Category Archives: Articles

• Introduction

Insider Trading is one of India’s most prominent financial crime, which was prevalent since the early 1920’s. The term ‘Insider Trading’ can be defined as the illegal use of non-public information derived from a person associated with the company to profit /gain by purchasing/selling listed securities on the share market. The seriousness of the crimes relating to Insider Trading cannot be overlooked. Such crimes create a huge problem for the regulating authorities in tracing those involved in sharing and benefitting the information. All those benefitted are very well-connected thereby giving them the leverage to escape the liability and make enormous profit at the cost of other traders. In year 1986, the definition of Insider Trading was laid down by the Patel Committee, as “Trading in the shares of a company by the person who are in the management of the company or are close to them on the basis of undisclosed price sensitive information regarding the working of the company, which they possess but which is not available to others.”[1]

In the year 1940, the very first recommendation of implementing Insider Trading Regulation was received in India. Thereafter in the year 1948, a report was submitted by the Thomas Committee stating that all the directors, agents, officers, auditors should make proper disclosures. In 1956, with the enactment of the Companies Act, provisions to prevent Insider trading was introduced. According to Section 307 and 308 of the said Act, the directors and all the major key managerial persons were required to maintain a record of their shareholdings in the register and to make the complete disclosures of their shareholdings. However, these provisions were not stringent enough to prevent the crimes of Insider Trading.

By this time, the effects of insider trading were already been seen in the market. Not only the shareholders were losing confidence in the functioning of the markets, but were also refraining themselves from investing. And not to much surprise, even the foreign investments were adversely affected. As a result of all these the Indian Economy started suffering losses, leading the government to introduce various Committees in order to have a check on and curb such practices.

In the year 1979, the Sachar Committee submitted a Report stating that, “Insider Trading practices are being carried out in the markets and there is a need to have specific provision to restrict and prohibit such practices”. Subsequently, in the year 1986, the Patel Commission put forth the need to make several changes to the Securities Contract Regulation. Further in the year 1989 the report by Abdul Hussain Committee suggested that the offence of Insider Trading should be made liable under Civil and Criminal laws. It also suggested for the formation of a body known as SEBI to regulate and keep a check on the working of the markets.

On the basis of the reports submitted by the aforementioned committees, Securities and Exchange Board of India (SEBI) was established with the aim to regulate the market transactions and dealings. The provisions of the SEBI Act further empower it to carry out investigations, trials and impose a penalty upon those who breach the laws and carry out unlawful activities.[2]

• Regulations in India Regarding Insider Trading

The regulatory body that ensures proper corporate governance in India is the Securities and Exchange Board of India. This body keeps a watch for any unusual transaction related to purchase or sale of listed securities. The TISCO Case of 1992, paved the way for formation of the Securities and Exchange Board of India in the year 1992. In the Tisco, case the profits of the company sharply fell and there was a sale of shares in small quantities before the announcement of the half yearly results. The Court held that there was no insider trading as there is no evidence for the same. As there was a lack of regulations and procedures the culprits could not be made liable. This finally led to the forming of Securities Exchange Board of India (Insider trading) Regulations, 1992.[3] After the Regulation of 1992, a significant change was made to Insider Trading laws in India in the year 2015. Hence the “SEBI (Prohibition of Insider Trading) regulation, 2015”, was enacted to resolve the flaws in the earlier regulation as the unlawful transaction were not covered with thin ambit of the regulation. Another, significant amendment has been carried out in the year 2019 where efforts have been made to cover direct and indirect transactions.[4]

The Companies Act of 2013 also had a provision to restrict Insider Trading. Section 195 of the Act prohibited any communication of sensitive information by the key managerial persons. Later, this section was omitted as section 458 of the Companies Act delegates the power to SEBI to conduct trials against the accused persons and therefore there was a confusion that the accused should be held under the Companies Act or the SEBI regulations and therefore in 2017 the section 195 was omitted by a notification. Hence, the current regulations regarding Insider Trading in India are the SEBI (Prohibition of Insider Trading) Regulations, 2015 and Section 12A (Prohibition of Insider trading) and 15G (Penalty for Insider Trading) of the SEBI Act.

• Judgments on Insider Trading

The case of Hindustan Lever limited (HIL) Vs SEBI [5], was one of the earliest cases where SEBI acted against Insider trading, in this particular case around 8 lakhs shares were bought by HIL from the Unit Trust of India, and after some weeks a merger was announced between HIL and the other subsidiary. SEBI carried out an investigation and it was held that it was a case of Insider Information, an appeal was made to the Appellate authority and they confirmed the order of the SEBI rejecting the arguments given by HIL denying having the information or knowledge for the same. After this case SEBI made an amendment to the regulations and added and defined the word ‘unpublished’. This was the origin for the definition of the term ‘Unpublished Price Sensitive Information in India’.[6]

In another case of Reliance Industries limited (RIL) Vs SEBI [7], RIL had a stake of around 5 % in the L&T company and further there were two nominees for the company Mr. Mukesh and Anil Ambani. Further, RIL went on purchasing stake in L&T and almost got around 10 %. RIL further made a sale of these shares above the market price to Grasim Industries as a result of which the two nominees were removed and RIL was prohibited from further trading in shares of L&T. SEBI carried out an investigation and a case was filed against RIL in which they were held to be guilty of Insider trading. In an appeal the Appellate Tribunal reversed the order of SEBI stating that the information was not passed by the nominees of L&T and the same had no relation in communicating or passing of the information. L&T was not even aware of the deal and there was no evidence to prove the same. Therefore, RIL was not made liable for Insider trading.

As we can observe from these cases the conviction by SEBI for Insider trading is very less and the penalty imposed upon the convict for the commission of such illegal activities is way to less. Hence, in the next part of this Article we will discuss the problems with SEBI and the regulations in dealing with Insider Trading.

• Problems Regarding Insider Trading in India

There have been many arguments about the legality and the illegality of Insider Trading. But most of the scholars and investors state that Insider Trading is against the integrity of the market. This is because the it gives an unfair advantage to the people having access to such information as there is no risk or losses that such people suffer. Also, it causes the investors to lose their money as the people having such sensitive information carry out certain malpractices of manipulating and spreading rumours which leads to change the mind of many investors while trading in the stock markets. This further leads to loss of confidence of investors to invest in markets which is a very big concern for the economy and it also affects foreign investments. Therefore, the practice of Insider Trading is very harmful for the markets and there needs to be a regulating authority to keep a check and prevent such malpractices.

Also, another problem that is faced by SEBI is proving the cases of Insider trading as there is not always sufficient evidence to prove that a particular trade was a result of Insider Trading. As the people having access to such UPSI use third parties or make some other transactions through which they escape the liability and are held not guilty. Also in many cases the court has not been able to give proper judgment as the regulating authority has failed to prove any direct relations between the Information and the trade. As a result of this the investors lose their money, and the markets suffer the loss.

Another difficulty is that although there are provisions for Criminal Liability in the SEBI regulations but implementing them is difficult. As there is a need for Mens Rea to hold a person liable under Criminal law. It becomes very difficult for SEBI to prove the case of Mens Rea and so the accused often escape criminal liability and are held liable under civil law. Therefore, there is no fear in the markets and so this sensitive information is freely circulated.[8] For instance there have been cases that such information is being passed through WhatsApp messages on various groups. The SEBI has been trying to investigate these matters but have found no solid proof to make a case against the persons passing such sensitive information.[9]

Lastly, the Indian judiciary system takes many years to pass a judgment and the option of appeals gives the offenders enough time to manipulate the evidence and escape such liability under the SEBI regulations.

