Thursday, September 24, 2015

National Encryption policy

Draft National Encryption policy, that is published recently enables to create an environment of secure cyber space and to strengthened cyber laws of the country. The policy puts legal barriers over the netizens to produce communications, transactions and any other texts to the government if and when required. But with the concerns to protect the information from cyber-attacks the policy have various short comings:
1. Encryption key:
the service providers, e-commerce companies that uses encrypted keys to secure their websites is required to produce these codes when asked by the government.
2. Time boundary:
it has been mandated to keep all the plain text or encrypted codes of past 90 days to be saved by citizens for the security purposes, which implies that they are more prone to be leaked by the hackers.
3. Registration of service providers:
it is being mooted that the online services, be it shopping online or accessing email, has to register with the government which is
biggest impediment to the net neutrality and impede the growth of nascent companies.
4. Anti-privacy law:
since citizens are barred to delete information, it has perceived as a breach to Right to Privacy instituted by Article 21 of the constitution.
Although the policy is a way forward to create a safe environment, but some provisions may act adversely and may also obstruct the growth of Digital India.

Regulating the regulators

Relations between the finance ministry and the Reserve Bank of India (RBI) have, for the moment, settled down. Is this a durable equilibrium? A certain degree of tension is inherent and may indeed be desirable in the dynamics of economic management. Unseemly public controversy, however, detracts from cohesive economic management.
RBI is India’s oldest regulator and was set up under the Reserve Bank of India Act of 1934. Historically, it has always been an autonomous entity even though the governor and the deputies are appointed by the government. Following the economic liberalization of 1991, the autonomy has been progressively strengthened and sought to be benchmarked with the best prevalent international practices.
RBI’s mandate until recently was somewhat opaque. Apart from setting interest rates, it was only in a nebulous sense that it felt obligated to promote growth as well. The government has recently concluded an arrangement with RBI for managing inflation in the band of 2-6%. RBI would like to interpret this as its overriding mandate.
Relations between the finance ministry and RBI have recently been strained on account of two factors. First, the manner of determining interest rates. The Indian Financial Code (IFC) proposed a seven-member monetary policy committee (MPC) with representatives from the Union government and RBI. The issue of whether the governor should have a final veto has, for the present, been settled given the somewhat broad-based composition of the MPC.
The second relates to the constitution of an independent debt management office. This was in accordance with recommendations of the Narasimhan Advisory Group on Transparency in Monetary and Financial Policies, 2000, suggesting separating debt management from functions of monetary policy.
In a more generic sense, RBI’s functions may involve conflict of interest. Setting interest rates, managing foreign exchange reserves, acting as a banking regulator and the government’s debt manager—all these do not entail responses that are symmetric. Reforming RBI is an ongoing process. Inculcating domain knowledge and managing an orderly transition is a continuing challenge.
Continuing economic reforms necessitated the constitution of independent sector regulators. It was necessary to ensure a level playing field, promote a predictable regulatory environment, democratize decision-making and balance conflicting interests. Thus, the Telecom Regulatory Authority of India (Trai), electricity regulatory commissions (CERC/SERC), the Insurance Regulatory and Development Authority of India (Irda) and the Securities Exchange Board of India (Sebi), among others, were constituted. More regulators for real estate, transportation and railway tariff are in the offing. There is also the Competition Commission of India with a broader remit to promote fair practices.
The sector regulators have been constituted by acts of Parliament vesting powers earlier exercised by the executive. Invariably, there are provisions for the Union government to give directives on matters pertaining to public policy such as Section 25 of the Trai Act, Section 107 of the Electricity Act, Section 16 of the Sebi Act and Section 18 of the Irda Act. In fact, even in the case of RBI, the old Act under Section 7 empowers the Union government to give directions to the bank in overall public interest.
These are enabling provisions to be used in exceptional circumstances. In practice, they have scarcely been used. The broader issue is the balance between autonomy and accountability.
When these functions were part of the executive, legislative superintendence was exercised through parliamentary questions, special debates on issues pertaining to various departments, detailed consideration of the demand for grants in the respective standing committees and the audit reports of the Comptroller and Auditor General of India. These mechanisms are not ordinarily available in respect of independent regulators.
In other parliamentary democracies, special institution procedures have been created to fill the void. In the US, for instance, the house committee on financial services and the senate committee on banking, housing and urban affairs have jurisdiction over matters pertaining to the US Federal Reserve, banks and banking, federal monetary policy and price controls.
No doubt excessive parliamentary interference would undercut their functional autonomy and may destroy their basic rationale. Judicious decision-making, depoliticizing decisions for fixation of tariffs, user charges and interest rates improve productivity and growth.
What are some of the options we need to explore to strike a balance?
1. The existing departmental standing committees of Parliament do not per se examine the working of independent sector regulators. Explicitly extending the reach of these standing committees to include sector regulators and submit periodic reports to parliament would be beneficial.
2. The standing committee on finance and planning is overburdened by legislative scrutiny, including the Finance Bill and other important items of legislation. One option could be to create a special committee to be called the committee on financial and regulatory management that can periodically interact with the RBI governor and other regulators in the financial sphere such as Sebi and Irda. Their periodic reports to Parliament would provide better understanding and hopefully augur more informed debates in Parliament.
3. In the non-financial sphere, the concerned parliamentary departmental standing committees could constitute specialized sub-committees designed to interact with sector regulators on policy-related issues.
The issue of who should regulate the regulators is an unsettled one. As liberalization proceeds further, the need for structured institutional mechanisms becomes compelling. Balancing accountability with autonomy is a learning curve.
A former Rajya Sabha member and current member of the BJP, N.K. Singh has held key bureaucratic assignments and has been secretary to the Prime Minister and a member of the Planning Commission.

