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All Posts | Aug 04,2017

[Press Release] High Court permits filing of Income Tax Returns without quoting Aadhaar

Kochi, 4th August 2017: Prasanth Sugathan, Legal Director at SFLC.in filed a Writ petition (W.P.(C) 26033/2017) before the Hon’ble High Court of Kerala , challenging the mandatory requirement as per Section 139AA of the amended Income Tax Act, 1961 to quote Aadhaar number or enrolment ID for filing Income tax returns.

The Hon’ble High Court has admitted the matter and passed an interim order, directing the concerned Income tax Officer to allow the petitioner to file IT Returns manually, without quoting Aadhaar number or Aadhaar enrollment ID.

Earlier this year, the Supreme Court heard the challenge of mandatory linking of Aadhaat to PAN in the cases of Binoy Viswam v. Union of India (W.P.(C) 247/2017), S.G. Vombatkere & Anr. v. Union of India (W.P.(C) 277/2017) and the two-judge bench held that the PAN cards of those people who are not Aadhaar card holders, and who do not comply with the provision of Section 139(2), cannot be “treated as invalid for the time being”.

Prasanth Sugathan submitted before the Hon’ble Court that the partial stay granted by the Hon’ble Supreme Court in the Binoy Viswam case would be futile, if assesses are forced to quote Aadhaar No. while filing the returns.

Mishi Choudhary, President, SFLC.in said that they have been continuously working to raise awareness about the mission creep that is happening with the Aadhaar scheme. The so-called voluntary scheme is being made mandatory for citizens to avail a host of services as well for performing obligations as a citizen.

The interim order can be read here:

About SFLC.in :
SFLC.IN is a donor supported legal services organisation that brings together lawyers, policy analysts, technologists, and students to protect freedom in the digital world. SFLC.IN promotes innovation and open access to knowledge by helping developers make great Free and Open Source Software, protect privacy and civil liberties for citizens in the digital world by educating and providing free legal advice and help policy makers make informed and just decisions with the use and adoption of technology.

For more information please contact:

Mishi Choudhary,
President and Founding Director, SFLC.in
+1 917 325 8594
mishi-at-softwarefreedom-dot-org

Prasanth Sugathan,
Legal Director, SFLC.in
+91 90135 85902 / +91 94472 91565
prasanth-at-sflc-dot-in

All Posts | Nov 28,2011

Wikipedia – Bringing Free Knowledge to Everyone

Where the mind is without fear and the head is held high
Where knowledge is free... - Rabindranath Tagore

Wikipedia is a truly amazing project which aims at making the vast pool of knowledge available to everyone for free. sflc.in was part of the Wiki Conference India held in Mumbai from Nov. 18- 20, 2011. The conference was scheduled to start with a session by Jimmy Wales at 8.30 AM on the first day. On reaching the Fort campus of Mumbai University, the venue for the conference, I was surprised to see battalions of policemen and mandatory security checks. On talking to organisers I came to know that the youth wing of Bharatiya Janata Party had called for a protest against the unofficial maps used in some Wikipedia articles. Fortunately, there were no untoward incidents during the conference except for some brief slogan shouting outside the venue on the first day.

Jimmy Wales's session saw the huge convocation hall of the Mumbai University overflowing with delegates, and Jimmy Wales remarked that it was the biggest gathering that he has seen at any Wikipedia conference including the Wikimania, the annual Wikipedia conference. In his presentation he stressed on the opportunities in the regional language Wikipedias and also stressed on the need to improve the Mediawiki software so that it is easier to edit articles.

The best part of the conference was the opportunity it presented to interact with members of the community. There was sizeable representation from the various language communities from Marathi to Gujarati, Tamil, Malayalam and Nepali. It was a good opportunity to introduce the concept ofFreedom Box to the developers among them and I distributed a fewflyers on the project. It was indeed a joy to find that most of them were aware of the project. I do hope more start contributing to the code soon so that the world will soon will have privacy protected and easy-to-use communication systems.

