“Cyber-Law” is a term used to include the gamut of legal issues related to dedicated use of Information Technology (in its various forms) and particularly relating to the jurisdictional boundaries of “cyberspace” (the Internet). The cardinal point is that Cyber-Laws in India are not included in a separate, materially distinguishable legal framework, but rather a combination of Contractual, Intellectual Property, Data protection, and Privacy laws.
Cyber Laws imply the pre-eminent inclusions of Cyber-Crimes, Cyber-Security, E-Commerce, Online Monetary Transactions and other nexuses. The Indian IT Act,2000 can be traced back to have its roots embedded in the UNICITRAL Model Law on E-Commerce adopted by the UN in the year 1996. Coming to the prominent node, the aforementioned statutory provisions are well-supported with a number of Court Judgements (both the Supreme Court of India and the respective-states’ High Courts).
Some of the landmark cases in Indian Judicial perspective (and their subsequent judgements) are described as follows:
A) IPRs and Domain Name Disputes
1) Satyam Infoway Ltd vs Siffynet Solutions Pvt. Ltd (dated 6 May, 2004)
The 2-judge bench of the SC deliberated upon the issue whether internet domain names are subject to the legal norms applicable to other intellectual properties such as trademarks or not.
Citing one of the references made for the judgement-remarks from the literature “Intellectual and the Internet-RODNEY D RYDER”(Page 96 to 97), the SC observed that the Domain names were defined under the ICANN Rule 4(a) and thus in India they had to be considered to be necessitating under the purview of Trademarks Act,1999.
The court said that the definition of ‘domain names’ must necessarily fall under the umbrella term of service marks (service trademarks) which are defined under Section 2(z) of the Indian Trademarks Act,1999 which define them as “service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising”.
The court further pondered upon the confusion that may result in the market due to the use of identical or similar domain names.
In such a situation, instead of being directed to the website of the legitimate owner of the name, a user could be diverted to the website of an unauthorized user of a similar or identical name. Upon arrival at the unauthorized site, customers might not find the goods or services customarily associated with the mark, and might be led to believe that the legitimate owner was misrepresenting its wares. This could result in the domain name’s owner suffering a loss of market share and goodwill.
B) Electronic Evidences and their admissibility
1) R. M. Malkani vs State of Maharashtra dated 22 September, 1972
The 2-judge bench considered the relevance of the Evidence in the form of tape recorder telephonic conversation, intercepted partly by the police.
Not following the notion of its precedent judgement as observed in the case of S.Pratap Singh vs State of Punjab, the SC however, said that, “… having another person listening in on a conversation was a ‘mechanical process’ and that there was no element of compulsion or coercion involved which would have otherwise violated the Section 25 of the Telegraph Act,1885.
The act of interception of such a conversation is permitted proviso to the Rule 149 of the Telegraph Rules which states that it shall be lawful for the Telegraph Authority to monitor or intercept a message or messages transmitted through tele- phone, for the purpose of verification of any violation of these rules or for the maintenance of the equipment.
As regards the admissibility issue, on the one hand the Court appreciates the method, terming it a mechanical eavesdropping device”.
2) Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors dated 25 April, 1975
The court pronounced that the tape records of speeches were “documents”, as defined by Section 3 of the Evidence Act,1872 which stood as no different footing than photographs, and that they were admissible as a form of electronic-evidence.
The court further ruled that the Tape-records could be considered as the primary evidence of what was recorded and the subsequent-transcripts of the same could be operated as a check against any alleged tampering.
This mechanism can be considered as corroborative evidence which could be used by a witness to refresh his memory as laid down in Section 159 of the Evidence Act,1872.
3) Shamsher Singh Verma vs State of Haryana dated 24 November, 2015
The court citing references to the preceding cases of R. M. Malkani vs State of Maharashtra and Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors said that the Section 294(1) of the Code of Criminal Procedure (which states that “ Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.”)
The 2-judge bench of the Hon’ble SC ruled that “Compact Disc (CD) is also a document. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 of CrPC personally from the accused or complainant or the witness It would be considered as erring so as to reject the application to play the compact disc in question to enable the public prosecutor to admit or deny, and to get it sent to the Forensic Science.”
4) Jagjit Singh vs State of Haryana & Ors dated 11 December, 2006
The 3-judges bench (including the then Chief Justice of India (CJI) as one of the respected judges in the bench), held in their judgment that the media-interviews given by the (now disqualified) MLAs to some of the reputed News Channels, containing the statements and remarks made therein (relevant to the case) can be held as an evidence under the Indian Evidence Act,1872.
The News Channels had provided the original CDs containing the above remarks and statements with their authentication certificate along with the English-language translations of the same.
The SC in the epilogue section upheld the High Court’s remarks that, “…. the electronic evidence which as per the petitioner is supplementary to the evidence of Print Media already on the record deserves to be taken on the record as it is admissible as per law.”
5) Anvar P.V vs P.K. Basheer & Ors dated 18 September, 2014
The court noted that “… the Evidence Act,1872 does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India”.