• Conclusion and Suggestion

It  would be safe to conclude that, Insider Trading is no more a White-collared Crime. Countries across the globe have taken stringent measure to check and prevent on practices such as Insider Trading. In the United States of America, the Federal Court convicted Rajat Gupta the director of Goldman Sachs for Insider trading. The facts of the case stated that, Rajat Gupta was found guilty of passing sensitive information about the market to Raj Rajaratnam, a co-founder of the Galleon Group LLC hedge fund.[10] The ruling by the Court sentenced him to two years of imprisonment and a fine.

It is a high time for India to implement such measures for the persons who have been found guilty and not treat Insider Trading just as a white-collar crime. As there is only a less than three percent conviction rate in such crimes in India there is a need to amend the regulations and to add strict criminal proceedings and awards against such offences. There also needs to be another regulatory body along with SEBI to track down high profile cases and prevent such sensitive information flowing in the market.[11]

Also, the SEBI as a regulatory body needs to increase their staff as there is only one official having a look over six companies and so it is not possible for SEBI to track and regulate every such function of the companies.[12]

Further, as the number of cases are increasing every year, the Indian Judiciary needs to set up fast track courts for certain high-profile cases that involve a huge stake of the market as it would not only save the investor’s and the markets money but would also curb the illegal practice of Insider Trading. 

References

[1] Das, Sonakshi. “The Know-All of Insider Trading – Decades of Corruptive Prevention.” Academike, 15 Jan. 2015, www.lawctopus.com/academike/know-insider-trading-decades-corruptive-prevention/#_edn8.

[2] Das, Sonakshi. “The Know-All of Insider Trading – Decades of Corruptive Prevention.” Academike, 15 Jan. 2015, www.lawctopus.com/academike/know-insider-trading-decades-corruptive-prevention/#_edn8.

[3] Kumar Gaurav. “Role of SEBI in Curbing Insider Trading in India – An Analysis.” I Pleaders, 4 June 2018, blog.ipleaders.in/sebi-insider-trading-offences/.

[4] Srivastava Anushweta & Shah Maharashi. “Latest Insider Trading Regulations: Prohibitions & Exceptions” TaxGuru, 30 Sept. 2020, https://taxguru.in/sebi/latest-insider-trading-regulations-prohibitions-exceptions.html.

[5] Hindustan Lever limited (HIL) Vs SEBI, (1998) 18 SCL 311 MOF

[6] Machiraju, H.R., (2009) “The Working of Stock Exchanges in India”, New Age International (P) Ltd., pp-164-165

[7] Reliance Industries limited (RIL) Vs SEBI, 2004 55 SCL 81 SAT

[8] Katarki, Suneeth. “India: ‘Mens Rea’ In Insider Trading – A ‘Sine Qua Non’?” Mondaq, 3 June 2015, www.mondaq.com/india/x/401724/Securities/Requirement Of Mens Rea As A Criterion for Penalising Insider Trading In India.

[9] Jayachandran. “Eliminating the Menace of Insider Trading.” Live Mint, 27 Nov. 2017, www.livemint.com/Opinion/qUBUyk9cbxSfItLarLAuvK/Eliminating-the-menace-of-insider-trading.html.

[10] Sharma, Betwa. “Rajat Gupta Found Guilty of Insider Trading.” Business Today, 16 June 2012, www.businesstoday.in/current/world/rajat-gupta-insider-trading-sentence/story/185519.html.

[11] Ibid.

[12] Ibid.

INTRODUCTION

With the world-changing and the technology developing at a faster pace, the world is moving towards transformation. The evolving technologies, especially the Artificial Intelligence (AI) and Machine Learning (MI) have travelled a way ahead in their course of transformation. AI and MI, along with other evolving technologies such as speed recognition and natural language, have reached a nexus of capability. However, along with such developments various issues such as ownership, accountability, representation and management with regard to AI have emerged. And such issues have brought us to a point where the major question arises “Whether AI systems be given a legal status or not?”. For obvious reason the debate on this topic is never-ending. But the growing development hints towards incoming legal effects when it comes to AI and in such a case proper adaptation of laws is very important. Giving a legal status to AI also emphasizes on providing Robotics with a legal personality.

The present article deals with the subject of Legal Personhood of AI systems and the arguments for and against the same. The need for introduction of a framework to deal with the AI and MI is of major concern. Following this another concern that arises is about the preconditions that should be established in order to introduce the framework. The author in the present article has made an attempt to provide an insight to these topics.

THE CONCEPT OF LEGAL PERSONHOOD

An entity is said to have a legal personhood when it is a subject of legal rights and duties.[1] Two types of legal personhood are recognised in law, namely, Natural and Judicial.

• Natural – Those which are recognised because of the simple fact of them being humans.[2]
• Judicial – Those which are non-human in nature and have been granted certain rights and duties by law.[3]

Under the legal system, Judicial legal status has been provided to corporations, religious entities, governmental and intergovernmental entities, etc. As per some Scholars such status can also be provided to the robotics and to emerging AI system.

The judicial personality is based on three theories, namely,

• Aggregate theory: Individual members work in a group as a single entity, while establishing individual contractual relations, for cost cutting.
• Fiction and concession theory: Non-human entities have a personality because the legal system choses to give it to them.
• Realist theory: Suggests conferment personality to non-human entities as a matter of right.

A closer look at above the three theories makes it very clear that the ‘Aggregate Theory’ is least applicable to AI systems, whereas, ‘Fiction and Concession theory’ can be extended to AI systems.

When it comes to the natural legal personhood, there have been no particular theories. The fact is that the concept of natural legal personality is completely rooted to the legal system, and in such a scenario it is almost impossible to articulate it.

 

GRANTING OF LEGAL PERSONHOOD TO AI SYSTEMS

The question whether AI systems should be given a legal personhood or not, has led to a number of questions. Firstly, they should be subjected to complete legal rights and duties or to a specific set of legal rights and duties. Secondly whether they should be provided with only rights or only duties. 

In the case where specific set of legal rights and duties have been provided, there are chances that they may not be the same for every entity. If only rights are conferred upon the AI systems, it would create problems of standing, as it would enable human individuals to act on behalf of a non-human rights holder, rather than requiring them to establish standing in their own capacity.[4] If only duties are conferred upon them, it would lead to accountability issues, problems of imposition of civil liabilities such as damages, etc.

ARGUMENTS IN FAVOUR OF GRANTING LEGAL PERSONHOOD TO AI SYSTEMS

The arguments in favour of granting legal personhood to AI systems are under the vision wherein they keep the ‘Robotics Rights’ in parallel with the ‘human rights. The individuals in favour of this argue that the rights of robots should also be recognised. The arguments in favour have also listed out various points which will be advantageous to human beings too in the long run.

According to Jurist, if a legal personality is conferred to AI systems, it would ensure that there is someone who could be blamed upon when things go wrong. This is presented as an answer to potential accountability gaps created by their speed, autonomy and opacity.[5] Not only the AI systems can be punished through the ways of retribution, incapacitation, deterrence, and rehabilitation but can also be then compared to corporations. This will further help to bring the AI system under the Jurisdiction of both Civil and Criminal Courts. In cases of extreme default, there would be rights to even destroy the robot completely. If the situation requires, the robots could also be fined or have its property seized, or a license to operate could be suspended or revoked.

