India: An Overview Of Cyber Laws vs. Cyber Crimes: In Indian Perspective

Due to immense increase in the use of Internet and dependency of individuals in every field, a number of new crimes related to Computer and other gadgets based on internet have evolved in the society. Such crimes where use of computers coupled with the use of Internet is involved are broadly termed as Cyber Crimes.

Governing Laws

There was no statute in India for governing Cyber Laws involving privacy issues, jurisdiction issues, intellectual property rights issues and a number of other legal questions. With the tendency of misusing of technology, there arisen a need of strict statutory laws to regulate the criminal activities in the cyber world and to protect the true sense of technology "INFORMATION TECHNOLOGY ACT, 2000" [ITA- 2000] was enacted by Parliament of India to protect the field of e-commerce, e-governance, e-banking as well as penalties and punishments in the field of cyber crimes. The above Act was further amended in the form of IT Amendment Act, 2008 [ITAA-2008].

The ITA-2000 defines 'Computer' means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network. The word 'computer' and 'computer system' have been so widely defined and interpreted to mean any electronic device with data processing capability, performing computer functions like logical, arithmetic and memory functions with input, storage and output capabilities and therefore any high-end programmable gadgets like even a washing machine or switches and routers used in a network can all be brought under the definition.

Scope and applicability

The scope and applicability of ITA-2000 was increased by its amendment in 2008. The word 'communication devices' inserted having an inclusive definition, taking into its coverage cell phones, personal digital assistance or such other devices used to transmit any text, video etc like what was later being marketed as iPad or other similar devices on Wi-fi and cellular models. Though ITA- 2000 defined 'digital signature', however said definition was incapable to cater needs of hour and therefore the term 'Electronic signature' was introduced and defined in the ITAA -2008 as a legally valid mode of executing signatures. This includes digital signatures as one of the modes of signatures and is far broader in ambit covering biometrics and other new forms of creating electronic signatures not confining the recognition to digital signature process alone.

The new amendment has replaced Section 43 with Section 66. The Word "hacking" used in Section 66 of earlier Act has been removed and named as "data theft" in this section and has further been widened in the form of Sections 66A to 66F. The section covers the offences such as the sending of offensive messages through communication service, misleading the recipient of the origin of such messages, dishonestly receiving stolen computers or other communication device, stealing electronic signature or identity such as using another persons' password or electronic signature, cheating by personation through computer resource or a communication device, publicly publishing the information about any person's location without prior permission or consent, cyber terrorism, the acts of access to a commuter resource without authorization, such acts which can lead to any injury to any person or result in damage or destruction of any property, while trying to contaminate the computer through any virus like Trojan etc. The offences covered under section 66 are cognizable and non-bailable. Whereas, the consequence of Section 43 of earlier Act were Civil in nature having its remedy in the form of damages and compensation only, but under Section 66 of the Amendment Act, if such act is done with criminal intention that is mens rea, then it will attract criminal liability having remedy in imprisonment or fine or both.

Adjudication

Adjudication powers and procedures have been dealt in Sections 46 and thereafter. As per the Act, the Central Government may appoint any officer not below the rank of a director to the Government of India or a state Government as the adjudicator. The I.T. Secretary in any state is normally the nominated Adjudicator for all civil offences arising out of data thefts and resultant losses in the particular state. Very few applications were received during first 10 years of existence of the ITA, that too in the major metros only. However, the trend of receiving complaint under ITA is rapidly growing. The first adjudication obtained under this provision was in Chennai, Tamil Nadu, in a case involving ICICI Bank in which the bank was told to compensate the applicant with the amount wrongfully debited in Internet Banking, along with cost and damages. There is an appellate procedure under this process and the composition of Cyber Appellate Tribunal at the national level, has also been described in the Act. Every adjudicating officer has the powers of a civil court and the Cyber Appellate Tribunal has the powers vested in a civil court under the Code of Civil Procedure.