Panel

 

 

On the second day I was part of a panel thatdiscussed "". The panel consisted of Anja Kovacs from the Internet Democracy Project, Raman Jit Singh Chima from Google, Arjuna Rao Chavala, President of the WikiMedia Chapter and Prof.Shishir Jha from IIT Mumbai. The panel discussed the issues ranging from freedom in the net, the effect of the recently notified IT intermediary rules on Wikipedia and Freedom Box to Creative Commons licenses. The panel explained how the recently notified IT rules could create legal risks fro Wikipedia and have chilling effects on freedom of speech. There was good participation from the audience too, although time constraint forced us to limit the number of questions form the audience.(Thanks to Rahul Matthan for the picture)
On the third day, it was really a pleasant surprise to listen to Achu Kulangara, a 10 year old Wikipedia editor presenting on Wikipedia at schools. The conference was a learning experience listening to keynote address by Barry Newstead, technical panel discussions moderated by Sumana Harihareswara, editing tutorial by Ashwin Baindur, presentation on gender gap issues by Harriet Vidyasagar and other panels and presentations on a wide range of topics. The conference showcased the strength of the Wikipedia community in India and their belief in the mission to make knowledge accessible to all.

All Posts | Nov 12,2011

Internet and Freedom of Expression

November 2-4, 2011 took sflc.in to participate in a closed group discussion organized byPoint of View,Internet Democracy Project,Center for Policy Alternatives, andGlobal Partners & Associateson Internet and Freedom of Expression in Kathmandu, Nepal. Participants came from Afghanistan, Bangladesh, India, the Maldives, Nepal, Pakistan and Sri Lanka to interact in this beautiful country, which welcomes everyone with open arms. To my great chagrin, I discovered the harassment Indian officials mete out to foreigners (We are truly "Incredible") and vowed never to complain about visa hassles I face as an Indian. I think reciprocity in these issues assumes tit for tat but I wish we lived up the tourism logo of country and really follow 'Atithi Devo bhav".

We interacted and deliberated on issues in a true round table way (although the table was rectangular in its shape). No long, boring speeches but small snippets of the topics and issues followed by open, passionate discussions took two full working days and spilled over into a few hours on the third day, leaving no time for anything but Freedom of Expression. I even dreamt of Intermediary Liability on the third day apart from covering from jet lag.

DSC_0123
Anja, Bishakha, Nigel, Dixie and Sushma ensured that the show ran smoothly and was sprinkled with fun discussions and interactive, talkative dinners wherein we endeavoured to venture out beyond our obsession with the internet and its beauty. The meeting brought together passionate and strong headed professionals such as journalists, community activists, human rights defenders, businesses, film makers, newspaper editors, writers, Twitter superstars, and of course the loquacious sharks (lawyers). Frank La Rue, who is this super charming human rights activist and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expressionbrought amazing clarity to this discussion resting on the intersection of Law, Technology and Politics. His interventions were laconic and precise and were met with nodding heads at least most of the time.

In a nutshell, we covered the following points, not necessarily in the provided order:


  • Shared experiences on threats to freedom of expression in our various countries and the challenges which we face;

  • Recommendations made in Frank's report to the United Nations on May 16, 2011 and compliance and implementation of these recommendations;

  • Access to the internet, surveillance, security, privacy and data protection online, arbitrary filtering and blocking of content and criminalization of expression, and intermediary Liability issues amongst others;

  • Hate Speech online

  • Lady Gaga;

  • Community Radio;

  • Freedom Box;

  • Spectrum;

  • Etymology of terms like 'Hindu-Zionist";

  • White Spaces;
  • Nepali Pashmina Shawls etc.

The diversity of experiences is evident from the name of the countries and I won't elaborate on that but the passion about the issues is universal along with the sense of humor.

 

We did not realize that the week following the meeting would once again bring out these issues in the limelight. On November 5, 2011 the Director General of the Department of Government Information, Government of Sri Lanka issued a press release mandating all "websites carrying any content relating to Sri Lanka or the people of Sri Lanka... uploaded from Sri Lanka or elsewhere to "register" for "accreditation".

