>
<p style="text-align: justify; "><b>Governmental Interception</b>: In early 2013 it was revealed that the Ministry of Home Affairs ordered interception of 10,000 phones and 1300 email ids during October 2012 to December 2012.<a href="#fn4" name="fr4">[4]</a> Continuing its efforts to access all communications, in May 2012, the Government of India gave service providers a month to develop a method for intercepting calls using VoIP services.<a href="#fn5" name="fr5">[5]</a> In February 2012 the Telecom Department proposed a new set of security guidelines that would allow for real time interception of communications and the tracking of the location of users. Among other things, the proposal establishes telecom security assurance and testing labs for the purpose of testing and certifying telecom equipment.<a href="#fn6" name="fr6">[6]</a> Additionally, in October of 2012, Bharti Airtel refused to wiretap telephones for RAW. The Department of Telecommunications eventually ordered Bharti Airtel to comply with the order, which they did.<a href="#fn7" name="fr7">[7]</a> The events around interception in 2012 show that the Indian government is still trying to gain access to as much information as possible. The constant push for real time access by the government is concerning, as many safeguards are missing from the Indian interception regime such as, penalty to security agencies for unauthorized interception and avenues of redress for the individual.</p>
<p style="text-align: justify; "><b>The RIM Standoff</b>: Since 2008, the Indian government has been negotiating with RIM access to BlackBerry communications. Over the years, a number of solutions have been proposed by RIM and the GoI, yet a final agreement was never reached. Continuing the negotiations, In October 2012, RIM agreed to set up a server in Mumbai, which would allow security agencies to access Blackberry Messenger services.<a href="#fn8" name="fr8">[8]</a> Blackberry also provided a solution that would allow access to Blackberry Internet Services.<a href="#fn9" name="fr9">[9]</a> Following this, the Government of India mandated that Telecom Service Providers must incorporate the Blackberry interception solution, or risk being forced to shut their service by December 31, 2012. In compliance with this order, many service providers have set time frames for incorporation of the interception solution including and installed the necessary software.<a href="#fn10" name="fr10">[10]</a> It is important to note that the lawful access solutions provided do not extend to the Blackberry Enterprise Server.<a href="#fn11" name="fr11">[11]</a> Though it seems that the BlackBerry controversy might be resolved, the solution does not appear to be a long term solution, as BES communications are still not accessible, and the solution is not universal for all international providers. Thus, the Indian government will have to negotiate individually with each provider and service that they currently cannot access communications of.</p>
<p style="text-align: justify; "><b>The Nira Radia Controversy:</b> Continuing the Nira Radia controversy, which began in 2008-2009, in September 2012 the Supreme Court ordered the Income Tax Department to transcribe the 5,831 recorded conversations that were originally intercepted by the department. In January this year, the Supreme Court of India ordered that a "random check" be run through the Radia Tapes to check for instances of possible criminality.<a href="#fn12" name="fr12">[12]</a> This case has become an important moment for privacy in India, as it intersects the dilemma between the right to privacy and public interest. Since 2010, Ratan Tata has been claiming that his right to privacy was violated by the publishing of the leaked tapes.<a href="#fn13" name="fr13">[13]</a> The Supreme Court’s final decision will be important for drawing another contour of how the right to privacy is shaped in India.</p>
<p style="text-align: justify; "><b>The Centralized Monitoring System</b>: In 2012 the Telecom Ministry set aside Rs. 400 crore for the Central Monitoring System, which is projected to be finished by August 2014.<a href="#fn14" name="fr14">[14]</a> The project, which first began in 2007, is envisioned to allow security agencies to bypass service providers and intercept communications on their own. The system is designed to have regional databases and a central database which will be accessible to law enforcement and security agencies. Privacy concerns related to the project include how the system will incorporate current legal regulations for interception in India, as a system that bypasses service providers essentially means that every communication can be read by law enforcement. Furthermore, it is not clear exactly who, and on what conditions will officials be allowed and authorized to access and use the system. The exact capabilities of the system have also not been identified. For example, will the CMS be able to intercept VoIP calls, will it be able to decrypt messages, and will it employ techniques such as Deep Packet Inspection.</p>
<p style="text-align: justify; "><b>Unmanned Aerial Vehicles (UAVs):</b> Since the late 90’s the Defense Research Development Organisation (DRDO) has been developing UAV’s for military purposes, and before this, India was acquiring UAV’s from Israel.<a href="#fn15" name="fr15">[15]</a> Since that time there has been an increase in domestic companies and institutes developing UAVs, and an increase in the procurement of the technology by state police for generic reasons purposes as crowd control, traffic management, and security. For example, in August of 2012 the city of Mumbai used the UAV "Netra", as part of their security protocol during the Raj Thackeray rally to capture and send real time images back to the police. Netra is manufactured by the company Idea Forge.<a href="#fn16" name="fr16">[16]</a> The Mumbai police also used the Netra in September 2012 after the Azad Maidan riots, and again on New Year’s Eve to monitor and track crime such as sexual harassment.<a href="#fn17" name="fr17">[17]</a> Similarly, Chennai city police are looking to procure from Anna University a UAV developed by the Madras Institute of Technology. The UAV will be used to assist in traffic monitoring and control.<a href="#fn18" name="fr18">[18]</a> The increased procurement and use of UAV’s by state police is concerning as there is no clear legal regulation over the deployment of the vehicles. Thus, they have shifted from being used as a tool by the military, and are being used for monitoring traffic, crowd monitoring, etc. Furthermore, the process for authorization for use of the vehicles is not clear, and it is not clear how the captured information is protected and handled. Though UAV’s are clearly a useful tool for the military, for military purposes, the permitted use of them by other actors should be defined and regulated. The use of UAV’s for generic purposes could place individual privacy at risk, because of the amount of information and the level of detail that the vehicles are able to capture without the knowledge of the individual.</p>
<p style="text-align: justify; "><b>The National Intelligence Grid (NATGRID):</b> Plans for the NATGRID project, which was first piloted after the Mumbai attacks, has been continuing forward through 2012 and is envisioned to be operational sometime in 2013. During 2012, a detailed project report was submitted for the project, and in June the government approved Rs. 1,100 crore for purchase of technological equipment.<a href="#fn19" name="fr19">[19]</a> NATGRID is a project that envisions networking 21 databases for purposes of crime investigation including tax, health, and travel information. The information will be accessible to 11 security agencies and law enforcement agencies. Though it has been clarified that NATGRID will ensure that privacy is protected, the design of NATGRID is one that could create potential risks – as it brings together large amounts of personal data for easy access by security agencies. In doing so it could potentially eliminate the steps security agencies must take currently to access information – such as submitting a request and obtaining permission for access. Furthermore, it is unclear how current legal protections such as secrecy clauses in banking legislation will be incorporated and upheld by the NATGRID system. Other questions that the project raises include – though currently there are only eleven agencies listed that will have access to NATGRID – will this list expand? Without a policy in place how will this standard and other standards be enforced?</p>
<p style="text-align: justify; "><b>The Crime and Criminal Tracking Network & System (CCTNS): </b>Though the CCTNS project has been in the works since 2009, a call for companies to develop the technology for the system was taken in early 2012, and pilot projects were launched later that year. The CCTNS is being headed by the National Crime Records Bureau, and will allow for the sharing of crime related information on a national level, in real time. In 2012, the system was allocated 2,000 crores by the government, and currently 2,000 police stations and other offices have been connected under the system.<a href="#fn20" name="fr20">[20]</a></p>
<p style="text-align: justify; ">For example, police in Chhattisgarh,<a href="#fn21" name="fr21">[21]</a> Uttarakhand<a href="#fn22" name="fr22">[22]</a> and Odisha have all been connected to the CCTNS system.<a href="#fn23" name="fr23">[23]</a> Though it will be beneficial for the police to have access to a networked system, it has not been made clear yet what type of security system the project will adopt to ensure that the information is not compromised or accessed without authorization. It has also not been clarified what information will be placed on the database, and will all records be accessible to any individual accessing the system. Because the project is still in pilot stages it is hard to tell if it could put individual privacy at risk. Hopefully, before the project is realized in its full, many of the details will be clarified.</p>
<p style="text-align: justify; "><b>The Growth of CCTVs:</b> Throughout 2012 the use of CCTV’s has continued to grow across India. For example, the Maharashtra government has undertaken a "CCTV surveillance project" in which it is in the process of taking bids for.<a href="#fn24" name="fr24">[24]</a> The state of Karnataka is also planning on installing CCTV cameras in Bangalore and other major cities to help detect incidents of crime.<a href="#fn25" name="fr25">[25]</a> While the Delhi Transport Department is contemplating installing CCTVs in buses,<a href="#fn26" name="fr26">[26]</a> and the Indian Rail Authorities have also decided to install CCTVs throughout stations to increase security.<a href="#fn27" name="fr27">[27]</a> There still does not exist regulation of the use of CCTV cameras, thus it is unclear who can operate a CCTV camera, which departments of the government can mandate for the installation of CCTVs, if public notice must be given that a CCTV camera is in use, and who can access the footage from a CCTV.</p>
<p style="text-align: justify; "><b>Study on Privacy Perceptions</b>: In a study that came out in December 2012 by Ponnurangam K, among other things, it was found that 75 per cent of participants never read the privacy policy on a website – including social networking sites, participants also thought that there was a privacy legislation in place in India, and that individuals in India are most concerned about financial privacy.<a href="#fn28" name="fr28">[28]</a></p>
<p style="text-align: justify; "><b>The National Counter Terrorism Centre (NCTC):</b> The NCTC was originally created in response to the Mumbai terror attacks, under the Unlawful Prevention Act, 1967. The NCTC was meant to be realized in 2012, but in March, plans for the Centre were put on hold, because of the controversial nature of the project.<a href="#fn29" name="fr29">[29]</a> The Centre was meant to bring Indian intelligence agencies under one umbrella, and analyze and store information related to terrorism. The proposed body has been highly controversial, as states object to the powers given to the Centre and see it as intruding on their powers and jurisdiction. If passed, the NCTC will have the powers of arrest, search and seizure, and the ability to access information from other intelligence agencies.<a href="#fn30" name="fr30">[30]</a></p>
<p style="text-align: justify; "><b>The Leaked DNA Profiling Bill:</b> In 2012, a version of the DNA Profiling Bill, originally drafted in 2007, was leaked to the public. The Bill is being piloted by the department of biotechnology, and seeks to establish DNA databases at the regional and central level for forensic purposes, yet the Bill does not establish strong protections for the privacy of DNA samples taken and important technical standards for ensuring that DNA samples are not misused or tampered with.<a href="#fn31" name="fr31">[31]</a> What will happen to the Bill in 2013 is yet to be seen, but hopefully it will not be passed without the appropriate safeguards incorporated into its provisions.</p>
<p style="text-align: justify; "><b>The Unique Identification Project and the National Population Registrar:</b> Throughout 2012, the UID has continued to carry out enrollments across the country, and sign MoU's with private sector companies for the adoption of the UID platform. Parallel to the UID project, the NPR project is also being implemented. The NPR seeks to provide every citizen of India with an identity that will be stored in an identity database maintained by the Registrar General and Census Commissioner of India.<a href="#fn32" name="fr32">[32]</a> According to the NPR scheme, individuals who had already enrolled with the UID and given their biometrics would not need to re-submit their biometrics with the NPR. Yet, this has not been the case, and instead individuals are now being required to provide their biometrics for enrollment with the UID and the NPR.<a href="#fn33" name="fr33">[33]</a></p>
<p style="text-align: justify; ">Privacy has been raised as a concern of the UID since the start of the project. For both the UID and the NPR now the transaction record will be stored by agencies, and whether it will be possible to track individuals across databases using their NPR or UID identity?</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. The Report of Group of Experts on Privacy. See <a class="external-link" href="http://bit.ly/VqzKtr">http://bit.ly/VqzKtr</a></p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. Tikku, A., "RTI doesn’t trample upon privacy, says expert panel", Hindustan Times, October 29, 2012, available at <a class="external-link" href="http://bit.ly/TNAzRF">http://bit.ly/TNAzRF</a>, last accessed on January 8, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Sen, A. India protests European Union study of data laws. Economic Times. July 9, 2012, available at <a class="external-link" href="http://bit.ly/Y9ahHs">http://bit.ly/Y9ahHs</a>, last accessed on January 8, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. Harismran, J., Thomas, J. "Home Ministry ordered 10k wire taps in last 90 days, order tapping of 1300 email Ids", The Economic Times, January 3,<sup></sup> 2013, available at <a class="external-link" href="http://bit.ly/TKk7yN">http://bit.ly/TKk7yN</a>, last accessed on January 7th 2013.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>].The Economic Times, "Provide solution to intercept VoIP within a month: Govt", May 6, 2012, available at <a class="external-link" href="http://bit.ly/VQDQ4k">http://bit.ly/VQDQ4k</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. The Economic Times, "New policy for real time interception to security agencies", February 1, 2012, available at <a class="external-link" href="http://bit.ly/11DrlvB">http://bit.ly/11DrlvB</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. The Economic Times, "RAW irked as Airtel keeps its request for phone tapping on hold", October 21, 2012, available at <a class="external-link" href="http://bit.ly/12IujhF">http://bit.ly/12IujhF</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Reyes, D., "RIM installs BlackBerry server in Mumbai", CrackBerry, February 23, 2012, available at <a class="external-link" href="http://bit.ly/yBQsSo">http://bit.ly/yBQsSo</a></p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. Economic Times, "DoT makes telecom operators fall in line on Blackberry issue", December 30, 2012, available at <a class="external-link" href="http://bit.ly/1169ufn">http://bit.ly/1169ufn</a></p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Economic Times, "MTNL, BSNL fail to give dates for Blackberry interception", October 29, 2012, available at <a class="external-link" href="http://bit.ly/1169ufp">http://bit.ly/1169ufp</a>, last accessed on January 7, 2012.</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. The Economic Times, "Telecom companies agreed to provide real-time intercept facilities for BlackBerry smartphones", December 31, 2012, available at <a class="external-link" href="http://bit.ly/Y9gjYt">http://bit.ly/Y9gjYt</a>, last accessed on January 7, 2012.</p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. Mahapatra, D., "SC to examine Radia tapes for criminality", Times of India, January 9, <sup></sup> 2013, available at <a class="external-link" href="http://bit.ly/VD7eWX">http://bit.ly/VD7eWX</a></p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. Times of India, "Ratan Tata softens stand on Radia tapes", August 23, 2012, available at <a class="external-link" href="http://bit.ly/158CZxl">http://bit.ly/158CZxl</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. The Economic Times, "Govt. to place phone tapping system worth Rs. 400 cr by 2014", March 21, 2012, available at <a class="external-link" href="http://bit.ly/V2P9q6">http://bit.ly/V2P9q6</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. Monsonis, G., "UAVs gaining currency with Indian Armed Forces", Indian Defence Review, October 30, 2012, available at <a class="external-link" href="http://bit.ly/KVYyIr">http://bit.ly/KVYyIr</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. Mumbai Mirror, "Raj Thackeray’s mega rally: Unmanned Aerial Vehicle kept an eye on Azed Maidan", Economic Times, August 22, 2012, available at <a class="external-link" href="http://bit.ly/PYTGAG">http://bit.ly/PYTGAG</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr17" name="fn17">17</a>].Ali, A. & Narayan. V., "Netra cameras to keep a close watch , over New Year’s Eve hotspots", Times of India, December 31, 2012, available at <a class="external-link" href="http://bit.ly/Z7orxt">http://bit.ly/Z7orxt</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr18" name="fn18">18</a>]. Venugopal, V., "It flies, it swoops, it records and monitors", The Hindu, December 20, 2012, available at <a class="external-link" href="http://bit.ly/V89sLo">http://bit.ly/V89sLo</a>, last accessed January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr19" name="fn19">19</a>]. The Economic Times, "Cabinet Committee on Security approves Rs. 1,100 crore for NATGRID", June 14, 2012.</p>
