Project Report

On
SHORTCOMINGS UNDER THE INFORMATION
TECHNOLOGY ACT 2000

Submitted to:
Mr. Atul Jaybhaye
(Faculty member of Law)
Submitted by:
Nishtha Shrivastava
BA.LLB. (Hons.)
Optional
Semester VII, Section C, Roll No. 108
Submitted on:
25th October 2018

Hidayatullah National Law University, Raipur

Post Uparwara, Abhanpur, Atal Nagar – 492001 (C.G.)
 DECLARATION

I, Nishtha Shrivastava have undergone research of the project work titled “ Shortcomings Under
the Information Technology Act 2000” and hereby declare that this Research Project has been
prepared for academic purpose only. It is original to my knowledge and has not been copied from
anywhere. It is the outcome of the research done by me under the supervision and guidance of Mr.
Atul Jaybhaye, faculty member in Law at Hidayatullah National Law University, Raipur.

I also declare that this Research Paper or any part thereof has not been or is not being submitted
elsewhere. This project report is my intellectual property and the same or any part thereof may not
be used in any manner whatsoever.

Nishtha Shrivastava
Roll. No. 108
Section C

i
 CERTIFICATE

This is to certify that Miss Nishtha Shrivastava, Roll Number: 108, student of B.A.LL.B.(Hons.),
Semester: VII, Hidayatullah National Law University, Atal Nagar (Chhattisgarh) in the project
work titled “Shortcomings Under the Information Technology Act 2000”, has undergone
original research which has not been copied from anywhere.Her performance in research work is
up to the level and highly commendable.

Place: Atal Nagar Mr. Atul Jaybhaye

Date: 25.10.2018 (Faculty member in Law)
Hidayatullah National Law University

ii
 ACKNOWLEDGEMENT

I feel highly elated to work on the project “Shortcomings Under the Information Technology
Act 2000”. The practical realization of the project has obligated the assistance of many persons.
Firstly I express my deepest gratitude towards Mr. Atul Jaybhaye, Faculty for The Cyber law
(Optional), to provide me with the opportunity to work on this project. His guidance and
supervision in terms of his lectures were of extreme help in understanding and carrying out the
nuances of this project.

I would also like to thank the University and the Vice Chancellor for providing extensive database
resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project.

Nishtha Shrivastava

Roll No.108

Section C

iii
LIST OF STATUTE
 THE INFORMATION TECHNOLOGY ACT, 2000

TABLE OF CONTENTS

Serial Content Page Number

Number
1. Declaration i.
2. Certificate ii.
3. Acknowledgement iii.
4. List of Statute iv.
5. Table of Contents iv.
6. Chapter 1: Introduction 1
7. Research Methodology 3
8. Chapter 2: Overview of The 4
Information Technology Act, 2000
9. Chapter 3: Shortcomings Under The 8
Information Technology Act, 2000
10. Conclusion & Suggestion 17
11. Bibliography & Webliography 18

iv
 CHAPTER I

INTRODUCTION
In the knowledge society of 21st century, computer, internet and ICT or e-revolution has changed
the life style of the people. Today paper based communication has been substituted by e-
communication, paper based commerce by e-commerce and paper based governance by e-
governance. Accordingly we have new terminologies like cyber world, netizens, e-transaction, e-
banking, e-return and e-contracts. Apart from positive side of e-revolution there is seamy side also
as computer; internet and ICT in the hands of criminals has become weapon of offence.
Accordingly a new branch of jurisprudence emerged to tackle the problems of cybercrimes in
cyber space i.e. Cyber Law or Cyber Space Law or Information Technology Law or Internet Law.1
For the first time, a Model Law on E-commerce was adopted in 1996 by United Nations
Commission on International Trade and Law (UNCITRAL). It was further adopted by the General
Assembly of the United Nations by passing a resolution on 31st January, 1997. Further, India was
also a signatory to this Model Law and had to revise its national laws as per the said model law.
Therefore, India enacted the Information Technology Act, 2000 and it was recently amended by
the Information Technology (Amendment) Act, 2008. Until 2000, the regulation of the IT industry
depended on creative interpretation of the archaic Indian Telephone and Telegraph Act and
criminal violations, if any, had to be prosecuted on the basis of the even more venerable Indian
Penal Code and the Indian Evidence Act. Understandably, there was a legal vacuum, which proved
a hindrance to e-commerce.

