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Supinder Singh

Important Cases On Information Technology Act, 2000

Key Takeaways

• Primarily, Information Technology Act, 2000 provides the basic legal framework for electronic transactions in India. Along with this Act, various rules notified under this Act play a significant role in regulating the digital space.
• The rights of copyright owners cannot be restricted by Section 79 of the IT Act, 2000. So, intermediaries who infringe copyrights of anyone cannot seek protection under this section.
• Banyan Tree case Judgment is a Landmark for determining the jurisdiction of the court,where neither party to a suit, claiming online copyright infringement, resides within the territorial jurisdiction of such court.
• Union Government notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. But these Rules have been challenged by various organizations as being violative of Fundamental Rights.

Introduction

Information Technology Act, 2000 (hereinafter referred to as “IT Act) was enacted in India to provide legal recognition to transactions carried out through electronic mediums, and to facilitate the electronic filing of documents with the Government Agencies. It was enacted after the General Assembly of the United Nations adopted the ‘Model Law on Electronic Commerce’ through a resolution. This Act was largely based on the Model Law that was adopted by the UN.In this article, I will discuss some Important Case Laws inIT Act, of 2000.

Important Case Laws on Information Technology Act, 2000

1. state of tamil nadu v. dr. l prakash (w.p.m.p.no. 10120 of 2002).

In this case, an FIR was registered against Dr. L Prakash under Section 67 of the IT Act, 2000 read with Section 4 & 6 of the Indecent Representation of Women Act, Section 27 of the Arms Act, and Sections 120B & 506 (2) of the IPC. The said case was registered as Dr. L Prakash was accused of making pornographic videos and then sending those to the US & France for publication on pornographic websites.

The Fast Track Court convicted the accused under the aforesaid provisions and sentenced him to undergo imprisonment for life. A fine of Rs. 1.27 lakh was also imposed on him.

This case is a landmark in the Cyber Crime Law as it was the first time that pornographic websites and their brokers were targeted in India.

2. Amar Singh v. Union of India [(2011) 4 AWC 3726 SC]

In this case, the petitioner had alleged that his calls were being tapped unauthorizedly by his telecom service provider. He had claimed that the alleged tapping was violating his fundamental right to privacy under Article 21 of the Constitution of India. The service provider had argued that it was complying with the government orders. This case is important in the context of Sections 69, 69A, and 69B of the IT Act, 2000.

The court observed that a telecom service provider performs a function of public nature. It is his inherent duty to act carefully and in a responsible manner. Furthermore, it was observed that when the orders of the government ‘to tap calls’ have gross mistakes, then the service provider must verify the authenticity of such orders. The court also directed the Central Government to frame certain directions/guidelines to prevent unauthorized interception of calls.

3. Nirmaljit Singh Narula v. Indijobs at Hubpages.Com [CS (OS) 871 / 2012]

This case relates to an alleged defamatory article published by Defendant against the Petitioner (popularly known as ‘Nirmal Baba’). It is an important case in the context of Section 79 of the IT Act, 2000 since the petitioner had sent a legal notice to the intermediary, on whose website the ‘defamatory’ article was published. The intermediary refused to remove the ‘defamatory’ article, so the instant case was filed.

The court held that an intermediary is obliged to remove unlawful content from its website if it receives a notice from the affected party, claiming that any illegal content is being circulated through the intermediary’s service. An intermediary is not liable for 3rd party content if it removes such content upon receiving notice.

In this case, an injunction was issued against Defendant barring it from publishing any further defamatory content against the Petitioner, and the intermediary was ordered to produce the IP log of the 3rd party user who had published the ‘defamatory’ article.

4. Vyakti Vikas Kendra, India Public v. Jitender Bagga [CS (OS) No. 1340 / 2012]

It was also a case of online defamation . In this case, it was alleged that the defendants had published online some defamatory material against ‘Shri Ravi Shanker, owner of Art of Living Foundation’. The Petitioners had prayed for damages along with a mandatory & permanent injunction against the Defendants.

The Court observed that an intermediary is bound to comply with Information Technology (Intermediaries Guidelines) Rules, 2011. These rules require that an intermediary must not allowthe publication of any defamatory or libelous information on its platform. So, in this case, the court passed an interim order in the favor of the petitioner.

5. Super Cassettes Industries Ltd. v. Myspace Inc. [CS (OS) No. 2682/2008]

The plaintiff approached the court as Defendant was allegedly infringing the copyright of the plaintiff. The plaintiff alleged that the defendant’s website generates revenue by making available infringing copies of copyrighted media to the public. It was also contended that the defendant encourages the users to share such type of content with the public.

One of the primary issues between the parties was – Whether the acts of the defendant as an intermediatory are protected under the provisions of Section 79 of the IT Act, 2000.

The court observed that the rights of copyright owners cannot be restricted by Section 79 of the IT Act, 2000. The aforesaid Section does not save the defendants from liability in case of infringing acts due to the proviso of Section 81 of the IT Act.

6. Banyan Tree v. A. Murali Krishna Reddy & Anr, [2010 (42) PTC 361 (Del)]

In this case, the plaintiff had filed a suit claiming that the defendant was passing off its word mark ‘Banyan Tree’ through its online website. In this case, neither the plaintiff nor the Defendant was located within the local limits of Territorial Jurisdiction of the court (before which the suit was brought).

So, the court had to decide on the question that in what circumstances does the hosting of a universally accessible website by the Defendants gives jurisdiction to the forum court, if the Plaintiff is not carrying on business within the territorial jurisdiction of the forum court.

The court answered that for the purposes of a passing-off action, the plaintiff will have to show that the defendant has “purposefully availed” itself of the jurisdiction of the forum court.Further, it will have to be proved by the plaintiff that Defendant operated the website to conclude a commercial transaction with the website users. The plaintiff will also have to show that the operation of such a website resulted in injury to the Plaintiff in the forum state.

7. Writs challenging the validity of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

In 2021, the Union Government notified these rules by using its power under Section 87 of the IT Act, 2000. These rules supersede the Information Technology (Intermediaries Guidelines) Rules, 2011. With these rules, the Government seeks to regulate the Social Media intermediaries, the Digital news media, and the online streaming platforms.

These rules provide that the social media intermediaries need to follow an internal grievance redressal mechanism. These intermediaries are also required to share the information of the person, who originated an objectionable message in cases of serious offences, with the Government.

The rules provide that the Intermediaries who do not comply with the rules will lose the immunity available to them under Section 79 of the IT Act. Furthermore, the rules require the Digital News Media to follow a code of ethics and also set up an Internal grievance redressal system.

These rules have been challenged by various organizations including WhatsApp, The Quint, LiveLaw, and Foundation for Independent Journalists. The decisions in these cases will determine the further course of the jurisprudence in the field of Information Technology in India.

8. Shreya Singhal v. Union of India [AIR 2015 SC 1523]

In this case, the constitutionality of Section 66A of the IT Act, 2000 was challenged. The petitioner contended that this section infringes their fundamental right to freedom of speech and expression. It was submitted that the restrictions imposed by the said section are not even saved or allowed by Article 19 (2) of the Constitution. Another primary contention put forward by the petitioner was that the said section suffers from the vice of vagueness because the terms used in the Section cannot be defined. So, that creates a wide scope for arbitrary and whimsical action by the State against a large number of innocent persons.It was also argued that the said Section violates the Right to Equality provided by Article 14 since the Section unreasonably differentiates between the people who use the internet and the people who use other mediums of communication.

Respondent, on the other hand, argued that the legislature is in the best position to understand the needs of the people. So, the court must not interfere in the legislative process until there is a clear violation of rights provided under Part III of the Constitution of India. It was submitted that the presumption is also in the favor of the constitutionality of a statute and that the mere possibility of abuse of a particular provision of a statute cannot be a valid ground to declare it invalid.

After hearing detailed arguments from both sides, the Hon’ble Supreme Court struck down Section 66A of the IT Act, 2000 in its entirety as being violative of Article 19 (1) (A). It is observed that the said Section is not saved under Article 19 (2).However, the court upheld the constitutional validity of Sections 69A and 79 of the IT Act, 2000 along with the IT (Procedure & Safeguards for Blocking for Access of Information by Public) Rules, 2009.

9. M/s Gujarat Petrosynthese Ltd &Anr.v. Union of India [2014 (1) Kar L J 121]

This case relates to a writ petition filed by the petitioner praying the court to issue a writ of mandamus directing the appointment of Chairperson to the Cyber Appellate Tribunal (CAT) by the Central Government. The petitioners submitted that due to the absence of the CAT Chairperson, their appeal was not being heard.They, further, submitted that the Government of India hadfailed to take necessary action to make the Cyber Appellate Tribunal operational.By relying on Section 49 of the IT Act, 2000, it was argued that the process of appointment of CAT chairperson must be initiated by the Central Government.

The counsel appearing for the Respondent submitted that the Government would take all the necessary actions for filling up the post of the Chairperson of the Cyber Appellate Tribunal within 6 months from the day of the submission. After hearing the parties, the Karnataka High Court observed that no direction needed to be issued, but it remarked that considering the delay of more than 2 years, the respondent must appoint the CAT Chairperson with a “sense of urgency”.

10. CBI v. Arif Azim (Sony Sambandh case) [(2008) 150 DLT 769]

In this case, the accused had stolen the credit card details of Barbara Campa. He then used that stolen card to purchase products from a website (sony-sambandh.com) owned by Sony India Private Limited. When the transaction was disputed by Barbara, the credit card company informed Sony about the same. So, Sony reportedthe case of Internet Fraud and Cheating to the CBI. CBI, on its part, initiated an investigation u/s 418, 419, and 420 of the IPC. The Court convicted the accused under the said Sections for the offence of cyber fraud. This case particularly relates to Section 66C of the IT Act, 2000, which covers the dishonest & fraudulent usage of electronic passwords, signatures,and other unique identification features of any person (Identity Theft).

11. State of Tamil Nadu v. Suhas Katti [CC No. 4680 of 2004]

In this case, a complaint was filed by the victim u/s 67 of the IT Act and Section 469 & 509 of the IPC, 1860. It was alleged that the accused posted obscene messages related to the victim in various groups with the intention to harass the woman. He also shared her phone number and created a fake account in her name to cause disrepute to her. The court convicted the accused under the aforementioned Sections. This case is a landmark since it inspired people around the country to come forward and file cases related to harassment on the Internet.

12. SMC Pneumatics (India) Pvt Ltd v.Jogesh Kwatra [CM APPL No. 33474 of 2016]

In this case, the defendant was an ex-employee of the plaintiff company. It was alleged that the defendant was sending defamatory, obscene, derogatory, and abusive emails to Plaintiff. The plaintiff submitted that the emails were intended to cause disrepute to its Managing Director. The accused was identified to be the sender of the emails after an investigation by a private computer expert. So, a suit seeking a perpetual injunction against the defendant was filed in the court.However, the said suit was dismissed by the court citing the lack of electronic evidence, linking the derogatory emails with the defendants.

13. Avnish Bajaj v. State (NCT) of Delhi [(2008) 150 DLT 769]

This petition was filed under Section 482, CrPC for getting annulled the criminal prosecution initiated against the Managing Director of a Company/Website (baazee.com) under Section 292 of the IPC and Section 67 of the IT Act, 2000. The Website provided an online marketplace for buyers and sellers to interact.The Petitioner argued that since the Website Company was not made an accused in the case, the petitioner could not be made liable with the aid of Section 85, IT Act. The respondent-State, on the other hand, argued that since the petitioner failed to ensure an adequate filter on its website for filtering obscene content, so, he cannot escape legal consequences. It was also submitted that the crime is grievous and must not go unpunished based on some technicalities.

The court observed that the IPC does not recognize the concept of an automatic criminal liability attaching to the director where the company is an accused. So, the petitioner was discharged from offences under the IPC. However, regarding the liability of the petitioner under Section 67 of the IT Act, the court observed that the law recognizes the deemed criminal liability of the directors even if the company is not arraigned as an accused in a case. So, it was held that the prosecution of the petitioner under Section 67 read with Section 85, IT Act will continue.

14. Christian Louboutin SAS v. Nakul Bajaj &Ors [(2018) 253 DLT 728]

One of the primary issues before the court, in this case, was whether Defendant was protected u/s 79 of the IT Actto use thePlaintiff’s trademark, images, and logos. The court observed that Defendant’s website (Darveys.com) exercised complete control over the products it sold and its role is much more than that of just an intermediary. To enjoy immunity u/s 79 of the IT Act, e-commerce websites must operate with care & caution. The basic thumb rule to claim exemption u/s 79 of the IT Act, is to ensure that the entity does not actively participate in the selling process.

15. Nasscom v. Ajay Sood & Ors. [119 (2005) DLT 596]

This is a case of Cheating by personation by using a computer resource under Section 66D, IT Act, 2000. In this case, the petitioner had prayed for a permanent injunction against the defendant, restraining him from sending “fraudulent Emails” under the trademark ‘NASSCOM” belonging to the petitioner. It was alleged that the defendants were posing as NASSCOM to obtain personal data from various addresses for head-hunting. The parties, later, on compromised and a consent decree was passed. This is a landmark judgment because the court declared ‘phishing’ on the internet to be an illegal act, against which an ‘injunction’ could be granted and damages could also be awarded. The court described ‘Phishing’ as a form of internet fraud where a person misrepresents the identity of a legitimate party (like a bank or an insurance company) to extract personal data from a user. It also deliberated upon the fact that there is no legislation in India dealing particularly with ‘phishing’.

16. Department of Electronics and Information Technology v. Star India Pvt. Ltd. [R.P. 131/2016 in FAO(OS) 57/2015]

This case dealt with the live telecast of cricket matches. The primary issue between the parties was regarding the extent of the ban that could be imposed on the website of a person infringing the trademark of another.The respondent pushed for a ‘domain’ ban, citing that it is relatively easy for ‘internet pirates’ to change the URLs of the infringing content as compared to the domain names. The court observed that the websites which are known to be rogue i.e., the ones that host “predominantly infringing content”, could be blocked completely, rather than resorting to URL blocking.The court described such websites to be ‘rogue’ that is hardly carrying on any lawful business and in their entirety/to a large extent are resorting to piracy.

17. Kent Systems Ltd. and Ors. v. Amit Kotak and Ors. 2017 (69) PTC 551 (Del)

In this case, the court observed that the IT Rules, do not oblige an intermediary to screen/remove all content/information hosted on its portal for infringement of rights of all persons who have complained to the intermediary at any point in time. The only obligation is to remove the infringing information/content upon receipt of a complaint from the Rights Holder. The court ultimately concluded that to require an intermediary to do compulsory screening of infringing content would amount to unreasonable interference with the right of the said intermediary to carry on its business.

18. Google India Pvt. Ltd. v. M/S Vishaka Industries Limited [Second Appeal No. 505 of 2016]

The basic facts of the case were that a person had published certain defamatory articles aimed at the Respondent and some politicians of the country, in a group hosted by Google (Appellant). The respondent had issued a notice to the Appellant to block the aforementioned defamatory content, but the appellant did not make any effort in that regard.Keeping that in regard, the High Court passed an order in the favor of the Respondent while observing that the Petitioner could not claim any exemption under Section 79 of the IT Act.

19. State v. Mohd. Afzal & Ors. [2003 (71) DRJ 178]

This is an important case concerning Section 2 (ha) of the IT Act, 2000 that defines ‘Communication Device’. It relates to the trial of the persons accused in the 2001 Parliament House Attack. It was argued by the accused that computers &digital evidence could not be regarded as reliable, as they could be easily tampered with. So, they claimed it to be unreliable for a criminal trial. The Court dismissed the contentions of the accused by observing that the misuse or tampering of the evidence has to be established by the challenger.Further, it was held that the theoretical and generic doubts could not be cast on the evidence of the prosecution.

20. Syed Asifuddin& Ors. v. State of Andhra Pradesh & Anr. [2005 Cr LJ 4314]

This case relates to the tampering of low-cost hand sets that were being handed out by the Reliance Infocomm, with a lock-in period of 3 years. The petitioners, in this case, were accused of an offence under section 65 of the IT Act, for allegedly tampering with the source code of the aforesaid Reliance Infocomm handsets to wean away customers from Reliance Infocommto TATA Indicom. The petitioners, in the instant petition, prayed for the quashing of the criminal investigation. However, the court observed that unless the investigation is shown to be illegal, it cannot ordinarily be quashed. So, the court refused to quash the investigation under section 65 of the IT Act, 2000 and directed the police to complete the investigation within a period of 3 months.

21. Dharamvir v. Central Bureau of Investigation [148 (2008) DLT 289]

This case primarily relates to ‘Electronic Record’ defined under section2 (t) of the IT Act, 2000. In this case, the main question before the court was that of the admissibility & reliability of the digital evidence in a legal proceeding. A CD was presented before the court that contained telephonic conversations copied from a hard disk.The court observed that the recording of the telephone call and the hard disks constitute electronic records that can be used as evidence.

22. P.R Transport Agency v. Union of India & Ors. [AIR 2006 All 23]

This case relates to Section 13 (5) of the IT Act, 2000. In this case, Bharat Coking Coal Ltd. held an e-auction for coal. The petitioner’s bid was accepted for a particular lot of coal and the letter of acceptance was issued by email to the petitioner. Later on, some conflict arose andthe allocation was canceled. So, petitioners approached the High Court of Allahabad. The Bharat Coking Ltd. put up an objection regarding the jurisdiction of the Court, contending that no part of the cause of action arose within Uttar Pradesh. The Court observed that since the acceptance was received at Varanasi (UP), it had the jurisdiction to entertain the case. Further, it was observed that for the purpose of Section 13 (5) of the IT Act, the place of business is relevant and not the location of the information system.

23. Umashankar Sivasubramanian v. ICICI Bank (Petition No. 2462 of 2008)

In this case, the petitioner received an email from ICICI Bank asking for his Internet Banking username and password. The petitioner replied to the email with the aforementioned details and later on found that he was defrauded of Rs. 6.46 Lakhs. So, he filed a complaint against ICICI Bank with the adjudicating authority for getting compensation. The Adjudicating Authority found ICICI Bank to be guilty of offences under section 85 read with Section 43 of the IT Act, 2000 and directed it to pay Rs. 12.85 lakh to the petitioner.

In this way, various courts around the country have interpreted the provisions of the IT Act, 2000 according to the facts and circumstances of the particular cases. Along with the provisions of the IT Act, the rules notified by the Government also play a significant role in regulating the digital space.With the rapid advent of technology, Cyber Laws are becoming more and more relevant. There is a need for these laws to keep evolving with the latest developments in Information Technology.

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INTERPRETATION AND IMPLEMENTATION OF INFORMATION TECHNOLOGY ACT, 2000

Published by admin on august 29, 2023 august 29, 2023.

This article is written by SAKIB SHERGUL PATHAN of 5 th Semester of K.L.E Society’s Law College, Bengaluru, an intern under Legal Vidhiya

The Information Technology Act, 2000, stands as a pivotal piece of legislation in India’s digital transformation journey. As the technological landscape continually evolves, the interpretation and implementation of this act have become subjects of paramount importance. This article delves into the multifaceted aspects of the IT Act, 2000, scrutinizing its provisions, and exploring their contemporary relevance in a rapidly changing digital world.

This article offers a comprehensive overview of the Information Technology Act, 2000, its interpretation, and its contemporary implementation challenges. It underscores the necessity for a dynamic and adaptable legal framework to address the evolving digital landscape, ensuring the protection of digital rights, fostering innovation, and promoting responsible digital conduct in the 21st century. The article highlights the need for amendments and updates to the IT Act, 2000, to align it with current technological trends and global best practices. It also emphasizes the importance of promoting digital literacy and awareness among stakeholders, including individuals, businesses, and government bodies, to foster a more secure and legally compliant digital ecosystem.

Information Technology (IT) Act, 2000, cybercrimes, Data Theft, Ministry of Electronics and Information Technology, Cyber Appellate Tribunal, Controller of Certifying Authorities, Indian Computer Emergency Response Team, Adjudicating Officers,  

INTRODUCTION:

The Information Technology Act, 2000, commonly referred to as the IT Act, is a crucial piece of legislation in India that governs various aspects of electronic commerce and digital communication. Since its enactment, it has undergone several amendments to keep up with the evolving landscape of technology and cybersecurity. Enforcement of the IT Act is vital to ensure the safety and security of digital transactions, protect the privacy of individuals, and combat cybercrimes effectively [1] . One of the key components of the IT Act is the establishment of a legal framework for digital signatures and electronic records. It recognizes digital signatures as legally valid and equivalent to physical signatures, making electronic transactions legally binding [2] . This has paved the way for the widespread adoption of electronic contracts and e-governance initiatives, reducing paperwork and administrative overhead.

The IT Act also addresses cybercrimes and their enforcement. It criminalizes activities such as hacking, data theft, and the spread of malicious software. These provisions empower law enforcement agencies to investigate and prosecute cybercriminals [3] . The Act also allows for the preservation and interception of electronic communication, subject to certain safeguards, which aids in the investigation of cybercrimes.

In recent years, India has made efforts to enhance the enforcement of the IT Act. The government has established specialized cybercrime cells and agencies like the Cyber Crime Coordination Centre to tackle cyber threats more efficiently. Moreover, initiatives like “Digital India” and the “National Cyber Security Policy” demonstrate the government’s commitment to bolstering cybersecurity infrastructure. However, there are concerns about the potential misuse of the IT Act for suppressing dissent and infringing on privacy. Striking the right balance between cybersecurity and individual rights remains a challenge [4] . It is essential to ensure that enforcement efforts do not infringe upon the fundamental principles of democracy and civil liberties.

OBJECTIVES:

• To provide a comprehensive overview of the Information Technology Act, 2000.
• To analyse the IT Act’s role in addressing cybercrimes and promoting cybersecurity measures.
• To discuss the challenges and controversies surrounding the IT Act.
• To present case studies where the IT Act has been invoked or applied.