<p style="text-align: justify; ">[<a href="#fr20" name="fn20">20</a>]. Mohan, V., "Centre launches pilot project to track criminals", The Times of India, January 5, 2013, available at <a class="external-link" href="http://bit.ly/UPk2fh">http://bit.ly/UPk2fh</a></p>
<p style="text-align: justify; ">[<a href="#fr21" name="fn21">21</a>]. The Pioneer, "Civil Lines Police Station gets connected with CCTNS", January 2012, available at <a class="external-link" href="http://bit.ly/VRXKGJ">http://bit.ly/VRXKGJ</a></p>
<p style="text-align: justify; ">[<a href="#fr22" name="fn22">22</a>]. CIOL Bureau, "CCTNS to be made public through internet: Dehradun DGP", January 4, 2012, available at <a class="external-link" href="http://bit.ly/X4JISx">http://bit.ly/X4JISx</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr23" name="fn23">23</a>]. The Hindu, "Odisha to launch CCTNS on January 12", January 7, 2013, available at <a class="external-link" href="http://bit.ly/Vd9Ay1">http://bit.ly/Vd9Ay1</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr24" name="fn24">24</a>]. Padmakshan, M., "Maharashtra plans to invite new bids for CCTV surveillance project", September 18, 2012, available at <a class="external-link" href="http://bit.ly/VRYrQm">http://bit.ly/VRYrQm</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr25" name="fn25">25</a>]. Ashoka, R., "Karnataka to install CCTV cameras in Bangalore, major cities", Economic Times. July 26, 2012, available at <a class="external-link" href="http://bit.ly/11Dxt6Z">http://bit.ly/11Dxt6Z</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr26" name="fn26">26</a>]. Economic Times, "Buses to come with CCTV cameras for safety of women: Delhi government", December 17, 2012, available at <a class="external-link" href="http://bit.ly/158Gtjo">http://bit.ly/158Gtjo</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr27" name="fn27">27</a>]. Economic Times, "Railways to step by security apparatus at stations", February 15, 2012, available at <a class="external-link" href="http://bit.ly/11DxSX8">http://bit.ly/11DxSX8</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr28" name="fn28">28</a>]. Times of India, "Most Indians ignorant about privacy issues on Facebook, Twitter: Study", December 10, 2012, available at <a class="external-link" href="http://bit.ly/X4KVt1">http://bit.ly/X4KVt1</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr29" name="fn29">29</a>]. Kumar, H., "Does India Need a National Counter Terrorism Center?", The New York Times, India Ink, February 28, 2012, available at <a class="external-link" href="http://nyti.ms/A5VU5P">http://nyti.ms/A5VU5P</a></p>
<p style="text-align: justify; ">[<a href="#fr30" name="fn30">30</a>]. Times of India. CM to attend National Counter- Terrorism Centre Meet in Delhi. May 4, 2012, available at <a class="external-link" href="http://bit.ly/12IDoH9">http://bit.ly/12IDoH9</a>, last accessed on January 8, 2012.</p>
<p style="text-align: justify; ">[<a href="#fr31" name="fn31">31</a>]. Hickok, E., "Rethinking DNA Profiling in India", Economic Political Weekly, October 27, 2012, available at <a class="external-link" href="http://bit.ly/TUrH7j">http://bit.ly/TUrH7j</a>, last accessed on January 7, 2013.</p>
<p style="text-align: justify; ">[<a href="#fr32" name="fn32">32</a>]. Department of Information Technology, "National Population Register", available at <a class="external-link" href="http://bit.ly/12rzyOh">http://bit.ly/12rzyOh</a></p>
<p style="text-align: justify; ">[<a href="#fr33" name="fn33">33</a>]. Pandit, A., "NPR must even if you have Aadhar number", Times of India, October 31, 2012, available at <a class="external-link" href="http://bit.ly/Y9oXGq">http://bit.ly/Y9oXGq</a>, last accessed on January 8, 2013.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/privacy-highlights-in-india'>https://cis-india.org/internet-governance/privacy-highlights-in-india</a>
</p>
No publisherelonnaiInternet GovernancePrivacy2013-02-12T12:39:05ZBlog Entry2012 in Review: Biometric ID Systems Grew Internationally...and So Did Concerns about Privacy
https://cis-india.org/news/rightsidenews-rebecca-bowe-january-1-2013
<b>As the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2012 and discussing where we are in the fight for free expression, innovation, fair use, and privacy.</b>
<hr />
<p>The blog entry was published in <a class="external-link" href="http://www.rightsidenews.com/2013010131665/us/homeland-security/2012-in-review-biometric-id-systems-grew-internationally-and-so-did-concerns-about-privacy.html">Right Side News</a> on January 1, 2013</p>
<hr />
<p style="text-align: justify; ">Around the world, systems of identification that employ automatic recognition of individuals’ faces, fingerprints, or irises are gaining ground. Biometric ID systems are increasingly being deployed at international border checkpoints, by governments seeking to implement national ID schemes, and by private-sector actors. Yet as biometric data is collected from more and more individuals, privacy concerns about the use of this technology are also attracting attention. Below are several examples of the year’s most prominent debates around biometrics.</p>
<ul>
<li style="text-align: justify; ">FRANCE: In early March, the French National Assembly (<i>Assemblée Nationale</i>) passed a law proposing the creation of a new biometric ID card for French citizens, saying the measure would combat “identity fraud.” Embedded in the cards would be a compulsory chip containing personal information such as fingerprints, a photograph, home addresses, height, and eye color. All of this information would be stored in a central database. French Senator François Pillet called the initiative <a href="https://www.eff.org/deeplinks/2012/03/french-national-assembly-proposes-new-alarming-biometrics-bill">a time bomb for civil liberties</a>. Near the end of March, however, the French Constitutional Council ruled that the new law proposing the introduction of a new biometric ID for French citizens <a href="http://edri.org/edrigram/number10.6/french-biometric-database-unconstitutional">was unconstitutional</a>.</li>
</ul>
<ul>
<li style="text-align: justify; ">MEXICO: Documents obtained by EFF under Mexico’s Transparency and Access to Information Act show that as of May, nearly 4 million minors had been enrolled into registries associated with <a href="https://www.eff.org/deeplinks/2012/08/despite-privacy-concerns-mexico-continues-scanning-youth-irises-id-cards">a new Mexican ID card for youths</a>. Billed as a document that can help streamline registration in schools and health facilities, Mexico’s Personal ID Card for minors comes embedded with digital records of iris images, fingerprints, a photograph, and a signature. Despite concerns about privacy implications raised by organizations such as the Federal Institute for Access to Public Information, the Mexican government is now poised to launch the next step of the project - extending the ID cards to adults.</li>
<li style="text-align: justify; ">EUROPEAN UNION: The issue of privacy concerns surrounding biometric passports in Europe made its way to the European Court of Justice (ECJ), the highest court in the European Union. In September, the Dutch Council of State (<i>Raad van State, </i>the highest Dutch administrative court) <a href="http://www.raadvanstate.nl/pers/persberichten/persbericht/?pressmessage_id=202">asked</a> the ECJ to decide if the regulation requiring fingerprints in passports and travel documents violates citizens’ right to privacy. The case entered a Dutch court after three Dutch citizens were denied passports, and another citizen was denied an ID card, for refusing to provide their fingerprints. The ECJ ruling will play an important role in determining the legality of including biometrics in passports and travel documents in the European Union.</li>
<li style="text-align: justify; ">INDIA: The Unique Identity Authority of India (UIDAI) continued collecting fingerprints, facial photographs, and iris scans from Indian residents for its massive unique ID endeavor, known as Aadhaar, which will result in <a href="https://www.eff.org/deeplinks/2012/09/indias-gargantuan-biometric-database-raises-big-questions">the world’s largest biometric database</a> and will compile 10 times as much data as all of Facebook.<br /><br />The program is moving forward at a rapid clip despite privacy concerns raised by advocates such as the Centre for Internet and Society in India, and the Indian Parliament. In addition, <a href="https://cis-india.org/news/are-your-biometric-i-cards-stacked-against-you">a slew of other government agencies</a> have moved ahead with biometric collection programs of their own. And just this past week, Visa and a group of Indian banks unveiled the “Saral Money” account, which <a href="http://www.finextra.com/News/FullStory.aspx?newsitemid=24379">links individuals’ Aadhaar numbers with credit card transactions</a> and introduces a further complication into the privacy concerns inherent in this massive e-government endeavor.</li>
</ul>
<p>Source: EFF</p>
<ul>
</ul>
<p>
For more details visit <a href='https://cis-india.org/news/rightsidenews-rebecca-bowe-january-1-2013'>https://cis-india.org/news/rightsidenews-rebecca-bowe-january-1-2013</a>
</p>
No publisherpraskrishnaInternet Governance2013-01-17T04:40:00ZNews Item2011: The year India began to harness social media
https://cis-india.org/news/2011-the-year-india-began-to-harness-social-media
<b>About half a decade ago, netizens began to expand their online presence by forging new relationships, rediscovering old ones and sharing information and content on what came to be collectively termed as social media. The year gone by marked a new milestone for this social media phenomenon, which saw a paradigm shift from merely being a networking platform to becoming a political tool, writes Satarupa Paul in the Sunday Guardian on 1 January 2012.</b>
<p>2011 was a year of diametrically contradictory events, however, what joined these diverse proceedings together was their concurrent presence in social media, which attracted users to its growing landscape, changing forever the ways in which we connect and interact online.</p>
<p>An infographic by <em>Search Media Journal </em>showed that registered users on social networking premier Facebook grew more than 80% in the past year, taking the count to 640 million people. It said that if Facebook were a country, it would be the world's third largest, after China and India. Interestingly, microblogging site Twitter saw a whopping growth of more than 250% in the number of tweets per day. Social media penetration increased by 3% in India to more than 38 million users. Social media agency We Are Social says that India now has the second-highest number of LinkedIn users and the fourth-highest number of Facebook users in the world. However, a fascinating aspect of the growth in India's social media landscape is that most of it has been achieved by mobile subscription, which jumped by 71% in 2011.</p>
<p>Nishant Shah, Director of Research at the Centre for Internet and Society, Bangalore, identifies three important social media trends for India in 2011, which can be extended to the rest of the world. "Firstly, we saw an increased sharing of digital content whether photos, videos, songs, news or blogs," he says, pointing to the <em>Why This Kolaveri Di </em>video, which went viral on YouTube with over 1.3 million views within a week of its release. "The second and most prominent trend was the mobilisation of masses towards particular causes," Shah says. Twitter and Facebook helped gather mass support for the Anna Hazare movement in India. Even the Arab Spring uprisings, notably in Tunisia, Egypt and elsewhere in the Middle East, relied heavily on social media, as did the Occupy Wall Street protests, where Twitter established itself as a communicator of the movement.</p>
<p class="callout">"The third aspect is the draconian censorship measures that followed as governments realised the threats they faced from social media platforms.The mobilisation on social media that ultimately translated into protests saw a critical mass being achieved, which made governments take notice and impose the draconian rules."</p>
<p>"The third aspect is the draconian censorship measures that followed as governments realised the threats they faced from social media platforms," says Shah. Anja Kovacs of The Internet Democracy Project explains, "To understand what led to the censorship rules being enforced in the last one year, one has to understand the concept of critical mass." She says that for a medium to become effective, it has to reach a threshold of people active on it. "The mobilisation on social media that ultimately translated into protests saw a critical mass being achieved, which made governments take notice and impose the draconian rules," she said. In Egypt, President Hosni Mubarak attempted to cut off the Internewwt, betraying his fear of this arsenal of social networking, while in India, the Minister for Communications and Information Technology, Kapil Sibal, demanded that Internet firms should self-censor users' content. Kovacs says, "This was an extension of the Information Technology Rules introduced in April 2011, which requires intermediaries like Facebook, Google, etc., to remove any content if an individual complains against it on flimsy grounds like 'disparaging' or 'harmful for children'."</p>
<p>Most of these censorship attempts have only backfired, with social media users vehemently opposing and criticising them. But with pressure mounting from governments to curtail content, social media experts hope that 2012 will be a better year for one's freedom on the web. "I hope that social media remains as open as it is now and doesn't fall victim to the draconian measures," Shah says. Kovacs agrees, "Instead of censorships on weak arguments, we should try and have wider debates in society about what should be allowed and what not. Hope we will be able to achieve broader agreements in the coming year."</p>
<p><a class="external-link" href="http://www.sunday-guardian.com/technologic/2011-the-year-india-began-to-harness-social-media">The original article was published in the Sunday Guardian </a></p>
<p>
For more details visit <a href='https://cis-india.org/news/2011-the-year-india-began-to-harness-social-media'>https://cis-india.org/news/2011-the-year-india-began-to-harness-social-media</a>
</p>
No publisherpraskrishnaInternet Governance2012-01-04T07:19:07ZNews Item377 Bites the Dust: Unpacking the long and winding road to the judicial decriminalization of homosexuality in India
https://cis-india.org/internet-governance/blog/socio-legal-review-national-law-school-of-india-university-agnidipto-tarafder-and-arandrajit-basu-377-bites-the-dust
<b>An informal case comment tracing the journey and assessing the societal implications the recent 377 (Navtej Johar v Union of India).</b>
<p style="text-align: justify; ">The <a class="external-link" href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/">article was published in Socio-Legal Review</a>, a magazine published by National Law School of India University on October 11, 2018.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><b>Introduction</b></p>
<p style="text-align: justify; ">After a prolonged illness due to AIDS-related complications, the gregarious Queen front-man Farrokh Bulsara (known to the world as Freddie Mercury) breathed his last in his home in Kensington, London in 1991. Despite being the symbol of gay masculinity for over a decade, Mercury never explicitly confirmed his sexual orientation-for reasons that remain unknown but could stem from prevailing social stigma. Occluded from public discourse and shrouded in irrational fears, the legitimate problems of the LGBT+ community, including the serial killer of HIV/AIDS was still relegated to avoidable debauchery as opposed to genuine illness. Concerted activism throughout the 90’s-depicted on the big screen through masterpieces such as <i>Philadelphia,</i> alerted the Western public of this debacle, which lead to a hard-fought array of rights and a reduction of social ostracization at the turn of the century for the LGBT+ community across western countries. This includes over two dozen countries that have allowed same-sex marriages and a host of others that recognize civil union between same-sex partners in some form.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn1"><sup>[1]</sup></a></p>
<p style="text-align: justify; ">On 6<sup>th</sup> September, 2018, Section 377 of the Indian Penal Code – a colonial era law that criminalized “carnal intercourse against the order of nature” bit the dust in New Delhi, at the hands of five judges of the Supreme Court of India (<i>Navtej Johar v Union of India</i>).<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn2"><sup>[2]</sup></a> Large parts of the country celebrated the restoration of the ideals of the Indian Constitution. It was freedom, not just for a community long suppressed, but for the ethos of our foundation that for a century suffered this incessant incongruity. The celebrations were tempered, perhaps by a recognition of how long this fight had taken, the unnecessary hurdles – both judicial and otherwise – that were erected along the way, and a realization of the continued suffering this community might have to tolerate till they truly earn the acceptance they deserve. While the judgment will serve as a document that signifies the sanctity of our constitutional ethos, in the grander scheme of things it is still but a small step, with the potential to catalyze a giant leap forward. For our common future, it is imperative that the LGBT+ community does not undertake this leap alone but is accompanied by the rest of the nation- a nation that recognizes the travails of this long march to freedom.</p>
<p style="text-align: justify; "><b>Long March to Freedom</b></p>
