📰 Govt.’s draft rules to regulate social media echo SC orders
With the court voicing concern over irresponsible content, the proposed changes are in line with submissions on the issue
•The draft rules proposed by the government to curb “unlawful content” on social media that make it mandatory for intermediaries to trace the “originator” of such content have drawn strong criticism from the Opposition. The latter contend that the state is expanding the scope for surveillance of citizens.
•However, a close look at the draft Information Technology (Intermediaries Guidelines) Amendment Rules, 2018, shows that the proposed changes are largely in line with developments on this front in cases before the Supreme Court in recent months.
Court’s concern
•While the Centre itself has been informing the court since October about its intentions, the court has also voiced its concern over irresponsible content on social media.
•In fact, in a July 17, 2018 judgment in the Tehseen S. Poonawalla case, the court gave the government a virtual carte blanche to stop/curb dissemination of “irresponsible and explosive messages on various social media platforms, which have a tendency to incite mob violence and lynching of any kind.”
•For instance, Rule 3 of the draft speaks about the “due diligence” to be observed by online platforms that have over 50 lakh users.
Norms for access
•It proposes the publication of rules, a privacy policy and user agreement for access to a social intermediary’s resource. Clause (1) of Rule 3 mandates that a user cannot host, display, upload, modify, publish, transmit, update or share information, for example, which is pornographic, paedophilic, racially or ethnically objectionable, invasive of another’s privacy, harms minors in anyway, etc.
•Now consider this. On December 6, a Supreme Court Bench, led by Justice Madan B. Lokur, mentioned online giants Google, YouTube, Facebook, Microsoft and WhatsApp and recorded that “everybody is agreed that child pornography, rape and gang-rape videos and objectionable material need to be stamped out.”
•The same order also noted submissions by senior advocate Kapil Sibal, for WhatsApp, that “they have an end-to-end encryption technology, due to which it will not be possible to remove the content”.
•Subsequently, on December 11, the Bench ordered the Centre to frame the necessary guidelines/Standard Operating Procedure (SOP) and implement them within two weeks to “eliminate child pornography, rape and gang rape imagery, videos and sites in content hosting platforms and other applications”. The court then listed the case for February 2019. The draft rules have come within two weeks of the Supreme Court order.
•These two orders came on a suo motu case being heard in the Supreme Court from 2015 to curb online sexual abuse.
‘Safer social media’
•Past orders in the case show that since October, the government has been trying hard to convince the court that it really wants to make social media safe.
•Thus, a Supreme Court order of October 22 records that the Centre has already prepared a SOP “for taking action by the security/law enforcement agencies under Section 79(3)(b) of the Information Technology Act. A November 28 order records the submission of Solicitor-General Tushar Mehta indicating that “certain actions were required to be taken by the intermediaries”. These included setting up of proactive monitoring tools for auto-deletion of “unlawful content” and setting up a 24X7 mechanism for dealing with requisitions of law enforcement agencies.All these mechanisms can be found in the various clauses of the draft rules.
•The draft rules require the intermediary to trace the “originator of information” for authorised government agencies.The intermediary has to produce the information in 72 hours, but only if the request is based on a lawful order, in writing and concerns State security or investigation or prosecution or prevention of an offence, which may include lynching or mob violence. Besides, the draft rules put the onus on social media giants to “take all reasonable measures” to protect individual privacy as required under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules of 2011.
SC in July 17, 2018 judgment in Tehseen S. Poonawalla case: It shall be the duty of the Central government as well as State governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind. The police shall cause to register an FIR…
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Draft rule 3 (5) of the Information Technology (Intermediaries Guidelines) Amendment Rules, 2018 proposes social media intermediaries to provide information/assistance when required by “lawful order” by any government agency for reasons of State security, cyber security, investigation, detection, prosecution or prevention of offences. These offences may include mob violence, lynching, online sexual abuse, etc. The “originator of the information” needs to be traced to register an FIR.
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SC order on December 11 in Re: Prajwala Letter case: The Government of India may frame necessary guidelines/SOP and implement them within two weeks so as to eliminate child pornography, rape and gang rape imagery, videos, sites, content hosting platforms and other applications.
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Rule 3 (2) (b) of the draft Information Technology (Intermediaries Guidelines) Amendment Rules, 2018 proposes social media intermediaries to publish rules, privacy policy to stop users from engaging in online material which is paedophilic, pornograohic, hateful, racially and ethnically objectionable, invasive of privacy, etc.