Conferring a legal personality which also ensure accountability on the part of the works and actions of the AI system. This will further help in ensuring the ethical principles of AI – Accountability, Responsibility and Transparency, are some ethical principles of AI.[6]

• Accountability in the AI system requires both the function of guiding action and the function of explanation
• Responsibility refers not only to the role of people but also the capability of AI systems which not only answers one’s decision but also identifies errors or unexpected results.
• Transparency further refers to the need to not only describe, inspect and reproduce the mechanisms through which AI systems but also make decisions and learns to adapt to its environment, and to the governance of the data used created.

Gabriel Hallevy, the best-known defender of AI punishment, contends that ‘when an AI entity established all elements of a specific offence, both external and internal, there is no reason to prevent imposition of criminal liability upon that offence.[7] He concludes that ‘there is no substantive legal difference between the idea of criminal liability imposed on corporations and on AI entities.[8]

Conferring legal personality to AI systems would help in ensuring the ownership of work done by the AI system to be with the AI system, as opposed to it being with the parent owner of AI system. In those cases where something has been created by the AI the ownership rights, i.e. the IPR rights will lie with them and the human wouldn’t be able to take the credit. But not to much surprise, in most of the legal systems around the world, the person claiming IP has to be a legal person, and not a judicial person.[9] Due to this, legal personalities other than humans are denied ownership of the IP created by it. As per WHO such a system favours ‘the dignity of human creativity over machine creativity’.

The conferment of legal personality to AI systems would ensure their protection from human manipulation. Since legal personhood would ensure the AI system the ability to sue and to be sued, it would have its own recognition and independent identity. This would ensure lesser chances of it being manipulated for the interests of humans. Additionally, a system of lifting the veil, as it exists for corporations, can also be created for AI systems. This would add to the protection of AI systems from human manipulation.[10] This is in the interests of the AI systems, and is practically possible only if legal personality is conferred upon it.

The conferment of legal personality to AI systems would ensure their entry into contracts.[11] The use of electronic agents in order to conclude binding agreements is hardly new. High-frequency trading, for example, relies on algorithms concluding agreements with other algorithms on behalf of traditional persons.[12] Therefore, granting personhood to such AI systems would ensure better smoothness of work and would improve the potential accountability gaps raised by AI in relation to entry into contracts.

Not only this, if legal personality is conferred upon the system, their legal rights would be recognised. Instead of being treated as slaves, they would be treated as employees.

ARGUMENTS AGAINST GRANTING LEGAL PERSONHOOD TO AI SYSTEMS

The way a coin is two sided similarly, every argument has two approaches. Undoubtedly if many scholars are in the view of providing legal status to AI, many are against the same. According to many, if legal personality is conferred on Robots, it will lead to various problems. If robots are granted legal status, there may come a time when the question of granting the same to every other AI and MI may arise. And this will obviously create unnecessary problems.

It would further pose a huge threat to human owner of the system. Conferring a legal personality to the robots will led to the creation of principle-agent/ Master-servant relationship between the owner and the robot, which will make the owner being charged for the acts of the machine by strict liability.[13]

It is further speculated by various AI experts that if AI systems do eventually match human intelligence, they wouldn’t stop there. They can also go further in doing extra-normal activities, which may be negative. In many cases, there won’t be any way to find out whether AI acted according to the instructions given by the owner, or according to its own recoding of instructions. And this would be decremental to the interests of the owner, thereby asking him liable.

If legal rights are conferred upon them, the option of destroying such AI system would be eliminated, which could be very dangerous for the existence of humanity.[14]

Providing legal rights will further confer IP rights to the Robots. This would not only result in disregarding the owner’s effort in making the AI system but also the credit of all the work done by the AI system will remain with it, and the owner would not even have the moral rights of that work.[15]This would eventually result in lack of motivation, and would not be in the best interests.

Also, there can be instances wherein the owners can misuse the ‘Separate legal entity’ status provided to the Robots, by conferring all responsibility and liability on them and evade their own liability similar to the way the concept of ‘separate legal entity’ lifting provides an advantage to the shareholders of the company, there are chances that the owners may take undue advantage of the same.

Conferring legal personhood to the AI system would also not be in the interest of society. The arguments for granting such a personhood are not sufficient to showcase that such a personhood should be granted in the first place. Hence, conferring legal personality to the AI system is not suggested.

CONCLUSION

The forgoing discussion deals with the fact whether the AI system should be provided a legal status or not. On one hand various individuals suggest conferring the legal status, on the other hand many are against it. Whether conferring legal personality on AI system is desirable or not is a matter of concern. The decision on such a matter is dependent on the on the actual social necessity. Most importantly, it needs to be figured out whether the future society can function without conferring such a status or not. In case they can’t the need is to first set the preconditions and then to provide framework and check if the AI system could fit within such a framework.

The most important parameter in deciding whether the AI system should be granted legal status or not depends on the fact whether it is in the interest of the society. Only if it is the best interest for the society, the question on providing legal status should be considered. That being said, it would be safe to conclude by stating that, “The consideration that an autonomously functioning artificially intelligent robot should have a secure legal subjectivity is dependent on the actual social necessity in a certain legal and social order”.

REFERENCES

[1] Solum, L. B. (1992). ‘Legal personhood for artificial intelligences. North Carolina Law Review, 70(4), 1238–1239.

[2] N Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66 MLR 346.

[3] Ibid.

[4]C Rodgers, ‘A New Approach to Protecting Ecosystems’ (2017) 19 EnvLReev 266.

[5]S Chesterman, ‘Artificial Intelligence and the Problem of Autonomy’ (2020) 1 NotreDame Journal of EmergingTechnologies 210; S Chesterman, ‘Through a Glass, Darkly:Artificial Intelligence and the Problem of Opacity’ (2021) AJCL (forthcoming).

[6]Virginia Dignum, ‘The ART of AI – Accountability, Responsibility, Transparency’– Mar 4, 2018. https://medium.com/@virginiadignum/the-art-of-ai-accountability-responsibility-transparency-48666ec92ea5

[7]Gabriel Hallevy, ‘The Criminal Liability of Artificial Intelligence Entities’ — From Science Fiction to Legal Social Control, 4 AKRON INTELL. PROP. J. 171, 191 (2010).

[8]Ibid.

[9]Copyright, Designs and Patents Act 1988 (UK), section 9(3), Copyright Act 1994 (NZ), section 5(2)(a), Copyright Amendment Act 1994 (India), section 2, Copyright Ordinance 1997 (HK), section 11(3), Copyright and Related Rights Act 2000 (Ireland), section 21(f).

[10]J Turner, ‘Robot Rules: Regulating Artificial Intelligence’ (Palgrave Macmillan 2019) 193.

[11]S Chopra and LF White, A Legal Theory for Autonomous Artificial Agents (Universityof Michigan Press 2011) 160.

[12]T Cuk and A van Waeyenberge, ‘European Legal Framework for Algorithmic and HighFrequency Trading (Mifid 2 and MAR) A Global Approach to Managing the Risks of the ModernTrading Paradigm’ (2018) 9 EJRR 146

[13]Ryan Abbott & Alex Sarch, ‘Punishing Artificial Intelligence: Legal Fiction or Science Fiction’,53 UC Davis Law Review 1, 323 (2019).

[14]N Bostrom, ‘Superintelligence: Paths, Dangers, Strategies’ (Oxford University Press 2014).

[15]Marcelo Corrales& Mark Fenwick, Robotics, AI and the Future of Law -‘Do We Need New Legal Personhood in the Age of Robots and AI’, Perspectives in Law, Business and Innovation.