The major Acts , which got amended after enactment of ITA

The Indian Penal Code, 1860

The Indian Penal Code was amended by inserting the word 'electronic' thereby treating the electronic records and documents on a par with physical records and documents. The Sections dealing with false entry in a record or false document etc (e.g. 192, 204, 463, 464, 464, 468 to 470, 471, 474, 476 etc) have since been amended as 'electronic record and electronic document' thereby bringing within the ambit of IPC. Now, electronic record and electronic documents has been treated just like physical records and documents during commission of acts of forgery or falsification of physical records in a crime. After the above amendment, the investigating agencies file the cases/ charge-sheet quoting the relevant sections from IPC under section 463,464, 468 and 469 read with the ITA/ITAA under Sections 43 and 66 in like offences to ensure the evidence and/or punishment can be covered and proved under either of these or under both legislation.

The Indian Evidence Act 1872

Prior to enactment of ITA, all evidences in a court were in the physical form only. After existence of ITA, the electronic records and documents were recognized. The definition part of Indian Evidence Act was amended as "all documents including electronic records" were substituted. Other words e.g. 'digital signature', 'electronic form', 'secure electronic record' 'information' as used in the ITA, were also inserted to make them part of the evidentiary importance under the Act. The important amendment was seen by recognition of admissibility of electronic records as evidence as enshrined in Section 65B of the Act.

The Bankers' Books Evidence (BBE) Act 1891:

Before passing of ITA, a bank was supposed to produce the original ledger or other physical register or document during evidence before a Court. After enactment of ITA, the definitions part of the BBE Act stood amended as: "'bankers ' books' include ledgers, day-books, cashbooks, account-books and all other books used in the ordinary business of a bank whether kept in the written form or as printouts of data stored in a floppy, disc, tape or any other form of electro-magnetic data storage device". When the books consist of printouts of data stored in a floppy, disc, tape etc, a printout of such entry ...certified in accordance with the provisions ....to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and (b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorized persons; the safeguards adopted to prevent and detect unauthorized change of data ...to retrieve data that is lost due to systemic failure or ....

The above amendment in the provisions in Bankers Books Evidence Act recognized the printout from a computer system and other electronic document as a valid document during course of evidence, provided, such print-out or electronic document is accompanied by a certificate in terms as mentioned above.

Issues not covered under ITA

ITA and ITAA is though landmark first step and became mile-stone in the technological growth of the nation; however the existing law is not sufficed. Many issues in Cyber crime and many crimes are still left uncovered.

Territorial Jurisdiction is a major issue which is not satisfactorily addressed in the ITA or ITAA. Jurisdiction has been mentioned in Sections 46, 48, 57 and 61 in the context of adjudication process and the appellate procedure connected with and again in Section 80 and as part of the police officers' powers to enter, search a public place for a cyber crime etc. Since cyber crimes are basically computer based crimes and therefore if the mail of someone is hacked in one place by accused sitting far in another state, determination of concerned P.S., who will take cognizance is difficult. It is seen that the investigators generally try to avoid accepting such complaints on the grounds of jurisdiction. Since the cyber crime is geography-agnostic, borderless, territory-free and generally spread over territories of several jurisdiction; it is needed to proper training is to be given to all concerned players in the field.

Preservation of evidence is also big issue. It is obvious that while filing cases under IT Act, very often, chances to destroy the necessary easily as evidences may lie in some system like the intermediaries' computers or sometimes in the opponent's computer system too.

However, most of the cyber crimes in the nation are still brought under the relevant sections of IPC read with the comparative sections of ITA or the ITAA which gives a comfort factor to the investigating agencies that even if the ITA part of the case is lost, the accused cannot escape from the IPC part.

Conclusion

Society as on today is happening more and more dependent upon technology and crime based on electronic offences are bound to increase. Endeavor of law making machinery of the nation should be in accordance with mile compared to the fraudsters, to keep the crimes lowest. Hence, it should be the persistent efforts of rulers and law makers to ensure that governing laws of technology contains every aspect and issues of cyber crime and further grow in continuous and healthy manner to keep constant vigil and check over the related crimes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions