marathi“ THE INFORMATION TECHNOLOGY ACT, 2000 “
Technology can play a very important role in all the human activities. The society which adopted new technology grew and flourished whereas societies which were lethargic to respond to challenges posed by new technologies remained far behind. Administration of justice is one of the most important activities of human kind. Due to delayed disposal of cases in Court Rooms, country’s population had started losing faith in administration of justice. Now Computer has emerged as harbinger to rejuvenate the faith of people in the judicial institutions.
There are various ways through which Computerization can improve efficiency in legal services and administration of justice. Statutes and judgments can be electronically stored and provided through Internet. Law libraries can be connected through internet and thus legal research can become more easy and accurate. Finding of law will consume less time, effort and expense. By Computerization registry and record room of the court, litigants can be provided direct access to it. Through computerization lawyers chambers and court rooms can become paper less. Petitions and affidavits can be filed from lawyer’s home at any time during day or night. Trial can be organized through video conferencing without the accused being present in the court. Service of summons, procuring copies of documents connecting parties in far flung areas for quick resolution of issues will all become far more efficient and cost effective once electronic connectivity is established and style of judicial functioning is changed.
Inventions, discoveries and technologies not only widen scientific horizon but also pose new challenges for the legal world. Computers, Internet and Cyberspace together known as Information Technology have also posed new problems in jurisprudence. It has shown inadequacy of law while dealing with the (i) information technology itself; and (ii) changes induced by the information technology in the way we live, perceive and do business. To overcome all these problems The Information Technology Act was enacted. The changes brought about by the information technology while doing business cannot be utilized unless legal recognition is accorded to electronic documents, digital signatures and sufficient security measures are adopted for their correctness. The United Nations Commissions on International Trade law ( UNCITRAL)
adopted the Model Law on Electronic Commerce in 1996. The General Assembly of United Nations by its Resolution No. 51/162 dated 30th January, 1997 recommended that all Stated should give favourable considerations to the said Model Law when they enact or revise their laws. The Model Law provides for equal legal treatment of users of electronic communication and paper based communications. The Indian Government has enacted Information Technology Act in response to this resolution and it was also specified in its objects and reasons.
The Information Technology Act tries to sort out many problems of the cyberspace. This is done by two ways : firstly by enacting Information Technology Act and secondly by making suitable amendments in the Indian Penal Code, 1860, the Indian Evidence Act, 1872, the Banker’s Book Evidence Act, 1891, and the Reserve Bank of India Act, 1934. These provisions give legal sanction to digital signature, electronic records, and sort out questions of jurisdiction, evidential issues, security measure, and sanction against obscenity.
This Information Technology Act 2000 in short called “Act” is an Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication commonly referred to as “electronic commerce” which involve the use of alternatives to paper based methods of communication and storage of information to facilitate electronic filing of documents with the government agencies. The Act came into force on
The Act is divided into XIII Chapters, Sections 91 to 94 of the Act deal with amendments to Act 45 of 1869, Act 1 of 1872, Act 18 of 1891 and Act 2 of 1934 and the corresponding amendments are specified in Schedules 1 to 4 of the Act. Chapter I of the Act deals with preliminary. Likewise Chapter II Digital Signature, Chapter III electronic governance, Chapter IV – Attribution, acknowledgment and dispatch of electronic records, Chapter V – Secure electronic records and secure digital signatures, Chapter VI – Regulation of certifying authorities, Chapter VII – Digital signature certificates, Chapter VIII – Duties of subscribers, Chapter IX – Penalties & Adjudicatiion,
Chapter X – The Cyber Regulations Appellate Tribunal, Chapter XI – Offences, Chapter XII – Network Service Providers not to be liable in certain cases and Chapter XIII – Miscellaneous.