The information Technology Act is an outcome of the resolution dated 30th January 1997 of the
General Assembly of the United Nations, which adopted the Model Law on Electronic Commerce,
adopted the Model Law on Electronic Commerce on International Trade Law. This resolution
recommended, inter alia, that all states give favourable consideration to the said Model Law while
revising enacting new law, so that uniformity may be observed in the laws, of the various cyber-
nations, applicable to alternatives to paper based methods of communication and storage of
information.2

1
Justice A.S. Anand, “Cyber Law Needed to Meet IT Challenge”, The Tribune, January 21, 2201, p. 7
2
http://www.legalserviceindia.com/articles/itact.htm (as accessed on 22-10-2018)

1
The heart and soul of any enactment is reflected rather engrafted in its ‘Preamble’ or introduction.
The intention of the legislature, the problem at which it aims, the rigour, which it tries to mitigate,
is reflected from the Preamble. It seems that that the preamble even gives a clear overview of the
statute concerned. The I.T Act aims at legalizing “electronic Commerce” and provide for
“electronic governance”. Further this Act has also amended the provisions of the Penal Code;
Evidence Act; Banker’s Book Evidence Act; The basic aim of these amendments is to strengthen
the justice delivery mechanism and give recognition to the virtual ‘e-medium’.

Following are the main reasons for the enactment of the IT Act3, 2000:

i. Increasing use of ICTs in conducting business transactions and entering into contracts,
because it was easier, faster and cheaper to store, transact and communicate electronic
information than the traditional paper documents.
ii. Business people were aware of these advantages but were reluctant to interact electronically
because there was no legal protection under the existing laws.
iii. International trade through electronic means was growing tremendously and many countries
had switched over from traditional paper based commerce to e-commerce.
iv. The United Nations Commission on International Trade Law (UNCITRAL) had adopted a
Model Law on Electronic Commerce in 1996, so as to bring uniformity in laws governing e-
commerce across the globe. iii. India, being a signatory to UNCITRAL, had to revise its
national laws as per the said model law. Therefore, India also enacted the IT Act, 2000.
v. Because the World Trade Organization (WTO) was also likely to conduct its transactions
only in electronic medium in future.

3
Critical Appraisal of Information Technology Act - Academike – Lawctopus https://www.lawctopus.com ›
academike (as accessed on 22-10-2018)

2
 RESEARCH METHODOLOGY
PROBLEM

The project research deals with the Shortcomings Under the Information Technology Act of 2000,
and talks about steps that can be taken to fill in the gaps.

RATIONALE OF THE STUDY

The rationale behind this research is to study the Shortcomings Under the Information Technology
Act of 2000.

OBJECTIVES

 To study about Shortcomings Under the Information Technology Act of 2000.

 To understand the merits and demerits of the Information Technology Act of 2000.
 To understand as to what all measures can be taken further to fill in the statutory gaps.

NATURE OF STUDY

The nature of the study in this project is doctrinal and is primarily descriptive.

SOURCES OF DATA

This project is largely based on secondary & electronic sources of data. Books, case laws, journals
& other reference as guided by faculty of The Cyber Law are primarily helpful for the completion
of this project.

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 CHAPTER II

OVERVIEW OF THE INFORMATION TECHNOLOGY ACT, 2000

In May 2000, both the houses of the Indian Parliament passed the Information Technology Bill.
The Bill received the assent of the President in August 2000 and came to be known as the
Information Technology Act, 2000. Cyber laws are contained in the IT Act, 20004.

This Act aims to provide the legal infrastructure for e-commerce in India. And the cyber laws have
a major impact for e-businesses and the new economy in India. So, it is important to understand
what are the various perspectives of the IT Act, 2000 and what it offers.

Following were the main aims and objectives of the IT Act5, 2000:

1. To suitably amend existing laws in India to facilitate e-commerce.

2. To provide legal recognition of electronic records and digital signatures.

3. To provide legal recognition to the transactions carried out by means of Electronic Data
Interchange (EDI) and other means of electronic communication.

4. To provide legal recognition to business contacts and creation of rights and obligations through
electronic media.

5. To establish a regulatory body to supervise the certifying authorities issuing digital signature
certificates.

6. To create civil and criminal liabilities for contravention of the provisions of the Act and to
prevent misuse of the e-business transactions.

4
the information technology act, 2000 - ... PDFhttps://indiacode.nic.in › bitstream (as accessed on 20-10-2018)
5
Pawan Duggal, Cyber Law – An Overview”, available at http://www.cyberlawindia.com (as accessed on 20-10-
2018)

4
7. To facilitate e-governance and to encourage the use and acceptance of electronic records and
digital signatures in government offices and agencies. This would also make the citizen-
government interaction more hassle free.