Citing the references to the judgements made by the SC in case of State (N.C.T. Of Delhi) vs Navjot Sandhu @ Afsan Guru , the court further added that “The evidence relating to electronic record, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act,1872 shall yield to the same.
Generalia specialibus non derogant, special law will always prevail over the general law”. However, the SC overruled the notion of its judgement made in the Navjot Sandhu case and pronounced that “An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied.
Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible”.
6) Shafhi Mohammad vs The State of Himachal Pradesh dated 3 April, 2018
The court remarked that “We are in agreement with the Report of the Committee of Experts that videography of crime scene during investigation is of immense value in improving administration of criminal justice”.
The Hon’ble court also made a reference to the case of Karnail Singh vs State of Haryana (2009) 8 SCC 539 where it was noted that that technology is an important part in the system of police administration.
The court pronounced that “we are of the considered view that notwithstanding the fact that as of now investigating agencies in India are not fully equipped and prepared for the use of videography, the time is ripe that steps are taken to introduce videography in investigation, particularly for crime scene as desirable and acceptable best practice as suggested by the Committee of the MHA to strengthen the Rule of Law.”
C) Intermediary Liability, Obscenity and related issues
1) Shreya Singhal vs U.O.I dated 24 March, 2015
The 2-judge bench of the Hon’ble SC of India deliberated the case on the merits of the issue involving Intermediary Liability and the relevance of Section 66A of the Indian IT Act,2000 which relates to the matter of Obscenity and the remedies thereunder.
In its judgment, the court provided for a number of analogies derived from precedent Indian and American cases of relevance from the point of view of the current case. A few notable amongst them were the cases of Shri Chintaman Rao & Another vs The State of Madhya Pradesh (para 23) and State of Madras vs V.J.Row (para 24) in the Indian perspective and the cases of Chaplinsky v. New Hampshire (para 16) and Cantwell v. Connecticut (para 16).
Further the court stated in para 82 of the judgment citing references to the procedural test applied in Shri Chintaman Rao and V.G. Row’s case, “it is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”
In para 90, the court finally held that “ We, therefore, hold that the Section (Section 66A) is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth”.
The Hon’ble court further concluded in para 96 that “We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional.”
2) Sakshi vs Union of India dated 26 May, 2004
The 2-judge bench of the Hon’ble SC deliberated upon the issue of whether the means and considerate use of Information Technology as a whole (considering the gamut of technologies it covers), can be used for providing statements and remarks of the sufferer (especially teenagers and hesitant sufferers) in the form of recorded media (and further authenticated for non-tampering).
The Hon’ble Indian SC made an analogous note with the case of The Queen, Appellant v. D.O.L., Respondent and the Attorney General of Canada. Etc. adjudicated in the Canadian SC in which the constitutional validity of Section 715.5 of the Code of Criminal Procedure (of Canada) was examined (para 29).
The said section provides that “… in any proceeding relating to certain sexual offences in which the complainant was under age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence in which the complainant describes the act complained of, is admissible in evidence, if the complainant while testifying adopts the contents of the videotape”. The said section was held constitutionally valid upon adjudication.
The court (in para 31) further made references to the case of State of Maharashtra vs Dr. Praful B Desai in which Recording of evidence by way of video conferencing vis-à-vis Section 273 of the Code of Criminal Procedure, had been held to be permissible.
The Hon’ble SC finally concluded (in para 34) that “In holding trial of child sex abuse or rape: a) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused; b) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the President Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing; c) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required “.
Information Technology and its allied (and implicit) fields have surely revolutionized the modern age – from the most intrinsic parts of the Society to the Global scenario, at large; it is arguably the most far-reaching technologies of all times. The caveat, however, lies in the fact that to what extent can this venture of Mankind sustain the resisting and slow-to-adopt societal influences. IT can bear the brunt of being disastrous, as well, if not handled properly (and without due diligence). Regulating and Managing this new field by virtue of explicit statutory provision can purportedly be inefficient – given the vastness and scope of the technology, in itself and thus there is a dire need to effectuate the same with respect to the delicate use of the Judiciary for such matters. In the present Indian context, there is a need of effectively updating and refining, with the passage of time – the strength and outreach of such related statutory and constitutional provisions supporting the Judiciary. The new Personal Data Protection Bill 2019 needs to be refined and refreshed at times to accommodate for the increasing challenges being faced with the advent of the recent technological developments. The National Cyber Security Policy,2020 (yet to be introduced) needs to be adopted as soon as possible, by the Society at large. The new framework must also include the primary and basic regulation of emerging technologies like Artificial Intelligence, Blockchain Technology, Smart Contracts and others. However, it must be emphasized that there has to be balance between the extent of such regulation and its development so as to not “miss the bus” with respect to jubilant development of the Nation and its people.
Further Reading
1.https://indiankanoon.org/ – For detailed case judgements.
2.http://www.prashantmali.com/cyber-law-cases – For recent cases involving cyber laws in India
3.Lexology Review Article – “Cyber Security in India” by Aprajita Rana and Rohan Bagai