<p style="text-align: justify; "><b> </b>Modelled on the 1533 Buggery Act in the UK, Section 377 was introduced into the Indian Penal Code by Thomas Macaulay, a representative of the British Raj. While our colonial masters progressed in 1967, the hangover enmeshed in our penal laws lingered on. Public discourse on this legal incongruity emerged initially with the publication of a report titled <i>Less than Gay: A Citizens Report on the Status of Homosexuality in India</i>, spearheaded by activist Siddhartha Gautam, on behalf of the AIDS Bhedbav Virodhi Andolan (ABVA) that sought to fight to decriminalise homosexuality and thereby move towards removing its associated stigma.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn3"><sup>[3]</sup></a> The ABVA went on to file a petition for this decriminalisation in 1994. The judicial skirmish continued in 2001 with the Naz Foundation, a Delhi-based NGO that works on HIV/AIDS and sexual health, filing a petition by way of Public Interest Litigation asking for a reading down of the Section. The Delhi High Court initially dismissed this petition – stating that the foundation had no <i>locus standi.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn4"><b>[4]</b></a></i> Naz Foundation appealed against this before the Supreme Court, which overturned the dismissal on technical grounds and ordered the High Court to decide the case on merits.</p>
<p style="text-align: justify; ">The two-judge bench of the Delhi High Court held that Section 377 violated privacy, autonomy and liberty, ideals which were grafted into the ecosystem of fundamental rights guaranteed by Part-III of the Indian Constitution.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn5"><sup>[5]</sup></a> It stated that the Constitution was built around the core tenet of inclusiveness, which was denigrated by the sustained suppression of the LGBT+ community. It was an impressive judgment, not only because of the bold and progressive claim it made in a bid to reverse a century and a half of oppression, but also because of the quality of the judgment itself. It tied in principles of international law, along with both Indian and Foreign judgments in addition to citing literature on sexuality as a form of identity. For a brief while, faith in the ‘system’ seemed justified.</p>
<p style="text-align: justify; ">Hope, however, is a fickle friend. Four years from the day, an astrologer by the name of Suresh Kumar Koushal challenged the Delhi High Court’s verdict.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn6">[6]</a> Some of the reasons behind this challenge would defy any standard sense of rationality. These included national security concerns – as soldiers who stay away from their families<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn7"><sup>[7]</sup></a> may enter into consensual relationships with each other – leading to distractions that might end up in military defeats. Confoundingly, the Supreme Court’s verdict lent judicial legitimacy to Koushal’s thought process, as they overturned the <i>Naz Foundation</i> judgment and affirmed the constitutional validity of Section 377 on some truly bizarre grounds.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn8"><sup>[8]</sup></a> Indian constitutional tradition permits discrimination by the state only if classification is based on an <i>intelligible differential</i> between the group being discriminated against from the rest of the populace; having a <i>rational nexus</i> with a constitutionally valid objective. To satisfy this threshold, the Supreme Court stated, without any evidence, that there are two classes of people-those who engage in sexual intercourse in the ‘ordinary course’ and those who do not- thereby satisfying the intelligible differential threshold.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn9"><sup>[9]</sup></a> As pointed out by constitutional law scholar Gautam Bhatia, this differential makes little sense – an extrapolation of this idea could indicate that intercourse with a blue-eyed person was potentially not ‘ordinary’, since the probability of this occurring is rare.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn10"><sup>[10]</sup></a> The second justification was based on numbers. The Court argued that statistics pointed to the fact that only 200 people had been arrested under this law, which suggested that it was largely dormant and hence, discrimination doesn’t get established <i>per se</i>.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn11">[11]</a> In other words, a plain reading of the judgement might lead one to conclude that the random arrests of a small number of citizens would be constitutionally protected, so long it does not overshoot an arbitrarily determined <i>de minimis</i> threshold! The judgment seemed to drag Indian society ceaselessly into the past. This backward shift internally was accompanied by international posturing by India that opposed the recent wave of UN resolutions which sought to advocate LGBT+ rights.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn12"><sup>[12]</sup></a></p>
<p style="text-align: justify; ">Thankfully, there remained a way to correct such Supreme Court induced travesties, through what is known as a curative petition, a concept introduced by the Court itself through one of its earlier judgements.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn13">[13]</a> Needless to mention, such a petition was duly filed before the Court.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn14">[14]</a> While this curative petition was under consideration, last August, a 9-judge bench of the Court spun some magic through a landmark judgment in <i>Just. (Retd.)</i> <i>K S Puttuswamy v Union of India</i><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn15"><sup>[15]</sup></a> which stated that the ‘right to privacy’ was a recognised fundamental right as per the Indian Constitution. The judgment in <i>Koushal</i> was singled out and criticised by Justice Chandrachud who asserted the fact that an entire community could not be deprived of the dignity of privacy in their sexual relations.</p>
<p style="text-align: justify; ">Strategically, this was a master-class. While the right to privacy cannot alone serve as the justification for allowing individuals to choose their sexual orientation, in several common law nations including the UK<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn16"><sup>[16]</sup></a> and the USA<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn17"><sup>[17]</sup></a>, privacy has served as the initial spark for legitimizing same-sex relations. A year before the privacy judgment was delivered, a group of individuals had filed a separate petition arguing that Section 377 violated their constitutional rights. The nature of this petition was intrinsically different<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn18"><sup>[18]</sup></a> from the Naz Foundation’s, since the Foundation had filed a ‘public interest litigation’ in a representative capacity whereas this petition affected individuals in their personal capacity, implying that the nature of the claim in each case was different.</p>
<p style="text-align: justify; ">The cold case file of this petition that crystallised into the iconic judgment delivered last week, was brought to the fore and listed for hearing in January 2018.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn19">[19]</a> Justice Chandrachud’s judgement in <i>Puttaswamy</i>, that tore apart the <i>Koushal</i> verdict, had no small role to play in the unfolding of this saga.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn20"><sup>[20]</sup></a></p>
<p style="text-align: justify; ">And so the hearings began. The government chose to not oppose the petition and allowed the court to decide the fate of Article 377.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn21">[21]</a> This was another convenient manoeuvre by the legislature, effectively shifting the ball into the judiciary’s court, shielding itself from potential pushbacks from its conservative voter-base. However, as public support for decriminalisation started pouring in from various quarters, leaders of religious groups were quick to make their opposition known, leaving the five judges on the bench to decide the fate of a community long suppressed through the clutches of an illegitimate law.</p>
<p style="text-align: justify; "><b>“<i>I am what I am</i>”: The judgement, redemption and beyond </b></p>
<p style="text-align: justify; ">“<i>The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons</i>.”<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn22"><sup>[22]</sup></a></p>
<p style="text-align: justify; ">Justice Indu Malhotra summed up her short judgement with this momentous pronouncement, adding that ‘<i>history owes an apology</i>’<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn23"><sup>[23]</sup></a> to the members of the LGBT+ community, for the injustices faced during these centuries of hatred and apathy. It seems fair to suggest that this idea of ‘righting the wrongs of the past’ became the underlying theme of the Supreme Court’s landmark verdict on the constitutionality of Section 377. Five judges, through four concurring but separate opinions, extracted the essence of the claim against this law – protecting the virtue of personal liberty and dignity. In doing so, it exculpated itself from the travesty of <i>Suresh Kaushal</i>, emancipating the ‘miniscule minority’ from their bondage before the law and took yet another step towards restoring faith in the ‘system’ of which the judiciary is currently positioning itself as the sole conscientious wing. Perhaps the only set of people shamed through this verdict were our parliamentarians, who on two separate occasions in the recent past had thwarted any chance of change when they opposed, insulted and ridiculed Dr. Shashi Tharoor while he attempted to introduce a Bill decriminalizing homosexuality on the floor of the House.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn24"><sup>[24]</sup></a></p>
<p style="text-align: justify; ">Earlier in the day, the Chief Justice, authoring the lead opinion for himself and Justice Khanwilkar, began with the ominous pronouncement that ‘denying self-expression (to the individual) was an invitation to death’,<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn25"><sup>[25]</sup></a> emphasizing through his long judgement the importance of promoting individuality in all its varied facets- in matters of choice, privacy, speech and expression.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn26"><sup>[26]</sup></a> Arguing strongly in support of the ‘progressive realization of rights’,<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn27"><sup>[27]</sup></a> which he identified as the soul of constitutional morality, the Chief Justice outlawed the ‘artificial distinction’ drawn between heterosexual and homosexual through the application of the ‘equality’ doctrine embedded in Articles 14 and 15.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn28"><sup>[28]</sup></a> Noting that the recent criminal law amendment recognizes the absence of consent as the basis for sexual offences, he pointed out the lack of a similar consent-based framework in the context of non peno-vaginal sex, effectively de-criminalizing ‘voluntary sexual acts by consenting adults’ as envisaged within the impugned law.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn29"><sup>[29]</sup></a> The Chief Justice went on to elaborate that the right to equality, liberty and privacy are inherent in all individuals, and no discrimination on grounds of sex would survive the scrutiny of the law.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn30"><sup>[30]</sup></a></p>
<p style="text-align: justify; ">Justice Nariman in his separate opinion charted out the legislative history behind the adoption of the Indian Penal Code. In his inimitable manner, he travelled effortlessly across time and space to source historical material and legislations, judicial decisions and literary critique from various jurisdictions to bolster the claim that the discrimination faced by homosexuals had no basis in law or fact.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn31"><sup>[31]</sup></a> For instance, referring to the Wolfenden Committee Report in the UK regarding decriminalisation of homosexuality which urged legislators to distinguish between ‘sin and crime’, the judge went on to lament the lives lost to mere social perception, including that of Oscar Wilde and Alan Turing.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn32"><sup>[32]</sup></a> Repelling the popular myth of homosexuality being a ‘disease’, he quoted from the Mental Healthcare Act, 2017, the US Supreme Court’s seminal judgment in <i>Lawrence v Texas<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn33"><sup><b>[33]</b></sup></a></i> and several other studies on the intersection of homosexuality and public health, dismissing this contention entirely. Justice Nariman, invoking the doctrine of ‘manifest arbitrariness’<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn34"><sup>[34]</sup></a> to dispel the notion that the law treating homosexuals was ‘different’. Since it was based on sexual identity and orientation, such a law was a gross abuse of the equal protection of the Constitution.</p>
<p style="text-align: justify; ">Justice Chandrachud, having already built a formidable reputation as the foremost liberal voice on the bench, launched a scathing, almost visceral attack against the idea of ‘unnatural sexual offence’ insofar as it applied to homosexuality.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn35"><sup>[35]</sup></a> Mirroring the concern first espoused by Justice Nariman about the chilling effect of majoritarianism, he wondered aloud what societal harm did a provision like Section 377 seek to prevent. In fact, his separate opinion is categorical in its negation of the ‘intelligible differentia’ between ‘natural’ and ‘non-natural’ sex, sardonically stating the perpetuation of heteronormativity cannot be the object of a law.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn36"><sup>[36]</sup></a></p>
<p style="text-align: justify; ">As an interesting aside, his judgement in <i>Puttaswamy</i> famously introduced a section called ‘discordant notes’<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn37"><sup>[37]</sup></a> which led an introspective Court to disown and overturn disturbing precedent from the past, most notably the Court’s opinion in the <i>ADM Jabalpur</i>,<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn38"><sup>[38]</sup></a> decided that the right to seek redressal for violation of Fundamental Rights remained suspended as a consequence of the National Emergency.</p>
<p style="text-align: justify; ">In a similar act of constitutional manipulation, he delved into a critique of the Apex Court’s judgement in the <i>Nergesh Meerza</i><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn39"><sup>[39]</sup></a> case. This was a decision which upheld the discriminatory practice of treating men and women as different classes of employees by Air India, denying the women employees certain benefits ordinarily available to men. The Court in <i>Nergesh Meerza</i> read the non-discrimination guarantee in Article 15 narrowly to understand that discrimination based on ‘sex alone’ would be struck down. He held that since the sexes had differences in the mode of recruitment, promotion and conditions of service, it did not tantamount to ‘merely sex based’ categorization and was an acceptable form of classification. In his missionary zeal to exorcise the Court of past blemishes, Dr. Chandrachud observed that interpreting constitutional provisions through such narrow tests as ‘sex alone’ would lead to denuding the freedoms guaranteed within the text. Though not the operative part of the judgement, one hopes his exposition of the facets of the equality doctrine and fallacies in reasoning in <i>Nargesh Meerza</i> will pave the way for just jurisprudence to emerge in sex discrimination cases in the future.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn40"><sup>[40]</sup></a></p>
<p style="text-align: justify; ">Reverting to the original issue, the judge addresses several key concerns voiced by the LGBT+ community through their years of struggle. He spoke of bridging the public-private divide by ensuring the protection of sexual minorities in the public sphere as well, wherein they are most vulnerable. Alluding to his opinion in <i>Puttaswamy</i>, he declares that <i>all people</i> have an inalienable right to privacy, which is a fundamental aspect of their liberty and the ‘soulmate of dignity’- ascribing the right to dignified life as a constitutional guarantee for one and all. Denouncing the facial neutrality<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn41"><sup>[41]</sup></a> of Section 377, insofar as it targets certain ‘acts and not classes of people’, his broad and liberal reading of non-discrimination goes beyond the semantics of neutrality and braves the original challenge- fashioning a justice system with real equality at its core.</p>
<p style="text-align: justify; "><b>Shall History Absolve Us?</b></p>
<p style="text-align: justify; ">Where to from here then? Can the 500 pages of this iconic judgment magically change the social norms that define the existence of LGBT+ communities in modern Indian society? If the reception of this judgement by the conservative factions within society is anything to go by, the answer is clear enough. Yet, the role of this judgment – in an ecosystem of other enablers – might just be a crucial first step. As noted by Harvard Law School professor Lawrence Lessig, law can create, displace or change the collective expectations of society by channelling societal behaviour in a manner that conforms with its contents.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn42"><sup>[42]</sup></a> An assessment of the impact of <i>Brown v Board of Education </i>on African-Americans offers an interesting theoretical analogy.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn43"><sup>[43]</sup></a></p>
<p style="text-align: justify; ">The unanimous decision of the US Supreme Court in <i>Brown </i>marked a watershed moment in American history that struck down the ‘<i>separate but equal</i>’ doctrine which served as the basis for segregation between communities of colour and the dominant White majority in American public schools. While this ruling initially faced massive resistance, it laid the edifice for progressive legislation such as the Civil Rights Act and the Voting Act a decade later.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn44"><sup>[44]</sup></a> While its true impact on evolving acceptable standards of social behaviour remains disputed with valid arguments on all sides, <i>Brown</i> kick-started a counter-culture that sought to wipe out the toxic norms that the Jim Crow-era had birthed in the 1950s. Along with subsequent decisions by the US Supreme Court, it acted as the catalyst that morphed the boundaries between ‘us’ and ‘them’. Republican Senator Barry Goldwater attempted to stifle this counterculture in 1964 by undertaking a sustained campaign that opposed the dictum in <i>Brown</i> not in opposition to African-Americans but instead in opposition to an overly intrusive federal government that was taking away from the cultural traditions and values, particularly of the South.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn45"><sup>[45]</sup></a> In the past few years, cultural apathy seems to have taken a more sinister turn as recent incidents of police violence and the rebirth of white supremacist movements indicate.</p>
