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Published : February 24, 2016 | Author : adv_abhi
Category : Cyber Law | Total Views : 866 | Rating :

Abhilash.K.S, LLB, PGDEL (NLSUI-Banagalore), is currently working as the Regional Law Officer, in Maharatna Power Sector PSU of Government of India. His Prior assignments includes Practicing as an Advocate in Kerala High Court, Circle Legal in Charge of leading Telecom and Electronic Indian MNCs.

Cyber Jurisprudence An Internalisation In Indian Matrix

" All I knew about the word "cyberspace" when I coined it, was that it seemed like an effective buzzword. It seemed evocative and essentially meaningless. It was suggestive of something, but had no real semantic meaning, even for me, as I saw it emerge on the page." - William Gibson

Cyberspace or Cyber is the artefact of information technology and the buzzword for the virtual electronic world crafted by computers, networks, software, data storage devices (such as hard disks, USB disks etc), the Internet, websites, emails and even electronic devices such as cell phones, ATM machines etc. Characterised by intangibility and anonymity, cyberspace offers a fancied replica of the corporal sphere.

Cyber Jurisprudence like any other jural Science is the study of laws relating to Cyber. While technology conquers the physical world at an unimaginable speed, the issues concerning its regulatory aspects are also on the looming, posing concerns for jurists all over the world.. Since the world “cyber” knows no National boundary, any such regulations required to have international outlook and uniformity, necessitating collective and several efforts of Nations across the globe. Cyber technology is a double edged weapon - a menace in wrong hands and unless regulated it is more dangerous than nuclear weapon. Therefore, even though a nascent entrant in the sphere of law, Cyber jurisprudence poses National as well as International nuances.

Cyber law legalise legitimate transactions carried over cyberspace while curbing the evil ones, like e-terrorism and digital piracy that can even pose threat to national Sovereignty. For this very reason cyberspace calls distinct regulatory structure.

Igorantia eorum quae quis scire tenetur non excusat (Ignorance affords no excuse to things which one is bound to know).This Article is meant to provide an insight of Cyber jurisprudence in Indian framework, which is largely founded upon The Information Technology Act-2000 as amended by The Information Technology Act-2008. A fingertip information as to the penal provisions are also provided for better understanding of the significance of the Act.

What is Cyber Law
Cyber Law as stated above is the law governing "cyberspace and in general encompasses laws relating to:
1. Cyber Crimes :- unlawful acts where the computer is either a tool and/ a target
2. Electronic and Digital Signatures :- used to authenticate electronic records
(Digital signature (is to) satisfies triple requirement of signer authentication, message authentication and message integrity- The features attributes to digital signature makes it more trust worthy than Hand signatures.)

3. Intellectual Property:-Relating to copyright, trademark, patents, design and licences.
4. Data Protection and Privacy:-in collecting, storing and transmitting data in soft forms

The Indian Legal Scenario:-
In India, a Centralised Statute exclusively for the Cyberspace has been enacted with the in the form of the Information Technology Act, 2000 (IT Act) which came into force on 17 October 2000. The Act is to Act an Umbrella Legislation of Indian Cyber-laws. As stated in the preamble, the IT Act is “ 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 and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto”. Further the Act is to promote efficient delivery of Government services by means of reliable electronic records.

The Act has been passed to give effect to the resolution No. A/RES/51/162 of the UN General Assembly dated the 30th January, 1997 on Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law .

The main foundation stone towards affording legal recognition to electronic transaction has been provided by. The Act facilitated electronic commerce and digitalisation of Government statistics., while providing strict punishment for cyber crimes like imprisonment up to 10 years and file up to 1 crores. The Act is to operate as an umbrella legislation by brining amendment to The Indian Penal Code-1861, Indian Evidence Act -1872, The Bankers Book Evidence Act-1891, The reserve bank of India Act-1934 etc.

The Act has got thirteen chapters titled as (1)Preliminary & Definition (2) Digital Signature (3) Electronic Governance (4) Attribution, Acknowledgment And Despatch Of Electronic Records, (5) Secure Electronic Records and Secure Digital Signatures (6) Regulation of Certifying Authorities (7) Digital Signature Certificates (8) Duties of Subscribers (9) Penalties and Adjudication (10) The Cyber Regulations Appellate Tribunal (11) Offences (12) Network Service Providers not to be Liable in Certain Cases (13) Miscellaneous, respectively.