Our Nepalese friends quickly came into action and stood in solidarity with the Sri Lankans in condemning this action and issued thispress release.

The discussions have started an interesting dialogue amongst the stakeholders in all participant countries and one of the foremost developments has resulted in the following statement. Please endorse, share, analyze, comment or if nothing else just read the statement and hope that you still can anonymously comment on this blog without being under surveillance.

All Posts | Oct 10,2011

Curtailing the Right to Information

Freedom to have access to information, as a right, is essential for the functioning of a transparent and accountable democracy. The Right To Information Act 2005 ( RTI Act) in India was enacted to fulfill this goal. Under the RTI Act, the Government of India is duty bound to provide information to its citizens within a specified time. This is however subject to Section 8 of The RTI Act which lays down the grounds for the exemptions from disclosure of information by the Government.

The recentGlobal Right to Information rating by the Centre for Law and Democracyranks India in the third place, as far as the overall strength of the legal framework for RTI is concerned. While the intent and the framework for right to information seem to be present, yet the Government is, sometimes, seen as being reluctant to embrace this right of its citizens. Recently the Department of Personnel and Training, issues a circular dated 16.9.2011 whereby it was stated that " ...Only such information can be supplied under the Act which already exists and is held by a public authority or held under the control of a public authority. The Public Information Officer is not supposed to create information or interpret information..." The circular went on to quote the Supreme Court of India in the matter of Central Board of Secondary Education and Another Vs. Aditya Bandopadhyay and Others(Civil Appeal No. 6454 of 2011) wherein it was held that " Where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant..."

With the Government, as it is, being bestowed with wide range of exemptions under Section 8 of the RTI Act , this judgment and the following circular further curtail the right to information. With a population as large as India:the idea of information which readily available in an antiquated system of bureaucracy such as ours is a farcical notion. Government records in India are not as yet fully computerized and Public Information Officer in reality have to collate and collect information sought under RTI Act

SFLC has for over the last few months as a part of its CTAG ( Citizens for Accountable and Transparent governance) Project filed a large number of RTI Applications. These RTI applications have been filed for the purposes of obtaining information from various departments of the Government of India on its policies and orders on varied matter especially those that affect the digital freedom. We have found that the Government freely utilizes Section 8 of the RTI Act when information is sought about issues that affect digital freedom. The issues raised by these RTI Applications filed by SFLC have dealt with the violation of basic human rights of the digital citizens of the country. Whether it is the working and authority of the National Intelligence Grid (NATGRID); or the monitoring of social networks; or internet based financial transactions by the Intelligence Bureau; or even the barring of mobile phone companies from launching Nokia's popular push mail and power mail messaging services , the information is denied. The denial of information is under Section 8 (1) ( a), or 8 (1) (g), or 8 (1)( h) being put forth as the reason. There is no justification provided how these sections of the RTI Act may be applicable to the information sought. No reason as to why the information sought falls under the ambit of Section 8 of the RTI Act is put forth by the Public Information Officer in any of its replies.

With the Government further vide the above quoted circular advising its Public Information Officer to not create collate or interpret information, the effectiveness of the RTI Act is bound to be diluted further.

All Posts | Sep 23,2011

Software Patents – A Tax on the Common Man?

India is the second biggest market for mobile-phones in the world and isforecast to surpass Chinato become the largest market by the end of 2013. The share of smart-phones in the Indian mobile market is also growing at a fast rate. This mobile revolution is the result of low cost of the devices and services coupled with innovative features offered by the devices. But home-grown as well as foreign enterprises that have helped to bring these innovations to the common man could soon be threatened by software patents granted in the field.

In India, the proliferation of mobile phones with advanced features could improve the life of the common man in many ways. As the cost of these smart phones plummet, the mobile phone could become a powerful means for delivery of services by the government and other service providers. These innovative phones as well as devices like tablets will also be very useful for improving the standards of education by making content more accessible. The $ 35 laptop for students announced by the central government is essentially a tablet computer. Many technology firms are now launching low-cost tablets and smart-phones. Most of these products are made possible due to the availability of an advanced, user-friendly open source operating system for mobile devices in the form of Android, which is built on top of the Linux kernel.