Over the years, the IT Act has seen several amendments to keep pace with the evolving digital landscape. It remains a critical legal framework in India for governing electronic transactions, cybersecurity, and the protection of digital assets. In an era where the digital realm plays an increasingly integral role in daily life, the IT Act continues to be a cornerstone of India’s legal framework.

CYBERCRIMES AND OFFENCES UNDER IT ACT, 2000:

The rapid advancement of technology in recent decades has ushered in a digital era, transforming the way we live, work, and communicate. However, this digital revolution has also given rise to a new breed of crimes known as cybercrimes [5] . IT Act serves as the legal framework to tackle cybercrimes and offenses in the country.

Here are some offenses under the IT Act:

• Unauthorized Access and Hacking: Unauthorized access to computer systems or networks with the intent to cause damage or steal data is a punishable offense. Hacking into computer systems, networks, or even personal devices is covered under this Act.
• Data Theft: This deals with the protection of sensitive personal data. Any breach of security leading to the disclosure of such data can result in compensation claims against the offender.
• Phishing and Identity Theft: Impersonating someone else online with the intention to deceive, defraud, or cause harm is a crime. Phishing, where individuals are tricked into revealing sensitive information, falls under this category.
• Child Pornography: Sharing, downloading, or creating explicit content involving minors is strictly prohibited. Offenders can face severe penalties.
• Cyber Terrorism: This deals with acts that threaten the security and sovereignty of India. Engaging in cyber terrorism can lead to life imprisonment.
• Data Privacy: Unauthorized access to personal data by service providers is prohibited, and they can be held liable for breaches.

REGULATORY AUTHORITIES FOR IT ACT, 2000:

To effectively enforce and oversee these provisions of IT Act, several regulatory authorities and bodies have been established under the IT Act 2000:

• (MeitY): MeitY is the central government department responsible for formulating and implementing policies related to information technology and electronics. It plays a pivotal role in the administration of the IT Act 2000 and serves as the apex regulatory authority for the digital domain in India.
• Cyber Appellate Tribunal: This body serves as an appellate authority for cases related to the IT Act. Individuals or entities aggrieved by decisions of adjudicating officers or controllers can appeal to the Cyber Appellate Tribunal for redressal.
• Controller of Certifying Authorities (CCA): CCAs are responsible for licensing and regulating Certifying Authorities (CAs) in India. These CAs issue digital certificates used in secure online transactions, and the CCA ensures their compliance with standards and guidelines.
• Indian Computer Emergency Response Team (CERT-In): CERT-In is India’s national agency for responding to cybersecurity incidents. It plays a crucial role in mitigating cyber threats, providing incident response, and creating awareness about cyber risks.
• Adjudicating Officers: Under the IT Act 2000, Adjudicating Officers are appointed to handle cases related to contraventions of the act. They have the authority to impose penalties on individuals or organizations found guilty of non-compliance.

These regulatory authorities collectively ensure the implementation, enforcement, and continual adaptation of the IT Act 2000 to the evolving digital landscape. Their efforts are vital in addressing cybercrimes, promoting secure digital transactions, and protecting the rights and interests of individuals and organizations in India’s digital sphere.

CHALLENGES TO IMPLEMENT IT ACT:

Implementing the Information Technology Act in India has been a significant challenge since its inception in 2000 [6] . While the act aimed to regulate electronic commerce and facilitate e-governance, it has faced numerous obstacles in its execution [7] . Here, are some of the key challenges that have hindered the effective implementation of the IT Act:

• Rapid Technological Advancements: One of the foremost challenges is the lightning-fast pace of technological advancements. The IT Act was drafted at a time when the digital landscape was vastly different from what it is today. Keeping the legislation up-to-date with evolving technologies such as AI, blockchain, and quantum computing is a perpetual challenge.
• Cybersecurity Concerns: As digital infrastructure expands, so do cybersecurity threats. India has been grappling with increasing cybercrimes, including hacking, data breaches, and phishing attacks. Implementing effective cybersecurity measures to protect critical infrastructure and sensitive data is a constant battle.
• Privacy Concerns: The IT Act in India has faced criticism for not adequately addressing privacy concerns. With the rise of social media and digital platforms, the collection and misuse of personal data have become pressing issues. Legislation like the Personal Data Protection Bill seeks to address this gap, but harmonizing these laws poses a challenge.
• Jurisdictional Challenges: The internet is borderless, which poses jurisdictional challenges when it comes to cybercrimes. Determining where a crime occurred and which laws apply can be complex, especially in cases involving international elements.
• Redressal Mechanisms: The IT Act envisioned the establishment of mechanisms for grievance redressal, but their effectiveness remains questionable. Users often face hurdles in reporting cybercrimes and seeking justice, leading to a lack of faith in the legal system.
• Resource Constraint: The implementation of the IT Act requires significant resources, both financial and human. Funding constraints and a shortage of skilled professionals can hamper enforcement efforts.

Here are a few notable case law studies related to the IT Act, 2000:

• Shreya Singhal v. Union of India (2015) [8] : This case dealt with the constitutional validity of Section 66A of the IT Act, which dealt with online speech and its restrictions. The Supreme Court declared the section unconstitutional, as it violated the right to freedom of speech and expression.
• Sri Vasavi Kanyaka Parameshwari Educational Trust v. ACIT (2016): In this case, the Karnataka High Court held that denial of registration under Section 12AA of the Income Tax Act due to non-compliance with provisions under the IT Act (like maintaining books of accounts in electronic form) was valid.
• Shakti Bhog Foods Ltd. v. Kola Shipping Ltd. (2009) [9] : This case revolved around a phishing scam where the plaintiff’s email was hacked and used for fraudulent activities. The Delhi High Court held the bank liable for not taking adequate security measures, highlighting the need for banks to prevent unauthorized access to their customers’ accounts.
• ICICI Bank v. Vinod Kumar (2008): This case involved a SIM card cloning and phishing attack, leading to unauthorized transactions from the victim’s bank account. The Delhi High Court ruled in favor of the victim and emphasized the bank’s responsibility to ensure secure online banking transactions.
• M/S. Aarka Sports Management Pvt. Ltd. v. Unknown (2012): This case dealt with the hacking of a company’s website and misuse of its domain name. The Delhi High Court held that the act of hacking and causing financial loss was covered under the IT Act.
• State of Maharashtra v. Vijay Hanumant Gadch (2014): This case pertained to the hacking of a computer network to send threatening emails. The Bombay High Court ruled that unauthorized access to computer resources with malicious intent constituted an offense under the IT Act.

CONCLUSION:

The interpretation and implementation of the Information Technology (IT) Act in India have been central to the country’s digital transformation and its efforts to regulate the digital landscape. Over the years, the Act has evolved significantly, reflecting the dynamic nature of technology and the challenges posed by the digital age. This article has explored the multifaceted aspects of the IT Act, including its interpretation, implementation, associated challenges, and key case laws that have shaped its trajectory.

The IT Act, since its inception in 2000 and subsequent amendments, has played a pivotal role in facilitating e-commerce, e-governance, and the overall growth of the digital economy. It has provided a legal framework for electronic transactions, data protection, and cybersecurity. However, with these advancements, numerous challenges have emerged. One of the foremost challenges lies in keeping the IT Act relevant and up-to-date. Technology evolves at an astonishing pace, rendering existing regulations inadequate in addressing emerging issues. Therefore, it is imperative for lawmakers and regulators to continuously revisit and amend the Act to reflect the current technological landscape. This is especially pertinent in the context of data protection and privacy, where new threats and vulnerabilities constantly emerge.

Moreover, the implementation of the IT Act faces hurdles related to enforcement and awareness. Many individuals and businesses, particularly in rural areas, may not be fully aware of the Act’s provisions and their rights and responsibilities under it. Additionally, the enforcement of cybercrime provisions can be challenging, given the anonymity and borderless nature of the internet.

The evolution of case laws has played a crucial role in shaping the interpretation and implementation of the IT Act. Landmark cases, such as the Shreya Singhal v. Union of India case, have clarified the limits of free speech and intermediary liability on online platforms. These cases serve as important precedents for future legal proceedings and highlight the judiciary’s role in adapting the Act to contemporary challenges.

In conclusion, the Information Technology Act in India is a dynamic and essential piece of legislation that governs various facets of the digital landscape. While it has been instrumental in facilitating the growth of the digital economy, it faces ongoing challenges related to privacy, enforcement, and awareness. The Act’s interpretation and implementation will continue to evolve through the lens of case laws and the need for adaptability to emerging technologies. It is imperative that India continues to refine and update its legal framework to meet the evolving needs and challenges of the digital age, ensuring that it remains an effective tool for both regulation and innovation.

[1] Lachman, Beth E., Agnes Gereben Schaefer, Nidhi Kalra, Scott Hassell, Kimberly Curry Hall, Aimee E. Curtright, and David E. Mosher. “Information Technology Trends.” In Key Trends That Will Shape Army Installations of Tomorrow , 171–206. RAND Corporation, 2013. http://www.jstor.org/stable/10.7249/j.ctt5hhv93.13 .

[2] Dedrick, Jason, and Kenneth L. Kraemer. “Information Technology in India: The Quest for Self-Reliance.” Asian Survey 33, no. 5 (1993): 463–92. https://doi.org/10.2307/2645313 .

[3] Jayan, Shanmughan D. “INFORMATION, INFORMATION TECHNOLOGY, CRYPTOGRAPHY AND LAW.” Journal of the Indian Law Institute 51, no. 3 (2009): 340–50. http://www.jstor.org/stable/43953452 .

[4] Suneeti Rao. “Information Technology Act: Consumers’ Perspective.” Economic and Political Weekly 36, no. 37 (2001): 3501–3. http://www.jstor.org/stable/4411107 .

[5] Bharuka, Devashish. “INDIAN INFORMATION TECHNOLOGY ACT, 2000 CRIMINAL PROSECUTION MADE EASY FOR CYBER PSYCHOS.” Journal of the Indian Law Institute 44, no. 3 (2002): 354–79. http://www.jstor.org/stable/43951825 .

[6] Yu, Bin. “Embracing Statistical Challenges in the Information Technology Age.” Technometrics 49, no. 3 (2007): 237–48. http://www.jstor.org/stable/25471345 .

[7] Sruti Chaganti. “Information Technology Act: Danger of Violation of Civil Rights.” Economic and Political Weekly 38, no. 34 (2003): 3587–95. http://www.jstor.org/stable/4413940 .

[8] Shreya Singhal v. Union of India, AIR 2015 SC 1523

[9] Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., AIR 2009 SC 12

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• Information Technology Act, 2000

This article is written by Monesh Mehndiratta , a law student at Graphic Era Hill University, Dehradun. The article explains various terminologies and gives an overview of the Information Technology Act, 2000. It further describes the offences given in the Act and the punishment related to them.

This article has been published by Sneha Mahawar .

Table of Contents

Introduction 

One day, you wake up in the morning and check your phone. You are shocked to see that every piece of data of yours stored in different applications like your phone’s gallery, Facebook, Instagram and Whatsapp has been hacked. You then check your laptop and observe that it has been hacked. What will you do? Will you sue these social media for not protecting your data or search the hacker?

This is where the Information Technology Act of 2000 comes into the picture. The Act defines various offences related to breach of data and privacy of an individual and provides punishment or penalties for them. It also talks about intermediaries and regulates the power of social media. With the advancement of technology and e-commerce, there has been a tremendous increase in cyber crimes and offences related to data and authentic information. Even the data related to the security and integrity of the country was not safe, and so the government decided to regulate the activities of social media and data stored therein. The article gives the objectives and features of the Act and provides various offences and their punishments as given in the Act. 

Background of Information Technology Act, 2000

The United Nations Commission on International Trade Law in 1996 adopted a model law on e-commerce and digital intricacies. It also made it compulsory for every country to have its own laws on e-commerce and cybercrimes. In order to protect the data of citizens and the government, the Act was passed in 2000, making India the 12th country in the world to pass legislation for cyber crimes. It is also called the IT Act and provides the legal framework to protect data related to e-commerce and digital signatures. It was further amended in 2008 and 2018 to meet the needs of society. The Act also defines the powers of intermediaries and their limitations. 

Schedule of Information Technology Act, 2000

The Act is divided into 13 chapters , 90 sections and 2 schedules. The following are the chapters under the Act:

• Chapter 1 deals with the applicability of the Act and definitions of various terminologies used in the Act. 
• Chapter 2 talks about digital and electronic signatures. 
• Electronic governance and electronic records are given under Chapters 3 and 4 respectively. 
• Chapter 5 is related to the security of these records and Chapter 6 deals with regulations of certifying authorities. 
• Chapter 7 further gives the certificates needed to issue an electronic signature. 
• Chapter 8 gives the duties of subscribers and Chapter 9 describes various penalties. 
• Chapter 10 provides sections related to the Appellate Tribunal. 
• Chapter 11 describes various offences related to breach of data and their punishments. 
• Chapter 12 provides the circumstances where the intermediaries are not liable for any offence or breach of data privacy. 
• The final chapter, i.e., Chapter 13 is the miscellaneous chapter. 

The 2 schedules given in the Act are:

• Schedule 1 gives the documents and data where the Act is not applicable. 
• Schedule 2 deals with electronic signatures or methods of authentication. 

Applicability of Information Technology Act, 2000

According to Section 1 , the Act applies to the whole country, including the state of Jammu and Kashmir. The application of this Act also extends to extra-territorial jurisdiction, which means it applies to a person committing such an offence outside the country as well. If the source of the offence, i.e., a computer or any such device, lies in India, then the person will be punished according to the Act irrespective of his/her nationality. 

The Act, however, does not apply to documents given under Schedule 1. These are:

• Any negotiable instrument other than a cheque as given under Section 13 of the Negotiable Instruments Act, 1881 .
• Any power of attorney according to Section 1A of the Powers of Attorney Act, 1882 .
• Any sort of trust according to Section 3 of the Indian Trusts Act, 1882 .
• Any will including testamentary disposition given under the Indian Succession Act, 1925 . 
• Any contract or sale deed of any immovable property. 

Objectives of Information Technology Act, 2000

The Act was passed to deal with e-commerce and all the intricacies involved with digital signatures and fulfill the following objectives:

• The Act seeks to protect all transactions done through electronic means. 
• E-commerce has reduced paperwork used for communication purposes. It also gives legal protection to communication and the exchange of information through electronic means. 
• It protects the digital signatures that are used for any sort of legal authentication. 
• It regulates the activities of intermediaries by keeping a check on their powers. 
• It defines various offences related to data privacy of citizens and hence protects their data.
• It also regulates and protects the sensitive data stored by social media and other electronic intermediaries.
• It provides recognition to books of accounts kept in electronic form regulated by the Reserve Bank of India Act, 1934 . 

Features of Information Technology Act, 2000

Following are the features of the Act:

• The Act is based on the Model Law on e-commerce adopted by UNCITRAL. 
• It has extra-territorial jurisdiction. 
• It defines various terminologies used in the Act like cyber cafes, computer systems, digital signatures, electronic records, data, asymmetric cryptosystems, etc under Section 2(1) . 
• It protects all the transactions and contracts made through electronic means and says that all such contracts are valid. ( Section 10A )
• It also gives recognition to digital signatures and provides methods of authentication. 
• It contains provisions related to the appointment of the Controller and its powers. 
• It recognises foreign certifying authorities ( Section 19 ). 
• It also provides various penalties in case a computer system is damaged by anyone other than the owner of the system. 
• The Act also provides provisions for an Appellate Tribunal to be established under the Act. All the appeals from the decisions of the Controller or other Adjudicating officers lie to the Appellate tribunal. 
• Further, an appeal from the tribunal lies with the High Court. 
• The Act describes various offences related to data and defines their punishment. 
• It provides circumstances where the intermediaries are not held liable even if the privacy of data is breached. 
• A cyber regulation advisory committee is set up under the Act to advise the Central Government on all matters related to e-commerce or digital signatures. 

Overview of Information Technology Act, 2000

The Act deals with e-commerce and all the transactions done through it. It gives provisions for the validity and recognition of electronic records along with a license that is necessary to issue any digital or electronic signatures. The article further gives an overview of the Act. 

Electronic records and signatures 

The Act defines electronic records under Section 2(1)(t) , which includes any data, image, record, or file sent through an electronic mode. According to Section 2(1)(ta) , any signature used to authenticate any electronic record that is in the form of a digital signature is called an electronic signature. However, such authentication will be affected by asymmetric cryptosystems and hash functions as given under Section 3 of the Act. 

Section 3A further gives the conditions of a reliable electronic signature. These are:

• If the signatures are linked to the signatory or authenticator, they are considered reliable. 
• If the signatures are under the control of the signatory at the time of signing. 
• Any alteration to such a signature must be detectable after fixation or alteration. 
• The alteration done to any information which is authenticated by the signature must be detectable. 
• It must also fulfill any other conditions as specified by the Central Government. 

The government can anytime make rules for electronic signatures according to Section 10 of the Act. The attribution of an electronic record is given under Section 11 of the Act. An electronic record is attributed if it is sent by the originator or any other person on his behalf. The person receiving the electronic record must acknowledge the receipt of receiving the record in any manner if the originator has not specified any particular manner. ( Section 12 ). According to Section 13 , an electronic record is said to be dispatched if it enters another computer source that is outside the control of the originator. The time of receipt is determined in the following ways:

• Receipt occurs on the entry of an electronic record into the designated computer resource. 
• In case the record is sent to any other computer system, the receipt occurs when it is retrieved by the addressee. 
• When the addressee has not specified any computer resource, the receipt occurs when the record enters any computer source of the addressee. 

Certifying authorities

Appointment of controller.

Section 17 talks about the appointment of the controller, deputy controllers, assistant controllers, and other employees of certifying authorities. The deputy controllers and assistant controllers are under the control of the controller and perform the functions as specified by him. The term, qualifications, experience and conditions of service of the Controller of certifying authorities will be determined by the Central Government. It will also decide the place of the head office of the Controller. 

Functions of the Controller

According to Section 18 , the following are the functions of the Controller of certifying authority:

• He supervises all the activities of certifying authorities. 
• Public keys are certified by him. 
• He lays down the rules and standards to be followed by certifying authorities. 
• He specifies the qualifications and experience required to become an employee of a certifying authority. 
• He specifies the procedure to be followed in maintaining the accounts of authority. 
• He determines the terms and conditions of the appointment of auditors. 
• He supervises the conduct of businesses and dealings of the authorities. 
• He facilitates the establishment of an electronic system jointly or solely. 
• He maintains all the particulars of the certifying authorities and specifies the duties of the officers.
• He has to resolve any kind of conflict between the authorities and subscribers. 
• All information and official documents issued by the authorities must bear the seal of the office of the Controller. 

License for electronic signatures 

It is necessary to obtain a license certificate in order to issue an electronic signature. Section 21 of the Act provides that any such license can be obtained by making an application to the controller who, after considering all the documents, decides either to accept or reject the application. The license issued is valid for the term as prescribed by the central government and is transferable and heritable. It is regulated by terms and conditions provided by the government. 

According to Section 22 of the Act, an application must fulfill the following requirements:

• A certificate of practice statement. 
• Identity proof of the applicant. 
• Fees of Rupees 25,000 must be paid. 
• Any other document as specified by the central government. 

The license can be renewed by making an application before 45 days from the expiry of the license along with payment of fees, i.e., Rupees 25000. ( Section 23 )

Any license can be suspended on the grounds specified in Section 24 of the Act. However, no certifying authority can suspend the license without giving the applicant a reasonable opportunity to be heard. The grounds of suspension are:

• The applicant makes a false application for renewal with false and fabricated information. 
• Failure to comply with the terms and conditions of the license. 
• A person fails to comply with the provisions of the Act. 
• He did not follow the procedure given in Section 30 of the Act. 

The notice of suspension of any such license must be published by the Controller in his maintained records and data. 

Powers of certifying authorities

Following are the powers and functions of certifying authorities:

• Every such authority must use hardware that is free from any kind of intrusion. (Section 30)
• It must adhere to security procedures to ensure the privacy of electronic signatures. 
• It must publish information related to its practice, electronic certificates and the status of these certificates. 
• It must be reliable in its work. 
• The authority has the power to issue electronic certificates. ( Section 35 )
• The subscriber owns a private key along with a public key as given in the certificate. 
• The key can make a digital signature and can be verified.
• All the information given by subscribers is accurate and reliable. 
• The authorities can suspend the certificate of digital signature for not more than 15 days. ( Section 37 )
• If the subscriber himself makes such an application.
• If he dies. 
• In case, the subscriber is a company then on the winding up of the company, the certificate is revoked. 

Circumstances where intermediaries are not held liable

Section 2(1)(w) of the Act defines the term ‘intermediary’ as one who receives, transmits, or stores data or information of people on behalf of someone else and provides services like telecom, search engines and internet services, online payment, etc. Usually, when the data stored by such intermediaries is misused, they are held liable. But the Act provides certain instances where they cannot be held liable under Section 79 . These are:

• In the case of third-party information or communication, intermediaries will not be held liable. 
• If the only function of the intermediary was to provide access to a communication system and nothing else, then also they are not held liable for any offence. 
• If the intermediary does not initiate such transmissions or select the receiver or modify any information in any transmission, it cannot be made liable. 
• The intermediary does its work with care and due diligence. 

However, the section has the following exemptions where intermediaries cannot be exempted from the liability:

• It is involved in any unlawful act either by abetting, inducing or by threats or promises. 
• It has not removed any such data or disabled access that is used for the commission of unlawful acts as notified by the Central Government. 