INTRODUCTION

India has seen significant improvement in the quality of air due to the nationwide lockdown. According to reports, there has been a 15 percent reduction in nitrogen-dioxide (NO2) concentration levels around March and April, the major reason being drastic fall in the vehicular traffic in the country[1]. A similar trend was observed in the fall of levels of SO2. Both NO2 and SO2 are precursor pollutants that lead to the generation of secondary PM2.5[2], and so reductions in concentrations of these pollutants is a welcome trend.  But because PM2.5 is also emitted directly from combustion of fossil fuels and biomass, and natural dust contributes to its levels, it is important to also consider impact on PM2.5 concentrations in addition.  Thus, it can be safely said that the lock down has also reduced PM2.5 levels in most cities.

Although the lockdown due to COVID-19 has brought us relief in form of reduced pollution, the surgical masks being used and their disposition have turned out to be a major issue. The surgical masks are essentially plastic and take years to decompose and at the same time choke rivers and other water bodies they are thrown into.

LEGISLATIONS REGULATING AIR POLLUTION

It is important to know how the Ministry of Environment and Forests (MoEF) came into being. India realized the need for ministry dedicated for the environment after the UN Conference on the Human Environment (Stockholm, 1972). The National Council for Environmental Policy and Planning was set up after the Stockholm Conference, within the Department of Science and Technology. This Council later evolved into a full-fledged Ministry of Environment and Forests[3].

In 1981, the Air (Prevention and Control of Pollution) Act was introduced with the following aims-

1. Setting up of central and state boards.
2. power to declare pollution control areas,
3. restrictions on certain industrial units,
4. authority of the boards to limit emission of air pollutants,
5. power of entry, inspection, taking samples and analysis, penalties, etc[4].

Further, in December 1984, the Bhopal Gas Tragedy took place which killed several people instantly and left several of them with permanent injuries that have passed down the generations, due to the leaking of Methyl Isocyanate and Alpha Naphthol[5] gases. In India, environmental law gained importance after a PIL was filed which later famously came to be known as the case of MC Mehta v Union of India[6]. As a country we realized the need for more stringent rules in terms of preservation and regulation of the environment.

Despite several environmental legislations being in place, we still continue to face severe air pollutions in various parts of the country. The next part will discuss a new committee set up specifically for curbing air pollution in the capital.

COMMISSION FOR AIR QUALITY MANAGEMENT

In light of the decreasing air quality in the NCT of Delhi, the Ministry of Environment, headed by Mr. Prakash Javadekar has announced “The Commission for Air Quality Management in National Capital Region and Adjoining Area Ordinance, 2020” for better co-ordination, research, identification and resolution of problems surrounding the air quality index and matter connected.

The Ordinance to constitute this Commission has been passed in furtherance of the assurance provided by the Central Government to the Supreme Court, wherein the Central Government had submitted that it was under the process of proposing a legislation to tackle the problem of air pollution that had been highlighted repeatedly before the Supreme Court of India. The order of the Supreme Court dated 16 October 2020 to constitute a one-man Monitoring Committee headed by Justice Madan B Lokur, a retired judge of the Supreme Court, for monitoring the measures taken by the states to prevent stubble burning was therefore kept in abeyance after the aforesaid reassurance by the Central Government to constitute this Commission.[7]

The commission replaces the Environment Pollution Control Authority (hereinafter, EPCA) which was formed 22 years ago under the Environment (Protection) Act, 1986 in order to work towards the Graded Response Action Plan (GRAP) in the National capital of Delhi. The EPCA was empowered with rights to issue directions in writing to any person, officer or authority as well as the right to take action against accused by way of a criminal trial under section of the Act[8]. The last committee of the EPCA reconstituted in 2018 consisted of 20 members, headed by Mr. Bhure Lal. The EPCA while in force, took several remarkable decisions for instance, conversion of public transport to CNG in 1998, regulation of old vehicles and trucks to curb emission, drastic reduction in the use of polluting fuels like pet coke and furnace oil from industries. The newly formed commission will constitute a variety of members for instance, members of the Central Pollution Board, ministry of petroleum, agriculture and other associated ministries etc.

Under section 12 of the Act[9], the committee will take appropriate steps to curb the menace of air pollution with the following aims-

(i) restricting activities that are likely to reduce the quality of air in NCR and even adjoining areas.

(ii) investigating and conducting research by taking air samples from factories or other premises to ensure that their emissions do not further degrade the air quality.

(iii) preparing codes and issuing directions that will be binding on the concerned person or authority flouting the environmental norms.

(iv) in case any individual/ organisation has been caught flouting norms, the commission also has the power to take Suo moto cognizance of such cases.

(v) the commission will not only be set up to levy penalties on defaulters but also, be instrumental in providing for alternatives of usual practices to maintain air quality and means to implement the same.[10]

The commission will be comprising of members and ex officio members. The members will as follow-

(i) a Chairperson,

(ii) two Joint Secretaries belonging from the central government,

(iii) three persons affiliated with knowledge and expertise related to  air pollution who will act as independent technical members,

(iv) three members from non-government organizations (NGOs). 

The ex-officio members shall include-

(i) representatives from the central government and concerned state governments and

ii) members from CPCB, Indian Space Research Organization (ISRO), and NITI Aayog to impart their knowledge and experience, relating to the environment. Furthermore, the Commission has also been empowered to appoint representatives of certain other ministries whose opinions might be valuable while making decisions relating to the environment, as associate members[11].

The members and chairperson of the commission will be appointed by the central government on the recommendations of a Selection Committee.  The Committee will be chaired by the Minister in-charge of the Ministry of Environment, Forest and Climate Change.The Committee will also include members like the Cabinet Secretary and the Minister who are in-charge of the following ministries-

 (i) Ministry of Commerce and Industry,

(ii) Ministry of Road Transport and Highways, and

(iii) Ministry of Science and Technology.

In order for the commission to carry put its objectives in a systematic manner, it is mandated under section 11 of the Act[12] to form the following three sub-committees, at the least-

(i) sub-committee on monitoring and identification, headed by a member of the commission.

(ii) sub-committee on safeguarding and enforcement, headed by a chairperson of the commission.

(iii) sub-committee on research and development, headed by a technical member of the commission.

It may form additional committees to as and when required, the above mentioned three are essential for the working of the committee.[13]

The Commission will be the sole authority with jurisdiction over matters defined in the Ordinance (such as air quality management).  In case of any conflict, the orders or directions of the Commission will prevail over the orders of the state governments (of Delhi, Haryana, Punjab, Rajasthan, and Uttar Pradesh), the Central Pollution Control Board (CPCB), state PCBs, and state-level statutory bodies.

CONCLUSION

The steps taken in the formation of the commission, the roles assigned to it and powers given to it are commendable and also the need of the hour. As things go back to normal with the lockdown being lifted, it is only going to decrease air quality due to vehicular movement, emissions from factories and not to forget the festival of Diwali. Thus, we can be hopeful that this commission will be successful in curbing the menace of poor air quality.The government might have done a good job at brining the environmental legislations in place and guaranteeing the right to a healthy and safe environment under the Constitution of India, but their implementation still remains a severe issue. A Report of the UN Environment found that, “Despite a 38-fold increase in environmental laws put in place since 1972, failure to fully implement and enforce these laws is one of the greatest challenges to mitigating climate change, reducing pollution and preventing widespread species and habitat loss”[14]

REFERENCES–

[1] Urvashi Narain, Rochelle Glenene O’hagan, Varun Kshirsagar, Emmanuel Skoufias, In India, air quality has been improving despite the COVID-19 lockdown, https://blogs.worldbank.org/endpovertyinsouthasia/india-air-quality-has-been-improving-despite-covid-19-lockdown.

