While one may think what’s the connection between Cyber Law and Union Budget 2022. However, at the time when are coming to the tipping point in the interregnum period where there is light at the end of the tunnel, we are likely to witness new cyber manifestations in this year 2022. The Union Budget 2022 seems to focus on Technology be it digitalisation, e-governance, block chain, drones, digital currency, e-passports, digital banks, drones, digital university, digital health, 5g tech and the like.
At this point, Cyber Law assumes a greater significance where computers, computer systems, computer networks, computer resources, communication devices as also data or information in electronic format are the new turmoil. The Cyber Law Jurisprudence is going to be the eye candy on the stage and I am of the opinion that the Indian Cyber Law – IT Act, rules, regulations are the mother legislation for anything and everything that is digital in nature.
The IT Act provides legal recognition to all electronic transactions as also promotes and boosts to e-governance.
DRONE TECHNOLOGY- AGRICULTURE
One of the key initiatives outlined in the Union Budget 2022 is making use of drone technology to agriculture sector. The Union Budget announces the use of Kisan Drones for the purpose of crop assessments, digitalisation of land records, spray of insecticides and nutrients. However, in this scenario, cyber law plays a crucial role since drones can also be considered as “Computer” under the IT Act as also any output generated through such drones can be considered as “Electronic Records” under the IT Act. Given this approach, cyber law awareness is the need of the hour among the farmers, start-ups, agricultural universities. Further, any misuse of such drones can also be considered as cyber crimes.
This also brings privacy on the table, specifically since such digitalisation of land records involve Sensitive Personal Data or Information (SPDI), Personal Information. I opine that data protection law shall be of greater importance to protect such Sensitive or Personal Information. It is the urge to table the Personal Data Protection Bill as soon as practically possible in the Parliament sessions.
It is advisable that agri universities should have basic cyber law and cyber security awareness so as to make people aware of what should nor what should not be done as per law.
The Union Budget also brings in the proposition of setting up a Digital University for providing education on a hub and spoke model. Further, in this kind of the scenario, Cyber Law plays a key role since all such classes taken digitally are nothing but data or information in electronic format, which are e-considered as electronic records under the IT Act. However, such Digital University also handles the Sensitive Personal Data or Information (SPDI), Personal Information of children and students. Further, data protection law also is the present-day requirement to support such Digital Universities.
NATIONAL DIGITAL HEALTH ECOSYSTEM
The Union Budget 2022 also specifies about a new platform for National Digital Health Ecosystem under Ayushman Bharat Digital Mission (ABDM). Further, such platform shall comprise of digital registries of health providers and health facilities, unique health identity, consent framework as also facilitating access to health facilities. In this scenario of National Digital Health Ecosystem, Cyber Law becomes the jewel in the crown. However, the concept of consent is something that is not properly looked into by any digital health ecosystem including the National Telemedicine platform.
The standard check box with the wording “I agree” is included in most of the platforms, however, some platforms do not even take specific consent. This concept is a pre-determined consent and the free and informed consent framework is absent. Despite the IT Act, IT rules mentioning about consent and withdrawal of consent, there is no effective implementation of the same. In this kind of scenario, data protection law becomes the singular contributor.
The Union Budget 2022 also discusses the setting up of 75 digital bank units in 75 districts by scheduled commercial banks. The digital banking, digital payments and use of technology in financial sector has been emerging and constantly evolving. Cyber Law becomes the toast of the times in this context since all these are given legal validity, legal recognition by the IT Act, rules, regulations. However, digital banking frauds continue to be on the rise and at this hour, cyber law awareness holds the key. Apart from merely setting up digital banks, awareness on digital literacy and cyber laws, cyber security is going to emerge as the vital pointers.
The data protection law also becomes essential to protect the Personal Data of customers. Further, such digital banks should also be aware of how to handle cyber security related issues and should comply with the Cyber Law and shall promote cyber awareness among its staff and customers. The awareness camps shall be conducted at frequent intervals for promoting cyber hygiene
The Union Budget 2022 announces the launch of digital currency in the coming financial year to provide a boost to digital economy as also effective currency management. Further, the coming of Central Bank Digital Currency also brings in a mechanism of efficient currency management as also transparency, tracking. At this point, Cyber Law assumes paramount importance since any such digital currency becomes e-record under IT Act as also provides legal recognition to such digital currency.