But, of late, the Android operating system is under threat from competitors like Microsoft and Apple. These firms feel threatened by theincreasing market share of Androidgioand have chosen to fight Android in the court-rooms than in the market place. Apple has succeeded in securing a ban against some of Samsung's devices based on Android in Germany and the Netherlands. Microsoft has struck agreements with firms like Acer, Viewsonic and Casio for licensing Microsoft's patents, which they claim are infringed by Linux.

The actions of these firms have resulted in a lot of fear, uncertainty and doubt in the market, and many technology firms could end up signing license agreements or toying the line of these aggressive patent holders. Businesses want to reduce their risks and in most cases settle for licensing deals than opt for court battles. The result of these legal battles could eventually be an increase in the cost of these devices and the demise of many innovations. Customers will be the prime affected party in this patent war, as they will end up paying a higher price for these devices, which is, in effect, a tax on innovation.

The legislature in India had the far-sightedness to keep computer programmes out of patentable subject matter. Unfortunately, it is seen that patent offices, in India, have been granting patents in the area of software in large numbers. A recent study conducted by Software Freedom Law Center reveals that in 2009-'10, 141 patents were granted in the area of software in India, while in 2010-’11 this number grew to 213. The major companies that have been granted patents include Oracle, Microsoft, Google and Research in Motion(the manufacturers of Blackberry).

As India is a major market for mobile devices, it may not be surprising if the patent wars happening across the world spread to India too. The major players in these litigations like Apple, Microsoft, Samsung and HTC are present in the Indian market also. The arsenal in their war chest in the form of patents granted in India, may not be as big as in the US or Europe. But many patents have been granted in India to companies like Research in Motion on email and cryptography technologies, Microsoft for user interface and image editing and Google for search and advertising technologies.

The drawbacks of assigning patents to the software industry.

Software, unlike other sectors in the field of technology, is essentially based on mathematics and algorithms, where the field of knowledge has improved over the years by sharing of code and improving on existing code. Patents were never considered to be the motivating factor in this industry and patents made their entry much later by means of judicial interpretations of patentable subject matter in some jurisdictions. Inventors and companies have prospered in this industry in the absence of patents. The recent entry of software patents, especially in the US, have made writing code and developing useful software a treacherous task with patents being granted for minor modifications in commonly used software. In an industry where technology changes fast and competitive advantage is derived by innovating at a fast pace, these government-granted monopolies will only act as speed-breakers in the growth of technology and the industry.

The patent office has expressed its resolve to give effect to the intent of the legislature by coming out with a manual of practice and procedure in March 2011. The manual has detailed guidelines for examining applications and these could result in preventing computer programmes from being patented, in tune with the statutory provisions. If the patent office strictly complies with these guidelines, India will soon be free from the danger of software patents. Common man will be the true beneficiary of this, as India will become a market for innovative products, sans the patent tax.

All Posts | Jul 08,2011

Unravelling NATGRID

National Intelligence Grid(NATGRID), established under Ministry of Home Affairs of the Government of India, aims to consolidate data gathered by various agencies, both private and public, and to make the same available to law enforcement agencies of India. NATGRID functions with a budget of Rs. 2,800 crores and a staff of 300. It has been conceived by the Ministry of Home Affairs in order to'improve'national security. The CTAG project of SFLC aims to ensure that Government agencies function in a transparent way, especially where civil liberties of citizens are concerned and there was a genuine concern regarding how NATGRID could affect the civil liberties of the citizens. The concern regarding NATGRID is with respect to the safeguards adopted to protect the privacy of citizens and ensuring that arbitrary surveillance does not happen.

