CYBER LAWS IN INDIA

INTRODUCTION:

Communication was very important means of conveying information from person to

person since time immemorial. Like the cultural transformation of the Human society, the
means of communication has also transformed. A new media was given birth to due to the
technological advent called as Cyber media commonly known as Cyber Space. Cyber Space
is a complex environment consisting of interactions between the people, software and
services, supported by the worldwide distribution of information and communication
technology devices and networks1. Crimes that grew along with the human society and it also
did not leave the digital space. Cyber space has also served as a base for commission of
offence and has given rise to the new types of crimes through such media. Such crimes
adversely affect the all age groups of the entire community. It is a social as well as an
economic phenomenon. Cyber crimes have proved to be a greater threat to the developing
economies and it is increasing at a rapid rate. It always retards the growth and development
of the economies in the developing countries. The targets of the Cyber bullies were the
websites and databases of the government websites and others that contain very confidential
data with restricted access.

The mid 19th century saw an impetus in the globalization as well as computerization,
with more and more nations joining in the digital field for their governance and e-commerce.2
Prior to those only Contracts in the form of documents were used to carry out trade
relationship and to get in touch with the other countries. It was a more tedious process and
was eased due to the advent of the Cyber space. Prior to 21st century there were no proper
laws to regulate these offences as well as providing sanctions. The biggest lacunae in the field
of cyber space were later emerged to be absence of any laws that regulate the cyber activities.
Nearly after 25 years of birth of the cyber space, India did not have a proper legislation to
control the cyber activities. It was only during the year 2000 India has passed its Act to
regulate the cyber behaviors of its subjects. The Information Technology Act, 2000 which was
later amended in the year 2008 laid main emphasis on recognition of the electronic documents,
digital signatures, offences related to the Cyber space and the penalties for such offence and

1
National Cyber Security Policy, 2013, Preamble (1)
2
“Cyber Laws in India” (IIBF) http://www.iibf.org.in/documents/cyber-laws-chapter-in -legal-aspects-book.pdf
Justice Dispensation system of such crimes3. Later the Amendment Act of 2008 additionally
focused on the data privacy and security of the information published in the databases.

TRENDS IN INDIAN CYBER MEDIA:

After the emergence of the cyber space, the government agencies as well as the
companies used the common technologies for their convenience. Owing to its greater advantage,
the Cyber Space it is used as a common space by many groups of people. The cyber space has
contributed to the economy by granting the inhabitants employment, standard of living as well as
educational opportunities through the bed called as Information Technology. It has provided a
high class solutions to the problems in engine design as well as critical mechanical solutions. It
has also boosted the growth of automobile industries as well as aeronautical industries. The
growth of social networking made the communication between the communities much easier. It
has also given a full stop to the traditional techniques of interaction as well as the interviews with
the companies.
After a decade, the situation has entirely changed. The arrival of the internet technologies
added an additional burden in the Courts, Citizens as well as on the Government. Electronic Mail
was not a valid and legal form of the communication as there were no proper laws to give validity
to it. It cannot be duly produced before the Court and approved under any Court of Law. Digital
Signatures were also not given the validity similar to that of the Electronic Mail communication.
Since there were no proper regulations and were only traditional methods of protecting the data in
the Cyber areas, India became a beloved spot for Hacker’s pleasure. Unauthorized access, Denial
of service attacks; Electronic Mail bombing, web jacking and Trojan attacks have been increasing
at a steady phase in the country. Cyber Space is vulnerable to a variety of incidents, whether
intentional or accidental, manmade or natural and the data exchanged in the cyber area can be
exploited for reprehensible purposes by both the State actors as well as non-State actors4. India
has accounted for one percent of the total Spam arising out of the world. Out of the Electronic
Mails arising out of the country 76% of the total Electronic Mails were found to be spam 5.
Terrorists have also increased the attacks on the government through the Cyber Media, The
website of the Indian Army, some of the leading television channels and political parties were
found to be the victims of the Hackers all around the World. The accounts of the social
networking accounts of the various leaders as well as the famous personalities of the world were
hacked. There were also few cases, where fake accounts in the name of the famous personalities
were created and obscene matters were transmitted through these accounts. Computer Vandalism
is at an increasing rate now a day. Creation of virus applications as well as corrupt versions of the
precious software seemed to be a threat to the economy of the company in addition to that of the
country. Thus, in order to punish these criminals as well as to regulate the computer-generated
performances in the country. The existing laws in India does not provide for punishment or the
definitions of such crime. It does not give any legality or sanctions to such acts. Even the
interpretation in the liberal sense does not account for the emerging Cyber Space. Since the
traditional laws have failed, there arose an immediate necessity for the passing of the new laws in
order to maintain International Peace and Harmony in the World through the digital space.