India's refugee law and policy

ON JUNE 20, the world was called upon to observe Refugee Day. It usually rolls by without notice. There are too many commemorative days on our annual calendar. All of them cannot be taken seriously. The 20th century left behind a massive legacy of refugees. The response to this legacy remains incomplete and inadequate. World War I, the Soviet Revolution and other events led to `crisis responses' for the Russian refugees, Armenians and German refugees. When the International Convention of Refugees was enacted in 1951, it was seen as Euro-centric and, essentially, anti-communist. Indeed, in 1953, India's Foreign Office (through R.K. Nehru) told the office of the United Nations Commissioner for Refugees (UNHCR) that the global refugee policy was essentially part of the Cold War. It took years for the Convention of 1951 to be amended by the Protocol of 1967.
With its open borders, South Asia — like Africa — is a refugee-prone region. India discovered this when absorbing the Tibetan Refugees in 1959, the Bangladeshi refugees in 1971, the Chakma influx in 1963, the Tamil efflux from Sri Lanka in 1983, 1989,and again in 1995, the Afghan refugees from the 1980s, the Myanmar refugees for a similar period and migration and refugee movements from Bangladesh over the years. India's ambivalence towards the UNHCR is characterised by its act of indirectly seeking its assistance through the Red Cross in the 1960s, and later allowing the UNHCR to determine the refugee status of those from beyond South Asia, asking the UNHCR to assist in verifying the voluntariness of the repatriation of the Tamils to Sri Lanka, and permitting an office in Delhi through the UNDP programme. In 1995, India, following Pakistan's example, joined the Executive of the UNHCR. Though welcome, this halfway house seems odd since India refuses to sign the 1951 Convention.
Meanwhile, a series of judgments by the Supreme Court and the Gujarat, Punjab, Gauhati and Tamil Nadu High Courts has reinforced the need for a humane due process for the Chakmas, Sri Lankan and other refugees. Some of the judgments expressly recognise the value and worth of the UNHCR and invite it to involve itself more in the refugee questions in India. Unfortunately, this pro-refugee jurisprudence sits uneasily with the normal law relating to foreigners, which grants the Government near-arbitrary powers of deportation. Following the Law Commission's 175th Report of 2000, the law was made stricter to treat `illegal entrants' harshly, irrespective of the cruel circumstances that may occasion their migration. India blows hot and cold when dealing with the UNHCR, making policy statements at its UNHCR meetings in Geneva and negating either joining the Convention or changing its law to provide reliable legal entitlements to refugees in India.
By contrast, Article 17 of the Additional Terrorism Protocol of the South Asian Association for Regional Cooperation of January 2004 permits SAARC nations not to extradite and, perforce, to protect those being prosecuted or punished on account of their race, religion, nationality, ethnic origin or political opinion. This stand is mystifying. Thus in South Asia, India agreed to the SAARC protocol in 2004. Globally, India steadfastly refuses to join the Convention of 1951 even though it is on the Executive Committee of the UNHCR without being a signatory to the Convention under which the Committee is constituted. Indeed, from 1997, its envoys to the UNHCR have been pleading for a more equitable global regime to participate in a discourse that India does not carry any further.
We need to examine what India's doubts about protecting refugees are all about. The `Cold War' reasons for not having a global refugee policy have gone cold. Refugees are a global problem. The latest UNHCR statistics show that in 2003, there were 20.55 million displaced persons of international concern, including 10.34 million refugees. Refugees are being created all the time — no less due to America's Afghanistan and Iraq wars. But even otherwise, this is a problem that permanently haunts Africa and South Asia. Europe and Australia want to tighten their immigration walls with all kinds of sophisticated arguments to deal with refugees on a regional, rather than a global, basis. India, instead of leading the debate, is being evasive.
Who are refugees? According to the humanitarian definition, a refugee is someone who has fled his country because he has a well-founded fear of persecution if he remains. The major obligation of refugee protection is the principle of non-refoulement, which ensures that a person is not returned to a life-threatening situation.