<p style="text-align: justify; ">Lessons from a different context in an alternate society can never be transposed in another without substantial alterations. Discrimination is intersectional and a celebration of identity is a recognition of intersectionality. Therefore, the path ahead for the LGBT+ community lies in crafting a strategy that works for them – a strategy that can draw from lessons learned in other contexts. Last week’s judgment could morph into a point of reference for a counter-cultural movement that works to remove the stains of oppression. The key challenge is carrying this message to swathes of the populace who, goaded by leading public figures, continue to treat homosexuality as an unnatural phenomenon<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn46"><sup>[46]</sup></a>.</p>
<p style="text-align: justify; ">Being a majority Hindu nation, one possible medium of communication could be reference to ancient Hindu scriptures that do not ostracize individuals based on their sexual orientation but treat them as fellow sojourners on their path to <i>Nirvana, </i>the idea of spiritual emancipation, a central tenet of Hindu belief.<a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftn47"><sup>[47]</sup></a> Strategically, using this framework as a dangling carrot for religious conservatives may be a potential conversation starter but comes riddled with potholes, as the same scriptures could be interpreted to justify subjugation of women, for example. A more holistic approach might be reading these scriptures into the overarching foundation stone of society -The Indian Constitution, which is not a rigid, static document – stuck in the time of its inception – but is a dynamic one that responds to and triggers the Indian social and political journey. The burden of a constitution, as reiterated by Chief Justice Misra and Dr. Chandrachud is to ‘draw a curtain’ on the past of social injustice and prejudice and embrace constitutional morality, a cornerstone of which is the principle of inclusiveness. Inclusiveness driven by rhetoric in political speeches and storylines on the big screen. Inclusiveness that fosters symbiosis between the teachings of religious scriptures and that of Constitutional Law Professors – an inclusiveness that begets the idea of India, which is a fair deal for all Indians.</p>
<p style="text-align: justify; "><b>…And Justice for all?</b></p>
<p style="text-align: justify; ">In the aftermath of this decision come further legal challenges. Legally, while the ‘right to love’ has been vindicated, the right to formalise this union through societal recognition remains to be established. This judgement paves the way for the acceptance of homosexual relationships, but not necessarily the right to marry for a homosexual couple. There are passages within Justice Chandrachud’s visionary analysis which directly address this concern, and advocate for the ‘full protection’ of the law being extended to the LGBT+ populace. It will certainly be instructive for future courts, and one tends to remain hopeful that the long march to freedom for the LGBT+ community and its supporters will not come to a screeching halt through judicial intervention or State action. If anything, the wings of government should bolster these efforts, in view of this verdict.</p>
<p style="text-align: justify; ">That said, social acceptance seldom waits on the sanction of the law.</p>
<p style="text-align: justify; ">The outpouring of public support which was witnessed through public demonstrations, social media advocacy and concerted efforts from so many quarters to bring down this draconian law needs to continue and consolidate. There are evils yet, and the path to genuine inclusiveness in this country (as in most others) is littered with thorns. And even greater resistance is likely to emerge when tackling some of these issues, which tend to hit closer home than others.</p>
<p style="text-align: justify; ">While this judgement entered into detailed discussions on the issue of consent, it remained disquietingly silent on a most contentious subject, perhaps because it was perceived to be beyond the terms of reference. The exception of marital rape carved out in the Indian Penal Code, which keeps married relationships outside the purview of rape laws, remains as a curse – a reminder that gender equality in this nation will only come at tremendous human cost. The institution of family, that sacrosanct space which even the most liberal courtrooms in India have sought to protect, stands threatened. Malignant patriarchy will raise its head and claim its pound of flesh before the dust settles, and in the interest of freedom, it shall be up to the Apex Court to ensure that it settles on the right side of history. Else, all our progress, howsoever incremental, may be undone by this one stain on our collective conscience.</p>
<p style="text-align: justify; "> </p>
<p style="text-align: justify; ">*<i>Agnidipto Tarafder is an Assistant Professor of Law at the National University of Juridical Sciences, Kolkata, where he teaches courses in Constitutional Law, Labour Law and Privacy.</i></p>
<p style="text-align: justify; ">*<i>Arindrajit Basu recently finished his LLM (Public International Law) at the University of Cambridge and is a Policy Officer at the Centre for Internet & Society, Bangalore</i></p>
<p style="text-align: justify; ">_________________________________________________________________________________________</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref1"><sup>[1]</sup></a> Gay Marriage Around the World, Pew Research Centre (Aug 8, 2017) <i>available at </i>http://www.pewforum.org/2017/08/08/gay-marriage-around-the-world-2013/.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref2"><sup>[2]</sup></a> W. P. (Crl.) No. 76 of 2016 (Supreme Court of India).</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref3"><sup>[3]</sup></a> Aids Bhedbav Virodhi Andolan, Less than Gay: A Citizen’s Report on the Status of Homosexuality in India (Nov-Dec, 1991) <i>available at</i> https://s3.amazonaws.com/s3.documentcloud.org/documents/1585664/less-than-gay-a-citizens-report-on-the-status-of.pdf.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref4">[4]</a> P.P Singh, 377 battle at journey’s end (September 6, 2018) <i>available at</i> https://indianexpress.com/article/explained/section-377-verdict-supreme-court-decriminalisation-gay-sex-lgbtq-5342008/.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref5"><sup>[5]</sup></a> (2009) 160 DLT 277; W.P. (C) No.7455/2001 of 2009 (Delhi HC).</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref6">[6]</a> Sangeeta Barooah Pisharoty,<i> It is like reversing the motion of the earth</i>, The Hindu (December 20, 2013) <i>available at </i>https://www.thehindu.com/features/metroplus/society/it-is-like-reversing-the-motion-of-the-earth/article5483306.ece.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref7"><sup>[7]</sup></a> <i>Id</i>.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref8"><sup>[8]</sup></a> (2014) 1 SCC 1 (Supreme Court of India).</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref9"><sup>[9]</sup></a> Ibid, at para 42.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref10"><sup>[10]</sup></a> Gautam Bhatia, The unbearable wrongness of Koushal v Naz Foundation, Ind Con Law Phil (December 11, 2013)</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref11">[11]</a> <i>supra</i> note 8, at para 43.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref12"><sup>[12]</sup></a> Manjunath,<i> India’s UN Vote: A Reflection of Our Deep Seated Anti-Gay Sentiments</i>, Amnesty International (Apr 20, 2015) <i>available at </i>https://amnesty.org.in/indias-un-vote-reflection-societys-deep-seated-anti-gay-prejudice/.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref13">[13]</a> The concept of curative petitions was laid down in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 (Supreme Court of India).</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref14">[14]</a> Ajay Kumar, All you need to know about the SC’s decision to reopen the Section 377 debate, FIRSTPOST (February 3, 2016) <i>available at </i>https://www.firstpost.com/india/all-you-need-to-know-about-the-scs-decision-to-reopen-the-section-377-debate-2610680.html.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref15"><sup>[15]</sup></a> 2017 (10) SCC 1(Supreme Court of India).</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref16"><sup>[16]</sup></a> The Wolfenden Report, Brit. J; Vener. Dis. (1957) 33, 205 <i>available at </i>https://sti.bmj.com/content/sextrans/33/4/205.full.pdf.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref17"><sup>[17]</sup></a> Griswold v Connecticut, 381 US 479.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref18"><sup>[18]</sup></a> Gautam Bhatia, <i>Indian Supreme Court reserves judgment on the de-criminalisation of Homosexuality</i>, OHRH Blog (August 15, 2018) <i>available at </i>http://ohrh.law.ox.ac.uk/the-indian-supreme-court-reserves-judgment-on-the-de-criminalisation-of-homosexuality/.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref19">[19]</a> Krishnadas Rajagopal, Supreme Court refers plea to decriminalize homosexuality under Section 377 to larger bench, The Hindu (January 8, 2018) <i>available at </i>https://www.thehindu.com/news/national/supreme-court-refers-377-plea-to-larger-bench/article22396250.ece.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref20"><sup>[20]</sup></a> <i>Puttuswamy</i>, paras 124-28.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref21">[21]</a> Aditi Singh, Government leaves decision on Section 377 to the wisdom of Supreme Court, LIVEMINT (July 11, 2018) <i>available at </i>https://www.livemint.com/Politics/fMReaXRcldOWyY20ELJ0GK/Centre-leaves-it-to-Supreme-Court-to-decide-on-Section-377.html.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref22"><sup>[22]</sup></a> <i>supra</i> note 2, at para 20.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref23"><sup>[23]</sup></a> Ibid.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref24"><sup>[24]</sup></a> Express News Service, Lok Sabha votes against Shashi Tharoor’s bill to decriminalize homosexuality again, Indian Express (March 12, 2016) <i>available at </i>https://indianexpress.com/article/india/india-news-india/decriminalising-homosexuality-lok-sabha-votes-against-shashi-tharoors-bill-again/.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref25"><sup>[25]</sup></a> Navtej Johar v. Union of India, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India) at para 1.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref26"><sup>[26]</sup></a> Ibid, at para 2.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref27"><sup>[27]</sup></a> Ibid, at para 82.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref28"><sup>[28]</sup></a>Ibid, at para 224.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref29"><sup>[29]</sup></a> Ibid, at para 253.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref30"><sup>[30]</sup></a> Ibid.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref31"><sup>[31]</sup></a> Separate Opinion, RF Nariman, paras 1-20.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref32"><sup>[32]</sup></a> Ibid, at paras 28-9.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref33"><sup>[33]</sup></a> Ibid. <i>Lawrence v Texas</i>, 539 US 558 (2003), discussed in paras 108-09.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref34"><sup>[34]</sup></a> Ibid, at para 82.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref35"><sup>[35]</sup></a> Separate Opinion, DY Chandrachud, at para 28.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref36"><sup>[36]</sup></a> Ibid, at para 56-7, 61.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref37"><sup>[37]</sup></a> Supra note 20, at para 118-9.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref38"><sup>[38]</sup></a> <i>ADM Jabalpur v Shiv Kant Shukla</i> (1976) 2 SCC 521. (Supreme Court of India)</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref39"><sup>[39]</sup></a> Air India v Nergesh Meerza (1981) 4 SCC 335. (Supreme Court of India)</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref40"><sup>[40]</sup></a> Supra note 25, at paras 36-41.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref41"><sup>[41]</sup></a> Ibid, at paras 42-43, 56.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref42"><sup>[42]</sup></a> Lawrence Lessig,<i> The Regulation of Social Meaning</i>, 62 University of Chicago Law Review 943 ,947 (1995)</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref43"><sup>[43]</sup></a> Brown v. Board of Education of Topeka, 347 U.S. 483.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref44"><sup>[44]</sup></a> David Smith, <i>Little Rock Nine: The day young students shattered racial segregation, The Guardian</i> (September 24, 2017) <i>available at </i>https://www.theguardian.com/world/2017/sep/24/little-rock-arkansas-school-segregation-racism.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref45"><sup>[45]</sup></a>Michael Combs and Gwendolyn Combs, <i>Revisiting Brown v. Board of Education: A Cultural, Historical-Legal, and Political Perspective</i> (2005).</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref46"><sup>[46]</sup></a> Poulomi Saha, RSS on 377: <i>Gay sex not a crime but is unnatural</i>, India Today (September 6, 2018) <i>available at </i>https://www.indiatoday.in/india/story/rss-on-section-377-verdict-gay-sex-not-a-crime-but-is-unnatural-1333414-2018-09-06.</p>
<p style="text-align: justify; "><a href="http://www.sociolegalreview.com/377-bites-the-dust-unpacking-the-long-and-winding-road-to-the-judicial-decriminalization-of-homosexuality-in-india/#_ftnref47"><sup>[47]</sup></a> S Venkataraman and H Varuganti, <i>A Hindu approach to LGBT Rights</i>, Swarajya (July 4, 2015) <i>available at </i>https://swarajyamag.com/culture/a-hindu-approach-to-lgbt-rights.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/socio-legal-review-national-law-school-of-india-university-agnidipto-tarafder-and-arandrajit-basu-377-bites-the-dust'>https://cis-india.org/internet-governance/blog/socio-legal-review-national-law-school-of-india-university-agnidipto-tarafder-and-arandrajit-basu-377-bites-the-dust</a>
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No publisherAgnidipto Tarafder and Arindrajit BasuGenderInternet Governance2018-10-18T00:39:34ZBlog Entry350% surge in Cyber crimes in last 3 years
https://cis-india.org/internet-governance/news/hindustan-times-january-20-2015-devanik-saha-indiaspend-350-per-cent-surge-in-cyber-crimes-in-last-3-years
<b>India’s registered cyber crimes leapt 350% in three years but the legal system is struggling to cope with more and more lawbreakers exploiting the anonymity of the internet.</b>
<p style="text-align: justify; ">The article was <a class="external-link" href="http://www.hindustantimes.com/india-news/350-surge-in-cyber-crimes-in-last-3-years/article1-1308635.aspx">published in the Hindustan Times</a> on January 20, 2015. Sunil Abraham was quoted.</p>
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<p style="text-align: justify; ">National Crime Records Bureau statistics show number of recorded cases of cyber crime jumped to 4,356 from 966 in the three years up to 2013, with India being more susceptible to digital attacks because of the increasing number of net users in the fast-growing economy.<br /><br />“Illegal gains” and “harassment” are the top cyber crime motives, the data reveal, though the majority of the crimes were registered under the “others” category — 2,144 cases in 2013. Analysts say such a high number of cases being pigeonholed in this section implies current laws and regulations aren’t detailed enough to tackle cyber crime. The challenge is daunting for India — estimated to have 302 million internet users by the end-2014 and set to have the second largest number of netizens in the world after China this year.<br /><br />Data show that the age group of 18-30 accounts for the highest percentage of cyber crime with 1,638 persons arrested out of 3,301 in 2013. The surge in cyber crime may also have been brought on by inefficiencies in the legal system with activists challenging some cyber laws considered too draconian for a modern, democratic society.<br /><br />Various sections of the IT Act were deeply flawed as they were “copy-paste jobs” from British and American laws, said Sunil Abraham, founder-director of Bengaluru-based Centre for Internet & Society. To prevent such abuses, the Supreme Court ruled in 2013 that arrests could only be made after clearance from an inspector general of police in a city and a superintendent of police in a district.</p>
<p style="text-align: justify; ">(Devanik Saha is Data Editor at The Political Indian; Indiaspend.org is a data-driven, public-interest journalism non-profit)</p>
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For more details visit <a href='https://cis-india.org/internet-governance/news/hindustan-times-january-20-2015-devanik-saha-indiaspend-350-per-cent-surge-in-cyber-crimes-in-last-3-years'>https://cis-india.org/internet-governance/news/hindustan-times-january-20-2015-devanik-saha-indiaspend-350-per-cent-surge-in-cyber-crimes-in-last-3-years</a>
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No publisherpraskrishnaInternet Governance2015-02-07T16:13:59ZNews Item“The Internet and Controls: A Disturbing Scenario”
https://cis-india.org/news/the-internet-and-controls-a-disturbing-scenario
<b>Prof. Mohan SundaraRajan, a renowned science writer will give a talk at the Bangalore International Centre in TERI on March 7, 2014 at 6.30 p.m. Sunil Abraham will chair and moderate the session.</b>
<p>See the invite below. Event details are also<a class="external-link" href="http://bangalore.citizenmatters.in/events/the-internet-and-controls-a-disturbing-scenario"> posted on the website of Citizen Matters</a>.</p>
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<th><img src="https://cis-india.org/home-images/TERITalk.png" alt="TERI Talk" class="image-inline" title="TERI Talk" /></th>