In the talk delivered by Justice Yatindra Singh on
Digital Signatures – electronic governance
The Act gives legal sanction to digital signatures ( Section 5) and electronic record may be authenticated by means of affixing the digital signature ( Section 3). These sections also provide a procedure. Electronic record is to be converted into another one using “asymmetric crypto system” and “hash” function then incorporating digital signature by the private key unique to that person. Anyone having public key corresponding to the private key can verify this authentication. Chapter III of the Act brings about an era of electronic governance. In short this Chapter says that all records where the requirement is to be in writing or in the typewritten or printed form can now be satisfied it is made in the electronic form. This Chapter also permits publications of the rules and the regulations in the electronic form. The applications and forms bay be accepted electronically.
Jurisdictional Issues
Chapter IV of the Act deals with attribution, acknowledgement and dispatch of electronic Records. They will assist the courts in sorting out problems of jurisdiction in case of breach of contract lest a dispute goes to the Court of law.
Security Concerns
Chapter VI of the Act deals with appointment of Controller and grant of license to certifying authority who in turn is authorized to issue digital signature certificate. Chapter VII of the Act details modalities of issuing Digital Signature Certificate. The Controller is repository of all digital signatures ( Section 20 ). He supervises certifying authorities under the Act and has to lay down standards to be maintained certifying authorities ( Section 18 ). He himself has to maintain standards which are secured from intrusion and misuse ( Section 20 ). Certifying authorities also have to maintain standards, which are secure from intrusion and misused ( Section 30 ).
Deterrent Provisions
Before discussing deterrent provisions, it is necessary to discuss the problems faced by English Courts. One Prestel systems provided free e-mail facilities and access to its database to its subscribers. The two accused persons namely Gold and Schifreen were hackers and entered its database by hacking its computer. They were caught and prosecuted in
# Any instrument for the purposes of this Act had to be similar as other examples in the statutory definition, which were physical objects :
# The electrical impulse in question were only transient, this did not correspond well with the idea of the creation of an instrument.
# The charge was inapplicable due to nature of the offence as the password used was not false, it was genuine, and there was just no entitlement to use it.
In this case of R –versus- Gold reported in 1987 (3) All ER 680 affirmed by House of Lords in 1988 (2) All ER 186, it was further held that, “ The conduct of the accused amounted in essence to dishonestly gaining access to the relevant Prestel data bank by a trick. This is not a criminal offence. If it is thought desirable to make it so that is a matter for the legislature rather than the Courts”.
Law Commission in
The Information Technology Act has in principle same scheme. This has been done by providing civil and penal consequences for hacking and other wrongful activities.
Civil Consequences
The Information Technology Act prescribes penalty against a person who without permission of owner access or downloads or introduces virus or causes any damage, or disrupts, or denies access to an authorized person to any computer, computer system or computer network or charges services to the account of any other person. The penalty is to be paid to person affected. It can extend to One Crore Rupees ( Section 43 ). The quantification of damage is not left to the civil Courts but has been entrusted to an adjudicating officer having experience in the field on Information Technology ( Section 46 ). The guiding factor for quantification of damage is amount of gain of unfair advantage; amount of loss; and the repetitive nature of the default ( Section 47 ). An appeal lies to the Cyber regulation Appellate Tribunal against the order of the adjudicating officer or of the controller ( Section 57 ). A further appeal lies on question of fact or on law to the High Court ( Section 62 ).
Criminal Law. Penal Liability
Criminal Liability is dealt in Chapter XI of the Information Act. Tampering with computer source document ( section 65 ) and Hacking with the computer system ( defined in section 66 ) are offences punishable with imprisonment which may extend to three years or fine which may extend up to two lakh rupees or both. Securing access to protected system is punishable with imprisonment, which ma extent to ten years ( Section 70 ). The Act also provides penalty for breach of confidentiality and privacy of the information received by a person in pursuance of any of the powers conferred under this Act ( Section 72 ). There is penalty, for publishing false Digital Signature Certificate ( Section 73 ); and for creating, publishing, and otherwise making a digital signature certificate for fraudulent or unlawful purpose ( Section 74 ). An offender may be imprisoned for a term, which may extend to two years or fine, which may extend to one lakh rupees. Computers, floppies, compact disks or other accessories in respect of which the Information Technology Act or the Rules or the orders thereunder have been contravened are liable to be confiscated. The punishment and confiscation under the Act does not interfere with any other punishment to which a person may be liable under any other laws e.g. Copyright Act or Indian Penal Code.