For India to evade such a principle appears subversive of its constitutional principles unless there are weighty reasons for doing so. New Delhi's reasons for resisting refugee protection are paradoxical. On the one hand, its track record in dealing with the Tibetan, the Sri Lankan and the Chakma crises has been exemplary. Its hesitation to provide an intelligible and comprehensive protection to refugees seems to stem from two major considerations, which are artificial ghosts in the machine.
The foremost reason for refusing to concretise a refugee protection policy is the threat of terrorism. There is no reason for sustaining such a fear. Justice P.N. Bhagwati's model law, which the National Human Rights Commission is examining, and the SAARC Anti-Terrorism Protocol of 2004 ensure that suspected `terrorists' are not treated as refugees. Under the proposed model law, India may exclude even other undesirable persons provided they are not sent back to the country of persecution. The second reason for resisting the model law is that such liberality would precipitate a flood of migrants — especially from Bangladesh. This reason is also fallacious. In fact, a proper `refugee' law would distinguish between refugees and migrants by a fair, fast and stringent procedure. We should not be misled by the Sangh Parivar's misdirected campaigns against Bangladeshi and other Muslims seeking their expulsion from India.
If India wants to play a role in global affairs and make SAARC a success, it must act as a global player entitled to its just seat in the Security Council of the United Nations. But it cannot do so as long it pursues narrow policies. The South Asia region deserves better treatment. For strategic reasons, India was surprisingly quiet when virtually one-sixth of Bhutan's population was forced to leave the country for camps in Nepal. In 2003, Nepal and Bhutan entered into a kind of agreement whereby Bhutan agreed to take back about 3-5 per cent of its citizens of Nepali origin whilst offering illusory promises to some of the rest. India can help resolve this crisis.
The Afghan crisis brought Hindu and Sikh refugees to India. There are some 8000 such persons in India who can never return to Afghanistan. India will not throw them out. They remain in limbo without citizenship in India. Yet because of the complicated procedures of some potential 2600 applicants, only four have reached the portals of India's home office for consideration. Myanmarese refugees have fled their country and are in exile. They languish without protection. The Bangladeshi problem — if, indeed, that is what it is — can only be resolved if India wants to resolve it. India wants a leadership profile but does not assume concomitant responsibilities. The new Government needs to re-examine this issue. External Affairs Minister Natwar Singh's experience combined with National Security Adviser J.N. Dixit's insight from Sri Lanka should support such an initiative.
There is also a need for a change in the law. The model law has not been sufficiently considered by the Union Government. For the last five years, the NHRC has been requesting the Government to provide refugee protection. Its present Chairman, A.S. Anand, has even set up a Committee to examine the law. The argument of terrorism and numbers having been met, there is no reason why the minimal protection against non-refoulement should not be enacted. This can probably be done even through rules. But the argument is not just over the Sri Lankan refugees, the Bangladeshis, the Afghans, the Bhutanese or the Myanmarese. It is whether India wants its voice on the world's most persecuted to be heard so as to mould future policy. If India is waiting for a cue from its neighbour, China has joined the convention and enacted refugee protection legislation. African countries have got together to devise both national and regional solutions.
India needs to review its ambivalent refugee law policy, evolve a regional approach and enact rules or legislation to protect persecuted refugees. This is one step towards supporting a humanitarian law for those who need it. As a refugee-prone area, South Asia requires India to take the lead to devise a regional policy consistent with the region's needs and the capacity to absorb refugees under conditions of global equity.


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