Penalties under Information Technology Act, 2000

The Act provides penalties and compensation in the following cases:

Penalty for damaging a computer system

If a person other than the owner uses the computer system and damages it, he shall have to pay all such damages by way of compensation ( Section 43 ). Other reasons for penalties and compensation are:

• If he downloads or copies any information stored in the system. 
• Introduces any virus to the computer system. 
• Disrupts the system. 
• Denies access to the owner or person authorised to use the computer.
• Tampers or manipulates the computer system. 
• Destroys, deletes or makes any alteration to the information stored in the system. 
• Steals the information stored therein. 

Compensation in the case of failure to protect data

According to Section 43A , if any corporation or company has stored the data of its employees or other citizens or any sensitive data in its computer system but fails to protect it from hackers and other such activities, it shall be liable to pay compensation. 

Failure to furnish the required information

If any person who is asked to furnish any information or a particular document or maintain books of accounts fails to do so, he shall be liable to pay the penalty. In the case of reports and documents, the penalty ranges from Rupees one lakh to Rupees fifty thousand. For books of accounts or records, the penalty is Rs. 5000. ( Section 44 )

Residuary Penalty 

If any person contravenes any provision of this Act and no penalty or compensation is specified,  he shall be liable to pay compensation or a penalty of Rs. 25000.   

Appellate tribunal 

According to Section 48 of the Act, the Telecom dispute settlement and appellate tribunal under Section 14 of the Telecom Regulatory Authority of India Act, 1997 shall act as the appellate tribunal under the Information Technology Act, 2000. This amendment was made after the commencement of the Finance Act of 2017 .

All the appeals from the orders of the controller or adjudicating officer will lie to the tribunal, but if the order is decided with the consent of the parties, then there will be no appeal. The tribunal will dispose of the appeal as soon as possible but in not more than 6 months from the date of such appeal. ( Section 57 ) 

According to Section 62 of the Act, any person if not satisfied with the order or decision of the tribunal may appeal to the High Court within 60 days of such order.

Powers 

According to Section 58 of the Act, the tribunal is not bound to follow any provisions of the Code of Civil Procedure, 1908 and must give decisions on the basis of natural justice. However, it has the same powers as given to a civil court under the Code. These are:

• Summon any person and procure his attendance. 
• Examine any person on oath. 
• Ask to discover or produce documents. 
• Receive evidence on affidavits. 
• Examination of witnesses. 
• Review decisions. 
• Dismissal of any application. 

Offences and their punishments under Information Technology Act, 2000

Amendments to Information Technology Act, 2000

With the advancement of time and technology, it was necessary to bring some changes to the Act to meet the needs of society, and so it was amended. 

Amendment of 2008 

The amendment in 2008 brought changes to Section 66A of the Act. This was the most controversial section as it provided the punishment for sending any offensive messages through electronic mode. Any message or information that created hatred or hampered the integrity and security of the country was prohibited. However, it had not defined the word ‘offensive’ and what constitutes such messages, because of which many people were arrested on this ground. This section was further struck down by the Supreme Court in the case of Shreya Singhal v. Union of India (2015) . 

Another amendment was made in Section 69A of the Act, which empowered the government to block internet sites for national security and integrity. The authorities or intermediaries could monitor or decrypt the personal information stored with them. 

The 2015 Amendment Bill

The bill was initiated to make amendments to the Act for the protection of fundamental rights guaranteed by the Constitution of the country to its citizens. The bill made an attempt to make changes to Section 66A, which provides the punishment for sending offensive messages through electronic means. The section did not define what amounts to offensive messages and what acts would constitute the offence. It was further struck down by the Supreme Court in the case of Shreya Singhal declaring it as violative of Article 19. 

Information Technology Intermediaries Guidelines (Amendment) Rules, 2018

The government in 2018 issued some guidelines for the intermediaries in order to make them accountable and regulate their activities. Some of these are:

• The intermediaries were required to publish and amend their privacy policies so that citizens could be protected from unethical activities like pornography, objectionable messages and images, messages spreading hatred, etc. 
• They must provide the information to the government as and when it is sought within 72 hours for national security. 
• It is mandatory for every intermediary to appoint a ‘nodal person of contact’ for 24×7 service.
• They must have technologies that could help in reducing unlawful activities done online.
• The rules also break end-to-end encryption if needed to determine the origin of harmful messages.

Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules 2021

The government of India in 2021 drafted certain rules to be followed by the intermediaries. The rules made it mandatory for intermediaries to work with due diligence and appoint a grievance officer. They were also required to form a Grievance Appellate Tribunal. All complaints from users must be acknowledged within 24 hours and resolved within 15 days. It also provides a “Code of Ethics” for the people publishing news and current affairs, which makes it controversial. Many believe that the rules curtail freedom of speech and expression and freedom of the press. 

The intermediaries were also required to share the information and details of a suspicious user with the government if there was any threat to the security and integrity of the country. As a result of this, writ petitions were filed in various high courts against the rules. Recently, the Bombay High Court stayed in the case of Agij Promotion of Nineteenonea Media Pvt. Ltd. vs. Union of India (2021) and Nikhil Mangesg Wagle vs. Union of India (2021) the two provisions of the rules related to the Code of Ethics for digital media and publishers. 

Landmark judgments on Information Technology Act, 2000

Shreya singhal v. union of india (2015).

In this case , 2 girls were arrested for posting comments online on the issue of shutdown in Mumbai after the death of a political leader of Shiv Sena. They were charged under Section 66A for posting the offensive comments in electronic form. As a result, the constitutional validity of the Section was challenged in the Supreme Court stating that it infringes upon Article 19 of the Constitution. 

Issue 

Whether Section 66A is constitutionally valid or not?

Judgment 

The Court, in this case, observed that the language of the Section is ambiguous and vague, which violates the freedom of speech and expression of the citizens. It then struck down the entire Section on the ground that it was violative of Article 19 of the Constitution. It opined that the Section empowered police officers to arrest any person whom they think has posted or messaged anything offensive. Since the word ‘offensive’ was not defined anywhere in the Act, they interpreted it differently in each case. This amounted to an abuse of power by the police and a threat to peace and harmony. 

M/S Gujarat Petrosynthese Ltd and Rajendra Prasad Yadav v. Union of India (2014)

Facts .

In this case , the petitioners demanded the appointment of a chairperson to the Cyber Appellate Tribunal so that cases can be disposed of quickly and someone can keep a check on the workings of CAT. The respondents submitted that a chairperson would be appointed soon.

Appointment of the chairperson of CAT. 

The Court ordered the appointment of the chairperson and must see this as a matter of urgency and take into account Section 53 of the Act. 

Christian Louboutin SAS v. Nakul Bajaj and Ors (2018)

In this case , a suit was filed by a shoe company to seek an order of injunction against the defendants for using its trademarks and logo. 

Whether the protection of “safe harbour” under Section 79 of the Act be applied in this case?

The Court in this case observed that the defendant was not an intermediary as their website was a platform for the supply of various products. It used third-party information and promoted vendors in order to attract consumers for them. The Court held that e-commerce platforms are different from the intermediaries and the rights granted to them in Section 79 of the Act. It ordered the intermediaries to work with due diligence and not infringe the rights of the trademark owner. They must take steps to recognise the authenticity and genuineness of the products while dealing with any merchant or dealer. 

The Court added that if the intermediaries act negligently regarding IPR and indulge in any sort of abetment or incitement of unlawful or illegal activity, they will be exempted from the protection of safe harbour under Section 79 of the Act. Any active participation in e-commerce would also lead to the same. It also referred to the intermediaries guidelines, which state that no intermediary must violate any intellectual property rights of anyone while displaying any content on its website.

Loopholes in Information Technology Act, 2000

The Act provides various provisions related to digital signatures and electronic records, along with the liability of intermediaries, but fails in various other aspects. These are:

No provision for breach of data 

The provisions of the Act only talk about gathering the information and data of the citizens and its dissemination. It does not provide any remedy for the breach and leak of data, nor does it mention the responsibility or accountability of anyone if it is breached by any entity or government organization. It only provides for a penalty if an individual or intermediary does not cooperate with the government in surveillance. 

No address to privacy issues 

The Act failed in addressing the privacy issues of an individual. Any intermediary could store any sensitive personal data of an individual and give it to the government for surveillance. This amounts to a violation of the privacy of an individual. This concern has been neglected by the makers. 

Simple punishments 

Though the Act describes certain offences committed through electronic means, the punishments given therein are much simpler. To reduce such crimes, punishments must be rigorous.

Lack of trained officers

With the help of money and power, one can easily escape liability. At times, these cases go unreported because of a social stigma that police will not address such complaints. A report shows that police officers must be trained to handle cybercrimes and have expertise in technology so that they can quickly investigate a case and refer it for speedy disposal. 

No regulation over Cyber Crimes

With the advancement of technology, cyber crimes are increasing at a greater pace. The offences described in the Act are limited, while on the other hand, various types of cyber crimes are already prevailing, which if not addressed properly within time, may create a menace. These crimes do not affect any human body directly but can do so indirectly by misusing the sensitive data of any person. Thus, the need of the hour is to regulate such crimes. This is where the Act lacks. 

Conclusion 

The Act is a step toward protecting the data and sensitive information stored with the intermediaries online. It gives various provisions which benefit the citizens and protect their data from being misused or lost. However, with the advancement of e-commerce and online transactions, it is necessary to deal with problems like internet speed and security, transactions that are struck, the safety of passwords, cookies, etc. Cyber crimes are increasing at a great pace, and there is a need to have a mechanism to detect and control them. 

Frequently Asked Questions (FAQs)

What is the main purpose of the information technology act, 2000.

The aim of the Act is to :

• Protect all the transactions done through electronic means.
• Recognise the digital signatures that are used for any sort of legal authentication. 
• Regulate the activities of intermediaries and protect citizens from cybercrime. 

What will happen if any of the offences given in the Act is committed by a company?

According to Section 85 of the Act, if any of the offences is committed by a company, then all the people involved in the commission of the offence shall be liable and proceedings will be initiated against them.

What is the constitution of the Advisory Committee under the Act?

The Act under Section 88 talks about an advisory committee called the Cyber Regulations Advisory Committee formed by the Central Government. The committee consists of a chairperson and other officers having expertise in the subject matter of the Act. It will give advice to the government on all matters related to the Act. 

References 

• THE INFORMATION TECHNOLOGY ACT, 2000 ––––––––– ARRANGEMENT OF SECTIONS –––––––––
• An analysis of loopholes under Cyber Law . 
• Information Technology Act, 2000 (India) – GeeksforGeeks
• Information Technology Act 2000  
• India’s IT Act 2000 a toothless tiger? | CSO Online  

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Information Technology Act, 2000 (India)

The Information Technology Act, 2000 also Known as an IT Act is an act proposed by the Indian Parliament reported on 17th October 2000. This Information Technology Act is based on the United Nations Model Law on Electronic Commerce 1996 (UNCITRAL Model) which was suggested by the General Assembly of the United Nations by a resolution dated 30th January 1997. It is the most important law in India dealing with Cybercrime and E-Commerce. 

The main objective of this act is to carry out lawful and trustworthy electronic, digital, and online transactions and alleviate or reduce cybercrimes. The IT Act has 13 chapters and 94 sections. The last four sections which start from ‘section 91 – section 94’, deal with the revisions to the Indian Penal Code 1860. 

The IT Act, of 2000 has two schedules: 

• First Schedule: Deals with documents to which the Act shall not apply.
• Second Schedule: Deals with electronic signature or electronic authentication method.

What are the Features of The Information Technology Act, 2000?

The features of The IT Act, 2000 are as follows:

• The digital signature has been changed to an electronic signature to make it a greater generation-impartial act.
• It elaborates on offenses, penalties, and breaches.
• It outlines the Justice Dispensation Systems for cyber crimes.
• The Information Technology Act defines in a new segment that a cyber cafe is any facility wherein access to the net is offered by any person inside the normal business to the general public.
• It offers the constitution of the Cyber Regulations Advisory Committee.
• The Information Technology Act is based totally on The Indian Penal Code, of 1860, The Indian Evidence Act, of 1872, The Bankers’ Books Evidence Act, of 1891, The Reserve Bank of India Act, of 1934, and many others.
• It adds a provision to Section 81, which states that the provisions of the Act shall have overriding effect. The provision states that nothing contained inside the Act shall limit any person from exercising any right conferred under the Copyright Act, of 1957.

The Offenses and the Punishments in IT Act 2000

The offenses and the punishments that fall under the IT Act, of 2000 are as follows:-

• Tampering with the computer source documents.
• Directions of Controller to a subscriber to extend facilities to decrypt information.
• Publishing of information that is obscene in electronic form.
• Penalty for breach of confidentiality and privacy.
• Hacking for malicious purposes.
• Penalty for publishing Digital Signature Certificate false in certain particulars.
• Penalty for misrepresentation.
• Confiscation.
• Power to investigate offenses.
• Protected System.
• Penalties for confiscation are not to interfere with other punishments.
• Act to apply for offense or contravention committed outside India.
• Publication for fraud purposes.
• Power of Controller to give directions.

Sections and Punishments under the Information Technology Act, of 2000 are as follows :

It is an act to show misconduct behavior for transactions executed by way of electronic information interchange and another approach of electronic conversation, usually referred to as “electronic commerce”, which contains the usage of alternatives to paper-based methods of communication and storage of information, to facilitate digital submission of documents with the Government agencies.

Frequently Asked Questions on Information Technology Act, 2000 (India) -FAQs

Which ministry is under the it act.

Ministry of Electronics and Information Technology , Government of India.

What is covered under the IT Act?

This act covers electronic signatures , data protection, and the creation of certifying authorities. The Act legalises electronic governance and covers various cybercrimes and penalties.

What is the IT Act, of 2000 not applicable to?

According to Section 1 (4) of the Information Technology Act, 2000, the Act is not applicable to the following documents:  Execution of Negotiable Instrument under Negotiable Instruments Act, 1881, except cheques . Execution of a Power of Attorney under the Powers of Attorney Act, 1882

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Offences Under IT Act, 2000

By Rahul Deo, CNLU Patna

Editors Note: The high and speedier connectivity to the world from any place has developed many crimes and these increased offences led to the need of law for protection. The IT Act was the result of such a need and this paper analyzes the offences under this Act.

INTRODUCTION

The introduction of the internet has brought tremendous changes to our lives. People of all fields are increasingly using the computers to create, transmit and store information in the electronic form instead of the traditional papers, documents. Information stored in electronic forms has many advantages, it is cheaper, easier to store, easier to retrieve and for speedier to connection. Though it has many advantages, it has been misused by many people in order to gain themselves or for the sake or otherwise to harm others. The high and speedier connectivity to the world from any place has developed many crimes and these increased offenses led to the need for a law for protection. Some countries have been rather been vigilant and formed some laws governing the net. In order to keep in pace with the changing generation, the Indian parliament passed the law – Information Technology Act , 2000. [i] The IT Act 2000 has been conceptualized on the United Nations Commissions on International Trade Law (UNCITRAL) model law [ii] .

    The Government of India enacted its Information Technology Act, 2000 with the objectives stating officially as: “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.” [iii]

Cybercrime is a generic term that refers to all criminal activities done using the medium of computers, the Internet, cyberspace and the worldwide web. Computer crime, or Cybercrime, refers to any crime that involves a computer and a network.[iv] The computer may have been used in the commission of a crime, or it may be the target.[v] Netcrime is criminal exploitation of the Internet.[vi]

Dr. Debarati Halder and Dr. K. Jaishankar (2011) define Cybercrimes as: “Offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm to the victim directly or indirectly, using modern telecommunication networks such as Internet (Chat rooms, emails, notice boards and groups) and mobile phones (SMS/MMS)”.[vii] Such crimes may threaten a nation’s security and financial health.[viii] Issues surrounding these types of crimes have become high-profile, particularly those surrounding cracking, copyright infringement, child pornography, and child grooming. There are also problems of privacy when confidential information is lost or intercepted, lawfully or otherwise.

An Australian nationwide survey conducted in 2006 found that two in three convicted cyber-criminals were between the ages of 15 and 26.

Internationally, both governmental and non-state actors engage in cybercrimes, including espionage, financial theft, and other cross-border crimes. Activity crossing international borders and involving the interests of at least one nation-state is sometimes referred to as cyber warfare. The international legal system is attempting to hold actors accountable for their actions through the International Criminal Court. [ix]

A report (sponsored by  McAfee ) estimates the annual damage to the global economy at $445 billion. [x]

There isn’t really a fixed definition for cybercrime. The Indian Law has not given any definition to the term ‘cybercrime’. In fact, the Indian Penal Code does not use the term ‘cybercrime’ at any point even after its amendment by the Information Technology (Amendment) Act 2008, the Indian Cyberlaw. But “Cyber Security” is defined under Section (2) (b) means protecting information, equipment, devices computer, computer resource, communication device and information stored therein from unauthorized access, use, disclosure, disruption, modification or destruction. [xi]

Cyber Crime is not defined officially in the IT Act or in any other legislation. In fact, it cannot be too. Offense or crime has been dealt with elaborately listing various acts and the punishments for each, under the Indian Penal Code, 1860 and related legislation. Hence, the concept of cybercrime is just a “combination of crime and computer”.

Cybercrime in a narrow sense (computer crime) : Any illegal behavior directed by means of electronic operations that targets the security of computer systems and the data processed by them. [xii]

Cybercrime in a broader sense (computer-related crime ):

• Any illegal behavior committed by means of, or in relation to, a computer system or network, including such crimes as illegal possession and offering or distributing information by means of a computer system or network.
• Any contract for the sale or conveyance of immovable property or any interest in such property;
• Any such class of documents or transactions as may be notified by the Central Government Confidential.

CLASSIFICATION OF CYBER OFFENCES

The increased rate of technology in computers has led to the enactment of Information Technology Act 2000 . The converting of the paperwork into electronic records, the storage of the electronic data, has tremendously changed the scenario of the country. [xiii]

Offenses: Cyber offenses are the unlawful acts which are carried in a very sophisticated manner in which either the computer is the tool or target or both. Cybercrime usually includes:

(a) Unauthorized access of the computers (b) Data diddling (c) Virus/worms attack (d) Theft of computer system (e) Hacking (f) Denial of attacks (g) Logic bombs (h) Trojan attacks (i) Internet time theft (j) Web jacking (k) Email bombing  (l) Salami attacks (m) Physically damaging computer system.

The offenses included in the IT Act 2000 are as follows [xiv] :

• Tampering with the computer source documents.
• Hacking with computer system.
• Publishing of information which is obscene in electronic form.
• Power of Controller to give directions
• Directions of Controller to a subscriber to extend facilities to decrypt information
• Protected system
• Penalty for misrepresentation
• Penalty for breach of confidentiality and privacy
• Penalty for publishing Digital Signature Certificate false in certain particulars
• Publication for fraudulent purpose
• Act to apply for offense or contravention committed outside India
• Confiscation
• Penalties or confiscation not to interfere with other punishments.
• Power to investigate offenses.

Offenses UNDER THE IT ACT, 2000

1. tampering with computer source documents:.

Section 65 of this Act provides that Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer Programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the being time in force, shall be punishable with imprisonment up to three year, or with fine which may extend up to two lakh rupees, or with both.

Explanation:  

For the purpose of this section “computer source code” means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.

The object of the section is to protect the “intellectual property” invested in the computer. It is an attempt to protect the computer source documents (codes) beyond what is available under the Copyright Law.

This section extends towards the Copyright Act and helps the companies to protect the source code of their programmes.

Section 65 is tried by any magistrate. This is cognizable and non- bailable offense.

Imprisonment up to 3 years and or Fine up to Two lakh rupees.

Frios v. State of Kerela [xvi] :

Facts:  In this case, it was declared that the FRIENDS application software as a protected system. The author of the application challenged the notification and the constitutional validity of software under Section 70 . The court upheld the validity of both. It included tampering with source code. Computer source code the electronic form, it can be printed on paper.

Held:  The court held that Tampering with Source code is punishable with three years jail and or two lakh rupees fine of rupees two lakh rupees for altering, concealing and destroying the source code.

Syed Asifuddin case [xvii] :

Facts:  In this case, the Tata Indicom employees were arrested for manipulation of the electronic 32- bit number (ESN) programmed into cell phones theft were exclusively franchised to Reliance Infocom. Held: Court held that Tampering with source code invokes Section 65 of the Information Technology Act .

Parliament Attack Case :

Facts: In this case, several terrorists attacked Parliament House on 13 December 2001. In this Case, the Digital evidence played an important role during their prosecution. The accused argued that computers and evidence can easily be tampered and hence, should not be relied. In Parliament case, several smart device storage disks and devices, a Laptop was recovered from the truck intercepted at Srinagar pursuant to information given by two suspects. The laptop included the evidence of fake identity cards, video files containing clips of the political leaders with the background of Parliament in the background shot from T.V news channels. In this case design of Ministry of Home Affairs car sticker, there was game “wolf pack” with user name of ‘Ashiq’, there was the name in one of the fake identity cards used by the terrorist. No back up was taken. Therefore, it was challenged in the Court.

Held: Challenges to the accuracy of computer evidence should be established by the challenger. Mere theoretical and generic doubts cannot be cast on the evidence.

2. Hacking with the computer system:

Section 66 provides that-  (1) Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.

(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.

Explanation :  The section tells about the hacking activity.

Punishment: Imprisoned up to three years and fine which may extend up to two lakh rupees Or with both.

R v. Gold & Schifreen [xviii] :

In this case, it is observed that the accused gained access to the British telecom Prestl Gold computers networks file amount to dishonest trick and not a criminal offense.

R v. Whiteley [xix] :

In this case, the accused gained unauthorized access to the Joint Academic Network (JANET) and deleted, added files and changed the passwords to deny access to the authorized users. The perspective of the section does not merely protect the information but to protect the integrity and security of computer resources from attacks by unauthorized person seeking to enter such resource, whatever may be the intention or motive.

