Joginder Singh Toor

NEW Communication System and digital technology having made dramatic changes in people’s interaction and in transacting business has made paper on its elimination way, storage of data cheaper, easier to store and retrieve. It has also brought in certain vices, malpractices and culpable conduct. It required a strong cohesive elaborate law to be strictly followed world wise.

The United Nations Commission on International Trade Law adopted a model law on electronic commerce in 1996. The U.N.General Assembly in its 51/162 resolution recommend on January 30,1997 that all States should give favourable consideration to the model laws. June 9,2001 India passed Information and Technology Act to provide for legal recognition for transactions carried out by means of electronic media interchange and other means of electronic communication. It necessitated amendment of the Indian Penal Code, the Evidence Act and the Reserve Bank of India Act,1934.

The 2001 Act recognised digital signatures created by “asymmetric crypto system” by securing a pair of keys for creating and verifying digital signatures. Cell phones, computers, computer network, computer resource and computer systems are covered by the provisions of the Act. Provision for issuance of electronic signature certificate, formation of an Indian Computer Emergency Response Team, appointment of an ‘intermediary’ for receiving, restoring or transmitting by electronic war provided.

Digital signatures (made by use of “asymmetric system” or “hash system” and electronic signatures made by “any authentication technique” which at the time of signature was under the control of the signatory or the authenticator but no other person was recognised even if any other lawprovides that such information, matter or record shall be in writing.

The 2001 Act provided remedy by way of compensation/damages for access, downloading, causing computer contamination, damage to computer system or computer network. Changing from another person’s account, destroying, deleting, altering information, residing computer resource, system or network, was also to be compensated by way of damages.

The law made in 2001 was inadequate, soft, vague and non-dimensional. The world trade organisation made a declaration recently that WTO is likely to form a work programme to handle its work in this area including the possible creation of multilateral trade deals through the medium of electronic commerce.

The Parliament of India felt that “there is need for bringing in suitable amendments in the existing laws in our country to facilitate e-commerce. It was proposed to provide a regulatory regime to supervise the certifying authorities issuing digital signature certificates and to prevent misuse of electronic system. As a result the Information Technology (Amendment) Act,2008 has been passed by the Parliament in 2009.

Certain documents such as negotiable instruments (other than cheque), power of attorney, trust deed, a will and any contract for sale of or conveyance of immoveable property or any interest therein have been taken out of the purview of this Act.

Terms communication device, computer network, communication media, have been redefined. Digital signatures are covered under electronic signatures or electronic authentication technique. Delivery of service by service provider through electronic means has been regulated. Audit of documents contracts formed through electronic means are permissible. Failure to protect data can lead to payment of damages as compensation.

A Cyber Appellate Tribunal is to be constituted according to the procedure given in the Act to perform such acts and discharge duties as defined.

Major changes relate to computer related offences which under the 2001 Act were missing except one, otherwise compensation for damages was the main penalty. Now any act mentioned in Section 43 such as unauthorised access to computer, downloading, extraction of data, contaminating, causing damage, disruption, stealing, concealing, destroying, altering any data is punishable for 3 years sentence and fine upto 5 lakh.

Violating privacy, transmitting porn visual images, capturing images of any person’s private area, naked or undergarments clad genitals, pubic, buttocks or female breast attracts three years punishment or fine upto two lakh.

Cyber terrorism, denial of access to computer data to a person authorised, penetrating or accessing computer is punishable for 5 years.

Severe punishment is provided for transmitting sexually explicit act of any person or depicting children in sexually explicit act is punishable for 5 years.

What may hurt many, the State Governments and the Central Government have, for the sake of expediency, interest of the State, sovereignty or integrity or defence of India, or of any friendly State or for public order and for the purpose of investigation of cyber related or other offences have taken power and authority to specially authorise a person to intercept, monitor or decrypt any computer or source. The government have also the power to authorise to monitor and collect traffic data or information through any resource or agency of the government. Any intermediary or person incharge of computer resource is duty bound to divulge all information and provide access to such authorised person or agency.

Many other changes have been made. Resultantly some provisions of the Evidence Act, and of the Indian Penal Code have been amended.

This Act more or less resembles the U.S.A. Patriot Act,2001 which empowers the government and agencies of the U.S.A. to retract any information even private one, protected by the Privacy Act of America, from any organisation, banking or commercial company, computer network, system or source or any company conducting business in the United States of America. The changes necessitated to curb cyber crime have provided opportunity to the Government to seize or intercept any information relating to any person involved or not involved in a case.

[Joginder Singh Toor is a senior advocate based in Chandigarh 91-9815133530. jogindersingh_toor@yahoo.com]

BACK