The Digital Currency specific legislation is the one writing on the wall which is the central lifeline point with respect to such digital currency. Such legislation shall be required for providing the legal status of such digital currency as legal tender, defining the roles, responsibilities of such Central Banking kind of authority to act as a nodal agency for such digital currency. Cyber Security and Cyber Law are important vectors specifically from digital currency perspective
The Union Budget 2022 has also announced e-passports tagged with biometrics wherein a small electronic chip is attached to the passport that contain the data. This can be seen in similar lines with chip-based credit cards. However, cyber law has to be on the forefront which e-passport consist of Sensitive Personal Data or Information (SPDI), Personal Information of citizens. Further, such e-passports are e-records under the IT Act and biometric can be considered as electronic signatures under the IT Act.
Data Protection Law has to be on the top so that to protect such personal data of citizens in an effective and efficient manner. The cyber legal compliance in this context is getting more and more predominant.
With fifth generation (5G) Technology in the Telecom Industry making its entry very soon in the country, the connectivity and speed are going to transform the entire country to a digital country. However, from a Cyber Law and Cyber Security Legal Perspective, the 5G technology is likely to bring on the table new challenges with respect to Privacy, New Cyber Security Breaches, New Cyber Crimes as also inter-operable Cyber Legal Aspects relating to merging tech like IoT. I believe that 5G and Cyber Legal Principles will also emerge as a key trend in the year 2022 given that the Cyber Vulnerabilities, New Network Shifts, Cyber Security Breaches will be the new normal. Cyber Hygiene will assume a pivotal position in this regard
Virtual Currency Taxation
The taxing of virtual currency when interpreted in broad perspective hints at a legal sanctity to virtual currencies in the absence of specific legal framework. However, given the pros and cons of such virtual currencies, one hopes that the jurisprudence surrounding such virtual currencies will evolve in reflection with the opinion and consultations of various stake holders.
I believe that we cannot have a 20th Century mind to tackle the 21st century issues. While we are busy seeking answers to these techno developments and advancements, I firmly believe that Cyber Law is going to be your constant opinion and Cyber Law is going to emerge as a key mantra while India rides the tiger across the digital and internet highway with virtual currency, data protection related legislations becoming the new DNA.
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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE
The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.
In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.
Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.
Justice Chandrachud stated by taking a note of the above submissions:
A bench can’t be constituted with one member.
Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.
Justice Kant further added by taking a note of the above submissions:
The members whose term is likely now to expire in Future, give the details of those members.
The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.
AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.
The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.
The bench ordered to comply with the same and listed the matter on 13th May.
Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty
The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.
The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.
A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.
Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.
The bench of Justice Bela Trivedi, an judgement authored noted:
the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.
while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.
Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.
The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.
The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.
ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC
The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.
the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.
It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.
The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.
under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-auction notice came to be issued by the Bank.
The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.
Supreme Court pulls up the state of Kerala for challenging the seniority of upper division clerk
The Supreme Court in the case The State of Kerala and Or’s. V. Subeer N.S. And Anr observed assailing the Kerala High Court’s order of affirming the seniority of an upper division clerk for filling a Special Leave Petition pulled up the State of Kerala.
The Government lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR based on the review of the Seniority the Director of Public Instruction and the Government while issuing the impugned orders, none of these aspects wee considered to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list and there was no objection and further there was no objections to the rank and seniority assigned to the applicant in the provisional seniority list. the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same as early as on 8th March 2009., the bench observed While affirming the view by KAT.
The said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant’s seniority was reassigned based on his eligibility on the part of the controlling officer it is only by a mistake that he was granted promotion and was assigned the rank in the seniority list, the counsel said to further persuade the bench.
The Bench of Justice Chandrachud remarked that if the counsel feels there is an error you must rectify the error correctly and there was no fraud on his part and all this must be due on a reasonable dispatch.
The bench comprising of Justice DY Chandrachud further observed and noted when the matter was called upon hearing before the bench that the State is here challenging it the bench further remarked by saying that why don’t you do something better? Build schools, roads or infrastructure as one upper division clerk has got seniority.
respondent’s seniority was revised to the date on which he rejoined duty after the leave and the respondent was on leave without allowance at the time of his promotion as U.D Clerk, the counsel appearing for the State contended before the Court.
The Bench comprising of Justice DY Chandrachud and the justice Surya Kant orally remarked while dismissing the SLP against the order dated 01.17.2022., We are not a court of law but a court of justice as well.
A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN
The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.
the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.
On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.
The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.
particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.
This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.
the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.
THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT
The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.
under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.
The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.
The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.
The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.
the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.
The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.
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