[2] Particulate Matter (PM) Pollution, EPA, https://www.epa.gov/pm-pollution/particulate-matter-pm-basics.

[3] Vinay Vaish, Hitender Mehta, India: Environment Laws In India, MONDAQ, https://www.mondaq.com/india/waste-management/624836/environment-laws-in-india.

[4] Nidhi Garg, All about Air (Prevention And Control Of Pollution) Act, 1981, LATESTLAWS, https://www.latestlaws.com/articles/all-about-air-prevention-and-control-of-pollution-act-1981-by-nidhi-garg/.

[5] Bhopal to Vizag – A jurisprudential analysis of the tortious liability for companies, SCC ONLINE, https://www.scconline.com/blog/post/tag/bhopal-gas-tragedy/.

[6] 1987 SCR (1) 819.

[7] Ordinance Passed To Constitute A Commission To Control Air Pollution In The National Capital Region (NCR) And Adjoining States, https://www.mondaq.com/india/clean-air-pollution/1003864/ordinance-passed-to-constitute-a-commission-to-control-air-pollution-in-the-national-capital-region-ncr-and-adjoining-states

[8] ENVIRONMENT POLLUTION (PREVENTION AND CONTROL) AUTHORITY (EPCA), manifest IAS, https://www.manifestias.com/2020/05/07/environment-pollution-prevention-and-control-authority-epca-2/.

[9] Environmental laboratories-

(1) The Central Government may, by notification in the Official Gazette,

(a) establish one or more environmental laboratories;

(b) recognise one or more laboratories or institutes as environmental laboratories to carry out the functions entrusted to an environmental laboratory under this Act.

(2) The Central Government may, by notification in the Official Gazette, make rules specifying

(a) the functions of the environmental laboratory;

(b) the procedure for the submission to the said laboratory of samples of air, water, soil or other substance for analysis or tests, the form of the laboratory report thereon and the fees payable for such report;

(c) such other matters as may be necessary or expedient to enable that laboratory to carry out its functions.

[10] Devika, President promulgates the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, SCC Online, https://www.scconline.com/blog/post/2020/10/29/commission-for-air-quality-management-in-national-capital-region-and-adjoining-areas-ordinance-2020/.

[11] The Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, Ministry: Environment, Forest and Climate Change, PRS India, https://www.prsindia.org/billtrack/commission-air-quality-management-national-capital-region-and-adjoining-areas-ordinance.

[12] Power to take sample and procedure to be followed in connection therewith-

(1) The Central Government or any officer empowered by it in this behalf, shall have power to take, for the purpose of analysis, samples of air, water, soil or other substance from any factory, premises or other place in such manner as may be prescribed.

(2) The result of any analysis of a sample taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3) and (4) are complied with.

(3) Subject to the provisions of sub-section (4), the person taking the sample under sub-section (1) shall

(a) serve on the occupier or his agent or person in charge of the place, a notice, then and there, in such form as may be prescribed, of his intention to have it so analysed;

(b) in the presence of the occupier or his agent or person, collect a sample for analysis;

(c) cause the sample to be placed in a container or containers which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent or person;

(d) send without delay, the container or the containers to the laboratory established or recognised by the Central Government under section 12.

(4) When a sample is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent or person, a notice under clause (a) of sub-section (3), then,

(a) in a case where the occupier, his agent or person wilfully absents himself, the person taking the sample shall collect the sample for analysis to be placed in a container or containers which shall be marked and sealed and shall also be signed by the person taking the sample, and

(b) in a case where the occupier or his agent or person present at the time of taking the sample refuses to sign the marked and sealed container or containers of the sample as required under clause (c) of sub-section (3), the marked and sealed container or containers shall be signed by the person taking the samples,

and the container or containers shall be sent without delay by the person taking the sample for analysis to the laboratory established or recognised under section 12 and such person shall inform the Government Analyst appointed or recognised under section 13 in writing, about the wilful absence of the occupier or his agent or person, or, as the case may be, his refusal to sign the container or containers.

[13] The Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, Ministry: Environment, Forest and Climate Change, PRS India, https://www.prsindia.org/billtrack/commission-air-quality-management-national-capital-region-and-adjoining-areas-ordinance.

[14] Dramatic growth in laws to protect environment, but widespread failure to enforce, finds report, UN ENVIRONMENT PROGRAMME, https://www.unenvironment.org/news-and-stories/press-release/dramatic-growth-laws-protect-environment-widespread-failure-enforce#:~:text=Despite%20a%2038%2Dfold%20increase,the%20UN%20Environment%20report%20found.

INTRODUCTION

Along with the battle of COVID-19, the world has faced another major problem i.e, misinformation. With the mainstream media focusing more on the number of cases every day, the general public has fallen trap to fraudulent individuals who have taken advantage of the vulnerability of the public. As the pandemic took over the world, the governments across nations called for a nationwide bans and imposed strict lockdown restrictions. These included guidelines about how one must carry themselves in the public, that is, with N95 masks, preferably along with gloves and sanitisers. While major multinational brand companies jumped into the manufacturing the essential commodities, so did the local manufactures, whereas few started producing fake products, in other words, counterfeit products. In this article we will analyse how COVID-19 has impacted the counterfeit market.

 

INTELLECTUAL PROPERTY RIGHTS

According to the World Trade Organisation (WTO), Intellectual Property Rights, commonly referred to as IPR, are ‘rights given to person over creations of their minds’.[1] These provide the owner with exclusive rights for a certain period of time. IPR is customarily divided into two main parts: ‘Copyright and rights related to copyright’ and ‘Industry Property’. Copyrights cover authors of literary, performers (for example, actors, singers and musicians) and artistic works (for example, paintings, sculptures, music compositions, films and so on).[2]  The main objective of copyrights is to encourage and reward creative work. Industry Property includes patents for inventions, trademarks, industrial designs and geographical indications.

• Patents

To patent an invention means to get exclusive right over it for a particular period of time. The patent owner is provided with protection for their inventions which incentivizes individuals or companies to invest in research and development. A patent can be obtained for a product or a process and the invention has to be such that it offers a new solution to a problem. To get patent rights over an invention, the technical information of the same has to be disclosed to the government and the public in a patent application.

• Industrial Design

The ornamental or aesthetic aspects of an article are referred to as the industrial design. To be protected, an ID must be original and non-functional, which means that only the aesthetic can be protected and not any technical feature of the article. The latter can be protected under a patent.

• Geographical Indication

When a good is associated with a sign that has a specific geographical origin and possesses the qualities or the reputation  due to that place of origin, then such a sign is called a geographical indication.

• Trademark

A trademark is basically the identification using easily recognizable signs, symbols, name or logos, which give exclusive rights to the owner to make financial profit off the recognition and discourage unfair competition, for example, counterfeiters. Trademark infringement occurs when the trademark is used without the authorization of the trademark owner or licensee.