Cases Reported In India:

Official website of Maharastra government hacked. The official website of the government of Maharashtra was hacked by Hackers Cool Al- Jazeera, and claimed them they were from Saudi Arabia.

3. Publishing of obscene information in electronic form:

Section 67 of this Act provides that Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstance, 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 five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

The State of Tamil Nadu v. Suhas Katti.

Facts:  This case is about posting obscene, defamatory and annoying message about a divorcee woman in the Yahoo message group. E-mails were forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. These postings resulted in annoying phone calls to the lady. Based on the complaint police nabbed the accused. He was a known family friend of the victim and was interested in marrying her. She married to another person, but that marriage ended in divorce and the accused started contacting her once again. And her reluctance to marry him he started harassing her through the internet. [xx]

Held:  The accused is found guilty of offenses under section 469, 509 IPC and 67 of the IT Act 2000 and the accused is convicted and is sentenced for the offense to undergo RI for 2 years under 469 IPC and to pay fine of Rs.500/-and for the offense u/s 509 IPC sentenced to undergo 1 year Simple imprisonment and to pay fine of Rs.500/- and for the offense u/s 67 of IT Act 2000 to undergo RI for 2 years and to pay fine of Rs.4000/- All sentences to run concurrently.”

The accused paid fine amount and he was lodged at Central Prison, Chennai. This is considered the first case convicted under section 67 of Information Technology Act 2000 in India.

In a recent case, a groom’s family received numerous emails containing defamatory information about the prospective bride. Fortunately, they did not believe the emails and chose to take the matter to the police. The sender of the emails turned out to be the girl’s step-father, who did not want the girl to get married, as he would have lost control over her property, of which he was the legal guardian.

Avnish Bajaj (CEO of bazzee.com – now a part of the eBay group of companies ) case.

Facts:  There were three accused first is the Delhi schoolboy and IIT Kharagpur Ravi Raj and the service provider Avnish Bajaj.

The law on the subject is very clear. The sections slapped on the three accused were Section 292 (sale, distribution, public exhibition, etc., of an obscene object) and Section 294 (obscene acts, songs, etc., in a public place) of the Indian Penal Code (IPC), and Section 67 (publishing information which is obscene in electronic form) of the Information Technology Act 2000 . In addition, the schoolboy faces a charge under Section 201 of the IPC (destruction of evidence), for there is apprehension that he had destroyed the mobile phone that he used in the episode. These offenses invite a stiff penalty, namely, imprisonment ranging from two to five years, in the case of a first-time conviction, and/or fines.

Held:  In this case, the Service provider Avnish Bajaj was later acquitted and the Delhi schoolboy was granted bail by Juvenile Justice Board and was taken into police charge and detained into Observation Home for two days.

4. Power of Controller to give directions:

Section 68 of this Act provides that (1) The Controller may, by order, direct a Certifying Authority or any employee of such Authority to take such measures or cease carrying on such activities as specified in the order if those are necessary to ensure compliance with the provisions of this Act, rules or any regulations made thereunder.

(2) Any person who fails to comply with any order under sub-section (1) shall be guilty of an offense and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding two lakh rupees or to both.

Explanation: Any person who fails to comply with any order under subsection (1) of the above section, shall be guilty of an offense and shall be convicted for a term not less than three years or to a fine exceeding two lakh rupees or to both.

The offense under this section is non-bailable & cognizable.

Punishment: Imprisonment up to a term not exceeding three years or fine not exceeding two lakh rupees.

5. Directions of Controller to a subscriber to extend facilities to decrypt information:

Section 69  provides that-  (1) If the Controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offense; for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.

(2) The subscriber or any person in charge of the computer resource shall, when called upon by any agency which has been directed under sub-section (1), extend all facilities and technical assistance to decrypt the information.

(3) The subscriber or any person who fails to assist the agency referred to in subsection shall be punished with imprisonment for a term which may extend to seven years. Punishment: Imprisonment for a term which may extend to seven years. The offense is cognizable and non- bailable.

6. Protected System:

Section 70 of this Act provides that –

(1) The appropriate Government may, by notification in the Official Gazette, declare that any computer, computer system or computer network to be a protected system. (2) The appropriate Government may, by order in writing, authorize the persons who are authorized to access protected systems notified under sub-section (1). (3) Any person who secures access or attempts to secure access to a protected system in contravention of the provision of this section shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Explanation:  This section grants the power to the appropriate government to declare any computer, computer system or computer network, to be a protected system. Only authorized person has the right to access to protected system.

Punishment: The imprisonment which may extend to ten years and fine.

7. Penalty for misrepresentation:

Section 71 provides that- (1) Whoever makes any misrepresentation to, or suppresses any material fact from, the Controller or the Certifying Authority for obtaining any license or Digital Signature Certificate, as the case may be, shall be punished with imprisonment for a term which may extend to two years, or which fine which may extend to one lakh rupees, or with both.

Punishment: Imprisonment which may extend to two years or fine may extend to one lakh rupees or with both.

8. Penalty for breach of confidentiality and privacy:

Section 72 provides that- Save as otherwise provide in this Act or any other law for the time being in force, any person who, in pursuance of any of the powers conferred under this Act, rules or regulation made thereunder, has secured assess to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Explanation:  This section relates to any person who in pursuance of any of the powers conferred by the Act or it allied rules and regulations have secured access to any: Electronic record, books, register, correspondence, information, document, or other material.

If such a person discloses such information, he will be punished. It would not apply to disclosure of personal information of a person by a website, by his email service provider.

Punishment: Term which may extend to two years or fine up to one lakh rupees or with both.

9. Penalty for publishing Digital Signature Certificate false in certain particulars:

Section 73 provides that – (1) No person shall publish a Digital Signature Certificate or otherwise make it available to any other person with the knowledge that-

(a) The Certifying Authority listed in the certificate has not issued it; or (b) The subscriber listed in the certificate has not accepted it; or (c) The certificate has been revoked or suspended unless such publication is for the purpose of verifying a digital signature created prior to such suspension or revocation. (2) Any person who contravenes the provisions of sub-section (1) shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Explanation:  The Certifying Authority listed in the certificate has not issued it or, The subscriber listed in the certificate has not accepted it or the certificate has been revoked or suspended.

The Certifying authority may also suspend the Digital Signature Certificate if it is of the opinion that the digital signature certificate should be suspended in public interest.

A digital signature may not be revoked unless the subscriber has been given opportunity of being heard in the matter. On revocation, the Certifying Authority need to communicate the same with the subscriber. Such publication is not an offense it is the purpose of verifying a digital signature created prior to such suspension or revocation.

Punishment:  Imprisonment of a term of which may extend to two Years or fine may extend to 1 lakh rupees or with both.

Bennett Coleman & Co. v. Union of India [xxi]

In this case, the publication has been stated that ‘publication means dissemination and circulation’. In the context of the digital medium, the term publication includes and transmission of information or data in electronic form.

10. Publication for fraudulent purpose:

Section 74 provides that- Whoever knowingly creates, publishes or otherwise makes available a Digital Signature Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend to two years, or with fine which extends to one lakh rupees, or with both.

Explanation:  This section prescribes punishment for the following acts:

Knowingly creating a digital signature certificate for any

• fraudulent purpose or,
• unlawful purpose.

Knowingly publishing a digital signature certificate for any

• fraudulent purpose or
• unlawful purpose

Knowingly making available a digital signature certificate for any

Punishment: Imprisonment for a term up to two years or fine up to one lakh or both.

11. Act to apply for offense or contravention committed outside India:

Section 75 provides that-  (1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offense or contravention committed outside India by any person irrespective of his nationality.

For the purposes of sub-section (1), this Act shall apply to an offense or Contravention committed outside India by any person if the act or conduct constituting the offense or contravention involves a computer, computer system or computer network located in India.

Explanation:  This section has a broader perspective including cyber crime, committed by cyber criminals, of any nationality, any territoriality.

R v. Governor of Brixton prison and another [xxii]

Facts : In this case the Citibank faced the wrath of a hacker on its cash management system, resulting in illegal transfer of funds from customers account into the accounts of the hacker, later identified as Valdimer Levin and his accomplices. After Levin was arrested he was extradited to the United States. One of the most important issues was the jurisdictional issue, the ‘place of origin’ of cyber crime.

Held: The Court held that the real-time nature of the communication link between Levin and Citibank computer meant that Levin’s keystrokes were actually occurring on the Citibank computer. It is thus important that in order to resolve the disputes related to jurisdiction, the issue of territoriality and nationality must be placed by much broader criteria embracing principles of reasonableness and fairness to accommodate overlapping or conflicting interests of states, in spirit of universal jurisdiction.

12. Confiscation:

Section 76 provides that-  Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provisions of this Act, rules, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation. :

Provided that where it is established to the satisfaction of the court adjudicating the confiscation that the person in whose possession, power or control of any such computer, computer system, floppies, compact disks, tape drives or any other accessories relating thereto is found is not responsible for the contravention of the provisions of this Act, rules orders or regulations made thereunder, the court may, instead of making an order for confiscation of such computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, make such other order authorized by this Act against the person contravening of the provisions of this Act, rules, orders or regulations made thereunder as it may think fit.

Explanation:  The aforesaid section highlights that all devices whether computer, computer system, floppies, compact disks, tape drives or any other storage, communication, input or output device which helped in the contravention of any provision of this Act, rules, orders, or regulations made under there under liable to be confiscated.

13. Penalties or confiscation not to interfere with other punishments:

Section 77 provides that –  No penalty imposed or confiscation made under this Act shall prevent the imposition of any other punishment to which the person affected thereby is liable under any other law for the time being in force.

Explanation:  The aforesaid section lays down a mandatory condition, which states the Penalties or confiscation not to interfere with other punishments to which the person affected thereby is liable under any other law for the time being in force.

Power to investigate offenses:

Section 78 provides that – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 , a police officer not below the rank of Deputy Superintendent of Police shall investigate any offense under this Act.

Due to the increase in digital technology, various offenses are increasing day by day. Therefore, the IT Act 2000 need to be amended in order to include those offenses which are now not included in the Act.  In India, cybercrime is not of high rate. Therefore, we have time in order to tighten the cyber laws and include the offenses which are now not included in the IT Act 2000. [xxiii]

Since the beginning of civilization, man has always been motivated by the need to make progress and better the existing technologies. This has led to tremendous development and progress which has been a launching pad for further developments. Of all the significant advances made by mankind from the beginning to date, probably the most important of them is the development of the Internet.

However, the rapid evolution of the Internet has also raised numerous legal issues and questions. As the scenario continues to be still not clear, countries throughout the world are resorting to different approaches towards controlling, regulating and facilitating electronic communication and commerce.

Formatted on 1st March 2019.

[i] http://www.mit.gov.in . last visited on 14-08-2014

[ii] http://www.uncitral.org/english/texts/electrcom/ last visited on 16-08-2014

[iii] http://www.mit.gov.in/about.htm . last visited on 16-08-2014

[iv] Moore, R. (2005) “Cyber crime: Investigating High-Technology Computer Crime,” Cleveland, Mississippi: Anderson Publishing.

[v] Warren G. Kruse, Jay G. Heiser (2002).  Computer forensics: incident response essentials . Addison-Wesley. p. 392.  ISBN   0-201-70719-5 .

[vi] David Mann And Mike Sutton (2011-11-06).  “Netcrime” . Bjc.oxfordjournals.org. Retrieved 2011-11-10.

[vii] Halder, D., & Jaishankar, K. (2011)  Cyber crime and the Victimization of Women: Laws, Rights, and Regulations.  Hershey, PA, USA: IGI Global.  ISBN 978-1-60960-830-9

[viii] Internet Security Systems. March-2005.

[ix]   “Cyber Warfare And The Crime Of Aggression: The Need For Individual Accountability On Tomorrow’S Battlefield” . Law.duke.edu. Retrieved 2011-11-10.

[x] “Cyber crime costs global economy $445 billion a year: report” . Reuters. 2014-06-09. Retrieved 2014-06-17.

[xi] http://www.csi-india.org last visited on 15-08-2014

[xii] http://www.cyberlawsindia.net/internet-crime.html last visited on 10-08-2014

[xiii] http://www.legalservicesindia.com last visited on 12-09-2014

[xv] http://www.mpcyberpolice.nic.in last visited on 17-09-2014

[xvi] AIR 2006 Ker 279, 2006 (3) KLT 210, 2007 (34) PTC 98 Ker.

[xvii]   2005 CriLJ4314

[xviii] [1988] 2 WLR 984

[xix] [1991] 93 cr App rep 25

[xx] http://cyber-law-web.blogspot.in/2009/07/case-study-cyber-law-state-of-tamil.html last visited on 28-08-2014

[xxi] AIR 1973 SC 106

[xxii] [1969] 2 QB 222, [1969] 2 All ER 347, [1969] 2 WLR 618, 133 JP 407

[xxiii] http://www.cyberlawsindia.net/internet-crime.html last visited on 10-09-2014

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A Critical Analysis of Sec.79 of IT Act 2000

• Cyber Law Blogs Subject-wise Law Notes
• July 16, 2020

The basis for enforcement and enactment of the Information Technology Act,2000 was to provide recognition to e-commerce and e-transactions and also to protect the users from digital crimes, piracy etc. The Ministry of Electronics and IT has prepared the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 (hereinafter referred to as “2018 Rules”) in order to prevent spreading of fake news, curb obscene information on the internet, prevent misuse of social-media platforms and to provide security to the users.

The Information Technology (Intermediaries Guidelines) Rules, 2011(hereinafter referred to as “ 2011 Rules)created a lot of heat waves in the digital world with regard to the duties and liabilities of the intermediaries even after safe harbor protection provided under Section 79 of the Information Technology Act,2000(hereinafter referred to as “the Act”). Section 79 of the Act provided that the Intermediaries or any person providing services as a network service provider are exempted from the liabilities in certain instances. In 2018, the government has come out with certain changes in the 2011 Rules and has elaborately explained the liabilities and functions of the Intermediaries and to oversee that the social media platform is not misused

Section 79 of the Act is a ‘safe harbor’ provision which grants conditional immunity to intermediaries from liability for third party acts. Section 79(1) of the Act grants intermediaries a conditional immunity with regard to any third-party information, data or communication link made available or hosted by them. This immunity is subject to section 79 (2) and 79 (3) of the Act.

Section 79(2) essentially covers cases where the activity undertaken by the intermediary is of a technical, automatic and passive nature. Thus, for section 79(2) to be applicable, intermediaries are to have neither knowledge nor control over the information which is transmitted or stored.

Furthermore, Section 79(3)(b) envisages a ‘notice and take down’ regime, wherein the intermediary is required to take down unlawful content upon receiving actual knowledge of its existence.

Who is an Intermediary?

An ‘intermediary’ has been defined in Section 2(w) of the Act as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, web-housing service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes ” .

This term has belied a narrow construction. Typically, intermediaries are persons who facilitate the use of the internet. Interestingly, the definition of an intermediary includes cyber cafes, and is not restricted to online intermediaries. Although a disparate range of functions are performed by intermediaries; common functions include hosting content, collecting information, evaluating scattered information, facilitating communication and information exchange, aggregating information, providing access to the internet etc. Internet service providers, search engines, social media platforms, cloud service provider, cyber cafes, are all intermediaries.

Section 79 of the Information Technology Act, 2000 provides that subject to the intermediary complying with certain requirements, it shall not be liable for any third party data or information made available by it. The conditions to be fulfilled by an intermediary include the following:

a) It needs to exercise due diligence while discharging obligations under the law;

b) It needs to comply with the provisions of the Information Technology Act, 2000 and rules and regulations made thereunder;

c) It must not need to conspire or abet in the commission of any offence;

d) Once called upon to remove or disable access to any content, it must expeditiously do so without vitiating the original electronic evidence.

If these conditions are fulfilled, the intermediary cannot be made liable for third party data. A majority of intermediaries are today hiding behind the judgement of the Supreme Court of India in the case of Shreya Singhal v/s Union of India.

This held that an intermediary will not remove or disable access to any third-party data on its network, unless it gets either an order from a court of competent jurisdiction or an order from a governmental agency to that effect. Ever since the Shreya Singhal judgment[1], a majority of intermediaries have chosen to hide behind this pronouncement.

The spread of fake news in the electronic ecosystem is an immense concern for India as a nation. The recent Indian elections saw massive dissemination of fake news. Given the fact that India does not have a fake news law, a majority of the intermediaries and media service providers have failed to take effective steps to prevent fake news disseminating on their networks. Clearly, existing legal frameworks on the subject under hand are not adequate.

It needs to be also noted that the government has been given powers under Section 87 of the Information Technology Act, 2000 to come up with rules to regulate the conduct of intermediaries. The government had notified the Information Technology (Intermediary Guidelines) Rules in 2011 but these rules provided very limited elements of due diligence.

Given the fact that today large numbers of intermediaries are emerging as strong media companies, it is time to regulate their legal activities by means of appropriate strong legal frameworks. There is also a need for revisiting Section 79 of the Information Technology Act, 2000 in such a manner that the rights, duties and responsibilities of the intermediaries as media companies need to be well defined.

Further, the kind of requirements that service providers and intermediaries need to perform in the context of protecting and preserving cyber security is another area where appropriate legal frameworks need to be beefed up. The government has been in the process of coming up with some draft guidelines for intermediaries. However, these have not yet been specified. It is time for a fresh look at the issue of intermediary liability

is clear that these intermediaries will play a very important role in the electronic ecosystem. The need to transform intermediaries from being mute spectators into legal entities, complying with the applicable law prevailing for the time being is an urgent necessity. Since a number of these intermediaries are often not located in India, many are complying with the Indian cyber law more in breach rather than in observance.

Intermediaries located outside India must be compelled to comply with applicable Indian cyber laws, so long as their services are made available on computers, computers systems and networks located in India. All eyes will now be on the government as to how it deals with the issue of intermediary liability and how it strengthens the rights of users and provides a substantial harmonious balance, in the context of media and electronic ecosystem stakeholders at large.

[1] Shreya Singhal vs UOI AIR 2015 SC 1523, Supreme Court of India.

Author Details: Madhav Mantri

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Info. Technology Law

Section 79: Exemption from liability of intermediary in certain cases

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(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made hosted by him.

(2) The provisions of sub-section (1) shall apply if –

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or

(b) the intermediary does not –

(i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf

(3) The provisions of sub-section (1) shall not apply if-

(a) the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act.

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Explanation:- For the purpose of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.

More information on Section 79 of Information Technology Act, 2000:

Relevant Judgments :

#1.  CHRISTIAN LOUBOUTIN SAS Versus NAKUL BAJAJ & ORS (Nov 2018)

Great analysis of section 79 of IT Act, 2000  and the Intermediary Guidelines done by honorable Judge Ms Pratibha M Singh. Importantly, it lays down the circumstances, in which the Intermediary will be assumed to be abetting the sale of online products/services and therefore, cannot go scott free. In the said matter, the Complainant, a manufacturer of Luxury Shoes filed for injunction against an e-commerce portal www.darveys.com for indulging in  Trademark violation, along with the seller of spurious goods.

#2. SC: Google India Private Ltd vs M/S. Visakha Industries (Dec 2019) [In final appeal, before the Hon’ble Supreme Court of India, set aside the findings by the High Court regarding the alleged refusal of the appellant to respond to the notice to remove]

#2A. Google India Pvt Ltd VS. Visaka Industries Limited (2016) [In a second appeal, before the Andhra High Court, Google India Pvt Limited held not guilty as they do not have any control and cannot disable the offending information as they are just a subsidiary of the Google Inc.]

#2B. Google India Pvt Ltd VS. Visaka Industries Limited (2009) [Google liable as Intermediary (if proved guilty) as criminal complaint instituted before the Information technology (Amendment) Act 2008 came into force]

#3. Gaussian Network Pvt. Ltd V Monica Lakhanpal & Another (2012) [Whether there is any restriction on playing the Games of Rummy, Chess, Golf, Poker, Bridge, and Snooker of skill with stakes on the websites making profit and whether wagering and betting on games of skill make the activity “Gambling”, as covered under Rule 3 of Intermediary Guidelines ?]

#4. Vyakti Vikas Kendra & other vs Jitender Bagga & Google (2012) [Art Of Living Foundation filed for interim relief against a blogger and the intermediary Google owned Blogger.com for cyber defamation. The latter was ordered to remove all the defamatory content within 36 hours]

#1: The following arrests of an .IN Accredited Registrar Ideaa Biz owner, Jalandhar, shows how an Intermediary is liable for lack of Due Diligence, when he himself seems to be aware of the fraud being conducted though the Domain Names registered at his end. This is a great example of lack of due diligence and the resulting liability of the Domain Registrar, i.e. the Intermediary.

Relevant Rules 2011:

Information Technology (Intermediaries guidelines) Rules, 2011 (Clause (zg) of subsection (2) of section 87 read with sub-section (2) of section 79 of the Information Technology Act, 2000)

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Chapter 12: Intermediaries Not To Be Liable In Certain Cases

Section 79: Exemption from liability of intermediary in certain cases ...

Further Section

• Section 78: Power to investigate offences

Chapter 12A: Examiner Of Electronic Evidence

Section 79A: Central Government to notify Examiner of Electronic Evidence ...

• Section 79A: Central Government to notify Examiner of Electronic Evidence

Cyber SECURITY AND CYBER LAWS

It act case studies.

Cases Studies as per selected IT Act Sections

Here are the case studies for selected IT Act sections.

For the sake of simplicity and maintaining clarity, details on the IT Act sections have been omitted. Kindly refer the Appendix at the last section for the detailed account of all the penalties and offences mentioned in IT Act.