8. To make consequential amendments in the Indian Penal Code, 1860 and the Indian Evidence
Act, 1872 to provide for necessary changes in the various provisions which deal with offences
relating to documents and paper based transactions.

9. To amend the Reserve Bank of India Act, 1934 so as to facilitate electronic fund transfers
between the financial institutions.

10. To amend the Banker’s Books Evidence Act, 1891 so as to give legal sanctity for books of
accounts maintained in the electronic form by the banks.

11. To make law in tune with Model Law on Electronic Commerce adopted by the United Nations
Commission on International Trade Law (UNCITRAL) adopted by the General Assembly of the
United Nations.

The Information Technology Act, 2000 also aims to provide for the legal framework so that legal
sanctity is accorded to all electronic records and other activities carried out by electronic means.
The Act states that unless otherwise agreed, an acceptance of contract may be expressed by
electronic means of communication and the same shall have legal validity and enforceability.
Some highlights of the Act are listed below6:

Chapter-II of the Act specifically stipulates that any subscriber may authenticate an electronic
record by affixing his digital signature. It further states that any person can verify an electronic
record by use of a public key of the subscriber.

Chapter-III of the Act details about Electronic Governance and provides inter alia amongst others
that where any law provides that information or any other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied if such information or matter is -

6
http://www.cyberlawsindia.net/Information-technology-act-of-india.html visited on 20th October 2018

5
rendered or made available in an electronic form; and accessible so as to be usable for a subsequent
reference.

The said chapter also details the legal recognition of Digital Signatures.

Chapter-IV of the said Act gives a scheme for Regulation of Certifying Authorities. The Act
envisages a Controller of Certifying Authorities who shall perform the function of exercising
supervision over the activities of the Certifying Authorities as also laying down standards and
conditions governing the Certifying Authorities as also specifying the various forms and content
of Digital Signature Certificates. The Act recognizes the need for recognizing foreign Certifying
Authorities and it further details the various provisions for the issue of license to issue Digital
Signature Certificates.

Chapter-VII of the Act details about the scheme of things relating to Digital Signature
Certificates. The duties of subscribers are also enshrined in the said Act.

Chapter-IX of the said Act talks about penalties and adjudication for various offences. The
penalties for damage to computer, computer systems etc. has been fixed as damages by way of
compensation not exceeding Rs. 1,00,00,000 to affected persons. The Act talks of appointment of
any officers not below the rank of a Director to the Government of India or an equivalent officer
of state government as an Adjudicating Officer who shall adjudicate whether any person has made
a contravention of any of the provisions of the said Act or rules framed there under. The said
Adjudicating Officer has been given the powers of a Civil Court.

Chapter-X of the Act talks of the establishment of the Cyber Regulations Appellate Tribunal,
which shall be an appellate body where appeals against the orders passed by the Adjudicating
Officers, shall be preferred.

Chapter-XI of the Act talks about various offences and the said offences shall be investigated
only by a Police Officer not below the rank of the Deputy Superintendent of Police. These offences
include tampering with computer source documents, publishing of information, which is obscene
in electronic form, and hacking.

6
The Act also provides for the constitution of the Cyber Regulations Advisory Committee, which
shall advice the government as regards any rules, or for any other purpose connected with the said
act. The said Act also proposes to amend the Indian Penal Code, 1860, the Indian Evidence Act,
1872, The Bankers' Books Evidence Act, 1891, The Reserve Bank of India Act, 1934 to make
them in tune with the provisions of the IT Act.

7
 CHAPTER III
SHORTCOMINGS UNDER THE INFORMATION TECHNOLOGY ACT, 2000

I feel that the I.T. Act is a piece of legislation of its time. The Act has brought radical change in
the position of the virtual electronic medium. Let’s evaluate the strength and shortcoming of the
information technology under the following categories7:
1. Digital Signatures
2. E-Governance
3. Justice Delivery System
4. Offences & Penalties
5. Amendments in the various Acts.
1. Digital Signature
Under thisdigital signature, certifying authorities and digital certificates.A digital signature as
defined in the Act means “authentication of any electronic record by a subscriber by means of an
electronic method or procedure in accordance with the provisions of section 3.” “Authentication
of any electronic record”, was the call of the day before enactment of this Act. One of the most
dreaded fear in the electronic media was that of impersonation with an intent to cheat / fraud.
Further one of the greatest risk was ‘voidable contracts’. A strong need was felt for some mode of
authenticating electronic documents. This problem was remedied by providing for digital
signatures.
The shortcomings in the Act with regard to digital signatures are of technical & procedural nature.
The lacunas are in Chapter VI, which ‘regulates certifying authorities and further in Chapter VII
which deals with digital signature certificates’.
Chapter VI –
Recognition of foreign certifying Authorities - Sec.19.
Subject to such conditions and restrictions as may be specified by regulations, the controller may,
with the previous approval of the Central Government, and by notification in the official Gazette