Once the NATGRID is fully functional, security agencies of the Government will merely have to feed the name of a person and information will be available at the click of the button. It is Government's surveillance of the citizens of this country at its best. The Supreme Court in the People's Union For Civil Liberties V/s State of India [ 1999(9) SCALE ] has ruled against arbitrary surveillance.

Concerned with the Cabinet Committee on Security's approval for the NATGRID , a number of Right to Information( RTI) applications were filed by SFLC under the CTAG project.

The first RTI application was filed on the 11thMay 2011 asking for the following information and the reply to the application, dated 9.6.2011, is as follows:

 

S. No Information Sought Response
1

What is the legal framework under which the NATGRID is functioning. Is NATGRID duly constituted as an 'Authority' under the Government of India, if so, under which provision of law has NATGRID been constituted. Please provide a copy of the same.

NATGRID is established as an attached office of the Ministry of Home Affairs as per the decision of the Cabinet Committee on Security.
2

Has the approval of the Cabinet Committee on Security been granted? If yes , Kindly provide a copy of the same.

Yes, NATGRID has been constituted with the approval of Cabinet Committee on Security. Minutes of the Cabinet meeting being a secret document, it cannot be provided.
3

What is the designation of the Officer In charge of the NATGRID Project and who does the said Officer In charge report to?

The Chief Executive Officer In-charge of the Project.
4

What is the budgetary allocations for the NATGRID project.

An amount of Rs. 13 crore was utilized during the financial year 2010-2011.
5

What government and private databases will be linked to the NATGRID. If so under what order or rules. Please provide a copy of the same.

Security agencies can seek the details from NATGRID database. Data from Airline companies, Telecom Companies, etc. would be uploaded to NATGRID database.
6

What are the measures in place to prevent the misuse of NATGRID? If yes, please provide a photocopy of these guidelines/circulars

All possible measures are being taken to prevent misuse of NATGRID . For security reasons we are unable to provide the details/ orders.
7

What are the various Governmental agencies that will have an access to NATGRID?

All the Security agencies will have an access to NATGRID
8

Does this project have any policy favouring Free and Open Source Software(FOSS)?

' NO'
 

Concerned about the replies provided, SFLC, in view of its social objective of ensuring digital freedom and privacy of citizens, filed a second RTI application , dated 11.06.2011. Wherein the information sought was as follows:

 

  1. The name and qualification of CEO of NATGRID.

  2. The process for appointment of CEO.

  3. The details that is names and headquarters of the companies and Government entities from which the data would be uploaded in the NATGRID.

  4. The names of the various Government agencies which would have an access with NATGRID database.
  5. Whether NATGRID would be run of FOSS.

In response to this, the reply was received on 30.06.2011 stating that "NATGRID/MHA is out of purview of RTI Act, 2005 under Gazette Notification No. 306 dated 9.6.2011".

The underlying concern with the NATGRID is its privacy issues. Added with that is the threat of the Information leakage from the porous offices and systems of the Government.. This threat becomes even more serious in the case of the NATGRID being operated on proprietary software.

SFLC has filed another application dated 7.7.2011 asking for the following information:

  1. Kindly provide a copy of the Notification No. 306 dated 9.6.2011 by which NATGRID /MHA is out of purview of RTI Act, 2005.
  2. Under Section 24 (3) of the RTI Act, 2005, the said Notification should be laid before each House of Parliament. Hence information on when this Notification No. 306 dated 9.6.20011 is being laid before each House of Parliament.

All Posts | Apr 28,2011

Censored by the Intermediary

The Indian Express, during the time of emergency, published its newspaper with a blank editorial page to protest against the censorship policies of the Government. The Internet as we know in India today, will soon have a lot of blank pages, thanks to the intermediaries being forced to censor content. The Information Technology (Intermediaries guidelines) Rules, 2011 notified under the provisions of the Information Technology Act, 2000 lays downs stringent guidelines for intermediaries and threatens freedom of speech and expression on the internet.