 

COUNTERFEIT GOODS

The International Anti-Counterfeiting Coalition (IACC) defines counterfeiting as ‘a federal crimes, involving the manufacturing or distribution of goods under someone else’s name and without their permission’[3]. Such goods are generally manufactured from components of very low quality, in an attempt to sell a cheaper imitation of goods produced by brands that are widely known and trusted by consumers. The main driving of the counterfeit industry is consumer demand. According to a report issued by the Organisation for Economic Cooperation and Development (OECD) in 2019, trade in counterfeit products contribute to over 3.3% of the overall world trading.[4] The Global Brand Counterfeiting Report issued in 2018 states that the total value of the counterfeit product on a global scale is about USD 1.20 trillion as of 2017 and is expected to surge by more than 50% to USD 1.82 trillion by 2020.[5]

Counterfeiting is a threat to all of many levels – it deprives the right holders of a product of their rightful benefits, it harms and damages the brand image of the company, it discourages a company from moving towards innovation and new creation. Legitimate manufacturers devote a huge amount of resources into research and development (R&D) of products while simultaneously building a reputation for quality amongst the consumers. Counterfeits, in turn, profit unfairly off another company’s good name. The resulting lost sales and profits lead the companies to cut wages, take away jobs and lose their consumer market owing to untrust. Further, it can put the consumer of the product at the risk of identity theft and credit card fraud, it stagnates the overall economic growth of the country since counterfeiters do not pay tax, it supports and rather encourages child labour, providing them with very low wages and poor working conditions. Most importantly, it puts consumer’s health and safety into jeopardy.[6]

 

IMPACT DUE TO COVID-19 IN INDIA

On the announcement of the lockdown on March 16^th, 2020, the Indian economy was severally hit. Though a few sectors like the I.T. could still manage to stay afloat due to shift in working pattern, for example, work from home, but the manufacturing sector was deeply impacted. Challenges such as availability of raw materials, shortage of manpower, transport restrictions, supply-chain disruptions made it extremely difficult for these sectors to continue working at the same efficiency. Since the rigorous lockdown stayed put for a prolonged period of time until very recently, new avenues for illegal activities opened up.[7]

The building panic about shortage of supplies and increase in prices led to people stocking up tons of supplies at home. This meant that people were not as concerned about the quality of the good anymore and were more focused on quantity and price.[8] What added to this was the rise in sales of e-commerce industry . Consumers found it easier to stay at home and purchase goods which promised safe as well as speedy delivery. This made it easier for counterfeiters to sell their products. Many of the advertisements on television as well the internet, took advantage of people’s vulnerability and would deceptively advertise their products such as sanitisers and masks as affiliated with the legitimate healthcare organisations and claims that the standard of quality has been followed.[9] A district administration team sealed an unlicensed unit in Noida’s Section 63 wherein over 10,000 bottles of inferior quality hand sanitisers had been manufactured and were ready to be shipped for sale to Delhi.[10] Not only limited to masks and sanitisers, fake testing kits and drugs that claim to cure the virus have also been seized which provided the consumer with a false sense of security. These counterfeit products have filled the gap created by the shortage of supply of products from well established brands. 

Amazon, the tech giant, found that products on their websites were falsely claiming to have the quality of curing Coronavirus. Sticking to the policy of zero tolerance to counterfeit products, the company met with the World Health Organisation and decided to remove any product mentioning the Coronavirus on their website. It was later reported to have removed almost over a million such counterfeit products.[11]

 

LEGISLATIVE MEASURES IN INDIA

India being a member of the TRIPS (Trade Related Aspect of Intellectual Property Rights), has to comply with all of its regulations. Article 61 of TRIPS[12] lays down that all the members are to provide for criminal procedures and penalties in cases of trademark counterfeiting or copyright piracy. These penalties should be in the form of imprisonment as well as monetary fines as per the gravity of the case. It further states that the remedies should also include seizure, forfeiture and destruction of the infringing goods and any other material used for the commission of the offence.

Now though India does not have any specific laws relating to the counterfeiting of goods, the Indian Customs Act 1962, read along with the IP Rights (Imported Goods) Enforcement Rules, 2007, allows the owner of a trademark to record her/his rights with the Indian Custom Authorities for seizure of imported counterfeit goods. Counterfeit goods fall under the category of ‘prohibited goods’ under this Act, so if any imported good is found to be fake, then the authorities will notify this to the right holder and destroy the goods. Counterfeit is a cognizable offence in India and the law enforcement has search and seizure rights. Further, under the Trade Marks Act 1999, Copyright Act 1957 and the Geographical Indications of Goods (Registration and Protection) Act 1999, the rights holder can additionally attach criminal liability to the offender.

The Drugs and Cosmetics Act (DCA), 1940 also has provisions that held tackle the problem of counterfeit products.[13] Section 9B of this act defines such products under the name of ‘Spurious drugs’ wherein the matter is of import of such products. This includes any drug which is imported under a name that belongs to another drug; imitates or looks like a substitute for another drug in a deceiving manner; claims to be associated with an individual or a company that is fictious or does not exist; has been substituted wholly or in part by another drug; and if its claims to be the product of a manufacturer of whom it is not truly a product.[14] Section 13 of the act prescribed from punishment for the import of spurious drugs. Section 17B  also defines spurious drugs wherein the issue is related to manufacture, sale and distribution. Section 27 of lays down the penalties related to Section 17B, stating that if the use of such a drug by a person, for the purpose of diagnosis, treatment, mitigation or prevention of any diseases or disorder, causes the death or is likely to cause the death of that person, then this harm would be categorised as grievous hurt under Section 320 of the Indian Penal Code and for the same, the offender will be sentenced to imprisonment for not less than a period of 10 years. This may extend to imprisonment for life depending on the gravity of the case. A fine of not less ten lakh rupees or three times the value of the drugs confiscated will also be applicable.[15]

 

CONCLUSION

Although there exists a law enforcement in place to tackle the problem of counterfeiting imported goods, there is no specific provision in law regulating the counterfeit of local/regional goods. Moreover, even for the imported goods, the process is cumbersome and not a 100% effective given the quantity and extensive distribution of such products. Hence, as responsible citizens, we can do our part for eradicating the growing use of such products. While purchasing any good, we can exercise due diligence by checking if such a good is actually from the brand it claims to be and whether comes from regulated legitimate sources. If we comes across any counterfeit product, the same can be immediately reported to the concerned authorities. This must be kept in mind especially while purchasing goods online. E-commerce has witnessed a sudden growth in the last decade, it isn’t surprising to see the intrusion of fraudsters in the online trade given that the cyber laws have a long way to go before they are strong enough to eradicate online offences. In such a situation, we can do our part by maintaining caution every step of the way, especially with so much misinformation lingering around us. It is now the time to be citizens who are aware, responsible and rational about the everyday decisions that we take.

 

REFERENCES 

[1] World Intellectual Property Organization (WIPO) , https://www.wipo.int/portal/en/index.htm

[2] “Understanding Copyright and Related Rights” (PDF). www.wipo.int.

[3] International Anti-Counterfeiting Coalition (IACC), https://www.iacc.org/

[4] “Trade in fake goods is now 3.3% of world trade and rising”, Organisation for Economic Cooperation and Development (OECD), 18^th March, 2019.

https://www.oecd.org/newsroom/trade-in-fake-goods-is-now-33-of-world-trade-and-rising.htm

[5] Jagvinder Brar & Mustafa Surka, “Ensuring brand protection and integrity in the times of Covid-19” The Economic Times, 29th August, 2020.

[6] “What is Counterfeiting?”, International Anti-Counterfeiting Coalition, 1979.

https://www.iacc.org/resources/about/what-is-counterfeiting

[7] “APDI writes to PM, says counterfeit goods flooding markets during lockdown”, The Economic Times, 9^th April, 2020.