Section 43 – Penalty and Compensation for damage to computer, computer system, etc Related Case: Mphasis BPO Fraud: 2005In December 2004, four call centre employees, working at an outsourcing facility operated by MphasiS in India, obtained PIN codes from four customers of MphasiS’ client, Citi Group. These employees were not authorized to obtain the PINs. In association with others, the call centre employees opened new accounts at Indian banks using false identities. Within two months, they used the PINs and account information gleaned during their employment at MphasiS to transfer money from the bank accounts of CitiGroup customers to the new accounts at Indian banks. By April 2005, the Indian police had tipped off to the scam by a U.S. bank, and quickly identified the individuals involved in the scam. Arrests were made when those individuals attempted to withdraw cash from the falsified accounts, $426,000 was stolen; the amount recovered was $230,000. Verdict: Court held that Section 43(a) was applicable here due to the nature of unauthorized access involved to commit transactions.

Section 65 – Tampering with Computer Source Documents Related Case: Syed Asifuddin and Ors. Vs. The State of Andhra PradeshIn this case, Tata Indicom employees were arrested for manipulation of the electronic 32- bit number (ESN) programmed into cell phones theft were exclusively franchised to Reliance Infocomm. Verdict: Court held that tampering with source code invokes Section 65 of the Information Technology Act.

Section 66 – Computer Related offenses Related Case: Kumar v/s Whiteley In this case the accused gained unauthorized access to the Joint Academic Network (JANET) and deleted, added files and changed the passwords to deny access to the authorized users.Investigations had revealed that Kumar was logging on to the BSNL broadband Internet connection as if he was the authorized genuine user and ‘made alteration in the computer database pertaining to broadband Internet user accounts’ of the subscribers.The CBI had registered a cyber crime case against Kumar and carried out investigations on the basis of a complaint by the Press Information Bureau, Chennai, which detected the unauthorised use of broadband Internet. The complaint also stated that the subscribers had incurred a loss of Rs 38,248 due to Kumar’s wrongful act. He used to ‘hack’ sites from Bangalore, Chennai and other cities too, they said. Verdict: The Additional Chief Metropolitan Magistrate, Egmore, Chennai, sentenced N G Arun Kumar, the techie from Bangalore to undergo a rigorous imprisonment for one year with a fine of Rs 5,000 under section 420 IPC (cheating) and Section 66 of IT Act (Computer related Offense).

Section 66A – Punishment for sending offensive messages through communication service  Relevant Case #1: Fake profile of President posted by imposter On September 9, 2010, the imposter made a fake profile in the name of the Hon’ble President Pratibha Devi Patil. A complaint was made from Additional Controller, President Household, President Secretariat regarding the four fake profiles created in the name of Hon’ble President on social networking website, Facebook.The said complaint stated that president house has nothing to do with the facebook and the fake profile is misleading the general public. The First Information Report Under Sections 469 IPC and 66A Information Technology Act, 2000 was registered based on the said complaint at the police station, Economic Offences Wing, the elite wing of Delhi Police which specializes in investigating economic crimes including cyber offences.

Relevant Case #2: Bomb Hoax mail In 2009, a 15-year-old Bangalore teenager was arrested by the cyber crime investigation cell (CCIC) of the city crime branch for allegedly sending a hoax e-mail to a private news channel. In the e-mail, he claimed to have planted five bombs in Mumbai, challenging the police to find them before it was too late. At around 1p.m. on May 25, the news channel received an e-mail that read: “I have planted five bombs in Mumbai; you have two hours to find it.” The police, who were alerted immediately, traced the Internet Protocol (IP) address to Vijay Nagar in Bangalore. The Internet service provider for the account was BSNL, said officials.

Section 66C – Punishment for identity theft Relevant Cases: The CEO of an identity theft protection company, Lifelock, Todd Davis’s social security number was exposed by Matt Lauer on NBC’s Today Show. Davis’ identity was used to obtain a $500 cash advance loan.

Li Ming, a graduate student at West Chester University of Pennsylvania faked his own death, complete with a forged obituary in his local paper. Nine months later, Li attempted to obtain a new driver’s license with the intention of applying for new credit cards eventually.

Section 66D – Punishment for cheating by impersonation by using computer resource Relevant Case: Sandeep Vaghese v/s State of Kerala A complaint filed by the representative of a Company, which was engaged in the business of trading and distribution of petrochemicals in India and overseas, a crime was registered against nine persons, alleging offenses under Sections 65, 66, 66A, C and D of the Information Technology Act along with Sections 419 and 420 of the Indian Penal Code. The company has a web-site in the name and and style `www.jaypolychem.com’ but, another web site `www.jayplychem.org’ was set up in the internet by first accused Samdeep Varghese @ Sam, (who was dismissed from the company) in conspiracy with other accused, including Preeti and Charanjeet Singh, who are the sister and brother-in-law of `Sam’ Defamatory and malicious matters about the company and its directors were made available in that website. The accused sister and brother-in-law were based in Cochin and they had been acting in collusion known and unknown persons, who have collectively cheated the company and committed acts of forgery, impersonation etc. Two of the accused, Amardeep Singh and Rahul had visited Delhi and Cochin. The first accused and others sent e-mails from fake e-mail accounts of many of the customers, suppliers, Bank etc. to malign the name and image of the Company and its Directors. The defamation campaign run by all the said persons named above has caused immense damage to the name and reputation of the Company. The Company suffered losses of several crores of Rupees from producers, suppliers and customers and were unable to do business.

Section 66E – Punishment for violation of privacy Relevant Cases: Jawaharlal Nehru University MMS scandal In a severe shock to the prestigious and renowned institute – Jawaharlal Nehru University, a pornographic MMS clip was apparently made in the campus and transmitted outside the university.Some media reports claimed that the two accused students initially tried to extort money from the girl in the video but when they failed the culprits put the video out on mobile phones, on the internet and even sold it as a CD in the blue film market.

Nagpur Congress leader’s son MMS scandal On January 05, 2012 Nagpur Police arrested two engineering students, one of them a son of a Congress leader, for harassing a 16-year-old girl by circulating an MMS clip of their sexual acts. According to the Nagpur (rural) police, the girl was in a relationship with Mithilesh Gajbhiye, 19, son of Yashodha Dhanraj Gajbhiye, a zila parishad member and an influential Congress leader of Saoner region in Nagpur district.

Section-66F Cyber Terrorism Relevant Case:  The Mumbai police have registered a case of ‘cyber terrorism’—the first in the state since an amendment to the Information Technology Act—where a threat email was sent to the BSE and NSE on Monday. The MRA Marg police and the Cyber Crime Investigation Cell are jointly probing the case. The suspect has been detained in this case.The police said an email challenging the security agencies to prevent a terror attack was sent by one Shahab Md with an ID [email protected] to BSE’s administrative email ID [email protected] at around 10.44 am on Monday.The IP address of the sender has been traced to Patna in Bihar. The ISP is Sify. The email ID was created just four minutes before the email was sent. “The sender had, while creating the new ID, given two mobile numbers in the personal details column. Both the numbers belong to a photo frame-maker in Patna,’’ said an officer. Status: The MRA Marg police have registered forgery for purpose of cheating, criminal intimidation cases under the IPC and a cyber-terrorism case under the IT Act.

Section 67 – Punishment for publishing or transmitting obscene material in electronic form Relevant Case: This case is about posting obscene, defamatory and annoying message about a divorcee woman in the Yahoo message group. E-mails were forwarded to the victim for information by the accused through a false e- mail account opened by him in the name of the victim. These postings resulted in annoying phone calls to the lady. Based on the lady’s complaint, the police nabbed the accused.Investigation revealed that he was a known family friend of the victim and was interested in marrying her. She was married to another person, but that marriage ended in divorce and the accused started contacting her once again. On her reluctance to marry him he started harassing her through internet. Verdict: The accused was found guilty of offences under section 469, 509 IPC and 67 of IT Act 2000. He is convicted and sentenced for the offence as follows:

As per 469 of IPC he has to undergo rigorous imprisonment for 2 years and to pay fine of Rs.500/-

As per 509 of IPC he is to undergo to undergo 1 year Simple imprisonment and to pay Rs 500/-

As per Section 67 of IT Act 2000, he has to undergo for 2 years and to pay fine of Rs.4000/-

All sentences were to run concurrently. The accused paid fine amount and he was lodged at Central Prison, Chennai. This is considered the first case convicted under section 67 of Information Technology Act 2000 in India.

Section 67B – Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form Relevant Case:  Janhit Manch & Ors. v. The Union of India 10.03.2010 Public Interest Litigation: The petition sought a blanket ban on pornographic websites. The NGO had argued that websites displaying sexually explicit content had an adverse influence, leading youth on a delinquent path.

Section 69 – Powers to issue directions for interception or monitoring or decryption of any information through any computer resource Relevant Case:  In August 2007, Lakshmana Kailash K., a techie from Bangalore was arrested on the suspicion of having posted insulting images of Chhatrapati Shivaji, a major historical figure in the state of Maharashtra, on the social-networking site Orkut.The police identified him based on IP address details obtained from Google and Airtel -Lakshmana’s ISP. He was brought to Pune and detained for 50 days before it was discovered that the IP address provided by Airtel was erroneous. The mistake was evidently due to the fact that while requesting information from Airtel, the police had not properly specified whether the suspect had posted the content at 1:15 p.m. Verdict: Taking cognizance of his plight from newspaper accounts, the State Human Rights Commission subsequently ordered the company to pay Rs 2 lakh to Lakshmana as damages. The incident highlights how minor privacy violations by ISPs and intermediaries could have impacts that gravely undermine other basic human rights.

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Civilsdaily

No. 1 UPSC IAS Platform for preparation

Freedom of Speech – Defamation, Sedition, etc.

Explained: shreya singhal case that struck down section 66a of it act.

From UPSC perspective, the following things are important :

Prelims level: Shreya Singhal Case

Mains level: Section 66A

Six years after it struck down Section 66A of the Information Technology Act, 2000, the Supreme Court earlier this month termed its continued use by law enforcement agencies of various states as “a shocking state of affairs” and sought a response from the Centre.

What did Section 66A do?

• Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
• Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
• It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
• In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.

Why was the law criticized?

• The problem was with the vagueness about what is “offensive”.
• The word having a very wide connotation was open to distinctive, varied interpretations.
• It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.

So, how did 66A come under the Supreme Court’s scrutiny?

• The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
• The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
• The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
• The petition was filed by Shreya Singhal, then a 21-year-old law student.

What were the grounds for the challenge?

• The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
• The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
• Most of the terms used in the section had not been specifically defined under the Act.
• The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.

What did the Supreme Court decide?

• In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
• Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
• The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
• The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
• Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.

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• Information Technology Act, 2000

Information Technology Act, 2000 (IT Act 2000)

Important enactments of the Indian Parliament are crucial topics coming under the polity and governance segments of the UPSC syllabus . The Information Technology Act, 2000 (also known as the IT Act 2000 in short) is an important legislation that is frequently referred to in the daily news. In this article, you can read the salient features of the act and also about the controversial Section 66A of the IT Act 2000.

Information Technology Act, 2000 (IT Act 2000):- Download PDF Here

IT Act, 2000

The Information Technology Act, 2000 was enacted by the Indian Parliament in 2000. It is the primary law in India for matters related to cybercrime and e-commerce.

• The act was enacted to give legal sanction to electronic commerce and electronic transactions, to enable e-governance, and also to prevent cybercrime .
• Under this law, for any crime involving a computer or a network located in India, foreign nationals can also be charged.
• The law prescribes penalties for various cybercrimes and fraud through digital/electronic format.
• It also gives legal recognition to digital signatures.
• The IT Act also amended certain provisions of the Indian Penal Code (IPC) , the Banker’s Book Evidence Act, 1891, the Indian Evidence Act, 1872 and the Reserve Bank of India Act, 1934 to modify these laws to make them compliant with new digital technologies.
• In the wake of the recent Indo-China border clash, the Government of India banned various Chinese apps under the Information Technology Act. Read more about this in an RSTV titled, ‘TikTok, Other Chinese Apps Banned’ .

Given below are the links of relevant topics that will help aspirants prepare for their UPSC examination-

IT Act – 2008 Amendments

The IT Act 2000 was amended in 2008. This amendment introduced the controversial Section 66A into the Act.

Section 66A

• Section 66A gave authorities the power to arrest anyone accused of posting content on social media that could be deemed ‘offensive’.
• This amendment was passed in the Parliament without any debate.
• As per the said section, a person could be convicted if proven on the charges of sending any ‘information that is grossly offensive or has menacing character’.
• It also made it an offence to send any information that the sender knows to be false, but for the purpose of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will, through a computer or electronic device.
• The penalty prescribed for the above was up to three years’ imprisonment with a fine.

Arguments against Section 66A

• Experts stated that the terms ‘offensive’, ‘menacing’, ‘annoyance’, etc. were vague and ill-defined or not defined at all.
• Anything could be construed as offensive by anybody.
• There was a lot of scope for abuse of power using this provision to intimidate people working in the media.
• This also curbed the freedom of speech and expression enshrined as a fundamental right in the Constitution.
• The section was used most notably to arrest persons who made any uncharitable remarks or criticisms against politicians.

The government contended that the section did not violate any fundamental right and that only certain words were restricted. It stated that as the number of internet users mushroomed in the country, there was a need to regulate the content on the internet just like print and electronic media. The Supreme Court, however, in 2015, struck down this section of the IT Act saying it was unconstitutional as it violated Article 19(1)(a) of the Constitution. This was in the famous Shreya Singhal v Union of India case (2015) .

Section 69A

• Section 69A empowers the authorities to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource if it is necessary or expedient to do so in the interest of the sovereignty or integrity of India, defense of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence or for investigation of any offence.
• It also empowers the government to block internet sites in the interests of the nation. The law also contained procedural safeguards for blocking any site.
• When parties opposed to the section stated that this section violated the right to privacy, the Supreme Court contended that national security is above individual privacy. The apex court upheld the constitutional validity of the section. Also read about privacy laws and India .
• The recent banning of certain Chinese Apps was done citing provisions under Section 69A of the IT Act.
• Note:- The Indian Telegraph Act, 1885 allows the government to tap phones. However, a 1996 SC judgement allows tapping of phones only during a ‘public emergency’. Section 69A does not impose any public emergency restriction for the government.

Read all the important acts and laws for UPSC & other govt. exams in the linked article.

Information Technology Intermediary Guidelines (Amendment) Rules, 2018

The Rules have been framed under Section 79 of the Information Technology Act. This section covers intermediary liability. 

• Section 79(2)(c) of the Act states that intermediaries must observe due diligence while discharging their duties, and also observe such other guidelines as prescribed by the Central Government. 
• An intermediary is a service that facilitates people to use the Internet, such as Internet Services Providers (ISPs), search engines and social media platforms.
• Conduits: Technical providers of internet access or transmission services.
• Hosts: Providers of content services (online platforms, storage services).
• Information Technology Intermediary Guidelines (Amendment) Rules were first released in 2011 and in 2018, the government made certain changes to those rules.
• In 2018, there was a rise in the number of mob lynchings spurred by fake news & rumours and messages circulated on social media platforms like WhatsApp.
• To curb this, the government proposed stringent changes to Section 79 of the IT Act.

What do the Rules say?

• According to the 2018 Rules, social media intermediaries should publish rules and privacy policies to curb users from engaging in online material which is paedophilic, pornographic, hateful, racially and ethnically objectionable, invasive of privacy, etc.
• The 2018 Rules further provide that whenever an order is issued by government agencies seeking information or assistance concerning cybersecurity , then the intermediaries must provide them the same within 72 hours.
• The Rules make it obligatory for online intermediaries to appoint a ‘Nodal person of Contact’ for 24X7 coordination with law enforcement agencies and officers to ensure compliance.
• The intermediaries are also required to deploy such technologies based on automated tools and appropriate mechanisms for the purpose of identifying or removing or disabling access to unlawful information.
• The changes will also require online platforms to break end-to-end encryption in order to ascertain the origin of messages.
• Online Intermediaries are required to remove or disable access to unlawful content within 24 hours. They should also preserve such records for a minimum period of 180 days for the purpose of investigations.

Rationale behind the Rules

• The government intends to make legal frameworks in order to make social media accountable under the law and protect people and intermediaries from misusing the same.
• The government wants to curb the spread of fake news and rumours, and also pre-empt mob violence/lynching.
• There is a need to check the presentation of incorrect facts as news by social media, that instigates people to commit crimes.

There has been criticism of the Rules from certain quarters, that says that the State is intruding into the privacy of the individual. Some also say that this law widens the scope of state surveillance of its citizens. These criticisms are notwithstanding the fact that the new Rules are in line with recent SC rulings. 

• Tehseen S. Poonawalla case (2018): SC said that authorities have full freedom to curb the dissemination of explosive and irresponsible messages on social media, that could incite mob violence and lynchings.
• Prajwala Letter case (2018): SC ordered the government to frame the necessary guidelines to “eliminate child pornography, rape and gang rape imagery, videos, and sites in content hosting platforms and other applications”.

Frequently Asked Questions Related to Information Technology Act 2000

What is the main provision of it act 2000, what are the features of it act 2000.

Features of the Information Technology Act, 2000

• All electronic contracts created through secure electronic channels were legally valid.
• Legal recognition for digital signatures.
• Security measures for electronic records and conjointly digital signatures are in place.

How many sections are in the IT Act 2000?

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IT Act 2000: Objectives, Features, Amendments, Sections, Offences and Penalties

Updated on : Apr 17th, 2024

21 min read

Over the past decade, the rise of technology and electronic commerce has led to a surge in cybercrimes and data-related offences in India. As per the latest news by a renowned paper house, the cybercrime cases increased from 3,693 in 2012 to 65,893 in 2022, recording the highest spike rate. The situation became alarming as even data crucial to national security and integrity was at risk. In response, the government opted to regulate activities on electronic mediums and the data stored therein.

Thus, the Information Technology Act or IT Act 2000 was introduced. In this article, we will provide a comprehensive overview of this Act, highlighting all the associated factors that you need to know.

What Is the Information Technology Act 2000? 

A legal framework proposed by the Indian Parliament, the Informational Technology Act of 2000 , is the primary legislation in India dealing with cybercrime and electronic commerce . It was formulated to ensure the lawful conduct of digital transactions and the reduction of cyber crimes, on the basis of the United Nations Model Law on Electronic Commerce 1996 (UNCITRAL Model). This legal framework, also known as   IT Act 2000 , comes with 94 sections, divided into 13 chapters and 2 schedules. 

When IT Act 2000 Came Into Effect? 

The bill of this law was passed in the Budget by a group of Parliament members, headed by the then Minister of Information Technology and signed by the President on 9 May 2000. It finally came into effect on October 17, imposing restrictions on all individuals regardless of their nationality and geographic location. 

Importance of IT Act 2000

Read the pointers highlighted below to understand the importance of formulating   Information Technology Act 2000:  

• The Act provides legal recognition to electronic records, resulting in the growth of e-commerce and digital transactions in India. 
• It has established electronic signatures as the legal equivalent of physical signatures. 
• The formulation of this act has come up with the establishment of the Controller of Certifying Authorities (CCA), a government body that is responsible for issuing and maintaining the security of digital signatures as well as certificates. 
• The Act has made it mandatory for companies to obtain consent from consumers when it comes to collecting or using their personal information. 
• With the Act becoming effective, individuals have the right to seek compensation in case of damage or misuse of their personal data by an unauthorised party. 
• Through the Act, the Government of India can criminalise cybercrime, hacking and spreading of computer viruses. 
• The  Information Technology Act 2000 also authorised the establishment of the Cyber Appellate Tribunal, a specialised official body hired to address the appeals against orders passed by Adjudicating Officers under the Act.
• It contains provisions that safeguard the critical information infrastructure, including communication networks and power grids. 

Objectives of the Information Technology Act 2000

The following are the main objectives of the Information Technology Act of 2000 that you should know:

• Promote efficient delivery of government services electronically or facilitate digital transactions between firms and regular individuals 
• Impose penalties upon cybercrimes like data theft, identity theft, cyberstalking and so on, in order to create a secure cyber landscape
• Formulate rules and regulations that monitor the cyber activity and electronic mediums of communication and commerce 
• Promote the expansion and foster innovation and entrepreneurship in the Indian IT/ITES sector

Features of the Information Technology Act 2000

Take a look at the salient features of the   Information Technology Act 2000:

• The provisions of this Act are implemented by the Central Government to regulate electronic commerce and penalise cybercrime. 
• The Act states the roles and responsibilities of intermediaries as well as conditions under which their liability can be exempted. 
• The Information Technology Act is associated with CERT-In (Indian Computer Emergency Response Team), a nodal agency that is responsible for cybersecurity and cyber incident response. 
• There have been 2 amendments associated with this Act, addressing the technological advancements, implementability concerns and anomalies.

IT Act 2000 and Its Amendments

As technology evolved over time, the Indian Parliament recognized the need to revise the Act in order to align it with societal needs, resulting in its amendment. Two significant amendments were made to the  IT Act 2000 that you should know about. 

1. Amendment of 2008 

The 2008 amendment came up with modifications to Section 66A of the IT Act, 2000. The section outlined penalties for sharing offensive messages electronically. This includes any message or information that incited hatred or compromised the integrity and security of the nation. However, the lack of clarity in defining 'offensive' messages led to unnecessary punishment of several individuals, ultimately resulting in the striking down of the section.

2. Amendment Bill 2015 

In 2015, another bill was initiated to amend Section 66A with the aim of safeguarding the fundamental rights guaranteed to citizens by the country's Constitution. This was later accomplished by declaring it as violative of Article 19 of the Constitution.

Digital Signature Under IT Act 2000

The Information Technology Act 2000 includes provisions that legally introduce the use of digital signatures for submitting crucial documents online, ensuring their security and authenticity. The Act further mandates all companies/LLPs under the MCA21 e-Governance programme to utilise digital signatures for document filing. 

