Tanmay asked: Despite having brought its legal framework largely in consonance with the Budapest Convention on Cybercrime, why is India hesitant to accede to it?

Cherian Samuel replies: The objectives of the Budapest Convention on Cybercrime are to formalise and harmonise legislation to combat cybercrime in signatory states, to set in place common procedures in the prosecution and investigation of cybercrimes, and to foster seamless co-operation amongst the law enforcement agencies through appropriate legislation, building up points-of-contact, and through capacity building programmes.

To this end, the Convention (Treaty No. 185 of the Council of Europe) goes beyond just harmonisation and incorporates Articles which provide for transborder investigations by law enforcement agencies without the permission of the country where the data is located in the interest of speedy dispensation of justice. This issue of dilution of sovereignty has been flagged by several countries, including India. Many of the countries that have signed up to the Convention, including the United States, have also issued reservations noting that in cases where the Convention is not aligned with domestic laws, the latter shall prevail.

The point has also been made that the Convention prioritises issues that are more important to the European countries, reflecting its origins, and less on issues like propagation of terror over the Internet that are important to India. Furthermore, since it was created in November 2001, many of its provisions are believed to be out of date, and irrelevant to the current needs. Additional protocols to expand its provisions have stayed in the negotiation stage.

Accession to the Convention is only by invitation, and only two countries in Asia, Sri Lanka and Japan, have so far signed up to the Convention. There is no empirical evidence that accession to the Convention has made any material difference to the effective and speedy resolution of criminal cases in these countries, or elsewhere.  Access to capacity building programmes is, in itself, not a sufficient enticement to join the Convention, given its other drawbacks and flaws including a convoluted two-tier system of membership.  India might consider signing up at a point its concerns are addressed and the treaty becomes a more effective means of combating cybercrime. For the moment, existing instruments of co-operation such as the bi-lateral Mutual Legal Assistance Treaties (MLATs) seem to be adequate.  

Posted on June 10, 2019