[8] “Global Operation sees a rise in fake medical products related to COVID-19”, INTERPOL., 19^th March, 2020.

https://www.interpol.int/en/News-and-Events/News/2020/Global-operation-sees-a-rise-in-fake-medical-   products-related-to-COVID-19

[9] “Beware of fraudulent Coronavirus Tests, Vaccines and Treatments”, U.S. Food & Drug Administration. https://www.fda.gov/consumers/consumer-updates/beware-fraudulent-coronavirus-tests-vaccines-and-treatments

[10] “Coronavirus: Beware! Fake masks, spray going ‘viral’ ” India Today, 15^th March, 2020.

[11] Annie Palmer, “Amazon tells sellers it will take down listings for products that claim to kill Coronavirus” CNBC, 20^th February, 2020.

[12] Article 61, TRIPS Agreement, 1995 states “Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed willfully and on a commercial scale”.

[13] Chitranjan Kumar, “Medical devices to be treated as drugs from April 1” Business Today, 31^st March, 2020.

[14] Section 9B, Drugs and Cosmetics Act (DCA), 1940

[15] Section 27, Drugs and Cosmetics Act, 1940

1. INTRODUCTION

Cyber is the world of technology and works related to technology which is based on virtual reality. Before we start discussing over the topic ‘cyber law’ we need to ponder over ‘Cyber-crime’, the concoction of two words ‘cyber’ & ‘crime’. The crimes done by the mode of virtual reality i.e. technology and by taking the help of technology is termed as cyber-crime. To protect oneself from such malpractices, cyber laws were introduced.

Information Technology is drastically modernising and gaining popularity in most of our aspects of lives. Computer holds vital significance in today’s era, but that also includes the people involving in the commission of crimes using computers. The law enforcers must become more alert in the cyber sector to keep up with all these criminal elements. One of the major concerns is about educating people and individual of every sector on cyber laws and security practices, such as handling sensitive data, records, and transactions, and implementing sturdy and secured security technology, such as firewalls, anti-virus software, intrusion detection tools, and authentication services on the computer systems. It is important for every individual who uses the internet to be aware of the cyber laws of their country and local area so that, they know what activity is legal online and what is not.

It also implies that cyberlaw, is a legislation focused on the acceptable behavioural use of technology including computer hardware and software, the internet, and networks. Cyber law helps to safeguard users from harm by enabling the investigation and prosecution of online fraud or any criminal activity with the use of cyber technology. It is actionable to the activities of every individual, groups, the public, government, and private organizations. Not to forget if anything happens to any individual online, they know the remedy they can act regarding that matter accordingly.

2. DEFINITION AND IMPORTANCE OF CYBER LAW

Cyber law is the term used to describe a law that deals with the problems in relation to the internet, technology, including computers, software, hardware and information systems. It is the generic term that refers to all criminal activities dealing or using the medium of communication technology components, the internet, cyber space and the world wide web (www).

 It is important because: –

• • Cyber law is concerned with everyone these days. This is primarily because we all use internet in same or other form daily. Internet is used when we create any account online, while performing e-commerce transactions, net banking for e-mails etc.
  • Cyber law is important because it touches all kind of transactions in every aspect and activities on and concerning the internet, the world wide web and cyber space.
  • It protects every individual from getting trapped in any cyber violations.

3. REASONS OF CYBER-CRIME CAN BE SUMMARIZED AS FOLLOWS:

• • The computer has a unique feature for storing data in a very small space. This allows you to find and retrieve information using physical or possible information easily.
  • The computer is easily accessible so unauthorized access to the use of sophisticated cyber space technology is easily possible through the security system.
  • Computers work on complex operating systems and are made up of millions of codes. Cyber-hackers take advantage of the corruption of the human mind and enter into a computer program.
  • One of the most important aspects of a computer program is that evidence is destroyed instantly. Criminals find it easy to destroy evidence quickly after a crime has made it difficult for investigative agencies to gather relevant evidence to prosecute the offender.
  • The slightest negligence on the part of the computer user in ensuring the security of the computer system can lead to disastrous consequences as the cyber hacker can gain illegal access and unauthorized control of the computer system to carry out its malicious design.

4. FORMS OF CYBER CRIMES:

Cybercrime can be categorized mainly in two ways:

• • Using the Computer as a Target:- Using a computer to attack other computers.Example: Hacking,  Virus/Worm attacks,  DOS attack etc.

• • Using the computer as a weapon:- Using a computer to commit real world crimes.Example: Cyber Terrorism, IPR violations, Credit card frauds, EFT frauds, Pornography etc

Common forms of cybercrime include:

• • Child sexually abusive material (CSAM) refers to material containing sexual image in any form, of a child who is abused or sexually exploited. Section 67 (B) of IT Act states that “it is punishable for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.
  • Cyber Bullying: A form of harassment or bullying inflicted through the use of electronic or communication devices such as computer, mobile phone, laptop, etc.
  • Cyber stalking is the use of electronic communication by a person to follow a person, or attempts to contact a person to foster personal interaction repeatedly despite a clear indication of disinterest by such person; or monitors the internet, email or any other form of electronic communication commits the offence of stalking.
  • Cyber Grooming is when a person builds an online relationship with a young person and tricks or pressures him/ her into doing sexual act.
  • Online Job Fraud is an attempt to defraud people who are in need of employment by giving them a false hope/ promise of better employment with higher wages.
  • Vishing is an attempt where fraudsters try to seek personal information like Customer ID, Net Banking password, ATM PIN, OTP, Card expiry date, CVV etc. through a phone call.
  • Smishing is a type of fraud that uses mobile phone text messages to lure victims into calling back on a fraudulent phone number, visiting fraudulent websites or downloading malicious content via phone or web.
  • Credit card (or debit card) fraud involves an unauthorized use of another’s credit or debit card information for the purpose of purchases or withdrawing funds from it.
  • Impersonation and identity theft is an act of fraudulently or dishonestly making use of the electronic signature, password or any other unique identification feature of any other person.
  • Phishing is a type of fraud that involves stealing personal information such as Customer ID, IPIN, Credit/Debit Card number, Card expiry date, CVV number, etc. through emails that appear to be from a legitimate source.
  • Spamming occurs when someone receives an unsolicited commercial messages sent via email, SMS, MMS and any other similar electronic messaging media. They may try to persuade recepient to buy a product or service, or visit a website where he can make purchases; or they may attempt to trick him/ her into divulging bank account or credit card details.
  • A data breach is an incident in which information is accessed without authorization.
  • Cyber-Squatting is an act of registering, trafficking in, or using a domain name with an intent to profit from the goodwill of a trademark belonging to someone else.

Some laws are formulated to protect or to defend people online from malicious activities, some laws explain the policies if using computers and the internet in a company. All these wide range of activities fall under the cyber laws. Some of the wide areas covering the cyber laws are:

Scam/ Treachery: Cyber laws complies to the protection of people from online frauds and scams, these laws prevent any financial crimes and identity theft that happen online.

Copyrighting Issues: The Internet holds multiple types of content, but not to forget, it has no right to copy the hard work of any other person. There are strict rules and policies in cyber laws against copyright that protects the creative work of companies and individuals and safeguards their interest.

Online Insults and Character Degradation: Online platforms including social media are the best platform to speak your mind freely but there is a thin line between the liberation of using the right to speak and defaming someone online which must be kept in mind. Cyber laws nominate or deals with the issues like online insults, racism, gender targets to protect a person’s reputation.