CYBER LAWS IN INDIA-AN OVERVIEW:

The Information Technology Act, 2000 (later amended in the year 2008) is one of the
Legislations that govern the internet behavior of the subjects. It is the landmark step and became
a milestone in the technological growth of the country. Reasonable practices for the security of
the sites were mandated by the Act like Certification of the Sites, Security Initiatives, Framing of
Security policy as well as the adherence to such policies etc. for the security reasons and maintain
the intrusion of the third party into the website. Proper and exhaustive definitions were given to
some of the technical terms in the Act. Apart from this, to have a deterrent effect on the intruders,
who illegally infringe the Fundamental Right of Privacy of the Netizens, are given punishments
through 30 exclusive provisions in the Act. Some sections are also read with the other provisions
of the other acts like the Copyright Act, 1957. The Act has made drastic changes in the provisions
of the Acts like The Indian Penal Code 1860, The General Clauses Act 1897, The Indian
Evidence Act 1872, and The Bankers’ Books Evidence Act 1891.

The Act though a Milestone in the History of Indian Legislations it has its own demerits.
Since the internet technologies are the products of the US technologies, the Indian Information
Technology Act, 2000 cannot untie the domination of the US doctrines with it. The Jurisdiction in
the Cyber Space is non-geographical, without borders and spread over a wide range of territories.
So, the Jurisdiction defined under Sections 46, 48, 57, 61 and 80 gives us no satisfaction as it has
tried to confine it to a territory. Section 75 of the Act provides for the extra territorial jurisdiction.
But that can be exercised only when the competent authorities from the other nation agrees to it.
There have been no provisions in the Act discussing about the preservation of evidences. When
the crime has occurred only the two computer networks that acted as a Server as well as the
Recipient networks are alone held. But the real fact is that there might be many Intermediate
Systems between the Server as well as the Recipient that form the basis for the crime. It might
give a very big clue to the crime and might locate exactly where the crime has taken place.
Despite the provisions in the IT Act, 2000 and the other legislations in the country, the
pornography is India is at steadily increasing. Especially Child Pornography is at an escalating
rate. These people specifically attract the Children of teen ages through their eye-catching
advertisements in the corners of the other websites which the children tend to browse regularly.
Some of the websites never check the age of the person who browses these websites. The Act
completely violates the Fundamental Right of Privacy in the Citizens under the Section 69.
According to this Section, The Government Officials would be able to tape all the phone calls,
read all the SMS’, monitor the browsing details as well as the download contents of the
Individual through his IP address without obtaining any orders from the concerned Magistrate.
Previously it was governed by the Section 5 (2) of the Indian Telegraph Act, 1885 where such
things are permissible only under the case of public emergency, public safety and for the
protection of sovereignty and the integrity of the country. But the Information Technology Act
has curtailed the Fundamental Right and seemed to be a rule of the Autocrat.

THE ROLE OF THE JUDICIARY IN THE CYBER SPACE:

The role of Judiciary is very essential in the field of the cyber space. They must be of up
to date knowledge about the recent trends and development in the field of cyber crimes in order to
deal with the cases. They play a very vital role in the Cyber Space as they are the only powers to
interpret the various provisions of the Information Technology Act, 2000. The Judges must have
the technological knowledge as it is the need of the hour. The Judiciary must create an impression
that the justice will be done in the cases related to the cyber crimes so that every people would
approach the Court freely without any hesitation to obtain Justice. They must be of greater
knowledge with regard to the technical terms involved in the field of Cyber Space.

PRESENT CHALLENGES POSED TO THE ACT:

Though the Act seems efficient with some demerits, the following challenges are put
forth before the Act in the Present Situation. They are as follows:
 The definition of the Computer Resource provided under 2 (k) of the Act seems to
be outdated as there are many devices now that has become a form of a Computer as defined
under the Section 2 (i) of the Act.
 There has been no punishment given for Cyber Bullying that has been in increase
over the past times. Many people especially the school children face the threat of facing cyber
bullying.