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SC order on November 28 in Re: Prajwala Letter notes that Solicitor General informs the court that “certain actions are required to be taken by intermediaries”:
a. Set up proactive monitoring tools for auto-deletion of unlawful content by deploying artificial intelligence based tool
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Draft rule 3(9) says the intermediary shall deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or contents
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SC order on November 28 in Re: Prajwala Letter notes that Solicitor General informs the court that “certain actions are required to be taken by intermediaries”:
b. Set up a 24X7 mechanism for dealing with requisitions of law enforcement agencies, prompt disposal of requisitions and appointment of India-based contact officer and escalation officers.
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Draft rule 3 (7) (iii) proposes intermediaries to “appoint in India, a nodal person of contact and alternate senior designated functionary, for 24X7 coordination with law enforcement agencies and officers to ensure compliance to their orders/requisitions made in accordance with provisions of law or rules.
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October 22 SC order in the Prajwala case records that government has prepared an SOP for taking action by the security/law enforcement agencies under Section 79(3)(b) of the Information Technology Act
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Draft rule 3 (8) proposes that when an intermediary receives actual knowledge in the form of a court order or is notified by a government agency under Section 79(3)(b) of the Information Technology Act, it shall remove or disable access to unlawful acts.
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📰 PM opens Bogibeel Bridge, India’s longest
Focussing on better links in northeastern region, says Modi
•Prime Minister Narendra Modi on Tuesday underlined the NDA government’s focus on improving connectivity in the northeastern region while inaugurating the 4.94 km Bogibeel Bridge, India’s longest rail-cum-road span, across the Brahmaputra.
•The strategic bridge, which connects Dibrugarh district on the river’s south bank in Assam to Dhemaji district on the north bank, would not only improve the livelihoods of millions of people in Assam and Arunachal Pradesh, Mr. Modi said, but would also serve as a boon to the defence forces.
•The project was conceived by the Rail India Technical Economic Services in 1973, and the foundation stone was laid by former Prime Minister H.D. Deve Gowda in January 1997.
•However, the actual work was initiated only in 2002 by the NDA government, which was headed by Atal Bihari Vajpayee.
•“On this Good Governance Day, I would like to refer to this bridge as a symbol of good governance,” Mr. Modi told a gathering at Kareng Chapori in Dhemaji after inaugurating the Rs. 5,920 crore bridge at its southern end in Dibrugarh district.
📰 Chabahar tidings: on Indian taking over port operations in Iran
As India takes over operations in the Iranian port, the possibilities and challenges are huge
•The opening of the first office of Indian Ports Global Limited at Iran’s Chabahar and the takeover of operations of the Shahid Beheshti port is a milestone in India’s regional connectivity and trade game plan. Chabahar port opens up a permanent alternative route for trade with Afghanistan and Central Asia, given the hurdles in the direct route through Pakistan. It facilitates India’s role in Afghanistan’s development through infrastructure and education projects. And it gives India’s bilateral ties with Iran, a major oil supplier and potential trade market for India, a big fillip. India has helped develop the Shahid Beheshti port with these outcomes in mind, and has been given the contract to manage it for 18 months. It will be important to operationalise the port quickly and smoothen the route to Afghanistan. The decision by India, Afghanistan and Iran to hold an international event in February 2019 to promote Chabahar and to study ways to make the route more attractive and decrease logistic costs is timely. About 500 companies have registered with the Free Trade Zone authority there. While keeping timelines and delivery of New Delhi’s commitments will be key to the port becoming a regional hub for transit trade, steel and petrochemicals, it will be necessary to encourage Afghan companies to use the route more, in line with President Ashraf Ghani’s desire to have a commercial fleet under the Afghan flag setting sail from Chabahar.
•Visions of Chabahar’s immense potential as a game-changer for prosperity and stability in the region must, however, necessarily be tempered by the reality of geopolitical challenges. The Chabahar port has received a waiver from the U.S. sanctions on Iran for the moment, but these concessions could be withdrawn any time, given the constant upheaval in the administration. The possibility of the withdrawal of U.S. troops from Afghanistan, after the pullout from Syria, will add to security concerns for Afghanistan and impact on the Chabahar route as well. Meanwhile, the reconciliation process with the Afghan Taliban is likely to see the regional powers, the U.S. and Russia engaging Pakistan more. This could give Islamabad space to play spoiler in Chabahar, which is seen as a rival warm water port to Pakistan’s Gwadar. That the Afghanistan government is hedging its bets on trade via Chabahar too is clear: in recent months, special cargo corridors have been opened with China, Kazakhstan, Turkey, Europe, Russia, the UAE, and Saudi Arabia, with more trade diverted through them than with traditional partners Pakistan and India. With Chabahar, India has done well to keep a place in the intricate connectivity network of the region. Given all the competing interests that criss-cross over Chabahar, it will require sustained and nuanced diplomacy to stay ahead in this game.