Four schedules are appended to the Act. The First Schedule of the Act (read with Section 91 ) amends the Indian penal code, 1861, The Second Schedule (read with Section 92 ) amends The Indian Evidence Act, 1872 , The Third Schedule (read with Section 93 ) amends The Bankers' Books Evidence Act ' 1891, while The Fourth Schedule (under section 94) amends The Reserve Bank of India Act, 1934.

The Act provides for concurrent jurisdiction of Central as well as State. The IT Amendment Act in fact bestowed more powers to State and enables the States to provide for its own mechanism to curb cyber related offences. Accordingly cyber cells are operative in different States with specific Cybercrime wings to act as part of Police Agencies. At Central level, Central Bureau of Investigation has got its own cyber Bureau. By accessing the Official website of the Cyber-cell, complaint can be lodged. Cyber –forensic is now a specified branch aiding in investigation of cyber-crimes.

The various notification under The IT Act can be accessed through the web site http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan002962.pdf . Various policies and guidelines information technology can be accessed at the official web site of Department of Electronics and Information technology, Government of India http://deity.gov.in/ and in particular at the web address of http://deity.gov.in/content/policiesguidelines

Checking Cyber Crimes under IT Act

The Information Technology Act-2000 as amended by IT Act-2008 (herein after referred as the Act) address the issues of cyber crimes, which is also known as Computer crime, e-crime, hi-tech crime or electronic crime. Any criminal activity using a computer or network as the source, tool, target, or place of a crime is known as cyber crime and includes hi tech crimes like illegal access (unauthorized access), illegal interception (by technical means of non-public transmissions of computer data to, from or within a computer system), data interference (unauthorized damaging, deletion, deterioration, alteration or suppression of computer data), systems interference (interfering with the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data), misuse of devices, forgery (ID theft), and electronic fraud as well as conventional crimes, such as fraud, theft, blackmail, forgery, and embezzlement, in which computers or networks are used to facilitate the illicit activity.

The Act provides for strict punishment for cyber crimes like imprisonment up to 10 years and file up to 1 crores. For certain offences provisions for enhancement of punishment have been made for subsequent/repeated Offences.

Section 75 of The Information Technology Act stipulates that the Act shall applicable to offense or contravention committed outside India as well by any person irrespective of his nationality, if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.

The Act provides for strict penalties for various offences as are mentioned in Chapter XI, which are given in tabular form below:-

Section Offence


Imprisonment up to Fine
65 Tampering with computer source documents- which are required under law to be maintained 3 years Or/both -2 lakhs
66 Penalty for damage to computer, computer system, etc. 3 years Or/both -5 lakhs with compensation up to one crores to the affected person
66 A Sending offensive/menacing, deceptive information or electronic mail 3 years With Fine
66 B Dishonestly Receiving/retaining a stolen computer resource or communication device 3 years Or/both fine up to one lakh
66 C Identity theft (dishonest/fraudulent use of electronic signature, password, Unique Identity features) 3 years With Fine up to one lakh
66D Cheating by personation 3 years With Fine up to one lakh
66 E Capturing, Publication, transmitting, image of private area of any person without consent violating privacy 3 years Or/both fine up to one lakh
66 F Cyber Terrorism (as defined in Sec 66 F) Life imprisonment  
67 Punishment for publishing or transmitting obscene material in electronic form I Offence – 3 years With fine up to 5 lakhs
II /subsqt.Offence-5 years With fine up to 10 lakhs
67 A Punishment for publishing or transmitting material containing sexually explicit act in electronic form I Offence – 5 years With fine up to 10 lakhs
II /subsqt.Offence-7 years With fine up to 10 lakhs
67 B Punishment for publishing or transmitting material depicting children in sexually explicit act in electronic form I Offence – 5 years With fine up to 10 lakhs
II /subsqt.Offence-7 years With fine up to 10 lakhs
67 C Failure by intermediaries preserve and retain certain records for a stated period 3 years With Fine
68 Failure comply direction of Controller 2 years Or/both fine up to one lakh
69 Failure to assist in decrypt information as directed by Controller in the interest of sovereignty and security of India etc. 7 years With fine
69 A Failure to comply with the direction for blocking public access of any information (like website) 7 years With fine
69 B powers to central government to collect traffic data from any computer resource for cyber security. It could be either in transit or in storage.-Failure to comply this direction 3 years With fine
70 Any person who secures access or attempts to secure access to a protected system ten years With fine
70 A Failure to provide information sought by the Indian Computer Emergency Response Team (Created under Sec 70 A to serve as national agency for incident response) One year With fine
72 Penalty for breach of confidentiality and privacy two years Or/both fine up to one lakh
72A Penalty for disclosure under breach of contract Three years Or/both fine up to five lakhs
73 Penalty for publishing Digital Signature Certificate false in certain particulars. two years Or/both fine up to one lakh
74 Publication for fraudulent purpose. two years Or/both fine up to one lakh

As per Section 77 A offences under the Act, with punishment up to 3 years are compoundable by Courts of Competent Jurisdiction as provided therein.