 The growth of the Social Media along with its users that is increasing day by day
poses a challenge to the current Act. It did not address the legal matters, policy issues &
Frameworks and regulatory concerns generated by the use of social media. There has also been a
drastic increase in the use and abuse of the social media in the recent months.

 Cyber Hoax is another barrier to the effectiveness of the Act. Hoax sometimes
seem vulnerable like bomb threats and deaths of some famous personalities etc. The Act does not
punish the offenders who hoax to create a commotion among the people.

 Despite Reserve Bank of India’s frequent warnings, the circulation of Bitcoins is

prevalent among the members of the cyber space in the country. The circulation of such invalid
money and the usage of such money in the cyber space is gradually increasing over the years.
Proper laws were not available to prevent the intrusion of such unrecognized modes of
transaction, which may affect the economy of the country, were absent.

 Physical location of the Computer server or the User of the Computer seems to
be a biggest threat to the Act. Internet Address does not meet the requirements that are needed in
the current scenario.

 Cyber Space provides for Anonymity to the users of the Computer. The criminals
are turned into digital avatars by the cyber regions. The Cyber Space provides a great freedom to
the criminals who can very easily camouflage their originality in such area. They can
communicate to the outside world very easily without revealing their actual originality as well as
origin. The Anonymity as well as the Pseudo Anonymity.

 Films that describe and expose the common mass towards the process and ways
involved in the Cyber Crimes. Many people often get impressed through such films and try to
involve in such crimes. Such film is not controlled and seems to be a challenge to the current Act.

 Section 78 of the Act enables the Officials from the Police Departments to
investigate and probe into the place of the crime. But the determining the Jurisdiction of the
Crime Scene is very difficult and would result in the confusion in defining the Jurisdiction. Thus,
the Section itself ambiguous and hurdle.

 The Computers and the related forms are not only used in Cyber Crimes but also
in the “Non-Cyber Crimes” like kidnapping, ransom, murder etc. So, the law remains as a silent
observer with regard to such cases.
  The quiescent role of Judicial Department is yet another challenge for the Act.
The Judicial department is not fully aware of the procedures and processes that are involved in
the collection of evidences in the cases related to the cyber crimes. Often, the analysts use very
technical terms that stands confusing both to the judges as well as the readers of the Report. Lack
of expertise persons in the field of cyber law proves to be another confront to the Act.
Admissibility of digital evidences is also another barricade in the trial of the case. The Pendency
of the cases is another challenge brought out for the parties to the case. Unlike other cases, the
evidences cannot be preserved for a long time in the cases related to the Cyber Crimes. If there
are no speedy disposals of the cases, then the Justice to the Party cannot be done. The Failure on
the part of the government is one of the reasons for the challenges to the Act. Many Cyber
Security Policies were drafted over the past two years guarantying a secure cyber space among
the internet users. But these policies were only on the papers and were not enforced by the
Executives as well as the Judiciary.

SOLUTIONS TO OVERCOME FOR EFFECTIVE LAW:

There must be Additional Acts supplementing The Information Technology Act, 2000 as
the laws related to cyber crimes and cyber behavior cannot be confined to a particular definitions
and punishments like in United States of America, the pioneer of cyber law, where Health
Insurance Portability and Accountability Act that governs with the issues related to the privacy in
the cyber space is supplemented by the Sarbanes-Oxley Act, 2002. Frequent Amendments are
necessary to the Act as the technologies in the Cyber Space grow in leaps and bounds within a
day. The improvisation of technologies adds an additional burden on the part of the Government
but there is no world without technology now. Hence, appropriate laws must be enacted to meet
the disturbances created by the newer technologies. Amendments to the Act at least once in a year
may prove a bit capability to meet the flaws created by the growing technology.

There must be formation of the separate Department or an Army called as Cyber

protector or Cyber Army to protect the Indian Domain {usually (.in)} as well as the websites
created under the Indian Domain. Frequent monitoring of all the websites may seem irrational but
in practice it is easier. They must always be keen in their observance as we cannot under estimate
the brain of the hacker who is about to intrude the website. Strong persons with highly updated
technical knowledge about the Computer Technology must be employed in these fields. As most
of the Graduates from the Engineering field are lacking jobs, such establishment will generate
additional employment opportunities to such educated and highly know ledged Youths and in
turn contributing for the growth of the GDP as well as Development of the Country. These armies
can also help in preventing illegal piracy of the Software and in turn protect the interest of various
software companies in the Country. Apart form this; the Government must also pave way for the
leading firms as well as Institutions to establish a Department of Ethical Hacking such that it may
assist the Cyber Army as well as an additional support to their domains.

