Controversial Clauses

Padmanabhan, Arvind
India Abroad
01-14-2000
Controversial Clauses

Although most industry observers and practitioners of law have termed the
new Information Technology (IT) Bill as progressive, there are many who
feel some of the provisions infringe on the fundamental right to privacy of
a citizen. Some experts say there are several procedural provisions which
are bound to be challenged in courts of law. Consider.

Section 29: The controller or any other person authorized by him shall, if
he has reasonable cause to suspect that any contravention of the provisions
of this Act, rules or regulations made thereunder has been committed, have
access to computer system, any apparatus, data or any other material
connected with the system, for the purpose of searching or causing a search
to be made for obtaining any information or data contained in or available
to such computer system.

Legal experts feel that this provision not only infringes on the
fundamental right to privacy of a citizen, but also enables the government
to officially hack a person's computer and software.

The clause also leaves a lot of room for interpretation on what constitutes
"reasonable cause to suspect." Hence, it gives a sort of blanket permission
to agencies appointed by the government to check all incoming or outgoing
e-mails and even modify them. All this for protecting the "integrity,
sovereignty and security of the state," with or without the knowledge of a
user, by invoking the Officials Secrets Act. A refusal invites strict
penalties and punishment, which may extend up to seven years in prison.

Section 79: Any police officer, not below the rank of a deputy
superintendent of police, or any other officer of the Central government or
a state government authorized by the Central government in this behalf, may
enter any public place and search and arrest without warrant any person
found therein who is reasonably suspected of having committed or of
committing or being about to commit any offense under this Act.

Such provisions, especially in the Indian Penal Code and the Criminal
Procedure Code, are not uncommon. There have also been several instances
when aggrieved persons have moved court, or sought help from those
protecting human rights, against misuse of such provisions.

Legal experts say the police force is yet to be fully equipped - even in
ranks above the deputy superintendent - to handle computer crimes. They
feel that Section 79 of the IT Bill gives unlimited room to state
authorities to misses the law and become vindictive.

More so, as Section 83 further provides that no legal proceedings will be
initiated against the Central government or agents appointed by it, for any
action which is done in "good faith" or "intended to be done in pursuance
of this Act or any rule, regulation or order made thereunder."

Section 66: Whoever publishes or transmits or causes to be published in the
electronic form, any material which is lascivious or appeals to prurient
interest or its effect is such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant circumstances, to read, see
or hear the matter contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for a term which may
extend to two years and with fine which may extend to Rs. 25,000 ($580) and
in the event of a second or subsequent convictions with imprisonment of
either description for a term which may extend to five years and also with
fine which may extend to Rs. 50,000 ($1,160).

This provision is obviously aimed at preventing obscenity and pornography,
but again the provision has worried "intermediaries" like Internet service
providers, portals and search engines.

The bill does provide some safeguards to the "intermediaries," but leaves
with them the onus of proving that the offense was committed without their
knowledge and that they had exercised due diligence to prevent the
commission of such an offense. Legal experts feel that the definition of
obscenity and pornography, too, depends much on interpretation and this
clause again gives authorities a free hand to misuse power.

Section 2(z): Originator is a person who sends, generates, stores or
transmits any electronic message or causes electronic messages to be sent,
generated, stored or transmitted to any other person, but does not include
an intermediary.

Most penalties and punishments in the IT Bill are obviously proposed on the
"originator," or perpetrator, of a cyber-crime. The crimes include:
Inflicting a computer virus, sending obscene material, accessing
unauthorized data, tampering with computer source data or digital
signatures, and publishing antistate or fraudulent messages.

Even in conventional crimes - where the enforcement authorities have tools
like finger-printing - it takes several years, at times, to find the
perpetrator of a crime and often a suspect is released as not-guilty after
several years.

In today's world of "virtual reality," it would prove extremely difficult
to find out who an originator of a crime is, since one computer is used by
several persons, be it in the office or a cybercafe. The cause for concern
the trauma of detention and trial which an innocent, but suspected
originator of crime, may have to suffer.

Article copyright India Abroad Publications, Inc.

Article copyright India Abroad Publications, Inc.
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