Case study of Cyber Laws

Some leading case-laws on Cyber law is discussed below to throw light on practical application and jurisdictional aspects of cyber law.

Case No.1

Software Copyright

Firos vs. State of Kerala., (Kerala High Court) AIR2006 Ker 279, 2006.
In this case the notification issued by the Government of Kerala under Section 70 of the IT Act declaring the “FRIENDS application software” as a protected system. The author of the application software filed a petition in the High Court against the said notification. He also challenged the constitutional validity of section 70 of the IT Act. The Court upheld the validity of both, section 70 of the IT Act, as well as the notification issued by the Kerala Government and held that Section 70 of the IT Act is not against but subject to the provisions of the Copyright Act and .Government cannot unilaterally declare any system as "protected" other than "Government work" falling under section 2(k) of the Copyright Act on which Govt.'s copyright is recognized under Section 17(d) of the said Act.

Case No-2.

Tampering with computer source code

Syed Asifuddin and Ors. V. The State of AP. & Anr., 2005CriLJ4314
(Andhra Pradesh High Court)

Tata Indicom employees were arrested for manipulation of the electronic 32-bit number (ESN) programmed into cell phones that were exclusively franchised to Reliance Infocomm. The court held that such manipulation amounted to tampering with computer source code as envisaged by section 65 of the Information Technology Act, 2000.

Case No-3.

E-Auction- territorial jurisdiction

P.R. Transport Agency Vs. Union of India & others ( W.P. No. 58468 of 2005)
(Allahabad High Court)

Bharat Coking Coal Ltd (BCC) held an e-auction for coal in different lots. The bid of P.R. Transport Agency's (PRTA) was accepted for 4000 metric tons of coal from Dobari Colliery. The acceptance letter was issued on 19th July 2005 by e-mail to PRTA's e-mail address. Acting upon this acceptance, PRTA deposited the full amount of Rs. 81.12 lakhs through a cheque in favour of BCC. This cheque was accepted and encashed by BCC. BCC did not deliver the coal to PRTA. Instead it e-mailed PRTA saying that the sale as well as the e-auction in favour of PRTA stood cancelled "due to some technical and unavoidable reasons". The only reason for this cancellation was that there was some other person whose bid for the same coal was slightly higher than that of PRTA. Due to some flaw in the computer or its programmed or feeding of data the higher bid had not been considered earlier.

This communication was challenged by PRTA in the High Court of Allahabad.

BCC objected to the "territorial jurisdiction" of the Allahabad High Court on the grounds that no part of the cause of action had arisen within U.P. However the court held that The acceptance was received by PRTA at Chandauli / Varanasi. The contract became complete by receipt of such acceptance and as Both these places are within the territorial jurisdiction of the High Court of Allahabad. Therefore, a part of the cause of action has arisen in U.P. and the court has territorial jurisdiction.

Case No-4

Appreciation of Digital evidence

State vs. Mohd. Afzal and others -2003VIIAD(Delhi)1- Parliament Attack case
Delhi High Court
In this case, the convicted persons challenged the same before the Delhi High Court, where prosecution has relied on Digital evidences, like Computerized cell phone call logs, cyber forensic of evidences collected from laptop used by Terrorist etc. The conviction as well as the admissibility of these evidences, were upheld by the Court stating that, if someone challenges the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation, then the challenger has to establish the challenge and mere theoretical and generic doubts cannot be cast on the evidence.

Case no-5

Whether ATM is a Computer?

Diebold Systems Pvt Ltd vs. The Comm. of Commercial Taxes ILR2005KAR2210 (Karntaka High Court)
In this case it was held that ATM is not a computer but electronic devises under Karnataka Sales Tax Act, 1957.

