The aim of this article,
written
in 2006, is to consider the far reaching consequences of the
proposed IT Act, 2000 amendments as suggested by the Expert Committee
appointed by the Government in this regard. These amendments were
severely criticised in India because of their inherent weaknesses and
retrograde approach. If these proposed amendments have been approved
by the cabinet without considering the critical evaluations or
without the necessary modification, India will surely be a “safe
heaven” for various cyber crime and contraventions. Equally at risk
are e-governance in India and e-commerce in India. In the present
scenario, cyber law in India is going to be a remedy worse than the
malady. We may have a cyber law without teeth. Rather, it may
actively encourage and support the criminal tendencies and cyber
crimes in India. It is ironical that though India is emerging as the
leading country in the field of Information and Communication
Technology (ICT) yet the law that is needed to make it a ground
reality is itself removing the protection and safeguards necessary
for the survival and continued existence of ICT in India.
I. Introduction
The cyber law, in any country of the World, cannot
be effective unless the concerned legal system has the following
three pre requisites:
(1) A sound Cyber Law regime,
(2) A sound enforcement machinery, and
(3) A sound judicial system.
Let us analyse the Indian Cyber law on the above
parameters.
(1) Sound Cyber Law Regime: The Cyber law in
India can be found in the form of IT Act, 2000. Now the IT Act, as
originally enacted, was suffering from various loopholes and lacunas.
These “Grey Areas” were excusable since India introduced the law
recently and every law needs some time to mature and grow. It was
understood that over a period of time it will grow and further
amendments will be introduced to make it compatible with the
International standards. It is important to realise that we need
“qualitative law” and not “quantitative laws”. In other
words, one single Act can fulfil the need of the hour provided we
give it a “dedicated and futuristic treatment”. The dedicated law
essentially requires a consideration of “public interest” as
against interest of few influential segments. Further, the futuristic
aspect requires an additional exercise and pain of deciding the trend
that may be faced in future. This exercise is not needed while
legislating for traditional laws but the nature of cyber space is
such that we have to take additional precautions. Since the Internet
is boundary less, any person sitting in an alien territory can do
havoc with the computer system of India. For instance, the
Information Technology is much more advanced in other countries. If
India does not shed its traditional core that it will be vulnerable
to numerous cyber threats in the future. The need of the hour is not
only to consider the “contemporary standards” of the countries
having developed Information Technology standards but to “anticipate”
future threats as well in advance. Thus, a “futuristic aspect’ of
the current law has to be considered. Now the big question is whether
India is following this approach? Unfortunately, the answer is in
NEGATIVE. Firstly, the IT Act was deficient in certain aspects,
though that was bound to happen. However, instead of bringing the
suitable amendments, the Proposed IT Act, 2000 amendments have
further “diluted” the criminal provisions of the Act. The
“national interest” was ignored for the sake of “commercial
expediencies”. The proposed amendments have made the IT Act a
“tiger without teeth” and a “remedy worst than malady”.
(2)
A Sound Enforcement Machinery: A law might have been properly enacted
and may be theoretically effective too but it is useless unless
enforced in its true letter and spirit. The law enforcement machinery
in India is not well equipped to deal with cyber law offences and
contraventions. They must be trained appropriately and should be
provided with suitable technological support.
(3) A Sound Judicial System: A sound judicial
system is the backbone for preserving the law and order in a society.
It is commonly misunderstood that it is the “sole” responsibility
of the “Bench” alone to maintain law and order. That is a
misleading notion and the “Bar” is equally responsible for
maintaining it. This essentially means a rigorous training of the
members of both the Bar and the Bench. The fact is that the cyber law
is in its infancy stage in India hence not much Judges and Lawyers
are aware of it. Thus, a sound cyber law training of the Judges and
Lawyers is the need of the hour. In short, the dream for an “Ideal
Cyber Law in India” requires a “considerable” amount of time,
money and resources. In the present state of things, it may take five
more years to appreciate its application. The good news is that
Government has sanctioned a considerable amount as a grant to bring
e-governance within the judicial functioning. The need of the hour is
to appreciate the difference between mere “computerisation” and
“cyber law literacy”. The judges and lawyers must be trained in
the contemporary legal issues like cyber law so that their
enforcement in India is effective. With all the challenges that India
is facing in education and training, e-learning has a lot of answers
and needs to be addressed seriously by the countries planners and
private industry alike. E-learning can provide education to a large
population not having access to it.
II. Critical Evaluation Of The Proposed IT
Act, 2000 Amendments
The proposed IT Act, 2000 amendments are
neither desirable nor conducive for the growth of ICT in India. They
are suffering from numerous drawbacks and grey areas and they must
not be transformed into the law of the land. These amendments must be
seen in the light of contemporary standards and requirements. Some of
the more pressing and genuine requirements in this regard are:
(a) There are no security concerns for
e-governance in India
(b) The concept of due diligence for companies
and its officers is not clear to the concerned segments
(c) The use of ICT for justice administration must
be enhanced and improved
(d) The offence of cyber extortions must be added to
the IT Act, 2000 along with Cyber Terrorism and other contemporary
cyber crimes
(e) The increasing nuisance of e-mail hijacking and
hacking must also be addressed
(f) The use of ICT for day to day procedural matters
must be considered
(g) The legal risks of e-commerce in India must be
kept in mind
(h) The concepts of private defence and aggressive
defence are missing from the IT Act, 2000
(i) Internet banking and
its legal challenges in India must be considered
(j) Adequate and reasonable provisions must me
made in the IT Act, 2000 regarding “Internet censorship”
(k) The use of private defence for cyber terrorism
must be introduced in the IT Act, 2000
(l) The legality of sting operations must be
adjudged
(m) The deficiencies of Indian ICT strategies must
be removed as soon as possible
(n) A sound BPO platform must be established in
India, etc.
The concerns are too many to be discussed in
this short article. The Government must seriously take the “genuine
concerns” and should avoid the cosmetic changes that may shake the
base of already weak cyber law in India.
III. Conclusion
The Government has mistakenly relied too much
upon “self governance” by private sectors and in that zeal kept
aside the “welfare State role”. The concept of self governance
may be appropriate for matters having civil consequences but a
catastrophic blunder for matter pertaining to crimes, offences,
contraventions and cyber crimes. Further, the Government must also
draw a line between “privatisation’ and “abdication of duties”
as imposed by the Supreme Constitution of India. The concepts of
“Public-Private Partnerships’ must be reformulated keeping in
mind the welfare State role of India. The “collective expertise”
must be used rather than choosing a segment that is not representing
the “silent majority”. It would be appropriate if the Government
puts the approved draft by the Cabinet before the public for their
inputs before finally placing them before the Parliament.
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