📰 On a shaky foundation
Section 69 of the IT Act allows for disproportionate state action, and is antithetical to the right to privacy
•The Union Home Secretary, last week, promulgated an order authorising 10 Central agencies to monitor, intercept and decrypt information which is transmitted, generated, stored in or received by any computer. Under the order, an individual who fails to assist these government agencies with technical assistance or extend all facilities can face up to seven years of imprisonment or be liable to be fined.
•The notification was reportedly issued in pursuance of powers stipulated in Section 69 of the Information Technology Act, 2000, which enables government agencies to intercept personal information of citizens under certain conditions. The Ministry, in response to flak from the Opposition, has issued a clarification that the authorisation is in conformity with the process stipulated in the IT Rules, 2009.
What is missed out
•The clarification assumes the legitimacy of Section 69 of the IT Act, the basis on which the IT Rules were framed. The IT Rules in turn form the source of power behind the Ministry of Home Affairs (MHA) notification. On the basis of this assumption, the clarification justifies the notification without examining the validity of its source. All that the MHA clarifies is that since the notification conforms with the IT Rules, there is no reason for eyebrows to be raised. This, argument, however, is fallacious since it fails to take a step back and peruse Section 69 of the IT Act, which after K.S. Puttaswamy v. Union of India — ‘the right to privacy case’, in 2017 — seems to fail the litmus test of constitutionality. Let us explain how.
•Why is Section 69 unconstitutional after K.S. Puttaswamy? The nine-judge bench in K.S. Puttaswamydeclared that there is a fundamental right to privacy flowing from inter alia Articles 19 and 21 of the Constitution. In order for a restriction such as Section 69 allowing for interception of personal data on a computer to be constitutionally valid, it would not only have to pursue a legitimate state aim (say, for instance, national security) but also be proportionate, so that there is a rational nexus between the means adopted (i.e., authorisation of interception) and the aim.
•Section 69 of the IT Act is so broadly worded that it could enable mass surveillance to achieve relatively far less serious aims such as preventing the incitement of the commission of a cognisable offence. Such surveillance could be justified to achieve relatively far less serious objectives such as a Facebook post expressing dissent against government policy which, in the state’s opinion, is offensive. The state, through the powers under Section 69, can therefore justify authorising surveillance, purporting this to be a grave concern. The language of Section 69, therefore, speaks abundantly of doublespeak, allowing for disproportionate state action, antithetical to the right to privacy.
Implications for free speech
•Under Section 69, the government can intercept personal information under any of the following conditions: when it is necessary in the interest of Indian sovereignty or integrity; security of the state; friendly relations with foreign states; public order; and for preventing incitement to the commission of any cognisable offence related to these. While the first four feature in Article 19(2) of the Constitution, the last, namely preventing incitement to commission of cognisable offences, is not an enumerated restriction. A restriction in the form of authorised surveillance would not be justified unless it is in order to maintain public order, a reasonable restriction under Article 19(2).
•The Supreme Court has repeatedly accepted a hierarchisation between “public order” and law and order; it explains this through concentric circles where law and order represents the larger circle within which the next circle, public order, lies, which in turn contains the smallest circle representing the security of the state — the most grave concern. While public order is characterised by public peace and tranquillity, law and order requires preventing the incitement of an offence.
•However, Section 69, as mentioned earlier, allows mass surveillance even when only law and order is affected while public order prevails: merely for precluding the incitement of the commission of an offence.
•Such a broadly worded provision can have potential ramifications on free speech. This is because a constant sense of being watched can create a chilling effect on online communication, crippling dissent. As far back as 1962, Justice K. Subba Rao had explained in his powerful dissent how a “shroud of surveillance” maims individual freedom by engendering inhibitions that an individual cannot act as freely as he would want to. Surveillance does not show direct discernible harms as such but rather imposes an oppressive psychological conformism that threatens the very existence of individual freedom. The Supreme Court reiterated this view in K.S. Puttaswamy.
•Section 69, therefore, cannot be regarded as a reasonable restriction on free speech as well. Therefore, a simple law and order requirement is an impermissible restriction to free speech unless public order, a much higher threshold, is threatened.
