New crimes related to use and unauthorized access to computer and other gadgets using internet have evolved and are broadly termed as cyber crimes. Earlier no law was present in India covering cyber crimes, privacy and IPR issues. Hence, the Information Technology Act, 2000 or 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 or ITAA-2008.
The ITA-2000 defines ‘Computer’ as any electronic magnetic, optical or other high-speed data processing device or system performing 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, 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 are
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.