Electronic Governance Under IT Act 2000

Electronic Governance or E-Governance involves the application of legal rules and regulations for managing, controlling, and administering government processes that are conducted through electronic means. Keep reading to find out how electronic governance is dealt with under the Information Technology Act 2000:

• Section 4:  This Section grants legal recognition to electronic records, making it an equivalent of paper-based documents. 
• Section 5:  In Section 5 of the Indian IT Act, 2000, digital signatures get equal legal recognition as handwritten signatures. However, the authentication of these digital signatures is determined by the Central Government.
• Section 6:  Eliminating red tapism, Section 6 promotes use of the electronic records and digital signatures by all agencies of the Indian Government. This involves online filing of documents, issuance of licences/approvals electronically and digital receipt/payment of money. 
• Section 7:  This Section authorises the retention of electronic records for fulfilment of legally retaining records. 

IT Act 2000 Sections

The  Information Technology Act 2000 has 94 sections focusing on the regulation of electronic exchanges. These sections collectively establish a comprehensive framework for electronic governance, digital signatures, and the legal recognition of electronic records. All these sections play a crucial role in facilitating the use of digital technologies in governance.

Section 43 of IT Act 2000

Section 43 of Chapter IX of the IT Act, 2000 outlines various actions for which a penalty is imposed if done without permission from the person in charge of the computer system. These actions are discussed below. 

• Access information from the system 
• Download or copy data with proper authorisation 
• Introduce virus or other malicious software into the system 
• Cause damage to a computer network or database 
• Prevent an authorised user from accessing the system
• Assist others in breaching the provisions of the law
• Charge someone for services they have not utilised 
• Alter or remove information to reduce its value or cause harm 
• Steal or mess with the code that makes a computer program work

Section 66 of IT Act 2000

If an individual engages in any action outlined in Section 43 with dishonest or fraudulent intent, he/she shall be subject to punishment. As per Section 66 of the  IT Act 2000 , this punishment may include imprisonment for a period of up to 3 years, a fine of up to Rs. 5 lakh, or both.

Section 66A of IT Act 2000

The Information Technology Act of 2000 was amended to introduce a new section, Section 66A in order to address instances of cybercrime arising from the emergence of technology and the internet. This section imposes penalties for sending offensive messages through communication services. 

As per this section, a person will face punishment in the following scenarios:

• Sending information that is highly offensive or has a menacing character
• Using a computer resource or communication device to send false information with the intent of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will
• Sending any electronic mail or message with the intention of causing annoyance, inconvenience, deception, or misleading the recipient 

Section 66B of IT Act 2000

Section 66B outlines the punishment for dishonestly receiving stolen computer resources or communication devices. As per this section, anyone who knowingly receives or retains any stolen computer resource or communication device shall be liable to imprisonment for up to 3 years, or a fine of up to Rs. 1 lakh, or both.

Section 67A of the IT Act 2000

Section 67A deals with the punishment for publishing or sharing material containing sexually explicit acts in electronic form. On 1st conviction, individuals who publish such material shall face imprisonment for up to 5 years and a fine of up to Rs. 10 lakh. In the event of a 2nd or subsequent conviction, the punishment may extend to imprisonment for up to 7 years and a fine of up to Rs. 10 lakh.

Offences and Penalties Under IT Act 2000

There are provisions in the Information Technology Act 2000 that outline different offences and penalties related to the misuse of technology and electronic communication. Let us take a look: 

Cyber Crime Under IT Act 2000

When it comes to cybersecurity , there are 5 main types of laws followed in India . These include the Information Technology Act 2000 (IT Act), the Indian Penal Code of 1860 (IPC), the Information Technology Rules (IT Rules), the Companies Act of 2013, and the Cybersecurity Framework (NCFS). 

The cyber law established under the IT Act of 2000 stands as the first cyber law approved by the Indian Parliament. It highlights penalties and sanctions enacted by the Parliament of India that safeguard the sectors of e-governance, e-banking and e-commerce.

Advantages and Disadvantages of IT Act 2000

While the IT Act of 2000 offers numerous benefits, it also carries certain disadvantages. Let us begin by exploring its advantages.

• Before the Act was enacted, emails, messages and such other means of communication were not legally recognised and thus not admissible as evidence in court. However, with the introduction of the IT Act of 2000, electronic communications gained legal recognition.
• By leveraging the legal infrastructure provided by this Act, companies can engage in e-commerce or e-business. 
• With the legalisation of digital signatures, it has become easier to carry out transactions online or verify the identity of an individual on the internet. 
• Corporations get statutory remedies in the event of unauthorised access or hacking into their computer systems or networks.
• Individuals get monetary assistance or compensation as a remedy for damages of any kind incurred in computer systems.
• The Act identifies and penalises various cybercrimes such as hacking, spamming, identity theft, phishing, and so on, which were previously not addressed in any legislation.
• The Act permits companies to serve as certifying authorities and issue digital certificates.
• It empowers the Indian Government to issue notices on the internet through e-governance.

Let us now walk through a list of disadvantages that came forth after the enactment of the Information Technology Act 2000:

• The Information Technology Act of 2000 fails to address the issues involving domain names, and the rights, and liabilities of domain owners.
• Despite the prevalence of copyright and patent issues in India, the Act still does not protect Intellectual Property Rights when it comes to computer programs and networks.
• Various kinds of cybercrimes such as cyberstalking, cyber fraud, chat room abuse, theft of internet hours, and many more are not covered by this Act.
• The IT Act has also failed to address critical issues such as privacy and content regulation. 

With the rapid escalation of cybercrime cases in India, there emerged an urgent need for a mechanism to detect and control them. The IT Act 2000 is a step towards safeguarding the data and sensitive information stored with online intermediaries. In addition, this Act comes with various provisions that benefit citizens and protect their data from misuse. 

Frequently Asked Questions

As of March 2024, the IT Act contains 2 schedules. Initially, the Act included 4 schedules, with 2 of them being omitted over time.

The Information Technology Act 2000 is a legal framework focusing on the legal recognition of digital certificates and the regulation of certification authorities as its components. 

The primary feature of the IT Act of 2000 is to facilitate lawful electronic, digital, and online transactions while mitigating cybercrimes.

There are 94 sections in the Information Technology Act of 2000. 

A digital signature is the authentication of any electronic record by a subscriber through an electronic method or procedure. It serves as the digital equivalent of a traditional handwritten signature or stamped seal.

The Information Technology Act 2000 has a primary objective to regulate and control the prevalent cybercrime cases in India. 

Section 67A of the Information Technology Act states the punishment for publishing or sharing material that contains sexually explicit acts through electronic means. 

About the Author

Mayashree Acharya

I am an advocate by profession and have a keen interest in writing. I write articles in various categories, from legal, business, personal finance, and investments to government schemes. I put words in a simplified manner and write easy-to-understand articles. Read more

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The world of technology is one of constant change and evolution, and this dynamism necessitates a similar fluidity and adaptability in the realm of cyber laws. In India, this has been distinctly exemplified by the transformation of the Information Technology (IT) Act from its inception in 2000 to its significant amendment in 2008. In this post, we will delve into the key differences between the original IT Act, 2000 and its subsequent amendment in 2008.

The IT Act, 2000: A Digital Legal Landmark

Introduced at the dawn of the new millennium, the IT Act, 2000 was India’s first comprehensive legislation designed to tackle the legal challenges arising from the burgeoning field of information technology. It covered various issues, including digital signatures, electronic records, and cybercrime.

Salient Features

The original IT Act was primarily designed to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the government. It also defined several cybercrimes, such as hacking and tampering with computer source documents, and prescribed penalties for these offences.

IT Act Amendment, 2008: Rising to New Challenges

However, with the rapid evolution of the digital landscape, it became clear that the original Act was not equipped to deal with the increasing variety and sophistication of cybercrimes. This necessitated a more robust legal framework, leading to the introduction of the IT Amendment Act, 2008.

Expanded Scope

The 2008 amendment significantly expanded the scope of the original Act. It added several new types of cybercrimes to the statute, including identity theft, phishing, cyber terrorism, and child pornography. This reflected a greater understanding of the many forms that cybercrime can take and a commitment to combat them.

Enhanced Penalties

The amendment also introduced stiffer penalties for certain offences. For example, the punishment for hacking was increased from three years imprisonment and a fine of INR 2 lakh under the original Act to three years imprisonment or a fine of up to INR 5 lakh, or both, under the amendment.

Data Protection

One of the most significant additions was the inclusion of provisions related to data protection. The amendment introduced penalties for unauthorized disclosure and misuse of personal data, signaling a move towards a more comprehensive data protection regime.

Intermediary Liability

The 2008 amendment also introduced rules regarding the liability of intermediaries, such as internet service providers and website hosting companies, for unlawful content. This was an important development given the increasing role of these entities in the digital ecosystem.

The journey from the IT Act, 2000 to the 2008 amendment represents a significant evolution in India’s cyber law framework. The amendment reflected an understanding of the changing nature of cybercrimes and the need for stronger and more comprehensive legislation.

Yet, the digital world continues to evolve, and with it, so does the nature of cyber threats. Going forward, India’s cyber law framework will need to continue adapting and evolving to ensure it remains effective in safeguarding the nation’s digital landscape. It’s a perpetual testament to the dynamic interplay between technology and law.

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• SC Repels Challenge Against Sec. 70...

SC Repels Challenge Against Sec. 70 Of IT Act Giving Power To Govt To Declare Computer Resource As ‘Protected System’ [Read Judgment]

Manu sebastian.

31 March 2018 7:26 AM GMT

“Plainly read, the power of declaration of a “protected system” may invade a copyright which may be vested in a private owner. However, such a situation is taken care of by the provisions contained in Section 2(k) and 17(d) of the Copyright Act.”The Supreme Court has repelled challenge to the constitutional validity of Section 70 of the Information Technology Act 2000, which gives...

“Plainly read, the power of declaration of a “protected system” may invade a copyright which may be vested in a private owner. However, such a situation is taken care of by the provisions contained in Section 2(k) and 17(d) of the Copyright Act.”

The Supreme Court has repelled challenge to the constitutional validity of Section 70 of the Information Technology Act 2000, which gives power to the government to declare any computer resource as ‘protected system’. The consequence of such a declaration is that only persons authorized by government will be able to access the system, and access by unauthorized persons is treated as an offence leading to imprisonment up to 10 years.

The challenge was raised by a programmer, who claimed that he had developed an e-governance program for the Government of Kerala named ‘FRIENDS’.  The program was commissioned by the Government through Microsoft Corporation of India (Pvt) Ltd, which agreed to provide the application software free of cost. The appellant in the Supreme Court was a member of Microsoft’s Developer Forum, and he developed the FRIENDS program on contract with Microsoft. The government entrusted the management of the program with another state agency, Centre for Development of Imaging Technology(C-DIT).

Meanwhile, disputes arose between the appellant and another private agency regarding the copyright of the software.  C-DIT also claimed rights over the software, and instituted a civil suit for declaring its rights.  On 27.12.2000, the government declared the FRIENDS software as a ‘protected system’ exercising powers under Section 70(1) of the IT Act. In that backdrop, the appellant approached the High Court of Kerala, challenging the notification declaring the software as ‘protected system’. The validity of Section 70 was also called into question, on the ground that it delegated excessive and unfettered powers to the executive to arbitrarily declare any software as ‘protected system’.

The high court did not find Section 70 to be suffering from vice of excessive delegation. It held that the power under Section 70 is circumscribed by Section 2(k) and 17(d) of the Copyright Act. Section 2(k) of the Copyright Act defined “government work” and Section 17(d) of the Act held that copyright of government work vested with the government.  On that basis, it held that power under Section 70 was available only with respect to “government work”. The challenge to the notification was rejected noting that the appellant was yet to establish his rights over the software.  The matter was further carried to the Supreme Court.

Senior counsel R Basant, appearing for the appellant in the Supreme Court, invited the attention of the court to the fact that Section 70(1) underwent amendment in 2009. After 2009 amendment to Section 70,  a software can be declared as a “protected system” only if its incapacitation or destruction have a debilitating impact on national security, economy, public health or safety. This, according to him, was an indication that the provision suffered from constitutional fragility, which prompted the legislature to step in with an amendment to render clarity to the scope of power.  It was also contended that the appellant was the developer of the program, and had the right to be acknowledged as the first owner of copyright.

Senior counsel Pallav Sisodia, appearing for the state of Kerala, contended that Section 70(1), as it stood at the relevant time, had to read along with Section 2(k) and 17(d) of the Copyright Act and was valid.  The appellant’s claim for first ownership of copyright was contested on ground that he had developed the program on contract with Microsoft, and hence Microsoft had to be treated as first owner by virtue of Section 17(a) of the Copyright Act.

The bench comprising Justice Ranjan Gogoi and Justice Mohan M Shantanagoudar did not accept the contentions of the appellant. The court agreed with the conclusions of the high court regarding the validity of Section 70.

“Plainly read, the power of declaration of a “protected system” may invade a copyright which may be vested in a private owner. However, such a situation is taken care of by the provisions contained in Section 2(k) and 17(d) of the Copyright Act.

The balance is struck by Section 17 between copyright pertaining to any other person and copyright vested in the Government in a “government work”. Section 70 of the IT Act, therefore, cannot be construed independent of the provisions of the Copyright Act; if Section 70 of the I.T. Act has to be read in conjunction with Section 2(k) and Section 17 of the Copyright Act 1957 the rigours that would control the operation of Section 70(1) of the IT Act are clearly manifested,” the court observed.

The appellant’s contention that 2009 amendment was an indicator of inherent constitutional defect in the provision at the relevant time was also rejected. The court held that the amendment was an attempt to circumscribe the power even further than what was prevailing under the pre-amended law, by narrowing down the ambit of “government work”.

The challenge to the notification declaring FRIENDS software as ‘protected system’ was repelled noting that the appellant had no first ownership rights. The admitted/pleaded case of the appellant was that he was enlisted by Microsoft to develop the software for which it received due consideration from Microsoft. If that be so, on the appellant’s own pleadings in the writ petition, it would not be entitled to claim copyright in the FRIENDS application software under Section 17(a) of the Copyright Act, said the bench.

30 Important Case Laws/ Judgements on RTI

Written by Sushmita Mishra

Updated on: April 15, 2024

Table of Contents

30 Important Case Law/ Judgements on RTI OR Information Law

Information law/ RTI is one of the important laws applicable in India. All are have a right to information. Now there is modern technology to acquire information to be collected, stored, used, analyzed. To protect the right of individuals of information there are various laws. The one of them is Right to Information Act, 2000. The Act is established to protect the right to get information of the individuals. The information law governs the extent to the citizens to access the information from the Central Government and other public authorities. The information law is guard to protect from misuse of private and confidential information by the public authorities, employers, media and others. The information law has its scope in other fields of legal practices such as environmental law, public law, employment law and business law.

Also Read: CPIO, Supreme Court v. Subhash Chandra Agarwal

Now the information related to the government and other public authorities are also available online on their portal. We can get information anywhere anytime by using their portal. There is also law which deals with networking information that is Information Technology Act. The right to information is the fundamental right of the individuals. In this topic there are various judgments. In this article we will focus on top 30 important case laws relating information law.

Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal , 2020

Facts of the case.

In this case, three appeals were filed which arises from three different Applications filed by respondent, Subhash Chandra Agarwal before Central Public Information Officer (CPIO), Supreme Court.

Apex Court dismissed the appeal and upheld the Delhi High Court judgment by directing the Central Public Information Officer, Supreme Court to furnish information regarding collegium decision-making, personal assets of judges, correspondence with CJI. No general decision came up relating to the universal disclosure of above-mentioned information.

Also held RTI Applicable To Office Of CJI

UPSC v. Angesh Kumar, AIR 2018

Facts of the case.

Some unsuccessful candidates in the Civil Services (Preliminary) Examination, 2010 approached the High Court for a direction to the Union Public Service Commission (UPSC) to disclose the details of the marks (raw and scaled) awarded to them in Civil Service (Prelims) Examination, 2010. The information in the form of cut-off marks for every subject, scaling methodology, model answers and complete results of all candidates were also sought.

The Court read the inherent limitation in Sections 3 and 6 as pertaining to revelation of information that is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. UPSC was accordingly directed to disclose the raw marks as well as the model answers of the questions in the examination. The Supreme Court referred to the problems in showing evaluated answers sheets in the UPSC Civil Services Examination in Prashant Ramesh Chakkarwar v. UPSC, 2013.

N N Dhumane v. PIO, Department of Post, 2018

The order of CIC in the instant case is a remarkable one as it condemns the act of Department of Posts in denying payment of pension for want of Aadhaar Card. Other key observation made by the CIC in the case was that payment of pension is a matter of life or liberty under the RTI Act and applications relating to payment of Pension shall be disposed by the Public Information Officers within 48 hours. The Aadhaar card is required for pension has already provided under the RTI Act 2005 as per the Section 8 (1) (j) of the RTI Act 2005, information which relates to personal information the disclosure of which has no relationship to any public activity or which would cause unwarranted invasion of the privacy of an individual. The SSP Ahmednagar has not furnished the names of 55 pensioners and he has taken shelter of provisions of Section 8 (1)(j) of the RTI Act. The furnishing names of 55 pensioners does not amount to right to privacy. It is open fact and withholding the names 55 pensioners is a breach of RTI Act 2005.

Judgment The Court held that citizens cannot be forced to produce their Aadhaar card to receive government welfare scheme benefits. This Court had further clarified that such a compulsion couldn’t be made since that was in contravention of the citizens’ fundamental rights. Pension payment cannot be denied for want of Aadhaar card.

Union of India v. Chief Information Commissioner, 2017

The petitioner in the case has challenged the order of CIC, whereby the CIC declared, “the Ministers in the Union Government and all State Governments as ‘public authorities’ under section 2(h) of RTI Act, 2005.

The Delhi High Court set aside the order of CIC and was the opinion that the directions issued by the CIC in the case was beyond the scope of CIC. Moreover the question need not arise at all in the first instance itself.

The Registrar, Supreme Court v. R S Mishra, 2017

Fact of the case

In April 2010, a former schoolteacher, R.S. Misra, filed an RTI request with the Supreme Court Registry. He had earlier sent two letters to different Justices, essentially demanding redress in a case before the apex court that he had already lost. In an evident attempt at using RTI to fight a judicial battle already lost, he sought “action taken” reports on his letters. The Registry could have lawfully disposed of this RTI request by simply stating that no such information was available. Instead, the Registry rejected the application, and asked Mr. Mishra to apply under the Supreme Court Rules. Mr. Mishra challenged this response before the then Central Information Commissioner Shailesh Gandhi.

At issue was the right of citizens to get information from the Supreme Court , and by implication, India’s higher judiciary, which has strongly resisted the RTI. The apex court summarily rejects RTI requests, and insists that applicants exclusively request information under its administrative rules (Supreme Court Rules) framed in 1966, and re-issued with minor changes in 2014. To see why the High Court’s judgment strengthens a culture of opacity in the higher judiciary, we need to delve into the Supreme Court’s engagement, or rather persistent non-engagement with the RTI.

Reserve Bank of India v. Jayantilal Mistry (Supreme Court, 2015)

In this case, the interesting issue that was raised was whether all the information sought for under the Right to Information Act, 2005 can be denied by the Reserve Bank of India and other Banks to the public at large on the ground of economic interest, commercial confidence, fiduciary relationship with other Bank on the one hand and the public interest on the other?

The RBI in the case took the stand that the information sought for was exempted under Section 8(1) (a), (d) and (e) of the Right to Information Act, 2005. Moreover, as the regulator and supervisor of the banking system, the RBI has discretion in the disclosure of such information in public interest. While allowing the appeal the Supreme Court in the case held that in the case the RBI does not place itself in a fiduciary relationship with the Financial institutions because, the reports of the inspections, statements of the bank, information related to the business obtained by the RBI are not under the pretext of confidence or trust. In this case neither the RBI nor the Banks act in the interest of each other.

Adesh Kumar v. Union of India (Delhi High Court), 2014

In the case, the Petitioner was aggrieved by denial of information under the RTI Act by the concerned Public Information Officer in the case. FIR had been lodged against the Petitioner during his tenure of service and subsequently, a charge sheet, against the petitioner was submitted. On receipt of charge sheet, the Petitioner applied for information under the RTI Act pertaining to sanction of prosecution against him.

However, the requested information was rejected by the CPIO claiming that there was no obligation to provide the same by virtue of Section 8(1)(h) of the RTI Act.

The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would ‘impede’ the investigation. Merely, citing that the information is exempted under Section 8(1)(h) of the Act would not absolve the public authority from discharging its onus as required to claim such exemption. whether the information sought by the petitioner is relevant or necessary, is not relevant or germane in the context of the Act; a citizen has a right to information by virtue of Section 3 of the Act and the same is not conditional on the information being relevant.

CBSE Vs. Aditya Bandopadhyay (2011) 8 SCC 497.

Fact of case Whether an examinee’s (Students) right to information under the RTI Act includes a right to inspect his evaluated answer books in a public examination and taking certified copies of the same. The examining body,-CBSE,- had claimed that it held the information in a fiduciary relationship and hence this was exempt under Section 8 (1) (e) of the RTI Act.

Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of section 8(1) of RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations. It cannot, therefore, be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer-books are evaluated by the examining body. The Court ruled that corrected answer sheets were information which should be provided to students who seek them under RTI.

Girish Ramchandra Deshpande v. Chief Information Commissioner and ors., 2013 Facts of the case Whether the information pertaining to a Public Servant in respect of his service career and also the details of his assets and liabilities, movable and immovable properties, can be denied on the ground that the information sought for was qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. Judgment The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.” The Apex Court held that copies of all memos, show cause notices and orders of censure/punishment, assets, income tax returns, details of gifts received etc. by a public servant are personal information as defined in clause (j) of Section 8(1) of the RTI Act and hence exempted and cannot be furnished under RTI Act.