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For more details visit <a href='https://cis-india.org/news/the-internet-and-controls-a-disturbing-scenario'>https://cis-india.org/news/the-internet-and-controls-a-disturbing-scenario</a>
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No publisherpraskrishnaInternet Governance2014-03-05T12:09:11ZNews Item“Politics by other means”: Fostering positive contestation and charting ‘red lines’ through global governance in cyberspace
https://cis-india.org/internet-governance/blog/arindrajit-basu-orfonline-october-21-2019-politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace
<b>The past year has been a busy one for the fermentation of global governance efforts in cyberspace with multiple actors-states, industry, and civil society spearheading a variety of initiatives. Given the multiplicity of actors, ideologies, and vested interests at play in this ecosystem, any governance initiative will be, by default, political, and desirably so.</b>
<p style="text-align: justify; "><span style="text-align: justify; ">Arindrajit Basu's essay for this year's Digital Debates: The CyFy Journal </span><a class="external-link" href="https://www.orfonline.org/wp-content/uploads/2019/10/Digital_Debates_2019_V7.pdf" style="text-align: justify; ">was published jointly by Global Policy and ORF</a><span style="text-align: justify; ">. It was written in response to a framing essay by Dennis Broeders under the governance theme. The article was edited by Gurshabad Grover. </span><i style="text-align: justify; "> Arindrajit also acknowledges the contributions of the editorial team at ORF: Trisha, Akhil and Meher.</i></p>
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<p style="text-align: justify; ">There is no silver bullet that will magically result in universally acknowledged rules of the road. Instead, through consistent probing and prodding, the global community must create inclusive processes to galvanize consensus to ensure that individuals across the world can repose trust and confidence in their use of global digital infrastructure.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn2"><sup>[2]</sup></a> This includes both ‘red lines’ applicable to clearly prohibited acts of cyberspace and softer norms for responsible state behaviour in cyberspace, that arise from an application of the tenets of International Law to cyberspace.</p>
<h2 style="text-align: justify; ">Infrastructure is political</h2>
<p style="text-align: justify; ">Networked infrastructures typically originate when a series of technological systems with varying technical standards converge, or when a technological system achieves dominance over other self-contained technologies.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn3"><sup>[3]</sup></a> Through this process of convergence, networked infrastructures must adapt to a variety of differing political conditions, legal regulations and governance practices.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn4"><sup>[4]</sup></a> Internet infrastructure was never self-contained technology, but an amalgamation of systems, protocols, standards and hardware along with the standards bodies, private actors and states that define it.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn5"><sup>[5]</sup></a> The architecture has always been deeply socio-technical<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn6"><sup>[6]</sup></a> and any attempt to severe the technology from the politics of internet governance would be a fool’s errand.</p>
<p style="text-align: justify; ">Politics catalyzed the development of the technological infrastructure that lead to the creation of the internet. During the heyday of nuclear brinkmanship between the USA and USSR, Paul Baran, an engineer with the US Department of Defense think tank RAND Corporation was tasked with building a means of communication that could continue running even if some parts were to be knocked out by a nuclear war.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn7"><sup>[7]</sup></a></p>
<p style="text-align: justify; ">As Baran’s ‘Bomb proof network’ morphed into the US Department of Defense funded ARPANET, it was initially apparent that it was not meant for either mass or commercial use, but instead saw its nurturing in the US as a tool of strategic defense.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn8"><sup>[8]</sup></a></p>
<p style="text-align: justify; ">This enabled the US to retain a disproportionate -- and till the 1990s, relatively uncontested -- influence on internet governance. As the internet rapidly expanded across the globe, various actors found that single state control over an invaluable global resource was unjust.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn9"><sup>[9]</sup></a> Others (9which included US Senator Ted Cruz), argued that the internet would be safer in the hands of the United States than an international forum whose processes could be reduced to stalemate as a result of politicized conflict between democratic and non-democratic states who seek to use online spaces as an instrument of suppression.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn10"><sup>[10]</sup></a> The ICANN and IANA transitions were therefore not rooted in technical considerations but much-needed geopolitical pressure from states and actors who felt ‘disregarded’<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn11"><sup>[11]</sup></a> in the governance of the internet. An inclusive multi-stakeholder process fueled by inclusive geopolitical contestation is far more effective in the long run and has the potential of respecting the rights of ‘disregarded’ communities all across the globe far more than a unilateral process that ignores any voices of opposition.</p>
<p style="text-align: justify; ">It is now clear that despite its continued outsized influence, the United States is no longer the only major state player in global cyber governance. China has propelled itself as a major political and economic challenger to the United States across several regimes<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn12"><sup>[12]</sup></a>, including in the cyber domain. China’s export of the ‘information sovereignty’<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn13"><sup>[13]</sup></a> doctrine at various cyber norms proliferation fora, including at the United Nations-Group of Governmental Experts (GGE), and regional forums like the Shanghai Co-operation (SCO), is an example of its desire to impose its ideological clout on global conceptions of the internet.</p>
<p style="text-align: justify; ">As a rising power, China’s aspirations in global internet governance are not limited to ideology. China is at an ‘innovation imperative’, where it needs to develop new technologies to retain its status and fuel long-term growth.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn14"><sup>[14]</sup></a> This locks it into direct economic, and therefore strategic competition with the United States that seeks to retain control over the same supply chains and continues to assert its economic and military superiority.</p>
<p style="text-align: justify; ">China has dominated the 5G space in an unprecedented way, and has been a product of a concerted ‘whole of government’ effort.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn15"><sup>[15]</sup></a> Beijing charted out an industrial policy that enabled the deployment of 5G networks as a key national priority.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn16"><sup>[16]</sup></a> China has also successfully weaponized global technical standard-setting efforts to promote its geo-economic interests.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn17"><sup>[17]</sup></a> Reeling from the failure of its domestic 3G standard that was ignored globally, China realised the importance of the ‘first-movers’ advantage’ in setting standards for companies and businesses.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn18"><sup>[18]</sup></a> Through an aggressive strategic push at a number of international bodies such as the International Telecommunications Union, China’s diplomatic pivot has allowed it to push standards established domestically with little external input, thereby giving Chinese companies the upper hand globally.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn19"><sup>[19]</sup></a></p>
<p style="text-align: justify; ">Politics continues to frame the technical solutions that enable cybersecurity.19 Following Snowden’s revelations, some stakeholders in the global community have shaped their politics to frame the problem as one of protecting individuals’ data from governments and private companies looking to extract and exploit it. The technical solutions developed in this frame are encryption standards and privacy enhancing technologies. However, intelligence agencies continue to frame the problem differently: they see it as an issue of collecting and aggregating data in order to identify malicious actors and threat vectors. The technical solutions they devise are increased surveillance and data analysis -- problems the first framing intended to solve. The techno-political gap, both in academic scholarship and global norms proliferation efforts continues to jeopardize attempts at framing cybersecurity governance.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn20"><sup>[20]</sup></a> Instead of artificially depoliticizing technology, it is imperative that we ferment political contestation in a manner that holistically promulgates the perception that internet infrastructure can be trusted and utilised by individuals and communities around the world.</p>
<h2 style="text-align: justify; ">Fostering ‘red lines’ and diffusing ‘unpeace’ in cyberspace</h2>
<p style="text-align: justify; ">‘Unpeace’ in cyberspace continues to ferment through ‘below the threshold’ operations that do not amount to the ‘use of force’ as per Article 2(4), or an ‘armed attack’ triggering the right of self-defense under Article 51 of the United Nations Charter. This makes the application of jus ad bellum (‘right to war’) inapplicable to most cyber operations.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn21"><sup>[21]</sup></a> However, the application of ‘jus in bello’ (law that governs the way in which warfare is conducted) or International Humanitarian Law (IHL) does not require armed force to be of a specific intensity but seeks to protect civilians and prevent unnecessary suffering. Therefore the principles of IHL that have evolved in The Geneva Conventions should be used as red lines that limit collateral damage as a result of cyber operations.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn22"><sup>[22]</sup></a> No state should conduct cyber operations that intend to harm civilians, and should us all means at its disposal to avoid this harm to civilians. It should act in line with the principles of necessity<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn23"><sup>[23]</sup></a> and proportionality.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn24"><sup>[24]</sup></a></p>
<p style="text-align: justify; ">Cultivating ‘red lines’ is easier said than done. The debate around the applicability of IHL to cyberspace was one of the reasons for the breakdown of the fifth UN-GGE in 2017.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn25"><sup>[25]</sup></a> States have also been reluctant to state their positions on the rules developed by the International Group of Experts (IGE) in the Tallinn Manual.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn26"><sup>[26]</sup></a> This is due to two main reasons. First, not endorsing the rules may allow them to retain operational advantages in cyberspace where they continue engaging in cyber operations without censure. Second, even those states who wish to apply and adhere to the rules hesitate to do so in the absence of effective processes that censure states that do not comply with the rules.</p>
<p style="text-align: justify; ">Both these issues stem from the difficulties in attributing a cyber attack to a state as cyber attacks are multi-stage, multi-step and multi-jurisdictional, which makes the attacker several degrees removed from the victim.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn27"><sup>[27]</sup></a> Technical challenges to attribution, however should not take away from international efforts that adopt an integrated and multi-disciplinary approach to attribution which must be seen as a political process working in conjunction with robust technical efforts.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn28"><sup>[28]</sup></a> The Cyber Peace Institute, which was set up earlier in September 2019, and adopts an ecosystem approach to studying cyber attacks, thereby improving global attribution standards may institutionally serve this function.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn29"><sup>[29]</sup></a> As attribution processes become clearer and hold greater political weight, an increasing number of states are likely to show their cards and abandon their policy of silence and ambiguity -- a process that has already commenced with a handful of states releasing clear statements on the applicability of international law in cyberspace.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn30"><sup>[30]</sup></a></p>
<p style="text-align: justify; ">Below the threshold operations are likely to continue. However, the process of contestation should result in the international community drawing out norms that ensure that public trust and confidence in the security of global digital infrastructure is not eroded. This would include norms such as protecting electoral infrastructure or a prohibition on coercing private corporations to aid intelligence agencies in extraterritorial surveillance29 The development of these norms will take time and repeated prodding. However, given the entangled and interdependent nature of the global digital economy, protracted effort may result in universal consensus in some time.</p>
<h2 style="text-align: justify; ">The Future of Cyber Diplomacy</h2>
<p style="text-align: justify; ">The recently rejuvenated UN driven norms formulation processes are examples of this protracted effort. Both the Group of Governmental Experts (GGE) and Open-Ended Working Group (OEWG) processes are pushing states towards publicly declaring their positions on multiple questions of cyber governance, which will only further certainty and predictability in this space. The GGE requires all member states to clearly chart out their position on the applicability of various questions of International Law, which will be included as an Annex to the final report and is definitely a step in the right direction.</p>
<p style="text-align: justify; ">There are multiple lessons from parliamentary diplomacy culminating in past global governance regimes that negotiators in these processes can borrow from.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn31"><sup>[31]</sup></a> As in the past, the tenets of international law can influence collective expectations and serve as a facilitative mechanism for chalking out bargaining points, and driving the negotiations within an inclusive, efficient and understandable framework.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn32"><sup>[32]</sup></a></p>
<p style="text-align: justify; ">Both processes will be politicized as before with states seeking to use these as fora for furthering national interests. However, this is not necessarily a bad thing. Protracted contestation is preferable to unilateralism where a select group of states decides the future of cyber governance. The inclusive, public format of the OEWG running in parallel to the closed-door deliberations at the GGE enables concerted dialogue to continue. Most countries had voted for the resolutions setting up both these processes and while the end-game is unknown, it appears that states remain interested in cultivating cyber norms.</p>
<p style="text-align: justify; ">Of course, the USA and its NATO allies had voted against the resolution setting up the OEWG and Russia, China and the SCO allies had voted against the resolution resurrecting the GGE. However, given the economic interests of all states in a relatively stable cyberspace, it is clear that both these blocks desire global consensus on some rules of the road for responsible behaviour in cyberspace. This means that both processes may arrive at certain similar outcomes. These outcomes might over time evolve into norms or even crystallise into rules of customary international law if they are representative of the interests of a large number of states.</p>
<p style="text-align: justify; ">However, sole reliance on state-centric mechanisms to achieve a stable governance regime may be misplaced. As seen with Dupont’s contribution to the Montreal Protocol that banned the global use of Chloro-Fluoro-Carbons (CFCs)<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn33"><sup>[33]</sup></a> or the International Committee of the Red Cross’s concerted efforts in rallying states to sign the Additional Protocols to the Geneva Conventions<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn34"><sup>[34]</sup></a>, norm-entrepreneurship and the mantle of leadership in norm-entrepreneurship need not be limited to state actors. Non-state actors often have the gifts of flexibility and strategic neutrality that make them a better fit for this role than states. Microsoft’s leadership and its ascent to this leadership mantle in the cyber governance space must therefore be taken heed off. The key role it played in charting out the CyberSecurity Tech Accords, Paris Call for Trust and Security in Cyberspace and its most recent initiative, the Cyber Peace Institute, must be commended. However, the success of its entrepreneurship relies on how well it can work both with multilateral mechanisms under the aegis of the United Nations and multi-stakeholder fora such as the Global Commission on Stability in Cyberspace. This will lead to a cohesive set of rules that adequately govern the conduct of both state and non-state actors in cyberspace.</p>
<p style="text-align: justify; ">It is unfortunate, however, that most governance efforts in cyberspace are driven by the United States or China or their allies. For example, only UK<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn35"><sup>[35]</sup></a>, France<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn36"><sup>[36]</sup></a>, Germany,<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn37"><sup>[37]</sup></a> Estonia<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn38"><sup>[38]</sup></a>,Cuba<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn39"><sup>[39]</sup></a> (backed by China and Russia), and the USA<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn40"><sup>[40]</sup></a> have all engaged in public posturing advocating their ideological position on the applicability of International Law in cyberspace in varying degrees of detail with other countries largely remaining silent. Other emerging economies need to get into the game to make the process more representative and equitable.</p>