In return for offering the intermediaries a safe harbour, the new rules demand the intermediaries to don the roles of a judge and censor. As per the Act, intermediaries include telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, on-line payment sites, on-line auction sites, on-line market places and cyber cafes. This wide list of services included in the list of intermediaries will result in a more controlled (read censored) internet. The new rules laying down guidelines for intermediaries expect the intermediaries to disable information within 36 hours, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person that the information:

(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

In short, the intermediary is expected to act as the super-judge deciding what is:

Blasphemous– I thought only our western neighbour(No names, lest the web hosting company be forced to take this site off as violative of Rule 3.(2)(j) - insulting any other nation) had such rules. The Indian Penal Code does not define blasphemy. The closest offence one can find is Section 295A that deals with deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Defamatory, libellous– Deciding defamation/libel is no easy business for a Court of law, and the intermediary is expected to do that now. Infringement of Patent, trademark, copyright– The intermediary will soon need to have experts in every possible field to decide on infringement of intellectual property rights. Belongs to another person– any investigative reports quoting communications could come under this.

The DMCA, that governs online copyright violation in the US, provides a put-back provision to protect the interest of the user who posts the content online. The new rules do not have any put-back provision to protect the interests of the user and is thus heavily skewed against the creator of online content. In practice, the intermediaries, instead of deciding whether an information is in contravention of sub-rule(2) of rule 3, will end up disabling access to any information on receiving a take-down request, to ensure that they are not held liable. The rules, by putting restrictions on intermediaries will, in effect, would result in self-censorship and will have a chilling effect on online speech.

Although, reference to the term blogger, that was introduced in the draft rules, is not included in the notified rules, a blogger will squarely come under the definition of the term "user" and will be subject to restrictions imposed on content that can be posted on blogs and websites provided by intermediaries. The removal of content created by a blogger or any user could be a clear restriction of his freedom of speech and expression and such curtailment of freedom can only be done if it falls under reasonable restrictions imposed under Art. 19(2) of the Constitution .

The rules by forcing the intermediary to provide details of users to government agencies without any judicial order, puts the user at a risk of harassment by law enforcement agencies. The rules that mandate providing of information to government agencies on a mere written request will have major ramifications on the privacy of a citizen and will amount to "wire-tapping of the internet"

Let us consider a few instances were an intermediary could be forced to disable information posted:
Posts on Wikipedia - Many posts on Wikipedia could be considered obscene or defamatory
Wikileaks - Content posted on Wikileaks could be considered as belonging to another person and defamatory or libellous or disparaging. Intermediaries ranging from hosting providers to on-line payment sites could be forced to disable such information.
Online citizen journalism - Many topics touching on corruption could be noted to be defamatory and libellous or disparaging. Blogs - Blog posts on controversial topics ranging from insurgency to corruption could be considered violative of the rules.

The rules in the current form may be beyond the rule making power of the Government and could be unconstitutional as well as ultra-vires of the Act. The 2008 Amendment of the IT Act was a reaction to the 26/11 Mumbai attacks and these rules seem to be the result of a paranoia that seems to have gripped the Government after the developments in Tunisia and Egypt and the Wikileaks phenomenon.

Justice V.R.Krishna Iyer, while deciding a matter on the power of Government to seize a book written by Periyar EVR , a political figure and rationalist, inState of Uttar Pradesh Vs. Lalai Singh Yadav, AIR 1977 SC 202, 1976(4) SCC 213, observed:

"India is a land of cultural contrarities, co-existence of many religions and anti-religions, rationalism and bigotry, primitive cults and materialist doctrines. The compulsions of history and geography and the assault of modern science on the retreating forces of medieval ways-a mosaic like tapestry of lovely and unlovely strands-have made large and liberal tolerance of mutual criticism, even though expressed in intemperate diction, a necessity of life. Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsh directives for forfeiture. From Galileo and Darwin, Thoreau and Ruskin to Karl Marx, H.G. Wells, Barnard Shaw and Bertrand Russel, many great thinkers have been objected to for their thoughts and statements-avoiding for a moment great Indians from Manu to Nehru. Even today, here and there, die-hards may be found in our country who are offended by their writings but no Government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them."