Another inconsistency
•Section 69 also falls short of meeting with the principles of natural justice by failing to accommodate pre-decisional hearings. The Section only makes post-decisional hearings before a review committee possible as a part of its procedure, compelling people to give up their personal information without being given an opportunity to be heard.
•To conclude, the MHA notification rests on shaky foundations. While the Supreme Court missed the opportunity to examine the constitutionality of Section 69 of the IT Act, looking at the IT Rules to legitimise the notification seems to put the cart before the horse.
📰 '260 leopards poached since 2015’
Uttarakhand, Himachal Pradesh accounted for the largest number of cases, MoEFCC tells Lok Sabha
•At least 260 leopards were poached in the country between 2015 and 2018, with Uttarakhand accounting for 60 cases and Himachal Pradesh reporting another 49, according to information given to Parliament by the Ministry of Environment, Forest and Climate Change (MoEFCC).
•Of this, 64 cases of leopard poaching were recorded in 2015, 83 in 2016, 47 in 2017 and 66 till October 2018, the data tabled in the Lok Sabha earlier this month show.
Chhattisgarh, MP
•Central Indian States like Chhattisgarh and Madhya Pradesh also recorded a high number of cases of leopard poaching in the past four years, at 25 and 21 respectively. Poaching of leopards was reported by 19 States including Assam and West Bengal in the east, Punjab in the West and Telangana and Tamil Nadu in the south.
•Replying to a question by BJP MP Rattan Lal Kataria, the MoEFCC said the figures had been compiled from data furnished by State enforcement agencies as the management and protection of wildlife, including leopards, is primarily the responsibility of States and Union Territories. It added that information on the killing of leopards by villagers was not collated by the ministry.
•Wildlife organisations, however, estimate leopard poaching to be at a much higher level based on the seizures of body parts. According to the Delhi based Wildlife Protection Society of India, 163 cases of poaching and seizures of body parts were recorded in 2018, an increase from 159 in 2017.
•Experts point out that since leopards live in close proximity to human habitation and are found all across the country, the cases of leopard poaching too are spread countrywide with a significant number of such incidents not showing up in government records. There are also several incidents of leopard deaths on account of road kills, particularly in States such as Maharashtra and Karnataka.
•Vidya Athreya, an ecologist at Wildlife Conservation Society who has worked on the human-leopard conflict, stresses on the need to evolve proactive policy measures for ensuring the protection of wild animals like leopards that live outside protected areas.
📰 30 mn newborns cry out for help
Study calls for more investmentin healthcare
•An estimated 30 million newborns require specialised care in hospital every year without which many either die or develop preventable health conditions and disabilities that affect them for life, according to a recent study by a global coalition that includes UNICEF and WHO.
•The report urges countries to invest in healthcare to prevent neonatal deaths among the most vulnerable newborns — the small and the sick. It points out that nearly 2.5 million newborns died during the first 28 days of life in 2017, of which approximately 80% had low birth weight and more than 65% were born prematurely. An additional 1.5 million small and sick newborns survive each year, with a long-term disability, including cerebral palsy and cognitive delays.
•According to an earlier study by UNICEF, India witnesses 25.4 newborn deaths per 1,000 births and .64 million annually. The Sustainable Development Goal for neonatal deaths requires all countries to bring down the figure to 12 deaths or less per 1,000 births by 2030.
•The study, ‘Survive and thrive: Transforming care for every small and sick newborn,’ was released earlier this month. It underlines that universal access to quality care could prevent 1.7 million neonatal deaths, or 68% of the deaths that will otherwise occur in 2030. Low and middle income countries will be able to avert two out of three neonatal deaths by 2030 if they increase investment by $0.20 per capita.
📰 Foreign fund outflows highest since 2008
FPIs sold shares worth almost $4 billion in October alone
•For the Indian equity markets, year 2018 will end as the worst in terms of foreign money outflows since 2008 when markets across the globe were reeling under the sub-prime crisis and Lehman Brothers filed for the largest bankruptcy in history.
•In the Indian context, 2018 would also be only the third such year in the last decade when foreign portfolio investors (FPIs) would end a calendar year as net sellers of Indian shares.
•Foreign investors, who have always been looked upon as the prime drivers of any bull run in the Indian equity market, have been net sellers at almost $4.8 billion or ₹33,344 crore during the current calendar year, till date.
•Further, the year also saw overseas investors selling shares worth almost $4 billion or ₹28,921 crore in just one month — October — making it the worst-ever month in terms of FPI outflows. The previous high was seen in November 2016, when FPIs sold Indian shares worth ₹18,244 crore.