R.K. Jain Vs. Union of India JT 2013

Facts of the case The information requested was an inspection of adverse confidential remarks against ‘integrity’ of a member of Tribunal and follow up actions taken on issue of integrity. Exemption was claimed on the basis of Section 8 (1) (j).

Inter alia relying upon the ruling made in Girish Ramchandra Deshpande case, the information is exempted from disclosure under Section 8 (1) (j). read with section 11 of the RTI Act. Under Section 11(1), if the information relates to or has been supplied by a third party and has been treated as confidential by the third party, and if the Central Public Information Officer or a State Public Information Officer intends to disclose any such information or record on a request made under the Act, in such case after written notice to the third party of the request, the Officer may disclose the information, if the third party agrees to such request or if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.

Canara Bank Versus CS Shyam and ors. Civil appeal no. 22 of 2009

Information regarding transfer and posting of the entire clerical staff from 01.01.2002 to 31.07.2006 in all the branches of Canara Bank. This information was in relation to the personal details of individual employees such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc.

The Supreme Court disagreed with the order of the Central Information Commission, and the Kerala High Court. It did not give any reasons but effectively ruled that in the light of the Girish Deshpande judgement it ruled against information being given. It has truncated Section 8 (1) (j) and ruled that all personal information of public servants including details of transfers is covered by Section 8 (1) (j). This is a truncated reading of the Section 8 (1) (j) and cannot be justified.

Harinder Dhingra v. Bar Association, (CIC 2016) Facts of the case In the instant case, the appellant sought information pertaining to the numbers of complaints against advocates, cases disposed, and violation of the Advocates Act. Judgment The commission held that the Bar Council is a statutory body that was constituted as per the Advocates Act. The purpose of which is to protect the ethical standards of advocates and punish members for misconduct. It was held that Bar Councils are liable to provide information as per the Right to Information Act, 2005.

Shri Y N Prasad v. PIO, Ahlmad Evening Court, 2017 Facts of the case In the case, the appellant had sought information relating to judicial proceedings to which he was not a party. Judgment The Commission held that judicial proceedings and records are public records as per the Right to Information Act, 2005. Here, the appellant in this situation had every right to obtain the information he sought for. Moreover, the Public information officer was directed by the Chief Information Commission to offer proper inspection of the judicial record at a suitable time and day for both the concerned parties.

Jiju Lukose v. State of Kerala (Kerala High Court, 2014) Facts of the case In the case, a public interest litigation (PIL) seeking a direction to upload the copy of the FIR in the website of the police station and to make available copies of the FIR to the accused immediately on registration of the FIR was sought for. The Petitioner had alleged that inspite of the FIR being registered, the petitioner received its copy only after 2 months. Till the petitioner could obtain a copy of the FIR, the petitioner and his family members were in dark about the nature of the allegations levelled against the petitioner. Petitioner’s further contended in the case that in view of the Right to Information Act, 2005 all public officers were under obligation to put all information recorded in the public domain. The FIR which is lodged is to be put on the website of the police station, so that anyone can assess the FIR including a person staying outside the country. Judgment The CIC in the case held that FIR is a public document, however, where an FIR is covered by the provisions under Section 8(1) of the RTI Act, it need not be disclosed to the citizens till investigation is completed. But it can be claimed by the Informant and the accused as per legal provisions under the Code of Criminal Procedure, 1973 as a matter of legal right. The provisions in the Code of Criminal Procedure, 1973 are specific to this effect, that is, the supply of copy of FIR to the accused is contemplated only at a stage after proceedings are being initiated on a police report by the competent Magistrate. That application for copy of the FIR can also be submitted by any person under the 2005 Act. It is however, relevant to note that whether in a particular application police authorities are claiming exemption under 8(1) of the RTI Act is a question which has to be determined by the police authorities by taking appropriate decision by the competent authority. In event no such decision is taken to claim exemption under Section 8 of the 2005 Act, the police authorities are obliged to provide for copy of the FIR on an application under the RTI Act.

Vishwas Bhamburkar v. PIO, Housing & Urban Development Corporation Ltd. (CIC, 2018)

Facts of the case In this recent case taken up by the Chief Information Commission, Munirka, New Delhi (CIC), the CIC was confronted with two centric issues under the Right to Information Act, 2005. One pertaining to word limit in RTI application and the other relating to denial of information on lack of producing identity proof by the Applicant.

The CIC in the case held that the impugned application was not hit by any exception under the Right to Information Act. That the CPIO in the case raised suspicion about the citizenship of the applicant without explaining why he was suspecting. There was nothing to justify his suspicion. That the CPIO failed to justify the denial of information, as he could not site any clause of exception under Section 8 (exemption from disclosure of information) or Section 9 (grounds for rejection to access in certain cases).

Shahzad vs Department Of Posts, 2018

The appellant sought information on certified copy of the gazette notification which superseded the Department of Posts (Junior Hindi Translator & Senior Hindi Translator) Recruitment Rules, 1996 notified on 05.12.1996; certified copies of the gradation/seniority lists of the senior translators maintained/issued since 1983 to 2015 by the postal directorate; certified copies of the gradation/seniority lists of the junior translators maintained/issued since 1983 to 2015 by the postal directorate; certified copy of the gazette notification no. 20/2/79-SPB-1 dated 11.01.1983 regarding the Indian Posts and Telegraphs Department (Hindi Translators Grade-1, Grade-2, Grade-3 and Hindi Typists) Recruitment Rules, 1983. Part information was provided by the CPIO and transferred the application to the concerned authority. The appellant approached this Commission since he did not receive any information. The CPIO and other section of the public authority kicked the RTI request on point B2 to each other branches and ultimately denied it.

In the case, the CIC noted that the Respondent Department’s claim that concerned files were are not traceable proves the fact they had it in their possession, which binds them to provide the information by searching the same. The Commission also observed that frequent reference to ‘missing files’ as an excuse to deny the information is a major threat to transparency, accountability and also major reason for violation of Right to Information Act, 2005. Millions of RTI applications might have been rejected by PIOs on this ground during the last 11 years of RTI regime. It was also held that it is the duty of the information officer concerned to provide information, failing which is he or she inefficient and ineffective in his duties and obligations under the RTI, 2005.

The State of U.P. v. Raj Narain and others, 1975 Facts of the case Raj Narain, an Indian national, filed an election petition before the Allahabad High Court, alleging misuse of public finances by a political party for the re-election of the Prime Minister of India. For proving these allegations, he summoned the State Government of Uttar Pradesh to produce a document called Blue Book, which contained security guidelines for the protection of the Prime Minister in times of travel. In response, an official of the Home Security of Uttar Pradesh was instructed to claim a non-disclosure privilege under Section 123 of the Evidence Act. It states that “no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department concerned who shall give or withhold such permission as he thinks fit.” Upon the official’s failure to timely submit an affidavit, Narain argued that the government was obligated to produce the Blue Book because the government did not raise its non-disclosure privilege and that the document did not relate to the affairs of the State.

The Supreme Court of India upheld the High Court’s decision to disclose a government record. Raj Narain requested the government of the State of Uttar Pradesh to disclose the document “Blue Book” which contained security guidelines regarding the Prime Minister of India’s travel. Government officials declined to produce the document, claiming that it was an unpublished official record and against the public interest. The Court reasoned that the document was not an unpublished official record since the government official failed to file an affidavit to claim it as such. In addition, the Court reasoned that it had the authority to determine whether a document is of public interest.

S. P. Gupta v. Union of India, AIR 1982

The foregoing case dealt with a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary. One of the issues raised was regarding the validity of Central Government orders on the non-appointment of two judges. To establish this claim, the petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India.

However, the state claimed privilege against disclosure of these documents under article 74(2) of the Indian Constitution, which provides that the advice tendered by the Council of Ministers to the President cannot be inquired into in any court, and section 123 of the Indian Evidence Act, which provides that evidence derived from unpublished official records on state affairs cannot be given without the permission of the head of the concerned department. Section 162 of the Evidence Act provides that a witness summoned to produce a document before a court must do so, and the court will decide upon any objection to this.

In a case decided by Justice Bhagwati, the Supreme Court of India rejected the government’s claim for protection against disclosure and directed the Union of India to disclose the documents containing the correspondence. An open and effective participatory democracy requires accountability and access to information by the public about the functioning of the government. Exposure to the public gaze in an open government will ensure a clean and healthy administration and is a powerful check against oppression, corruption, and misuse or abuse of authority. The concept of an open government is the direct emanation from the right to know, which is implicit in the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. Therefore, the disclosure of information in regard to government functioning must be the rule and secrecy the exception, justified only where the strictest requirement of public interest demands it. With respect to the contention involving Article 74(2), the Court held that while the advice by the Council of Ministers to the President would be protected against judicial scrutiny, the correspondence in this case between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India was not protected merely because it was referred to in the advice.

Indian Express Newspaper (Bombay) Pvt. Ltd. and others v. Union of India and others, 1985

The petitioners in this case were companies, employees, and shareholders thereof, as well as trusts engaged in the publication of newspapers. They challenged the import duty on newsprint under the Customs Tariff Act 1975 and the auxiliary duty under the Finance Act 1981, as modified by notifications under the Customs Act 1962 with effect from March 1, 1981. Prior to this notification, newsprint had enjoyed exemption from customs duty.

The petitioners contended that the imposition of this duty had an adverse effect on costs and circulation and, therefore, had a crippling effect on freedom of expression under Article 19(1)(a) of the Indian Constitution and the freedom to practice any trade or occupation under Article 19(1)(g). They further asserted that no public interest justified such an interference with these fundamental rights because the foreign exchange position of India was comfortable at the time. Finally, they submitted that the classification of newspapers into small, medium, and large newspapers violated the principle of non-arbitrariness under Article 14 of the Constitution (equality before law). The government argued that the burden of cost borne by the newspapers and the position of foreign exchange reserves were irrelevant considerations. The public interest involved in taxation was to increase the revenue of the government, a burden that is borne by all citizens of the country. It asserted that the exemption granted to newsprint was not justified and, therefore, could be removed by the government.

The Supreme Court of India observed that the government was indeed empowered to levy taxes affecting the publication of newspapers because such publication could be characterized as an industry and must be subject to the same levies as other industries. It also allowed that the classification into small, medium, and large based on economic considerations had a rational nexus with the objective of taxation and could not be considered arbitrary. However, where the power of taxation encroaches upon the freedom of expression under Article 19(1)(a), the restriction on the freedom must be within reasonable limits.

Reasonable limits have been outlined in Article 19(2) of the Indian Constitution, wherein “public interest” is a ground that may be taken to restrict freedom of expression. The Court concluded that two basic principles must be borne in mind: first, newspapers enjoy the benefits of government services like all other industries and must accordingly contribute a reasonable share of government revenue through taxation; and second, the burden of taxation must not be excessive.

Shreya Singhal v. Union of India, 2015

Police arrested two women for posting allegedly offensive and objectionable comments on Facebook about the propriety of shutting down the city of Mumbai after the death of a political leader. The police made the arrests under Section 66A of the Information Technology Act of 2000 (ITA), which punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will. The main issue was whether Section 66A of ITA violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India. As an exception to the right, Article 19(2) permits the government to impose “reasonable restrictions . . . in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.” The Petitioners argued that Section 66A was unconstitutional because its intended protection against annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, or ill-will fall outside the purview of Article 19(2).

The Supreme Court of India invalidated Section 66A of the Information Technology Act of 2000 in its entirety. The Court held that the prohibition against the dissemination of information by means of a computer resource or a communication device intended to cause annoyance, inconvenience or insult did not fall within any reasonable exceptions to the exercise of the right to freedom of expression.

The Court also addressed whether Section 66A is capable of imposing chilling effect on the right to freedom of expression. It held that because the provision fails to define terms, such as inconvenience or annoyance, “a very large amount of protected and innocent speech” could be curtailed.

Based on the forgoing reasons, the Court invalidated Section 66A of ITA in its entirety as it violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India.

Namit Sharma v. Union of India, 2012

Sections 12(5), 12(6), 15(5), and 15(6) of India’s Right to Information (RTI) Act 2005 address the requirements of and restrictions on individuals appointed to Information Commissions. The original petitioner, Namit Sharma, alleged that the eligibility criteria were nonetheless vague and ultra vires the Constitution. The question before the Supreme Court was whether its previous reading into the RTI Act of a judicial experience requirement constituted “an error apparent on the face of the record”.

The Supreme Court of India held that it was ultimately for Parliament to decide whether it was appropriate to read into the Right to Information (RTI) Act a requirement that appointees to the Information Commission possess judicial qualifications and not the Judiciary. The Court reasoned that the Information Commissions do not exercise judicial powers, rather administrative ones and further, that not reading this requirement into the Act did not offend the doctrine of equality firstly because the “reading into” of words not intended by Parliament is “contrary to the principles of statutory interpretation recognized by this Court” and, secondly, the relevant sections of the Act did not “discriminate against any person in the matter of appointment”.

Shri Vijay Kamble v. Custom Department, Mumbai, 2009

The appellant asked for copies of show cause notices and other documents during the proceedings by Directorate of Revenue Intelligence (DRI) and currently under adjudicating by Commissioner of Customs (Exports). CPIO and the appellant authority declined to disclose the information variously citing sections 8(1)d, 8(1)h and 8(1)j of the RTI Act.

It was held that RTI cannot be invoked to access the information related to that proceedings. If intervention for disclosure of the information germane to an outgoing adjudication process is allowed. It will lead to questions being asked about proceeding before judicial courts and even the superior courts. This should go against the scheme of separation of powers under Constitution of India.

Rakesh Kumar Gupta v. Income Tax Appellant Tribunal (ITAT), 2007

The information sought by the appellant raises a very important question about whether under the Right to Information Act it is permissible to access information held by another public authority which acts in a judicial capacity, especially when the information pertains to its orders in that judicial proceedings and actions thereto. There may be other tribunals whose orders and records could similarly sought to be accessed through the Right to Information Act. This matter should, therefore, be considered by the full bench of the Commissioner.

It was held that judicial authority must function with total independence and freedom, should it be found that the action initiated under the RTI Act impinges under the authority of that judicial body, the Commission will not authorize the use of RTI Act for any such disclosure requirement. Section 8(1) (b) of the RTI Act is quite clear, which gives a total discretion to the court or the tribunal to decide as to what should be published.

D.P. Maheshwari v. CBI, 2009

Facts of the case The appellant sought the copy of SP’s, CBI report. In response to the application, SP, CBI responded that SP’s report is an confidential document and hence exempted under section 8(1)(h) of the RTI Act. CBI argued that the investigation report have details of the personal information of many persons and it’s disclosure will amount to invasion of privacy and thus qualify for exemption under section 8(1)(j) of the RTI Act.

The plea of exemption under section 8 (1)(j) of the RTI Act cannot be applied as the appellant is asking for the information about his own case. Even if the report contains personal information about others, the principle of severability under section 10(1) can be applied. The Commission agreed that disclosure of complete report may impede the process of information and amount to invasion of privacy of the persons mentioned in the report. As such section 8(1)(g) is applicable. However, since the appellant is not the accused the information regarding him cannot be held to be such as to be impede the process of investigation and prosecution. Accordingly part of information exonerating the appellant may be provided as per Sub-section 1 of Section 10 of the RTI Act.

Mangla Ram Jat v. PIO, Banaras Hindu University, 2008

In this case the Commission explained it’s role, ambit and scope of exemption and the context of the RTI Act. The Commission is conscious of the fact that it has been established under the Act and being an adjudicating body under the Act, it cannot take upon itself the role of the legislature and import new exemptions and substitute their own views for those of Parliament. The Act leaves no such liberty with the adjudicating authorities to read law beyond what it is stated explicitly.

Right to information as part of the fundamental right of freedom of speech and expression is well established in our constitutional jurisprudence. The Commission is of the view that the Commission, an adjudicating body which is a creation of the Act, has no authority to import new exemptions and in the process curtail the fundamental rights of information of citizens.

Dhananjay Tripathi v. Banaras Hindu University, 2016

The applicant had applied for information relating to the treatment and subsequent death of a student in a university hospital due to alleged negligence of the doctors attending him. The appellant was, however, denied the information by the PIO of the university saying that the information sought could not be provided under section 8 (1)(g) of the RTI Act. No further reasons as to how the information sought could not be provided under the RTI Act was given.

The Commission has held that quoting the provisions of section 8 (1) of the RTI Act to deny the information without giving any justification or grounds as to how these provisions are applicable is simply not acceptable, and clearly amount to malafide denial of legitimate information.

The public authority must provide reasons for rejection the particular application. The Commission further held that not providing the reasons of how the application for information was rejected according to a particular provision of the Act would attract penalties under section 20(1) of the Act.

Shri R.B. Sharma v. DGCEI, New Delhi, 2007

Facts of the case The appellant sought all documents including file noting pertaining to sanction of reward to the applicant. The CPIO denied the information under section 8 (1)(g) of the RTI Act, contending that the disclosure would expose the source of information and also endanger the life and the Physical safety of the officers who handled and processed the matter. The appellant authority upheld the decision of CPIO.

The appellant may be allowed inspection of the relevant file by the respondent with the proviso that the respondent shall be free to apply the severability clause under section 10(1) of the RTI Act withhold from disclosure that part of the information in the file which is unconnected with the appellant.

Shri Rajesh Mannalal Katariya v. Addl. Commissioner of Income Tax, Pune

Facts of the case The appellant sought information regarding confidential reports submitted by lower formations to higher formations, which was denied by the respondent to the appellant. The appellant approach the CIC for seeking the information.

It was held that the decision of the respondents not to disclose the requested information valid under the provisions of the RTI Act. The appellant may should be wish, approach the CBDT for the information, who will no-doubt process the case under the provisions of the RTI Act for a decision about disclose or otherwise.

S.K. Lal v. Ministry of Railways, 2006

The applicant has filed five applications to the railway authorities asking for “all the records” regarding various services and categories of staff in the railways. The public authority, however, did not provide him the information requested.

The CIC observed that though the RTI Act allows citizen to seek any information other than the 10 categories exempted under section 8, it does not mean that the public authorities required to entertain to all sort of frivolous applications.

Shri B S Manian v. Department of posts, 2007

Facts of the case The appellant who was the main offender in the fraud case sought certain information regarding Disciplinary proceedings initiated against him. The CPIO has refused to provide the documents asked for under section 8 (1)(h) & (g) of the RTI Act, 2005. Judgment

A disciplinary action against the appellant is contemplated on the basis of the charge sheet memo issued to him under the CCS (CCA) rules. The denial of information sought under section 8 (1)(h) of the RTI Act is therefore justified.

Sarvesh Kaushal v. F.C.I. and others, 2006

The appellant had applied for documents relating to the departmental enquiry launched against him in a corruption case.

The CIC rejecting the appeal, held that the departmental enquiry, which was in progress against him, was a pending investigation under law, and the same attracted the provisions of section 8 (1)(h) of the RTI Act. Therefore, there is no question of disclosing any information relating to the prosecution, the CIC noted.

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Section 43 of Information Technology Act, 2000

• June 11, 2021
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Table of Contents

Introduction

More often, individuals and businesses face a predicament where they are subjected to certain acts by peers, competitors, ex-employees, and other malicious entities, which do not squarely fall within the ambit of  “cyber-crimes” . The end result is a few visits to the police station without any remedy to avail, or worse, a frivolous FIR resulting in an unnecessary waste of time and funds. In reality, the Information Technology Act (hereinafter referred to as  ‘the Act’ ) is well equipped to deal with such “contraventions” under Chapter 9, Section 43 and 43-A, by awarding compensation to the victim, and in certain cases, penalty upon the offenders. These offences require a complaint to be lodged before the adjudicating officer under the Act, and this article explains exactly how to go about the process.

Offences under the Information Technology Act

The acts that comprise offences under Chapter 9 can be classified under 2 major heads, acts by persons/individuals, and acts by a body corporate. The offences by a person are covered under Section 43 of the Act, and they are elaborated in detail hereunder:

• All such acts must first and foremost be performed without the consent of the owner or person in charge of the computer, computer system, or computer network.
• Accessing or securing access to a computer, computer system, or computer network (hereinafter collectively referred to as  “computer” ). The act makes it illegal to just enter a computer by guessing the password or using third-party tools to break the machine’s security. Under section 2(a) of the Act, ‘access’ is defined to include “entry into/instructing or communicating with the logical, arithmetical or memory function resources of a computer”. As a result, even if there is indirect access to the computer’s hard drive or specific files without using traditional methods, it will be considered a violation under this article.
• “To modify, destroy, record, transmit data or program residing within a computer, computer system or computer network;
• by any means to usurp the normal operation of the computer, computer system, or computer network.”

Explanation: Section 43 of Information Technology Act, 2000

• to modify, destroy, record, transmit data or program residing within a computer, computer system, or computer network.
• by any means to usurp the normal operation of the computer, computer system, or computer network.
• “Computer Database” means a representation of information, knowledge, facts, concepts, or instructions in text, image, audio, a video that is being prepared or have been prepared in a formalized manner or have been produced by a computer, computer system, or computer network and are intended for use in a computer, computer system or computer network.
• “Computer Virus” means any computer instruction, information, data, or program that destroys, damages, degrades, or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a program, data, or instruction is executed or some other event takes place in that computer resource.
• “Damage” means to destroy, alter, delete, add, modify or re-arrange any computer resource by any means.
• “Computer Source Code” means the listing of programs, computer commands, design and layout, and program analysis of computer resources in any form.