Extra Territorial Application
The Act has extra territorial jurisdiction. Hackers or persons causing damage to the computers, computer system or computer network located in
Admissibility in Court Proceedings.
Is a computer print out admissible in a Court of Law ? The Courts of England have experienced about the same. One Pettigrew was accused for committing burglary and for handling stolen goods. He was also found with new notes that had come from a bundle of notes, which were stolen. The prosecution produced a computer print out from the bank of England, which tended to prove that bank note found in the accused’s possession came from the bundle, which was stolen in the burglary with which the accused was charged. In case of R –versus- Pettigrew reported ( 1980) 71 Cri AR 39 the Court of appeal did not admit these computer printouts on the ground that no witness could claim first hand knowledge of the various contents and they must be hearsay.
The Information Technology Act takes case of such situation. It makes necessary amendments in the Indian Evidence Act, 1872, and the Bankers’ Books Evidence Act, 1891. These amendments have been made in order that electronic record, digital signature and the computer print out may be proved and admitted in Courts of Law. Of course, this can be done only if conditions mentioned in the amended sections are satisfied. On this point Hon’ble
Morality: Freedom of Expression
It is often said that if your child is spending too much time alone on computer then one should be careful. The reason is that the content in the cyberspace is a diverse as human thought. It also contains information and material which is obscene. An impressionable one can be misled or lured by others. The
Admissibility of Electronic Evidence
Electronic Evidence is mainly divided into two types ; (1) Tape recorder and (2) video conferencing.
In the recent past with sensational revelations by Tehelca dot com portal journalists, the question about relevance and admissibility of Tape Recorded evidence is hotly being debated in the legal circles. Though the tape-recorded conversation cannot be independent evidence, it can be relevant and admissible evidence, sufficient enough to launch prosecution, provided that the tapes corroborate the conversation and depositions available otherwise and that forms part of a transaction, which could be proved by other evidence. In the wake of Information Technology Act, 2000 the electronic magnetic tape devices can be termed as valid documentary evidences and could legally form the basis for prosecution of bribe takers.
Sensational match-fixing scandal which rocked the entire cricket world and shook the credibility of the game as such is based only on the tape-recorded conversations of cricketers, bookies and other fixers who cheated the game lovers on the whole. Blanket denial of appreciation for audio and videotapes on technical grounds will be nothing but shutting our eyes to reality and closing doors for new technology. The Evidence rules and regulations require to be properly amended to include the
videos and audiotapes as he basis of relevant evidence and place much reliability on it. Voice may be manipulated on the audiotapes but is technically near impossible to manipulate the picture without getting noticed.
Especially in cases of bribery and corruption, it is difficult to collect perfect pieces of evidence to convince the court. Hence, the facts to be proved must be appreciated based on the available tools and evidentiary material. Bangaru Laxman while taking money, Laloo Prasad Yadav distributing money certainly have place in the relevant provisions of Prevention of Corruption Act and Indian Penal Code and their acts were shoot out by the journalists and widely seen by the crores of Indian on television. It is relevant in this context to know how the law of evidence values the tape-recorded conversation and video-tapes as relevant and admissible piece of evidence.
In Yousafalli Esmail Nagree versus State of
The Information Technology Act 2000 recognized electronic authentication and digital signatures. As the digital records replaced the documented papers there is a need to provide for a legal validity to electronic documentation like video and audio. The Act amended the Indian Evidence Act, 1872 to include electronic documents under the purview of “Evidence”. The Act of 2000 also says that oral admissions as to the contents of electronic records are not relevant unless the genuineness of the electronic record produced in question. This means that when there is no challenge to the genuineness of the electronic record, it can be used as any other documentary evidence with authority and acceptability.
Section 59 after amendment, says that all facts, except the contents of documents or electronic records may be proved by oral evidence. This means electronic documents need not be orally proved.