<p style="text-align: justify; ">More recently, India has begun to take a leadership role in the global debate on cross-border data transfers, spurred largely by their domestic political and policy ecosystem championing ‘digital nationalism.’ At the G20 summit in Osaka in July this year, India, alongside the BRICS grouping emphasized the development dimensions of data for emerging economies and pushed the notion of ‘data sovereignty’-broadly understood as the sovereign right of nations to govern data within their territories/jurisdiction in the national interest and for the welfare of its people.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn41"><sup>[41]</sup></a> Resisting calls from Western allies including the United States to get on board Japan’s initiative promoting the free flow of data across borders, Vijay Gokhale also mentioned that discussions on data flows must not take place at plurilateral forums outside the World Trade Organization as this would prevent inclusive discussions.<a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_edn42"><sup>[42]</sup></a>This form of posturing should be sustained by emerging economies like India and extended to the security domain as well through which the hegemony that a few powerful actors retain over the contours of cyber governance can be reduced.</p>
<p style="text-align: justify; ">To paraphrase Clausewitz, technological governance is the conduct of politics by other means. Internet infrastructure has become so deeply intertwined with the political ethos of most countries that it has become the latest front for geopolitical contestation among state and non-state actors alike. Politicizing cyber governance prevents a deracinated approach to the process that ignores simmering inequalities, power asymmetries and tensions that a limited technical lens prevents us from viewing.</p>
<p style="text-align: justify; ">The question is, not if but how cyber governance will be politicized. Will it be a politics of inclusion that protects the rights of the disregarded and adequately represents their voices in line with the requirements of International Law, or will it be a politics of convenience through which states and non-state actors utilise cyber governance for reaping strategic dividends? The global cyber policy ecosystem must continue the battle to ensure that the former remains essential.</p>
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<h3>Endnotes</h3>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref1"><sup>[1]</sup></a> Arindrajit Basu and Elonnai Hickok (2018) “<a href="https://cis-india.org/internet-governance/files/cyberspace-and-external-affairs" rel="noopener" target="_blank">Cyberspace and External Affairs: A memorandum for India</a>”, 8-13.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref2"><sup>[2]</sup></a> In its draft definition of cyber stability, <a href="https://cyberstability.org/news/request-for-consultation-definition-of-stability-of-cyberspace/" rel="noopener" target="_blank">The Global Commission on the Stability of Cyberspace has adopted a bottom up user centric definition of Cyber Stability where individuals can be confident in the stability of cyberspace as opposed to an objective top-down determination of cybersecurity metrics</a>.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref3"><sup>[3]</sup></a> PN Edwards, GC Bowker Jackson SJ, R Williams 2009. Introduction: an agenda for infrastructure studies. J. Assoc. Inf. Syst.10(5):364–74</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref4"><sup>[4]</sup></a> Brian Larkin, “ The Politics and Poetics of Infrastructure” Annual Rev. Anthropol 2013,42:327-43</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref5"><sup>[5]</sup></a> Ibid.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref6"><sup>[6]</sup></a> Kieron O’Hara and Wendy Hall, “<a href="https://www.cigionline.org/sites/default/files/documents/Paper%20no.206web.pdf" rel="noopener" target="_blank">Four Internets: The Geopolitics of Digital Governance</a>” CIGI Report No.208, December 2018.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref7"><sup>[7]</sup></a> Cade Metz, “<a href="https://www.wired.co.uk/article/h-bomb-and-the-internet" rel="noopener" target="_blank">Paul Baran, the link between nuclear war and the internet</a>” Wired, 4th Sept. 2012.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref8"><sup>[8]</sup></a> Kal Raustila (2016) “Governing the Internet” American Journal of International Law 110:3,491</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref9"><sup>[9]</sup></a> Samantha Bradshaw, Laura DeNardis, Fen Osler Hampson, Eric Jardine & Mark Raymond, <a href="https://www.cigionline.org/sites/default/files/no17.pdf" rel="noopener" target="_blank">The Emergence of Contention in Global Internet Governance</a> 3 (Global Comm’n on Internet Governance, Paper Series No. 17, July 2015).</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref10"><sup>[10]</sup></a> Klint Finley, "<a href="https://www.wired.com/2016/10/internet-finally-belongs-everyone/" rel="noopener" target="_blank">The Internet Finally Belongs to Everyone</a>”, Wired, March 18th, 2016.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref11"><sup>[11]</sup></a> Richard Stewart (2014), Remedying Disregard in Global Regulatory Governance: Accountability, Participation and Responsiveness” AJIL 108:2</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref12"><sup>[12]</sup></a> Tarun Chhabra, Rush Doshi, Ryan Hass and Emilie Kimball, “<a href="https://www.brookings.edu/research/global-china-domains-of-strategic-competition-and-domestic-drivers/" rel="noopener" target="_blank">Global China: Domains of strategic competition and domestic drivers</a>” Brookings Institution, September 2019.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref13"><sup>[13]</sup></a> According to this view, a state can manage and define its ‘network frontiers; through domestic legislation or state policy and patrol information at it state borders in any way it deems fit. Yuan Yi,. “网络空间的国界在哪 ” [Where Are the National Borders of cyberspace]? 学习时报.May 19, 2016.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref14"><sup>[14]</sup></a> Anthea Roberts, Henrique Choer Moraes and Victor Ferguson (2019), “<a href="https://ssrn.com/abstract=3389163" rel="noopener" target="_blank">Toward a Geoeconomic Order in International Trade and Investment</a>” (May 16, 2019).</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref15"><sup>[15]</sup></a> Eurasia Group (2018), “The Geopolitics of 5G”</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref16"><sup>[16]</sup></a> Ibid.( In 2013, the Ministry of Industry and Information Technology (MIIT), the National Development and Reform Commission (NDRC) and the Ministry of Science and technology (MOST) established the IMT-2020 5G Promotion Group to push for a government all-industry alliance on 5G.)</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref17"><sup>[17]</sup></a> Bjorn Fagersten&Tim Ruhlig (2019), "<a href="https://www.ui.se/globalassets/ui.se-eng/publications/uipublications/2019/ui-brief-no.-2-2019.pdf" rel="noopener" target="_blank">China’s standard power and it’s geopolitical implications for Europe</a>” Swedish Institute for International Affairs.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref18"><sup>[18]</sup></a> Alan Beattie, “Technology: how the US, EU and China compete to set industry standards” Financial Times, Jul 14th, 2019</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref19"><sup>[19]</sup></a> Laura Fitchner, Walter Pieters.,&Andre Herdero Texeira(2016). Cybersecurity as a Politikum: Implications of Security Discourses for Infrastructures. In Proceedings of the 2016 New Security Paradigms Workshop (36-48). New York: Association for Computing Machinery (ACM)</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref20"><sup>[20]</sup></a> Michael Crosston,” Phreak the Speak: The Flawed Communications within cyber intelligentsia” in Jan-Frederik Kremer and Benedikt Muller,”Cyberspace and International Relations: Theory, Prospects and Challenges (2013, Springer) 253.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref21"><sup>[21]</sup></a> “<a href="https://casebook.icrc.org/glossary/fundamental-principles-ihl" rel="noopener" target="_blank">Fundamental Principles of International Humanitarian Law</a>".</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref22"><sup>[22]</sup></a> Veronique Christory “<a href="https://casebook.icrc.org/glossary/fundamental-principles-ihl" rel="noopener" target="_blank">Cyber warfare: IHL provides an additional layer of protection</a>” 10 Sept. 2019.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref23"><sup>[23]</sup></a> See (The “<a href="https://casebook.icrc.org/glossary/military-necessity" rel="noopener" target="_blank">principle of military necessity</a>” permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict, the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref24"><sup>[24]</sup></a> See <a href="https://casebook.icrc.org/glossary/proportionality" rel="noopener" target="_blank">Proportionality</a>; The principle of proportionality prohibits attacks against military objectives which are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref25"><sup>[25]</sup></a> Declaration by Miguel Rodriguez, Representative of Cuba, <a href="https://www.justsecurity.org/wp-content/uploads/2017/06/Cuban-Expert-Declaration.pdf" rel="noopener" target="_blank">At the final session of group of governmental experts on developments in the field of information and telecommunications in the context of international security</a> (June 23 2017).</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref26"><sup>[26]</sup></a> Dan Efrony and Yuval Shany (2018), “ A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice” AJIL 112:4</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref27"><sup>[27]</sup></a> David Clark and Susan Landau. “Untangling Attribution.” Harvard National Security Journal (Harvard University) 2 (2011</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref28"><sup>[28]</sup></a> Davis, John S., Benjamin Adam Boudreaux, Jonathan William Welburn, Jair Aguirre, Cordaye Ogletree, Geoffrey McGovern and Michael S. Chase. Stateless Attribution: Toward International Accountability in Cyberspace. Santa Monica, CA: RAND Corporation, (2017). At</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref29"><sup>[29]</sup></a> See “<a href="https://cyberpeaceinstitute.org/latest-insights/2019-09-26-cyberpeace-institute-to-lead-global-action-againstcyberattacks" rel="noopener" target="_blank">CyberPeace Institute to Support Victims Harmed by Escalating Conflicts in Cyberspace</a>”.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref30"><sup>[30]</sup></a> Dan Efrony and Yuval Shany (2018), “ A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice” AJIL 112:4</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref31"><sup>[31]</sup></a> Arindrajit Basu and Elonnai Hickok (2018), “<a href="https://cis-india.org/internet-governance/files/gcsc-research-advisory-group.pdf" rel="noopener" target="_blank">Conceptualizing an International Security architecture for cyberspace</a>”.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref32"><sup>[32]</sup></a> Monica Hakimi (2017), “The Work of International Law,” Harvard International Law Journal 58:1.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref33"><sup>[33]</sup></a> James Maxwell and Forrest Briscoe (2007),” There’s money in the air: The CFC Ban and Dupont’s Regulatory Strategy” Business Strategy and the Environment 6, 276-286.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref34"><sup>[34]</sup></a> Francis Buignon (2004). “The International Committee of the Red Cross and the development of international humanitarian law.” Chi. J. Int’l L.5: 19137</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref35"><sup>[35]</sup></a> Jeremy Wright, “<a href="https://www.gov.uk/government/speeches/cyber-and-international-law-in-the-21st-century" rel="noopener" target="_blank">Cyber and International Law in the 21st Century</a>” Govt. UK.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref36"><sup>[36]</sup></a> Michael Schmitt, “<a href="https://www.justsecurity.org/66194/frances-major-statement-on-international-lawand-cyber-an-assessment/" rel="noopener" target="_blank">France’s Major Statement on International Law and Cyber: An Assessment</a>” Just Security, September 16th, 2019.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref37"><sup>[37]</sup></a> Nele Achten, "<a href="https://www.lawfareblog.com/germanys-position-international-law-cyberspace" rel="noopener" target="_blank">Germany’s Position on International Law in Cyberspace</a>”, Lawfare, Oct 2, 2018,</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref38"><sup>[38]</sup></a> Michael Schmitt, “<a href="https://www.justsecurity.org/64490/estonia-speaks-out-on-key-rules-for-cyberspace/" rel="noopener" target="_blank">Estonia Speaks out on Key Rules for Cyberspace</a>” Just Security, June 10, 2019.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref39"><sup>[39]</sup></a> <a href="https://www.justsecurity.org/wp-content/uploads/2017/06/Cuban-Expert-Declaration.pdf" rel="noopener" target="_blank">https://www.justsecurity.org/wp-content/uploads/2017/06/Cuban-Expert-Declaration.pdf</a></p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref40"><sup>[40]</sup></a> <a href="https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stabilityin-Cyberspace-Berkeley-Nov-2016.pdf" rel="noopener" target="_blank">https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stabilityin-Cyberspace-Berkeley-Nov-2016.pdf</a></p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref41"><sup>[41]</sup></a> Justin Sherman and Arindrajit Basu, "<a href="https://thediplomat.com/2019/07/fostering-strategic-convergencein-us-india-tech-relations-5g-and-beyond/" rel="noopener" target="_blank">Fostering Strategic Convergence in US-India Tech Relations: 5G and Beyond</a>”, The Diplomat, July 03, 2019.</p>
<p style="text-align: justify; "><a href="https://www.orfonline.org/expert-speak/politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace-56811/#_ednref42"><sup>[42]</sup></a> Aditi Agrawal, "<a href="https://www.medianama.com/2019/07/223-india-and-tech-policy-at-the-g20-summit/" rel="noopener" target="_blank">India and Tech Policy at the G20 Summit</a>”, Medianama, Jul 1, 2019.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/arindrajit-basu-orfonline-october-21-2019-politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace'>https://cis-india.org/internet-governance/blog/arindrajit-basu-orfonline-october-21-2019-politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace</a>
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No publisherbasuCyberspaceInternet Governance2019-10-21T15:40:38ZBlog Entry135 million aadhaar details, 100 million bank accounts "leaked" from government websites: Researchers
https://cis-india.org/internet-governance/news/counterview-may-5-2017-135-million-aadhaar-details-100-million
<b>This was published by Counterview on May 5, 2017.</b>
<p style="text-align: justify; ">A top <a href="http://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/at_download/file" target="_blank">study</a> by the Centre for Internet and Society (CIS) has estimated that “estimated number of aadhaar numbers leaked” through top portals which handle aadhaar “could be around 130-135 million”. Worse, it says, the number of bank accounts numbers leaked would be “around 100 million”.</p>
<p style="text-align: justify; ">The study, carried out by researchers Amber Sinha and Srinivas Kodali, adds, “While these numbers are only from two major government programmes of pensions and rural employment schemes, other major schemes, who have also used aadhaar for direct bank transfer (DBT) could have leaked personally identifiable information (PII) similarly due to lack of information security practices.”</p>
<p style="text-align: justify; ">Pointing out that “over 23 crore beneficiaries have been brought under aadhaar programme for DBT”, the study, titled “Information Security Practices of Aadhaar (Or Lack Thereof)”, says, “Government schemes dashboard and portals demonstrate … dangers of ill-conceived data driven policies and transparency measures without proper consideration to data security measures.”</p>
<p style="text-align: justify; ">Claiming to have a closer look at the databases publicly available portals, the researchers identify four of them a pool of other government websites for examination:</p>
<div style="text-align: justify; "><ol style="text-align: left; ">
<li><a href="http://164.100.129.6/netnrega/MISreport4.aspx?fin_year=2013-2014&rpt=RP">http://164.100.129.6/netnrega/MISreport4.aspx?fin_year=2013-2014&rpt=RP</a> </li>
<li><a href="http://nsap.nic.in/">http://nsap.nic.in/</a> </li>
<li><a href="http://chandrannabima.ap.gov.in/Dashboard/Reports.aspx">http://chandrannabima.ap.gov.in/Dashboard/Reports.aspx</a>, and </li>
<li><a href="http://www.nrega.ap.gov.in/Nregs/">http://www.nrega.ap.gov.in/Nregs/</a>. </li>
</ol>
<p>A welfare programme by the Ministry of Rural Development, the National Social Assistance Programme (NSAP) portal, even as seeking to provide public assistance to its citizens in case of unemployment, old age, sickness and disablement, offers information about “job card number, bank account number, name, aadhaar number, account frozen status”, the researchers say.</p>
<p>Pointing out that “one of the url query parameters of website showing the masked personal details was modified from nologin to login”, they say, the “control access to login based pages were allowed providing unmasked details without the need for a password.”</p>
<p>In fact, they say, the Data Download Option feature “allows download of beneficiary details mentioned above such as Beneficiary No, Name, Father’s/Husband’s Name, Age, Gender, Bank or Post Office Account No for beneficiaries receiving disbursement via bank transfer and Aadhaar Numbers for each area, district and state.”<br />They add, “The NSAP portal lists 94,32,605 banks accounts linked with aadhaar numbers, and 14,98,919 post office accounts linked with aadhaar numbers. While the portal has 1,59,42,083 aadhaar numbers in total, not all of whom are linked to bank accounts.”</p>
<p>Also giving the example of the national rural job guarantee scheme, popularly called NREGA, the researchers say, its portal provides DBT reports containing “various sub-sections including one called ‘Dynamic Report on Worker Account Detail’,” with details like “Job card number, aadhaar number, bank/postal account number, number of days worked”, and so on.</p>
<p>“As per the NREGA portal, there were 78,74,315 post office accounts of individual workers seeded with aadhaar numbers, and 8,24,22,161 bank accounts of individual workers with aadhaar numbers. The total number of Aadhaar numbers stored by portal are at 10,96,41,502”, they add.</p>
<p>Providig similar instances form two other sources, the researchers insist, “The availability of large datasets of aadhaar numbers along with bank account numbers, phone numbers on the internet increases the risk of financial fraud.”</p>
<p>Underlining that “aadhaar data makes this process much easier for fraud and increases the risk around transactions”, they say, “In the US, the ease of getting Social Security Numbers from public databases has resulted in numerous cases of identity theft. These risks increase multifold in India due the proliferation of aadhaar numbers and other related data available.”</p>
<p>Click to read the original published by <a class="external-link" href="http://www.counterview.net/2017/05/135-million-aadhaar-details-100-million.html">Counterview</a> on May 5, 2017.</p>
<ol style="text-align: left; "> </ol></div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/counterview-may-5-2017-135-million-aadhaar-details-100-million'>https://cis-india.org/internet-governance/news/counterview-may-5-2017-135-million-aadhaar-details-100-million</a>
</p>
No publisherpraskrishnaUIDAIAadhaarInternet GovernancePrivacy2017-05-20T06:19:12ZNews Item135 MEELLION Indian government payment card details leaked
https://cis-india.org/internet-governance/news/the-register-richard-chirgwin-may-3-2017-135-million-indian-government-payment-card-details-leaked
<b>Legislation coming to beef up Aadhaar card privacy, security.</b>
<p style="text-align: justify; ">The article by Richard Chirgwin was <a class="external-link" href="https://www.theregister.co.uk/2017/05/03/135_million_aadhaar_indian_government_payment_card_details_leaked/">published in the Register </a>on May 3, 2017.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">If you're enthused about governments operating large-scale online identity projects, here's a cautionary tale: the Indian government's eight-year-old Aadhaar payment card project has leaked a stunning 130 <i>million</i> records.</p>
<p style="text-align: justify; ">Aadhaar's role in authenticating and authorising transactions, and as the basis of the country's UID (unique identification database) makes any breach a privacy nightmare.</p>
<p style="text-align: justify; ">India's Centre for Internet and Society (CIS) made their estimate public in a <a href="http://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" target="_blank">report</a> published on Monday.</p>
<p style="text-align: justify; ">It's not that there was a breach related to Aahdaar itself: rather, other government agencies were leaking Aadhaar and related data they'd collected for their own purposes.</p>
<p style="text-align: justify; ">The research paper drilled down on four government-operated projects: Andhra Pradesh's Mahatma Gandhi National Rural Employment Scheme; the same state's workers' compensation scheme known as Chandranna Bima; the National Social Assistance Program; and an Andhra Pradesh portal of Daily “Online Payment Reports under NREGA” maintained by the National Informatics Centre.</p>
<p style="text-align: justify; ">In total, the CIS says, the portals leaked 135 million Aadhaar card records linked to around 100 million bank account numbers.</p>
<p style="text-align: justify; ">Given India's enthusiasm to try and eliminate cash, it's a big deal: the Aadhaar card funnels benefits to recipients' linked bank accounts. As the report states: “To allow banking and payments using Aadhaar, banks and government departments are seeding Aadhaar numbers along with bank account details”.</p>
<p style="text-align: justify; ">The centre says the leaks represent significant and “potentially irreversible privacy harm”, but worse they also open up a fraud-ready source of personal information.</p>
<p style="text-align: justify; ">Online databases examined by the CIS included “numerous instances” of Aadhaar Numbers, associated with personal information.</p>
<p style="text-align: justify; ">The Indian government responded through Aruna Sundararajan, secretary at the Union Electronics and Information Technology Ministry, who announced amendments to the country's IT legislation to beef up the system's privacy and security.</p>
<p style="text-align: justify; ">“Aadhaar has very strong privacy regulation built into it”, she <a class="external-link" href="http://www.thehindu.com/news/national/new-it-rules-to-beef-up-aadhaar/article18357619.ece">told the Hindu</a>, but it needs better enforcement.</p>
<p style="text-align: justify; ">Sundararajan said those issues will be addressed in the legislative amendments.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/the-register-richard-chirgwin-may-3-2017-135-million-indian-government-payment-card-details-leaked'>https://cis-india.org/internet-governance/news/the-register-richard-chirgwin-may-3-2017-135-million-indian-government-payment-card-details-leaked</a>
</p>
No publisherpraskrishnaAadhaarInternet GovernancePrivacy2017-05-20T11:51:14ZNews Item130 Million at Risk of Fraud After Massive Leak of Indian Biometric System Data
https://cis-india.org/internet-governance/news/gizmodo-may-3-2017-130-million-at-risk-of-fraud-after-massive-leak-of-indian-biometric-system-data
<b>A series of potentially calamitous leaks in India leave as many as 130 million people at risk of fraud or worse after caches of biometric and other personal data became accessible online.</b>
<p style="text-align: justify; ">The article by Dell Cameron was published by Gizmodo on May 3, 2017.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">That’s according to <a href="https://drive.google.com/file/d/0BwsvF1X5umK4LVBmYW14UzJDdk0/view?usp=sharing" rel="noopener" target="_blank">a new report</a> from the Bangalore-based Centre for Internet and Society (CIS), which details breaches at four national- and state-run databases, all of which are said to contain purportedly “uniquely-identifying” Aadhaar numbers.</p>
<p style="text-align: justify; ">Launched in 2009, the Aadhaar system is an ambitious, albeit flawed program aimed at assigning unique identity numbers, not only to Indian citizens, but everyone who resides and works in the country. It is the largest program of its kind in the world. The 12-digit Aadhaar codes are assigned and maintained in a central database by the Unique Identification Authority of India (UIDAI) and link to biometric data of fingerprint and iris scans combined.</p>
<p style="text-align: justify; ">For security purposes, since 2002, all U.S. passports issued to international travelers at embassies and consulates around the world have contained biometric data, including a ten fingerprint scan, contained in a microchip embedded in the back cover. In 2007, the law was extended to cover U.S. citizens, and since at least 2013, so-called “e-passports” have been the standard.</p>
<p style="text-align: justify; ">With a very different intention in mind, the Aadhaar system was created to employ biometrics as a means to ensure that Indian residents have access to the social safety net, including programs for welfare, health, and education. But due to the sheer scale—again, the largest biometric project in history—the program has been fraught with controversy since day one. Since inception, more than 1.13 billion Aadhaar numbers have since been assigned, according to <a href="https://uidai.gov.in/images/state_wise_aadhaar_saturation_02052017.pdf" rel="noopener" target="_blank">UIDAI data</a>. (India has a population of roughly 1.32 billion.)</p>
<p style="text-align: justify; ">Former World Bank economist Salman Anees , a member of the Indian National Congress (INC), points to migrant laborers as an example of those the program is intended to help. The often carry no identification, he said, and therefore can rarely prove who they are when traveling from state to state. The purpose of the Aadhaar system, he said, is to provide every Indian with a “digital identity.”</p>
<p style="text-align: justify; ">“At least, that was the original idea,” adds Soz.</p>
<p style="text-align: justify; "><aside class="align--center pullquote"><span class="pullquote__content">“People aren’t aware of what their rights are. They have no idea what this thing can do.”</span></aside></p>
<p style="text-align: justify; ">After the INC was battered in the 2014 general election, plans were put forth to expand the scope of the Aadhaar program, inflaming public concern over security and privacy. “Basically, you take this Aadhaar number and you start seeding different [government] databases,” Soz says. “And that, in effect, creates this huge data structure that people are very uncomfortable with.”</p>
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<p style="text-align: justify; ">“In some ways,” he continued, “what you have is this amazingly modern system with huge data collection potential—and of course, many positives can come from this, but in the wrong hands it can become a huge problem for India. At the same time, your legal framework, your regulatory framework, your policies and procedures are not there. People aren’t aware of what their rights are. They have no idea what this thing can do.”</p>
<p style="text-align: justify; ">One problem, Soz says, is that Aadhaar numbers are not always checked against a cardholder’s fingerprints or iris scans in all cases, defeating its purpose entirely. When someone provides an Aadhaar number to prove their identity online or by phone, for example, their identities cannot adequately verified. In this way, Aadhaar numbers are not wholly unlike Social Security numbers in the United States. Were 130 million Social Security numbers to be leaked online, confidence in the ability to use that number to confirm an Americans’ identities would be shaken, if not destroyed.</p>
<p style="text-align: justify; ">Last month, a central government database containing thousands of Aadhaar numbers—as well as dates of birth, addresses, and tax IDs (PAN)—reportedly leaked, exposing thousands of Indian residents to potential abuse. According to <a href="https://thewire.in/118250/government-expose-personal-data-thousands-indians/" rel="noopener" target="_blank">The Wire</a>, the information, which was contained in Microsoft Excel spreadsheets, could be easily located on Google.</p>
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<p style="text-align: justify; ">According to CIS, roughly 130-135 million Aadhaar numbers have now been exposed in this most recent leak. With the growing use of the numbers in areas such as insurance and banking, and without proper mechanisms in place to biometrically confirm the identities of cardholders in every case, the threat of financial fraud is pervasive. “All of these leaks are symptomatic of a significant and potentially irreversible privacy harm,” the report says, noting that such incidents “create a ripe opportunity for financial fraud.”</p>
<p style="text-align: justify; ">While Aadhaar is not mandatory everywhere, CIS says, the Indian government continues collecting information about the participants under various social programs. Inevitably, that information is combined with other databases containing even more sensitive data. As that happens, there’s a heightened risk to those whose Aadhaar numbers have been compromised. How the Indian government will address its apparently inadequate security controls before fraud overwhelms the system remains unknown.</p>
<p style="text-align: justify; "><i>Read the full report: <a href="https://drive.google.com/file/d/0BwsvF1X5umK4LVBmYW14UzJDdk0/view?usp=sharing" rel="noopener" target="_blank">Information Security Practices of Aadhaar (or lack thereof): A documentation of public availability of Aadhaar Numbers with sensitive personal financial information</a></i></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/gizmodo-may-3-2017-130-million-at-risk-of-fraud-after-massive-leak-of-indian-biometric-system-data'>https://cis-india.org/internet-governance/news/gizmodo-may-3-2017-130-million-at-risk-of-fraud-after-massive-leak-of-indian-biometric-system-data</a>
</p>
No publisherpraskrishnaBiometricsAadhaarInternet GovernancePrivacy2017-05-20T12:36:06ZNews Item130 Million Aadhaar Numbers Were Made Public, Says New Report
https://cis-india.org/internet-governance/news/the-wire-may-1-2015-130-million-aadhaar-numbers-were-made-public-says-new-report
<b>The research report looks at four major government portals whose poor information security practices have exposed personal data including bank account details.</b>
<p style="text-align: justify; ">The article was <a href="https://thewire.in/130948/aadhaar-card-details-leaked/">published in the Wire</a> on May 1, 2017. This was also mirrored on <a class="external-link" href="http://www.mensxp.com/technology/latest/36661-over-130-million-aadhaar-numbers-bank-details-were-leaked-way-are-not-surprised.html">MensXP.com</a> on May 5, 2017.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span>Irresponsible information security practices by a major central government ministry and a state government may have exposed up to 135 million Aadhaar numbers, according to a new research report released on Monday.</span></p>
<p style="text-align: justify; "><span>The<a href="https://thewire.in/118250/government-expose-personal-data-thousands-indians/" rel="noopener noreferrer" target="_blank" title=" last two months "> last two months </a>have seen a wave of data leaks, mostly due improper information security practices, from various central government and state government departments.</span></p>
<p style="text-align: justify; ">This <a rel="noopener noreferrer" target="_blank" title="new report">new report</a>, released by the Centre for Internet and Society, studied four government databases. The first two belong to the rural development ministry: the National Social Assistance Programme (NSAP)’s dashboard and the National Rural Employment Guarantee Act (NREGA)’s portal.</p>
<p style="text-align: justify; ">The second two databases deal with the state of Andhra Pradesh: namely, the state government’s own NREGA portal and the online dashboard of a state government scheme called “Chandranna Bima”.</p>
<p style="text-align: justify; ">“Based on the numbers available on the websites looked at, estimated number of Aadhaar numbers leaked through these 4 portals could be around 130-135 million and the number of bank accounts numbers leaked at around 100 million from the specific portals we looked at,” the report’s authors, Amber Sinha and Srinivas Kodali, state.</p>
<p style="text-align: justify; ">The data leaks come, in part, from the government’s decision to provide online dashboards that were likely meant for general transparency and easy administration. However, as the report notes, while open data portals are a laudable goal, if there aren’t any proper safeguards, the results can be downright disastrous.</p>
<p style="text-align: justify; ">“While availability of aggregate information on the dashboard may play a role in making government functioning more transparent, the fact that granular details about individuals including sensitive PII such as Aadhaar number, caste, religion, address, photographs and financial information are only a few clicks away suggest how poorly conceived these initiatives are,” the report says.</p>
<p style="text-align: justify; ">Consider the NSAP portal for instance. The dashboard allows users to explore a list of pensioners, whose personally identifiable information include bank account number, name and Aadhaar number. While these details are “masked for public view”, the CIS report points out that if “one of the URL query parameters of the website… was modified from ‘nologin’ to ‘login'”, it became easy to gain access to the unmasked details without a password.</p>
<p style="text-align: justify; ">“It is entirely unclear to us what the the purpose behind making available a data download pption on the NSAP website is. This feature allows download of beneficiary details mentioned above such as Beneficiary No., Name, Father’s/Husband’s Name, Age, Gender, Bank or Post Office Account No. for beneficiaries receiving disbursement via bank transfer and Aadhaar Numbers for each area, district and state,” the report states.</p>
<p style="text-align: justify; "><b>UIDAI role?</b></p>
<p style="text-align: justify; ">Kodali and Sinha also prominently finger the role of the Unique Identification Authority of India (UIDAI), the government agency that manages the Aadhaar initiative, in the data leaks.</p>
<p style="text-align: justify; ">“While the UIDAI has been involved in proactively pushing for other databases to get seeded with Aadhaar numbers, they take little responsibility in ensuring the security and privacy of such data.With countless databases seeded with Aadhaar numbers, we would argue that it is extremely irresponsible on the part of the UIDAI, the sole governing body for this massive project, to turn a blind eye to the lack of standards prescribed for how other bodies shall deal with such data, such cases of massive public disclosures of this data, and the myriad ways in which it may used for mischief,” the report states.</p>
<p style="text-align: justify; "><b>Still public?</b></p>
<p style="text-align: justify; ">A crucial question that arises is whether these government databases are still leaking data. Over the last two months, some of information has been masked.</p>
<p style="text-align: justify; ">“It must be stated that since we began reviewing and documenting these portals, we have noticed that some of the pages with sensitive PII (personally identifiable information) have now been masked, presumably in response to growing reports about Aadhaar leaks,” the report notes.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/the-wire-may-1-2015-130-million-aadhaar-numbers-were-made-public-says-new-report'>https://cis-india.org/internet-governance/news/the-wire-may-1-2015-130-million-aadhaar-numbers-were-made-public-says-new-report</a>
</p>
No publisherpraskrishnaAadhaarInternet GovernancePrivacy2017-05-20T06:32:32ZNews Item66A DEAD. LONG LIVE 66A!