Landmark News and Case Laws

• Reliance Jio owned by Mukesh Ambani had registered an FIR with the Navi Mumbai police under section 379 (theft) of the IPC and section 43 (2) (data theft – downloads, copies or extracts any data, computer database or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium) and 66 (computer-related offenses) of the Information Technology Act. In this respect, the Maharashtra police have arrested a computer course dropout from Rajasthan for allegedly leaking a database of Reliance Jio customers on a website – Magicapk.com . He will be produced in a court in Rajasthan for transit remand and will then be brought to Navi Mumbai. Also, Forensic analysis is underway to find out if Jio’s database has been leaked and how the accused managed to get his hands on the data.
• Poona Auto Ancillaries Pvt. Ltd., Pune vs. Punjab National Bank, HO New Delhi & Others : In 2013, in one of the largest compensations awarded in legal adjudication of a cybercrime dispute, Maharashtra’s IT secretary Rajesh Aggarwal had ordered PNB to pay Rs 45 lakh to the Complainant Manmohan Singh Matharu, MD of Pune based firm Poona Auto Ancillaries. A fraudster had transferred Rs 80.10 lakh from Matharu’s Account in PNB, Pune after Matharu responded to a phishing email. The complainant was asked to share the liability since he responded to the phishing mail but the Bank was found negligent due to a lack of proper security checks against fraud accounts opened to defraud the Complainant.

Methods to recover compensation under the Information Technology Act

• Appointment of Adjudicating Officer :Section 46 of the Act empowers the Central Government to appoint any person not below the rank of Director to the Govt. of India or an equivalent officer of a State Government to be an adjudicating officer under the Act, and such an officer has the powers to hold inquiries and award penalties, to adjudicate any contravention under the Act, rules, regulation, direction or order. This provision enables the government to appoint a quasi-judicial authority to adjudicate upon these contraventions.
• Jurisdiction :The pecuniary jurisdiction vested upon the adjudicating officer is to the extent of Rs. 5 crores, i.e., the adjudicating officer can order compensation or penalties to the maximum amount of Rs 5 crores. There seems to be some lacuna around the jurisdiction aspect, due to the bar of a civil court’s jurisdiction under Section 61 of the Act, thereby leaving a victim remediless in case he prays for compensation for damages beyond Rs 5 crore in his complaint.

This lacuna can be easily removed by a harmonious interpretation, and in my view, the bar in jurisdiction extends only “to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act”. As complaints involving a prayer beyond Rs 5 crore are not suits or proceedings that an adjudicating officer or Appellate Tribunal is empowered to adjudicate, the civil court should ordinarily have jurisdiction.

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Sanchit Meena

Law Student | Criminal & Cyber Law enthusiast | Legal Researcher & Wordsmith

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User Research and the Paperwork Reduction Act

Highlighting case studies across the government.

In 2021, the Biden-Harris Administration issued an Executive Order to improve customer experience and make service delivery simple, seamless, and secure for Americans. Since then, government agencies have been hard at work making their services, tools, and content more effective in addressing the needs of the people they serve.

User research is at the heart of transforming customer experience. The best way to ensure services are effective, efficient, easy to use, fair, and safe is to include the people they are intended for when building it.

In this piece, we’ll demonstrate:

The importance of user research and how it helps mitigate risk in agency projects.

How and when to integrate user research into a project.

Examples of agencies successfully incorporating and conducting certain types of user research without needing Paperwork Reduction Act approval.

The basics of a customer-centered approach

Before we dive into the examples, let’s discuss the basics of a customer-centered approach, and why it’s important to ensure an agency is meeting the needs of the people using its products or services.

Creating a new digital tool or making changes to a website or service can affect the experience of millions. If working in isolation, agencies can miss important details that could slow down or prevent people from using your services.

The key to any successful project is to observe how real people interact with a government service or product . Failing to prioritize user research is risky and can lead to poorly designed products and services that are difficult to access.

Conducting user research by the rules

The Paperwork Reduction Act (PRA) ensures that the Federal Government collects information in a way that reduces unnecessary burden on the public. The PRA process generally involves notifying the public about each information collection and giving them a chance to provide feedback. It also includes review of a proposed information collection by the Office of Information and Regulatory Affairs Management (OIRA) within the Office of Management and Budget. However, as discussed in regulation 5 CFR 1320.3(h) , information collection does not include items in categories that are common during user research. Agencies might not need PRA approval for most user research done on projects, depending on how the project is structured.

Specifically, there are activities common in user research that do not require PRA clearance because they do not qualify as an information collection under PRA regulations (5 C.F.R. § 1320.3). Those activities include:

Directly observing someone using a product (i.e., observing someone filling out a form or finding information on a website) or

Asking people non-standardized questions as part of a one-on-one research session (i.e., asking people questions orally, in an unstructured way, about navigating government benefits or signing up for an appointment). “Non-standardized,” in this context, means the questions asked vary from person to person, and are not drawn from a list of identical questions posed in every research session.

Unlike methods that constitute information collection and require PRA clearance (for example, surveys or large focus groups with a set of the same questions or tasks), these types of research conversations (direct observations or one-on-one sessions with non-standardized questions) do not require PRA approval, regardless of the number of users ultimately involved in the research.

Direct observations and one-on-one feedback sessions can be more valuable than focus groups or surveys , since they may provide a deeper understanding of people’s behavior rather than feelings and opinions and showcase what’s working well, what isn’t, and why. You can learn more about talking to people with tips from the Department of Homeland Security.

Incorporating user research into your project

Incorporating user research results in a better product and reduces risks. It helps address usability concerns, reduces the potential for major backlogs on call centers, increases customer satisfaction, and ensures agencies are prioritizing the right changes. Research is a continuous process, and certain project stages benefit from research, including:

Before a project

Look at comparable systems and services to learn lessons.

Gain a better understanding of the pain points people experience with this system or service.

Get to know stakeholders’ business needs or concerns, possibly using methods suggested by 18F, the digital services agency within the General Services Administration.

Do desk research, such as reading threads on social media websites and discussions on online forums. Find out where people are talking about the topic, go there, and read as much as you can.

Test high-level ideas or potential future solutions.

Start of a project

Observe people using the existing system or service.

Work with local groups, advocates, or nonprofits to identify people to talk to.

Review any comments or letters submitted by the public.

See what people who use the system or service are saying publicly online about their experience.

Read research conducted on this topic.

Middle of a project

Place the thing that your agency team is building in front of someone who will use it, and observe them using it.

• Create a few different product versions and solutions to each problem.
• Gather feedback on what people found easiest to use.

In operations

Conduct content testing to understand what people think the message means and make updates until it’s in plain language. (For example, the agency can write improvements to system messages and try to understand what people think the messages mean until the messages are plain, understandable, and straightforward. This approach could be used for emails, text messages, policy guidance, or webpage updates.)

Hold one-on-one listening sessions with people to learn about existing pain points and then prioritize new features based on feedback.

Now let’s take a look at seven government projects that have successfully incorporated user research and improved the customer experience without conducting an information collection requiring PRA clearance.

By exploring these projects, you can start thinking of ways to conduct more research or advocate for more research to enhance the customer experience. This list can generate new ideas and help you find ways to integrate user research more effectively.

Highlighting seven government projects

Case study 1: conducting user research for an informative website launch.

Reporting Unemployment Identity Theft, Department of Labor (DOL)- March 2021

In 2022, thousands of Americans received a fraudulent unemployment insurance tax form (government Form 1099-G) in the mail despite never applying for unemployment insurance (UI). These individuals were victims of unemployment identity theft, and fraudsters used their information to illegally receive unemployment benefits. For most victims, understanding what steps to take next was confusing.

The DOL met with victims of UI theft and developed a website to guide them through reporting the fraud. After the site went live, the DOL collaborated with other government agencies and organizations to incorporate the same tested language for reporting UI fraud on their sites. This created a consistent and reliable standard across all websites, fostering trustworthiness among victims.

User research

Ten unstructured, one-on-one user research sessions with victims helped the DOL learn more about the current process and what victims did when they received the fraudulent unemployment insurance form. Participants walked through their unique scenarios and researchers took detailed notes.

During the second round of research, the main focus was observing individuals as they navigated through the newly drafted website content. Participants were instructed to vocalize their thoughts as they started at the top of the page and explained what they saw. Any aspects of the website that people found confusing were revised and improved following the sessions.

Why did the PRA not cover this research?

In this project, the DOL directly observed the experiences of program applicants and participants and asked non-standardized questions on a particular process, theme, or issue without any specification of the information being sought. See 5 CFR 1320.3(h)(3).

Case study 2: Conducting user research for a new application launch

A New Digital Application for VA Health Care, Department of Veterans Affairs (VA) - July 2016

Many Veterans found the health care application process at the VA frustrating. Most weren’t able to open the fillable PDF online application because it required a certain software that wasn’t common in most browsers. As a result, over 70 percent of visitors had trouble accessing the health care application, according to USDS research.

The team developed a new, user-friendly online application that doesn’t require a certain software to use. For more details, check out the USDS blog post , “Introducing a new digital application for healthcare at VA.”

The team observed Veterans using the existing application to identify pain points and then worked on a new version. Then, they did user research sessions with the new form again to ensure it was easy and removed any previous pain points. Watch a real-life user research session, conducted by a VA employee with a Veteran at this video link .

In this project, the VA directly observed the experiences of program applicants and participants and engaged in unstructured one-on-one interactions. They asked non-standardized questions on a particular process, theme, or issue without any specification of the information being sought. See 5 CFR 1320.3(h)(3).

Case study 3: Conducting user research to inform policy and strategy

Welcome Corps, Department of State - February 2024

The Department of State launched a new program to allow Americans to sponsor refugees. The Welcome Corps program involves forming a sponsor group, completing pre-application steps, and then submitting an application. The process was burdensome to Americans seeking to sponsor a refugee, causing frustration and incomplete applications.

The team did user research to inform which steps in the process could be improved in order to reduce unnecessary burden on sponsors and increase successful application submissions. This research helped ensure any policy changes under consideration would actually support program goals. It also helped inform the agency’s roadmap.

The team met one-on-one with current sponsors to learn about their experience and met one-on-one with potential sponsors to understand what steps of the process were challenging. These research sessions used non-standardized questions. The research findings were presented to program leadership, and policy, tech, and operations teams to inform improvements to the application process.

Why the PRA did not cover this research?

In this project, the team observed the experiences of sponsors and potential sponsors and engaged in unstructured one-on-one interactions. They asked non-standardized questions on a particular process, theme, or issue without any specification of the information being sought. See 5 CFR 1320.3(h)(3).

Case study 4: Conducting user research to streamline digital experiences

My VA Dashboard for Veterans, Department of Veterans Affairs (VA) - November 2020

Many services are available to Veterans on the VA websites but it can be challenging to locate them and take action. Veterans asked for a centralized location that was relevant to their needs.

The team worked with a vendor to create My VA, a personalized dashboard for Veterans to access tools and information.

A vendor conducted user research to identify the information that Veterans expect to find in the My VA Dashboard tool and the best way to navigate it.

The contract required vendors to conduct user research to determine people’s goals, needs, and behaviors. The vendor conducted one-on-one, non-structured conversations with Veterans to inform how the agency should build the dashboard.

The contractor collected information and observed program applicants and participants by asking non-standardized questions on a particular process, theme, or issue without any specification of the information being sought. See 5 CFR 1320.3(h)(3), (h)(6).

Case study 5: Conducting user research to inform outreach strategies via text messages

Child Tax Credit Outreach, Department of Treasury and the White House - June 2021

When the American Rescue Plan Act became law in March 2021, millions of Americans were suddenly eligible for unprecedented tax relief by expanding both earned income and child tax credits. Americans who don’t make enough income to require a tax filing would benefit most from the expansion, but first, they needed to know about the credits and include them when they filed a tax return.

Outreach was key to reaching families in most need. The team learned throughout the year that:

Messages from official government entities work well, specifically, government benefits agencies.

Emails and text messages have worked when encouraging state and local governments to send messages directly to beneficiaries.

The team performed user research throughout the year by working with non-profits on the ground to identify research participants and understand what was working and not working. They partnered with Code for America to test several text messages to ensure clear language. They also joined research sessions to observe SNAP applicants engaging with a third-party app that helps them manage their SNAP benefits electronically.

In this project, the groups directly observed the experiences of program applicants and participants. They asked non-standardized questions on a particular process, theme, or issue without any specification of the information being sought. See 5 CFR 1320.3(h)(3).

Case study 6: Conducting user research with internal users of a system

Updates to the Unaccompanied Children Case Management System, Office of Refugee Resettlement (ORR), Administration for Children and Families, Department of Health and Human Services – August 2022

Case managers were updating both paper and digital forms when assessing a potential sponsor. Many duplications existed across the two forms, and filling out both caused inefficiencies.

The team changed the online form, eliminating the need for the paper form and transferred them to the digital experience, reducing burden for the sponsor and case manager. The updated digital form also included design improvements to enhance the flow of the questions.

ORR contacted case workers nationwide and observed them filling out both versions of the form to identify pain points. Another round of research was conducted later on, once they had an updated digital form. These were one-on-one conversations to confirm that the form was easy to use. Any areas where the case managers had questions or trouble were good indicators that the digital form needed tweaking. Finally, they arrived at a version that was easy to use and improved the previous safety and efficiency concerns.

In this project, the ORR directly observed case workers (not federal employees) using a form via one-on-one interviews to understand any usability concerns. They asked non-standardized questions on a particular process, theme, or issue without any specification of the information being sought. See 5 CFR 1320.3(h)(3).

Case study 7: Conducting user research with students and families

College Scorecard, Department of Education - August 2015

Deciding on a college can be an overwhelming task with limited access to reliable information on student outcomes like student earnings, graduates’ student debt, and borrowers’ repayment rates.

In September 2015, the Department of Education launched the College Scorecard, which made data transparent for the public about colleges by leveraging existing data on costs, graduation, etc. and providing new data points on earnings after attendance, student debt, and borrower repayment rates. As these data sets were published through an open application programming interface (API), researchers, policymakers, and the public could customize their analysis of college performance easily. For more information on this project, check out the Obama White House blog post , “Under the Hood: Building a College Scorecard with Students.”

The team conducted user research at every single step in the project. This user research involved one-on-one conversations with high school students in Washington, D.C.’s Anacostia neighborhood, guidance counselors, 4-H kids, parents, college advisors, and data journalists. They also conducted research and met one-on-one with a diverse set of stakeholders across the higher education community to learn about their concerns, ideas, and hopes for how they could help students and families make a more informed decision.

Based on this research, the team developed a College Scorecard prototype and then turned it into a website. The prototype was put in front of students during one-on-one sessions, to observe if the tool was easy to use. The research revealed that students were unlikely to use a mobile app and were hesitant to use government websites, so the team ensured other sites that were actually frequented by students had access to the same data.

Why did the PRA not cover this research ?

In this project, the Department of Education directly observed the program applicants and participants engaging with the College Scorecard. The Department of Education also asked non-standardized questions on a particular process, theme, or issue without any specification of the information being sought. See 5 CFR 1320.3(h)(3).

Ready to conduct user research?

Throughout this piece, we emphasized the significance of user research and described some ways to incorporate it into agency projects without conducting a PRA information collection. These examples showcase how an agency can successfully conduct user research to improve delivery of services.

Agencies should incorporate user research into their work to make well-informed decisions, minimize risk, and save time and money. These case studies are a reminder that by applying user research best practices, agencies can build trust in government and improve customer experience for all Americans.

If you’d like to work on projects like this, consider joining USDS! We’re hiring mission-driven engineers, product managers, designers, bureaucracy hackers, procurement specialists, and operations experts who want to make an impact on the lives of their fellow Americans.

Meeting veterans where they are with accessible mobile tech

This Veterans Day, we’re honoring our current and former service members by highlighting a collaboration between the Department of Veterans Affairs and the U.S. Digital Service.

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A quick guide to inclusive design

Designing for inclusion isn’t just about coding for accessibility or section 508 compliance, it’s about providing equitable and easy-to-use websites and services for diverse populations. Because good design is design that works for everyone.

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Supreme Court suspends decision nullifying Finance Act, 2023

Judges in issuing the order considered the uncertainty regarding the revenue-raising measures..

The Supreme Court judges in issuing the order considered the uncertainty regarding the revenue-raising measures and difficulty that may arise in the operations of the two levels of government.

The Supreme Court has suspended a decision that declared the Finance Act 2024 as unconstitutional pending the determination of an appeal filed by Treasury CS.

"We are not convinced that the consequences of declaring the entire finance act as unconstitutional would be reversible should the appeal ls before us be successful," said the Judges.

In addition, the Apex court said public interest tilts in favour of granting the order sought by the Treasury to maintain stability in the budget and appropriation process pending the determination of the appeal.

Jimi Wanjigi sets record straight over firearms accusation

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Kolkata rape-murder case: Why doctors in India are in urgent need for a central protection law

The rape and murder of a young trainee doctor in Kolkata has brought focus to the safety of healthcare professionals. As per an Indian Medical Association study, over 75 per cent of doctors have faced some kind of violence in the workplace. But then why is there no central law to protect them? read more

The brutal rape and murder of a young trainee doctor at RG Kar Medical College and Hospital in Kolkata has sparked demands for robust laws ensuring the safety of healthcare workers in India. The resident doctors’ association (RDA) of AIIMS on Sunday (August 18) wrote to Prime Minister Narendra Modi urging him to enact a central law through an ordinance to protect healthcare workers and institutions in the country.

Bringing the PM’s attention to the “worrying rise in violence against doctors, healthcare workers, and medical institutions”, they requested his “support in ensuring the protection of these sacred spaces”.

This is not the first time that such a demand has been made. India has no central law that protects healthcare workers. Here’s why doctors are calling for one.

Violence against doctors  

India does not have a central database on violence against healthcare professionals while on duty.

The brutal rape and murder in Kolkata has triggered widespread anger, with doctors demanding justice for the victim and better workplace conditions.

Amid protests over the Kolkata horror, reports surfaced of a woman resident doctor allegedly being assaulted by a patient and his relatives – all of whom were drunk – in Mumbai’s Sion Hospital in the wee hours of August 18.

Last year, Vandana Das, a junior doctor on duty in Kerala, was stabbed to death by an inebriated patient.

West Bengal witnessed a mass resignation of doctors in 2019 after a mob attacked a junior doctor.

As per a study by the Indian Medical Association (IMA), a national-level association of allopathic doctors, more than 75 per cent of doctors have faced some kind of violence in the workplace. The patient’s relatives were involved in most such incidents, reported the German broadcaster Deutsche Welle (DW).

Why is there no central law?

In India, health and law and order are state subjects under the Constitution. Hence, the state government or Union Territory administration is responsible for preventing violence.

Several states have their own laws to provide safety to healthcare workers. However, as Hamad Bin Khalid, a senior Resident Doctor, the Department of Hospital Administration, AIIMS, New Delhi, wrote for Indian Express “the approach of individual states addressing this issue has led to a patchwork of laws that are often inconsistent and filled with loopholes.”

The Centre proposed the Health Services Personnel and Clinical Establishments (Prohibition of Violence and Damage to Property) Bill in 2019, seeking recommendations and objections. However, the Home Ministry shelved the bill, expressing concerns that similar protections might be demanded by other professional communities.

In 2022, the ‘Prevention of Violence Against Healthcare Professionals and Clinical Establishments Bill, 2022’ was introduced in the Lok Sabha. Also known as the Central Protection Act for Doctors, the proposed legislation aimed to define violent acts against healthcare professionals and lay down punishment for such acts, as per a Hindustan Times (HT) report.

But the bill was not pursued as the then health minister Mansukh Mandaviya said most of its objectives were covered in the Epidemic Diseases (Amendment) Ordinance 2020.

ALSO READ: Kolkata rape-murder case: The many questions parents of the victim are now asking Mamata Banerjee

Why is a law needed?

Violence against healthcare workers in the workplace has existed in India for long. As DW mentioned, medical staff in government hospitals, especially junior doctors, interns, and final-year medical students, are most at risk of workplace violence.

In their letter to PM Modi, AIIMS RDA said that doctors are particularly vulnerable as they work in environments filled with life-and-death challenges.

Experts point to several factors that contribute to violence against healthcare professionals, including the “poorly funded” public health system in India. A lack of proper management owing to limited resources and staff, expensive healthcare costs, and increased stay at private hospitals, could lead to violent situations, reported DW.

“The violence is due to multiple factors. The most important is an overall loss of trust in the healthcare delivery system. Over-privatisation with major elements of secondary and tertiary care being provided by for-profit healthcare providers has led to escalating costs and significant out-of-pocket expenditures on healthcare,” Sumit Ray, a medical superintendent and critical care specialist at Holy Family hospital, told the German broadcaster last year.

According to Ray, many poor families are often forced to sell assets and borrow money for medical treatment. “This has led to significant indebtedness and when the outcome of the treatment is not what the family expects, it leads to violence. This is compounded by the fact that people don’t see a recourse through judicial intervention,” he said.

Amid the Kolkata case, Dr Praveen Gupta, principal director and chief of neurology, Fortis Hospital, told The Hindu , “We have repeatedly requested a safe work environment. This incident is a wake-up call. Doctors, particularly junior doctors working night shifts, and nurses — whether female or male — are increasingly under threat, not just physically but mentally as well. There is growing concern about their safety, lives, and mental health.”

The IMA, in its list of demands to the Union government, has called for declaring healthcare centres as safe zones with mandatory security measures such as installing CCTVs and deploying security personnel. “The victim was on a 36-hour duty shift, and had no safe space to rest. The working and living conditions of resident doctors need a complete overhaul,” the association said.

After the Kolkata incident, the Centre has taken steps to enhance the security of healthcare workers in the workplace.

On August 16, the Union health ministry issued an order that “in the event of any violence against any healthcare worker while on duty, the head of the institution shall be responsible for filing an institutional FIR within a maximum of six hours of the incident.”

With inputs from agencies

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