Online Harassment and Stalking: Harassment is not only the violation of civil but criminal laws as well. This crime is a major issue in cyberspace. The legal system holds strict laws to prohibit these despicable crimes.

Data Protection: People using the internet risk their privacy and data stored while being online and are often dependent on cyber laws and policies to protect their secrets. Also, corporate world and companies should maintain the confidentiality of data of their users.

5. LAWS IN RELATION TO CYBER-CRIME:

Cyber ​​laws in India prohibit any cybercrime, where the computer is a tool of cybercrime. Cyber-​​crime laws protect citizens from transmitting sensitive information to a stranger online. Since the introduction of cyber laws in India, IT Act 2000 has been enacted and amended in 2008 which covers various types of crimes under cyber law in India. The law defines forms of cybercrime and punishment.

Since the IT Act is a cyber-security law, introduced to protect cyber-space, the IT Act was amended under:

• • • Indian Penal code
    • Indian Law of Attraction
    • Banker’s Book evidence Law
    • The Reserve Bank of India

The main focus of cyber law in India is to prevent:

• • • computer crime
    • e-commerce data fraud and e-commerce recording
    • electronic transactions

Provisions governing IPC and IT act: Many of the cyber-crimes penalised by the IPC and the IT Act have identical ingredients and nomenclature. Here are a few examples:

1. 1. 1. Hacking and Data Theft:Sections 43 and 66 of the IT Act. Section 378 of the IPC relating to “theft” of movable property will apply to the theft of any data or online Also sections – 424 and 425 of the IPC, talks about dishonesty and mischiefs respectively
      2. Receipt of stolen property:Section 66B of the IT Act while section- 411 of IPC which talks about dishonestly stealing property.
      3. Cheating– section 66D of IT act and section 419 of IPC. While sections -463, 465 and 468 of IPC talks about forgery.
      4. Obscenity: Sections 67, 67A and 67B of the IT Act; while section- 292 and 294 of IPC deals with it, etc.

6. WAYS TO PREVENT CYBER-CRIME:

Undoubtedly the cyber laws in India provide protection from cybercrime. However, prevention is always better than cure. Therefore, we ought to take the following measures to reduce or prevent cybercrime:

• • • Unsolicited text message – We all receive messages from an unknown number. One should be careful and try to avoid replying to messages or instant messages from an unknown number.
    • Mobile Downloads – Download everything on the mobile phone from a trusted source only.
    • Rate and feedback – Always check the seller rating and customer feedback on the seller. Make sure you look at current issues. Also, be aware of 100% refunds sold by merchant or on the same day.
    • Personal Information Request – Everyone should have received a call or email. There, someone on the other hand asks for personal details. This includes your CVV card or email containing attachments, which require you to click on embedded links. Make sure you do not respond to any emails or calls.

7. STEPS TO FILE A COMPLAINT

Steps to file a complaint:

1. 1. 1. register a written complaintwith the cyber-crime cell. If you cannot find a cyber-cell in your area, you can file an FIR in the local police station. Further if the complaint is not heard, you can refer the complaint to the commissioner or judicial magistrate of the city.
      2. address the written complaint to the Head of the Cyber Crime Cellof your city or where you are filing the cyber-crime complaint. You should provide your name, contact details, and address for mailing.

• • • In case you are a victim of online harassment, approach a legal counsel to assist you with reporting it to the police station of your area. 

1. 1. 1. Get an FIR registered- various cyber-crime comes under the provisions of IPC, so get them mentioned, recorded in the police station. The police have to register the Fir under section -154 of Crpc irrespective of the jurisdiction of the case.
      2. Most of the cyber-crimes are a cognisable offence so warrant is not required for arrest or investigation.

• • • How to register an online cyber-crime complaint:

The ministry of home affairs has launched a centralized online cyber-crime registration portal:

1. 1. 1. https://www.cybercrime.gov.in/
      2. http://www.cybercelldelhi.in/
      3. http://www.indorepolice.org/cyber-crime.php

• • • Documents required for filing cyber-crime complaint:

 Here are a few details of documents required for various complaints-

Complains which are social media based

• • • A copy or screenshot viewing the alleged profile/content
    • A screenshot of the URL of the alleged content
    • Hard/soft copies of the alleged content
    • The soft copy is provided in a CD-R

Complains which are email based:

• • • A written brief about the offense
    • A copy of the suspicious email as received by the original receiver (forwarded emails should be avoided)
    • The complete header of the suspected email
    • Hard and soft copies of the alleged email and its header
    • The soft copy is provided in a CD-R

Complains which are done through mobile app:

• • • A screenshot of the alleged app and the location from where it was downloaded
    • The bank statements of the victim in case any transactions were made after the incident
    • Soft copies of all the above documents

For Business relation complaint:

• • • A written brief about the offense
    • Originating name and location
    • Originating bank name and account number
    • Recipient’s name (as in bank records)
    • Recipient’s bank account number
    • Recipient’s bank location (not mandatory)
    • Date and amount of transaction
    • SWIFT number

8. JURISDICTION TO FILE A COMPLAINT FOR CYBER-CRIME:

According to the section 4(3) of the Indian Penal Code, 1860; one can easily file a complaint against cyber-crime which deals with computer related crime as well. After the amendment of this section, it gave way to penalise the extra territorial offences. This includes to any person residing at any place “without and beyond boundary” , who commits any crime targeting a computer/ online source located in India.

When the offence committed won’t fall under the ambit(jurisdiction) of the police officer, where the complaint is filed, he may record it as a ZERO FIR and transfer it to the concerned police station who has the jurisdiction over that matter of the concerned offence

9. BENEFITS OF CYBER LAW:

• • Organizations are now able to conduct their own business, trade and e-commerce using the legal infrastructure provided by the Act.
  • Digital signatures are legally recognized, validated and punished in the Act.
  • It has opened the door for corporate digital signature certification companies to enter the business of being a Certificate Authority.
  • Allows Government and policymakers to post notices on the web thus announcing online domination.
  • Authorizes companies or organizations to file any form, application or other document in any office, authority, body or agency owned or controlled by the relevant Government by e-form in a form that may be determined by the relevant Government.
  • Failure to implement IT legislation that addresses important security issues, which are crucial and critical to the success of an electronic transaction.

10. CONCLUSION:

Implementing cyberspace is an important step in creating a safe and secure environment for people on the cyber platforms. To protect from cybercrime, computer forensic science should focus on ethical training and the use of cyber security programs that address people, the process, and the technical issues that arise these days. Strict cyber rules are a necessity at this time when technology is growing rapidly because budgets have not been expanded to keep pace with this rate of change in technology.

References:

1. https://online.norwich.edu/academic-programs/resources/cyber-law-definition#:~:text=Cyber%20law%2C%20also%20known%20as,prosecution%20of%20online%20criminal%20activity.
2. https://kratikalacademy.medium.com/what-is-cyber-law-and-why-it-is-important-e21d76d74f47
3. https://kratikalacademy.medium.com/what-is-cyber-law-and-why-it-is-important-e21d76d74f47
4. https://www.infosecawareness.in/cyber-laws-of-india
5. https://www.government.nl/topics/cybercrime/forms-of-cybercrime
6. https://www.mondaq.com/india/it-and-internet/891738/cyber-crimes-under-the-ipc-and-it-act–an-uneasy-co-existence
7. https://ifflab.org/how-to-file-a-cyber-crime-complaint-in-india/