Case No-6

Mis-use of credit cards numbers

Arif Azim case
Arif Azim case was India's first convicted cyber crime case. A case pertaining to the mis-use of credit cards numbers by a Call Center employee, this case generated a lot of interest. This was the first case in which any cyber criminal India was convicted. However, keeping in mind the age of the accused and no past criminal record, Arif Azim the accused was sentenced to probation for a period of one year.

Case No-7
On Bankers Books of Evidence Act (as amended by IT Act)
State Bank of India vs. Rizvi Exports Ltd-II(2003)BC96

The case filed by State Bank of India (SBI) to recover money from some persons who had taken various loans from it has been dismissed on the ground that relevant certificates as mandated by the had not been attached with the printouts of statement of accounts maintained in SBI’s computer systems, submitted as evidence

Case No. 08

Internet pornography

State of Tamilnadu v/s Dr L. Prakash
In this landmark case Dr L. Prakash was sentenced to life imprisonment in a case pertaining to online obscenity. This case was also landmark in a variety of ways since it demonstrated the resolve of the law enforcement and the judiciary not to let off the hook one of the very educated and sophisticated professionals of India.

Case No-09

Cyber terrorism

August 2012 witnessed how internet and web based social media can be used by anti-national to jeopardise the sovereignty and integrity of our Nation by posting fabricated pictures and by bulk SMS, resulting the influx to North-East India from other parts of the Country. Further investigation has revealed the Source of such SMS and posting are terror linked groups, mainly based at Pakistan.

Case No-10

Internet Piracy

Anti-piracy cell has registered cases against 1010 people for uploading pirated Malayalam movie, "Bachelors Party" over internet. The cyber cell has relied on a specially designated software namely "Jadu" to crack the I.P.Addresses of the uploaders worldwide.

Case no- 11
Hon'ble Supreme Court of India
Sherya Singal vs. UOI and Ors.

W.P. No.167 OF 2012

Hon'ble Supreme Court of India struck down Section 66A of the Information Technology Act, 2000 in its entirety as being violative of Article 19(1)(a)



66A :- Sending offensive/menacing, deceptive information or electronic mail 3 years With Fine ( Struck down by Hon.SC as unconstitutional)

As this section has been allegedly misused by various Governmental agencies to take action against comments made in Social media, like facebook, Twitter etc. The petitioners contended that this section is violative of freedom of speech and expression- the fundamental right guaranteed under Article 19 (1) (a) of the Indian Constitution, which was accepted by Hon'ble Supreme Court.

15 years have passed since the enactment of Information Technology Act in India. The Indian legal frame work to facilitate and regulate Software based e- Transactions is not "Soft" against Cyber Crimes and stipulates more stringent penalty, than as envisaged under conventional penal statutes.

However Indian Cyber Jurisprudence is still in its infancy. The conviction ratio is insignificant. The progress India has made in Software technology, is not reflected, in cracking and reducing cyber related cases. Proving a Cyber Crime in the current adversary modelled criminal justice System is cumbersome for the prosecution as well as for the victim. Ignorance of law- even though legally non excusat- is also a matter of serious concern, prompting even educated masses flirt with cyber crimes, particularly related to pornography and piracy.

With the increase of IT penetration in India, Cyber-jurisprudence poses avenues and challenges for legal professionals. Indian Courts, following its counter-part in US, Canada and UK have started to insist document in soft-forms as well. Other Government machineries like IT, Passport, Central Excise, PF encourages e-filing of documents.

The importance of Cyber law awareness cannot be overstressed. Now it is time that recruitment bodies browse for Cyber Law experience in the Curriculum-Vitae for legal professionals. Big law firms had already made cyber-education mandatory for its incumbent Associates.

To conclude, in the coming ages, the knowledge of Cyber law is no longer a topic of sheer academic interest, but a matter of subsistence, for one who wants to pursue legal profession.

End notes
# who coined the term Cyberspce in 1982 in his 1982 story "Burning Chrome" and popularized by his 1984 novel Neuromancer-as commented on the origin of the term in the 2000 documentary No Maps for These Territories. Gibson in his 1982 story "Burning Chrome" and popularized by his 1984 novel Neuromancer
# http://www.corecentre.co.in/database/docs/docfiles/india_cyber.pdf
# http://www.cyberlawconsulting.com/cyber-cases.html
# http://dict.mizoram.gov.in/uploads/attachments/cyber_crime/7_years_of_Indian_Cyber_Law.pdf

The author can be reached at: adv_abhi@legalserviceindia.com

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