The Offences provided under the Information Technology Act, 2000 must be read with
the relevant provisions of the other Criminal Laws. In the cases of abduction, if the abductor uses
his mobile phone or any other latest versions of communication technologies, it amounts to the
implied form of Cyber Crimes as the Technology is used for illegal purposes. The Abductor thus
commits two different types of crimes in a same action of abduction. Hence, the abductor must be
punished not only in the relevant provisions of Criminal Law but also in the Information
Technology Act, 2000 as he misuses the technology that is provided to him. This would amount
Double Jeopardy or violating any Human Right as the convict is punished only for the one crime
but under two different Acts.

At last, the Judges of the Tribunals must be Tech aficionado. In order to understand the
complexity in the cyber space only tech savvy judges are required. They must be highly
knowledgeable in the field of the internet technologies. If not so, sufficient training must be given
to those Judges by the State. They must be fully aware of the technical terms involved in the Act
and must know about the procedures involved in the collection of evidences. This is not possible
when the Judge is not interested in the field of digital technology. Hence, such efficient Judges
can account for the well being of the Act as well as preventing the cyber crimes to an extent.
Most of the criminals through their legal practitioners do take advantage of the Judge’s weakness
in the area of the laws of the cyber space as well as the technologies.

CONCLUSION:

Thus, the Cyber Laws in the country are very efficient in controlling the cyber crimes.
But it has not been amended frequently in the Legislature and expansively Interpreted by the
Judiciary. The laws in the country must grow simultaneously with the technology. But in the
present scenario the technology is at a greater lead than the laws. Hence, we must strike a balance
between the Law and the Technology else the law enacted with the due diligence would
ultimately fail in achieving its objective. As the technology advances the crimes also would
advance. The law makers as well as the executors must keep this in mind and must not hesitate to
mould the law according to the technological developments. Technological Developments are
always a double edged sword. It can be used either productively or destructively. But only laws
can regulate it to a certain extent. India has one of the stringent punishments given for the cyber
crimes when compared to the other Asian Countries. The laws so efficiently constructed such that
it will create a deterrent effect among the illegal users of the computer as well as its related
technologies.

SUGGESTIONS:
Apart from all these, the Individual’s awareness is very essential for the prevention of the
cyber crime in the country and they are as follows:
 Every individual using the cyber space for their communication or for any other activities
must be aware of the minimal safeguards which they must follow to stay protected. The role of
the State is to actively create awareness among these individuals about the safest practices like
advertisements at the corner of the web pages.

 They must not go for any illegal or pirated versions of software and hardware available
either at free of cost or at the cheaper price in the market. These pirated versions may sometime
contain Viruses that may corrupt the entire Data. Using secure and original software and
hardware would definitely help them to avoid such predicament.

 There must be a great control in the contacts maintained in the cyber space. Contacting
unknown people through the Cyber Space may sometime be deadly in nature.

So, when these regulations and the guidelines are followed it can ensure the protection of
the individual form the criminals in the country.
Finally, the control of cyber crime as well as the law implantation in one country is alone not
sufficient. Cyber crime is the biggest challenge posed to the whole world thereby affecting the
Netizens of the world. Every country must make some initiatives in order to eradicate this crime.
Collective effort made by every country can completely destroy the cyber criminals as well as
cyber terrorists. It is the responsibility of each and every nation in the world to provide its Subject
a free and Secure Cyber Space without any deterrence.
REFERENCES:

 Pavan Duggal, Textbook on Cyber Law, Universal Law Publications, Lexis Nexis,
2014 Edition.
 Taxman’s Cyber Crimes and Laws, 2nd Edition.

 “Cyber Laws in India” (IIBF), http://www.iibf.org.in/documents/cyber-laws-chapter-

in-legal-aspects-book.pdf

 National Cyber Security Policy, 2013, Preamble (5)

 “Securing the Indian Cyber Space: Issues and Challenges”(B J Srinath)

 <http://www.cdcnoida.in/elearning/seminar/session1/securingtheindaincyberspace-
CDAC201420Dec2007.ppt>

 “The Face of Indian Cyber law in 2013” (Pavan Duggal) <http://www.bussiness-

standard.com/user/my-page/add-article/item-id/113123000411>