https://cis-india.org/internet-governance/news/the-week-march-28-2015-soni-mishra-66a-dead-long-live-66a
<b>Last Tuesday, Twitter CEO Dick Costolo walked into Prime Minister Narendra Modi's office. India's most compulsive and most-followed tweeter, Modi, as Gujarat chief minister, had protested when the Manmohan Singh government blocked the micro-blogging site of a few journalists. Modi had blacked out his own Twitter profile and tweeted: “May God give good sense to everyone.”</b>
<p>The article by Soni Mishra was published in the <a class="external-link" href="http://week.manoramaonline.com/cgi-bin/MMOnline.dll/portal/ep/theWeekContent.do?contentId=18627255&programId=1073755753&tabId=13&BV_ID=@@@&categoryId=-226161">Week</a> on March 28, 2015. T. Vishnu Vardhan gave his inputs.</p>
<hr />
<p>Today, with 11 million followers on Twitter, and 27.6 million likes on Facebook, Modi rules the virtual world and India. He received Costolo warmly and told him how Twitter could help his Clean India, girl child and yoga campaigns. Impressed, Costolo told Modi how Indian youth were innovating on Twitter.</p>
<p style="text-align: justify; ">But, the greatest and the most fundamental boost for all social media in India was being effected a few minutes drive away from the PMO. Ironically, in the Supreme Court of India, Modi's lawyers were defending a law made by the United Progressive Alliance government—section 66A of the Information Technology Act, which curbed free speech on social media.</p>
<p style="text-align: justify; ">Anything posted on the internet can go viral worldwide and reach millions in no time, argued Additional Solicitor General Tushar Mehta. While the traditional media is ruled by licences and checks, social media has nothing, he said. Finally, Mehta made an impassioned plea that the government meant well. Section 66A will be administered reasonably and will not be misused, he assured the court.</p>
<p style="text-align: justify; ">It seemed he, and the government, had forgotten an old saying: if there is a bad law, someone will use it. Luckily for India, and its liberal democracy, the judges saw a bad law and struck it down. “If section 66A is otherwise invalid, it cannot be saved by an assurance from the learned additional solicitor general,” said the bench comprising Justice Rohinton Nariman and Justice J. Chelameswar.<br /><br />The fact is that 66A was knee-jerk legislation. Almost as thoughtless and compulsive as a netizen's derisive tweet. On December 22, 2008, the penultimate day of the winter session, the UPA government had got seven bills passed in seven minutes in the Lok Sabha; the opposition BJP had played along.<br /><br />One of the bills was to amend the IT Act. It went to the Rajya Sabha the next day, when members were hurrying to catch their trains and flights home for the year-end vacation. They just okayed the bill and hurried home.<br /><br />The argument then was that there was no need to discuss the bill as it had been examined by a standing committee of Parliament. Indeed, it had been. But, the committee, headed by Nikhil Kumar of the Congress, had met only for 23 hours and five minutes. Nine of its 31 members had not attended a single meeting. Ravi Shankar Prasad, the current Union minister for IT, was one among the 31.<br /><br />Apparently, everyone wanted the bill, so did not bother to apply their minds. Only a CPI(M) member, A. Vijayaraghavan, had a few dissenting suggestions to the committee report. No one else bothered to mull over a law that was “unconstitutional, vague” and which would have a “chilling effect” on free speech.</p>
<p style="text-align: justify; ">Once the law was made, it was constable raj across India. Shaheen Dhada from Palghar simply commented on Facebook about a Shiv Sena bandh on the death of Bal Thackeray. Her friend Rinu Srinivasan liked it. The two teenagers were bundled into a police station. Rinu still remembers with a chill how “a mob of about 200 people gathered outside the police station that day.” This was when the Congress was ruling Maharashtra.<br /><br />Jadavpur University professor Ambikesh Mahapatra was picked up by the police in Trinamool Congress-ruled West Bengal in April 2012, for posting a cartoon ridiculing Chief Minister Mamata Banerjee. “I was thrashed several times in police custody,” said the professor, who got relief from the West Bengal Human Rights Commission.<br /><br />Vickey Khan, 22, was arrested in Rampur, UP, for a Facebook post on Samajwadi Party leader Azam Khan. Rampur is, of course, Khan's pocket borough. The Uttar Pradesh Police, controlled by the Samajwadi Party government, also arrested dalit writer Kanwal Bharti from Rampur for criticising the UP government's suspension of IAS officer Durga Shakti Nagpal in 2013.<br /><br />At least 30 people in AIADMK-ruled Chennai have been booked under 66A; four of them this year. Ravi Srinivasan, general secretary of the Aam Aadmi Party in Puducherry, was picked up in October 2012 for his tweets on Karti Chidambaram, son of then Union home minister P. Chidambaram. “He was not even in India when I tweeted,” said Ravi. “He sent the complaint by fax from abroad and everything happened [fast] as Puducherry is a Union Territory and can be controlled by the home ministry.”<br /><br />Whistleblower A. Shankar of Chennai was pulled up by the Madras High Court for the content on his blog, Savukku. The Orissa Police, controlled by the Biju Janata Dal (BJD) government, took Facebook to court in 2011 asking who created a Facebook page in the name of Chief Minister Naveen Patnaik. It is another thing that the page had no content.</p>
<p style="text-align: justify; ">Indeed, there had been stray political voices opposing the law. In Parliament, the CPI(M)'s P. Rajeeve, the BJD's Jay Panda and independent MP Rajeev Chandrasekhar pushed several times for scrapping 66A. Panda moved a private members bill, and Rajeeve moved a resolution. “I only wish we in Parliament had heeded the people's voice and repealed it, instead of yet again letting the judiciary do our work for us,” Panda said after the law was scrapped.<br /><br />Finally, it was left to a young law student, Shreya Singhal, to move the Supreme Court on behalf of the Palghar girls. Singhal pointed out that several provisions in 66A violated fundamental rights guaranteed by article 19(1)(a)—the right to freedom of speech and expression. Several more cases followed and, finally, the court heard them together.<br /><br />Indeed, Justices Nariman and Chelameswar have been extremely restrained in their comments. But, the fact that Parliament had not applied its mind comes through in the judgment.<br /><br />The court “had raised serious concerns with the manner in which section 66A of the IT Act has been drafted and implemented across the country,” pointed out Supreme Court lawyer Shivshankar Panicker. Added Kiran Shanmugam, a cyber forensic expert and CEO of ECD Global Bengaluru: “The law lacked foresight in estimating the magnitude of the way the electronic media would grow.”<br /><br />Apparently the government, too, knew it was defending the indefensible, and tried to win the case highlighting the benign nature of the democratic state. But, the court was not impressed. “Governments may come and governments may go, but section 66A goes on forever,” the judges noted. “An assurance from the present government, even if carried out faithfully, would not bind any successor government.”<br /><br />Clearly, Mehta was defending the indefensible, a law that, the court found, would have a “chilling effect on free speech”. Moreover, as the judges found out, the new law did not provide even the safeguards that the older Criminal Procedure Code had provided. “Safeguards that are to be found in sections 95 and 96 of the CrPC are also absent when it comes to section 66A,” the judges said. For example, according to the CrPC, a book or document that contained objectionable matter could be seized by the police, but it also allowed the publisher to move court. The new law did not provide even such a cushion.</p>
<p style="text-align: justify; ">All the same, the court was careful and did not overturn the entire law. It scrapped section 66A, and section 118(D) of the Kerala Police Act, but upheld section 69A and section 79 of the IT Act, which too had been questioned by the litigants (see box on page 45).<br /><br />The judgment has set the cyberworld rocking. “I am so happy now, I do not know how to express it,” said Rinu, now an audio-engineering student in Kerala. Shaheen is married and lives in Bengaluru. Vickey Khan is relieved. “Some people had told me that I could be jailed for three years,” he said. But, Azam Khan took it out on the media and said it “favours criminals”.<br /><br />Karti, who claims to be a votary of free speech, however, wants “some protection” against defamation. “I filed a complaint in an existing provision of law,” he said. “If that provision is not available, then I will have to seek other provisions to safeguard my reputation.”<br /><br />Mahapatra is still apprehensive. “The government will still try to harass me,” he said. “But I know that in the end I will win.” Shankar of Chennai called it “a huge relief for people like me, who are active on social media.” Ravi Srinivasan, who locked horns with Karti, said he felt “relieved and happy”.<br /><br />The hard rap on the knuckles for their legislative laxity has sobered the political class. The Congress, the progenitor of 66A, admitted that the vagueness of the law was its undoing. “If in a particular area, the local constabulary took action to stifle dissent, it was never the purpose of the act,” said Congress spokesperson Abhishek Manu Singhvi. The Modi government officially welcomed the judgment, and its spokespersons are blaming the UPA for the law.<br /><br />Apparently, the scrapped law was made after a series of grossly offensive posts appeared on the social media five years ago. “If such content is not blocked online, it would immediately lead to riots,” said a law ministry official, who said the posts had been shown to the court, too. He said the government would take some time to draft a new law.</p>
<p style="text-align: justify; ">But, is a new law required? Opinion is still divided. What if someone is defamed on the net? “There are defamation laws which can deal with these,” said T. Vishnuvardhan, programme director, Centre for Internet and Society, Bengaluru. “Also, the IT Act has various provisions. If somebody misuses your picture on social media, you can report it to the website immediately. The website is liable to take action on it within 36 hours.”<br /><br />Smarika Kumar of Bengaluru-based Alternative Law Forum said the scrapping of 66A does not mean one can post anything online. “The Supreme Court has said that speech can be censored when it falls under the restrictions provided under article 19(2) of the Constitution,” she said. “But, if you prevent speech on any other ground, it is going to be unconstitutional.”<br /><br />But, even critics of 66A think a replacement law is needed. Said Rajeev Chandrasekhar: “The government needs to act quickly and create a much more contemporaneous Act, via multi-stakeholder consultations, general consensus and collaboration, so that there is less ambiguity and freedom of expression is preserved.”<br /><br />Senior Supreme Court advocate Pravin H. Parekh said, “As the cyberworld is growing day by day and there is increase in the number of social media users, we do require a proper mechanism which can regulate the expression of views on the internet.”<br /><br />The government is putting forth the argument of national security. “If the security establishment says the present act is not sufficient, we will look into it. The government will consider it, but only with adequate safeguards,” said Ravi Shankar Prasad.<br /><br />That will call for a legislative process undertaken in a cool and calm house, and not hurried through when the members are ready to hurry home.</p>
<p style="text-align: justify; "><span class="contentEng" id="textId"> </span></p>
<p><b>Sound judgment</b></p>
<p style="text-align: justify; "><b>Thumbs down</b><br />The Supreme Court set aside section <b>66A of the IT act,</b> which says any person who sends offensive, menacing or false information to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, or uses email to trouble its recipient or deceive him/her about the origin of such messages, can be punished with a jail term up to three years and a fine.</p>
<p style="text-align: justify; ">The court also struck down section <b>118(d) of the Kerala Police Act,</b> which says any person who makes indecent comments by calls, mails, messages or any such means causing grave violation of public order or danger can be punished with imprisonment up to three years or a fine not exceeding Rs10,000, or both.</p>
<p style="text-align: justify; "><b>Thumbs up<br /></b>The Supreme Court upheld section <b>69A of the IT act,</b> which allows the government to block the public's access to information in national interest and penalise intermediaries [telecom or internet service providers and web hosting services] who fail to comply with the government's directives.</p>
<p>Section <b>79 of the IT Act,</b> which deals with intermediaries' exemption from liability in certain cases, too, was upheld.</p>
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<p>With R. Prasanan, Mini P. Thoma, Ajay Uprety, Lakshmi Subramanian, Rabi Banerjee and Sharmista Chaudhury</p>
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For more details visit <a href='https://cis-india.org/internet-governance/news/the-week-march-28-2015-soni-mishra-66a-dead-long-live-66a'>https://cis-india.org/internet-governance/news/the-week-march-28-2015-soni-mishra-66a-dead-long-live-66a</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-04-01T02:11:27ZNews Item66A ‘cut & paste job’
https://cis-india.org/news/telegraphindia-december-3-2012-gs-mudur-66a-cut-and-paste-job
<b>The controversial Section 66A of the Information Technology Act has borrowed words out of context from British and American laws, according to lawyers here who are calling it a “poor cut-and-paste job”.</b>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">GS Mudur's article was <a class="external-link" href="http://www.telegraphindia.com/1121203/jsp/frontpage/story_16268138.jsp#.UMbCXaxWGZR">published in the Telegraph</a> on December 3, 2012. Pranesh Prakash and Snehashish Ghosh are quoted.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">Section 66A, passed by Parliament in December 2008, draws on laws passed in the UK in 1988 and 2003 and the US in 1996. But some lawyers say that, unlike 66A, those foreign laws impose only reasonable restrictions on freedom of speech.<br /><br />"The text of 66A seems to be the result of a cut-and-paste job done without applying the mind," said Snehashish Ghosh, a lawyer with the Centre for Internet and Society (CIS), a non-government organisation in Bangalore.<br /><br />Some of the language in Section 66A is taken from Britain’s Malicious Communications Act (MCA) of 1988, which begins with the words: "Any person who sends to another person...."<br /><br />This provision in MCA 1988, Ghosh said, is intended to curb malicious messages from one person to another. "It does not cover a post on a social website or an electronic communication broadcast to the world."<br /><br />Section 66A has also borrowed words from Britain’s Communications Act of 2003 which, Ghosh said, is intended to prevent abuse of public communication services and does not directly deal with messages sent by individuals.<br /><br />Government officials have said that 66A has also plucked language from the US Telecommunications Act of 1996.<br /><br />This was a landmark legislation that overhauled America’s telecommunication law by taking into account the emergence of the Internet and changing communications technologies. Among other things, it made illegal the transmission of obscene or indecent material to minors via computers.<br /><br />"Section 66A in its current form fails to define a specific category (context) as defined in the laws from where it has borrowed words," Ghosh said. "This is what has led to its inconsistent and arbitrary applications."<br /><br />Ghosh and his colleagues say that 66A, through an "absurd" combination of borrowed and ambiguous language, curbs freedom of expression and threatens people with three years’ imprisonment for certain offences that would otherwise, under existing Indian Penal Code (IPC) provisions, draw a fine of only Rs 200.<br /><br />Section 66A(b), for example, clubs together the offences of persistently repeated communications that might lead to "annoyance", "inconvenience", "danger", "insult", "injury", "criminal intimidation", "enmity", "hatred", and "ill-will".<br /><br />This is "astounding and unparalleled", said Pranesh Prakash, policy director at the CIS, who has posted an analysis of Section 66A on the NGO’s institutional blog.<br /><br />"We do not have such a provision anywhere but in India’s information technology law."<br /><br />This is “akin to... providing equal punishment for calling someone a moron (insult) and threatening to kill someone (criminal intimidation),” Prakash wrote in the blog, where he has listed existing IPC provisions that can deal with the offences that 66A seeks to cover.<br /><br />Lawyers have also questioned 66A’s effect of criminalising what the existing IPC would label as civil offences. For example, Prakash said, while the punishment under IPC for criminal nuisance is Rs 200, the penalty imposed by 66A is jail for up to three years.<br /><br />Several sections in the IPC, they said, can effectively address offences that 66A attempts to address exclusively for electronic communications. For example, the IPC has sections for defamation (499 and 500), outraging religious sentiments (295) and obscenity (292).<br /><br />"We do not require extraordinary laws when existing laws suffice," Ghosh said.</p>
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For more details visit <a href='https://cis-india.org/news/telegraphindia-december-3-2012-gs-mudur-66a-cut-and-paste-job'>https://cis-india.org/news/telegraphindia-december-3-2012-gs-mudur-66a-cut-and-paste-job</a>
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No publisherpraskrishnaIT ActInternet Governance2012-12-11T05:43:50ZNews Item