•Market participants are of the view that such significant outflows were primarily on account of the weakness in the rupee and the volatility of the stock markets that saw the benchmark Sensex touching an all-time high of 38,989 in August only to lose more than 9% or more than 3,500 points since then.
•“The one big factor that spooked everyone, especially foreign investors, was the fall in the rupee that moved from around 64 level to 74 against the dollar during the year,” said Harendra Kumar, managing director, institutional equities, Elara Capital.
•“There was also heightened volatility globally due to the concerns related to the trade war between U.S. and China that made investors stay away from the emerging market pack, including India. The bubble kind of situation in the mid-cap and small-cap segments at the start of the year also led to profit booking from such investors,” added Mr. Kumar.
•While the benchmark Sensex had gained a little more than 4% or 1,413 points in the current calendar year, it is insignificant compared with the previous year’s rise of 7,430 points or almost 28% amidst robust FPI flows totalling ₹51,252 crore.
•Incidentally, when foreign investors pulled out a record ₹52,987 crore in 2008, the 30-share Sensex had lost a whopping 10,639 points or 52.45%.
•Neelkanth Mishra, co-head of equity strategy, Asia Pacific and India equity strategist, Credit Suisse, believes that even if volatility remains high in 2019, the impact on the Indian market would be moderate as foreign investors now have a lesser stake in the markets compared with some of the earlier years.
•“... the impact should be somewhat moderated, given that foreign investors have not been meaningful buyers of Indian stocks for the past three years and are now accounting for less than a third of trading volumes,” he said recently while presenting the global financial major’s 2019 outlook for the Indian market.
Domestic support
•Meanwhile, most market participants believe that the potential losses this year have been largely mitigated due to the strong buying support, especially in index constituents, from domestic institutional investors such as mutual funds and the Life Insurance Corporation (LIC).
•Strong buying by domestic investors also helped the Indian stock markets overtake Germany for the first time ever in terms of market capitalisation. According to data from the World Federation of Exchanges (WFE), the market capitalisation of India was pegged at $2.06 trillion in December, slightly higher than Germany’s $1.9 trillion.
📰 Banks under PCA sitting on cash pile
Though banking system faces liquidity crunch, banks under lending restrictions see deposits grow
•Commercial banks, under the prompt corrective action (PCA) framework of the Reserve Bank of India (RBI), are sitting on a pile of cash as they don’t have too many options to lend, even as the banking system is scrambling for liquidity.
•The 11 public sector banks under the PCA, enjoying 25% market share among commercial banks, are facing restrictions on lending while their deposit mobilisation has been healthy.
Liquidity deficit
•The average liquidity deficit in the banking system has been about ₹1 lakh crore since October with the shadow banks impacted the most as they are finding it difficult to raise funds following the IL&FS crisis. This, in turn, is affecting the loan market.
•“The daily average cash surplus in my bank is about ₹20,000 crore to ₹25,000 crore,” said the chief executive of a public sector bank which is under the PCA framework. Though deposit mobilisation had picked up, there were restrictions on lending by the bank, the official explained. A senior official from another mid-sized public sector bank said the bank’s daily excess cash was about ₹40,000 crore.
•As a result, the bank’s statutory liquidity ratio (SLR) was about 27-28%, much higher than the RBI mandated 19.5%. SLR is the minimum amount of liabilities that a bank must invest in government securities.
•For banks under PCA, the ratio is much higher. “As a result, we have no other option but to invest in government bonds,” another senior official from a public sector bank said. Investments in government bonds is the most risk-free avenue to park funds which, in banking parlance, is known as ‘lazy banking.’ While ‘lazy banking’ refers to the risk averse nature of banks, here, the situation is slightly different as their hands are tied.
No curbs on deposits
•“Banks under PCA are sitting on high liquidity as deposit growth has picked up. While there is no restriction on them to get deposits, they face constraints on lending. So they are investing the resources in government bonds, which has resulted in high SLR holding,” said Madan Sabnavis, chief economist, CARE Ratings.
•According to the latest RBI data, year-on-year deposit growth is 9.7% till the week ended December 7 compared with 2.7% a year ago.
•“In this context, the government’s decision to provide the banks under PCA with additional capital is a good move which will bring them out of the framewok gradually so that lending activity can get a boost,” said Mr. Sabnavis. Last week, the government had sought Parliament’s approval to provide ₹41,000 crore to PSBs in the current fiscal. The aim is to provide capital to the banks under PCA, which will help them come out of restrictions imposed.