Section 65-B, inserted into Evidence Act by amendment through the Information Technology Act makes it much more clear that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document. Magnetic media naturally includes the video or audiotapes. Thus the Tape record could be the better evidence as the spoken words are transcribed on the tape to establish the charges of blackmail, threat and inducements to commit a crime and sedition. Similarly the videotapes can help establishing the corrupt functioning of some public officials and prominent figures.
In case of State of
It is to be remembered that by virtue of an amendment and insertion of Sections 65-A and 65-B of the Evidence Act a special provision as to evidence relating to electronic record and admissibility of electronic records has been introduced with effect from 17-10-2000. Therefore there is no bar of examination of a witness by way of video conferencing being essential part of electronic method.
In case of 20th Century Fox Film –versus- NRI Film Production reported in AIR 2003 Karnataka 148, it was held that, “ under Order 18 Rule 4(3) of CPC, the presence in the court means not necessarily a physical presence. Rule 4(3) provides for recording evidence either by writing or mechanically in presence of the Judge. It further says that the Court or the Commissioner as the case may be shall record evidence either in writing or mechanically in the presence of the Judge or Commissioner. Therefore the real import is when writing and mechanically both process can be applicable disjunctively for the court and Commissioner by the amendment with
effect from
On the similar lines Hon’ble Calcutta High Court in case of Amitabh Bagchi –versus- Ena Bagchi reported in AIR 2005
The Act added another provision by section 85-B providing for a presumption as to electronic records and digital signatures. “ In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates”. However it is not irrebuttable presumption. If contrary is proved, such contradiction will be admitted. But till then it can be admitted as the evidence belonging to category of documentary evidence.
Falsification of Electronic Record.
Corresponding amendments made to Section 192 of Indian Penal Code by the Information Technology Act made fabrication of electronic evidence also a crime. According to amended Section 204 of Indian Penal Code whoever destroys or renders illegible any document or electronic record shall be punishable with imprisonment up to two years with or without fine. Similarly forging an electronic record is made an offence under section 463 of Indian Penal Code. Thus electronic evidence has come to be recognized legally as admissible evidence and fabricating it leads to a punishable crime.
The Bankers’ Books of Evidence Act, 1891 was also amended by the Information Technology Act to incorporate data stored in a floppy, disc, tape or any other form of electro-magnetic storage device, into the definition of “Bankers’ Books”, under section 2 (3).
As the tapes of cell phones talks between cricket players and bookies revealed the unholy nexus between the game and Mafia gangsters, and formed basis for further investigation and gathering of other forms of evidence, the revelations by Tehelca dot com should be used as the tips and secondary evidences to dig further stories and be admitted as new class of documentary evidence in the Court of law to bring the culprits to be booked by law. Advantages of scientific research and facility of technology
should be used for administration of justice also. If needed there must be an inclusion of a clear provision that the videotapes containing conversation relating to acceptance of money or showing desire to receive it can be admissible in evidence if they are untampered and proved to be genuine. If corroborated by other means, it can also lead to establish the guilt of bribery. Application of electronic evidence or magnetic tapes has to be encouraged especially in corruption cases. Magnetic tapes are most useful tools for recording evidence, the truth of which cannot be easily denied. In corruption cases prosecution is already using the trap and decoys. Secret recording by video cameras of the conversations proposing and accepting bribes should be encouraged further as a measure of preventing the corruption and enforcing the anti bribery laws.
High Courts and Supreme Court are computerized to different levels. All District Courts in all States have been supplied some hardware and software. The experience in the High Court can easily be utilized and extended. In 1997, National Informatic Centre took up the computerization of all 430 District Courts in the Country on the lines of High Courts computerization project. In every state, all subordinate courts in every district have same procedures, forms, rules, registers, methods, statements etc. Therefore the necessary software is being developed centrally in the concerned High Court and given to subordinate courts in the state. Many of the programmes developed for the High Court can be easily adopted for the lower Courts.
While summing up it is pertinent to note that in the Chapter XI the offences are given under section 65 to 77, but the entire act does not speak about the authority who is empowered to take cognizance of such offences.
For success of any Computerization in any organization, active participation and support of the user organization are absolutely necessary. This can come only from the user and decision makers having the interest, awareness, inclination and time.
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