7
http://www.cyberlawsindia.net/Information-technology-act-of-india.html (as accessed on 20-10-2018)

8
recognize any foreign certifying authority as a certifying authority for the purpose of this Act.
Where any Certifying Authority is recognized under sub-section (1), the Digital signature
Certificate issued by such Certifying Authority shall be valid for the purposes of this Act.
It seems that regarding license of foreign certifying authorities, certification authorities already in
recognized by the root certifying authorities in any other country should automatically be
considered as “provisionally recognized underIndian cyber law” and their certificates should be
considered valid. They should be subjected to licensing only if they want to issue digital certificates
to individuals or companies in India.
At this point one may well contend that then why even in such a case prior Government approval
and Gazette notification should not be waived. If only a foreign company, which does not
presently have recognition in any other country, wants to set up digital certificate service in
India, only such companies may be subjected to prior approval of Government and Gazette
notification.
The answer to the above contention in plain and simple language will be that there should exist
some sort of regulating body to control the activities of the certifying Authorities. If they are given
autonomy to such greater level there is a strong presumption that the innocent subscribers may
become the victims of the unfair trade practices of these certifying authorities and further many
illegal activities may also spurge up.
Section 19(3) - Regarding licensing of foreign certifying authorities
The power of the controller should be limited to suspension of the license only. Revocation should
be with prior approval from the Central Government and notification in the official Gazette.
License to issue Digital Certificate - Sec.21
1. ***
2. ***
3. A license granted under this section shall (a) be valid for such a period as may be prescribed by
the Central Government; (b) not transferable or heritable; (c) be subject to such terms and
conditions as may be specified by the regulations.
The license should be made transferable. The license should be made transferred subject to the
approval of the Government. If this provision is not available the commercial value of the

9
certification business will suffer. It is also necessary if any of the existing certificate authority
wants to exist or enroll a joint venture partner without affecting the existing customers8.
Suspension of license: Sec. 25
(1) The Controller may, if he is satisfied after making such inquiry, as he may think fit, that a
Certifying Authority has –
(a) made a statement in , or in relation to , the application for the issue or renewal of the license ,
which is incorrect or false in materials particulars;
(b) failed to comply with the terms and conditions subject to which the license was granted;
(c) failed to maintain the standards specified under clause (b) of sub-sections (2) of section 20;
(d) contravened any provisions of this Act , rule , regulations or order made there under ,revoke
the license;
Provided that no license shall be revoked unless the Certifying Authority has been given a
reasonable opportunity of showing cause against the proposed revocation .
(2) The Controller may, if he has reasonable cause to believe that there is any
ground for revoking a license under sub-section (1) by order suspend such license pending the
completion of any enquiry ordered by him: Provided that no license shall be suspended for a period
exceeding ten days unless the Certifying Authority has been given a reasonable opportunity of
showing cause against the proposed suspension.
(4) No Certifying Authority whose license has been suspended shall issue any Digital Signature
Certificate during such suspension.
Regarding suspension / revocation of license of certifying authorities, the controller should have
power only to suspend a license of a certification authority. Revocation should be with prior
approval of Government and notification in official Gazette.
Power to delegate: Sec. 27
The controller may, in writing, authorize the Deputy Controller, Assistant Controller, or any officer
to exercise any of the powers of the Controller under this
Chapter I
This section should have contained a proviso clause whereby it should have provided that the
power to delegate should not include suspension, revocation of certifying authorities.
Display of license - Sec. 32

8
chapter i.pdf – Shodhganga PDFshodhganga.inflibnet.ac.in › bitstream (as accessed on 23-10-2018)

10
Every certifying Authority shall display its license at a conspicuous place of the premises in which
it carries on its business.
This section is a drafting mistake and should be modified or deleted. The office of the Certifying
Authority is not a place where the Neteziens visit physically. The requirement is therefore
ridiculous, many of the foreign certifying authorities may like to operate without a physical office
in India. This provision will block such a possibility.
It is sufficient if the web site of the Certifying Authority through which certificates are issued
contains the display of link to the license's particular. The actual license may be kept on the web
site of the controller.
Chapter VII
Certifying Authority to issue Digital Signature Certificate - Sec. 35
1) * * *
2) * * *
3) Every such application shall be accompanied by a certification practice statement or where there
is no such statement, a statement containing suchparticulars, as may be specified by regulations.
4) * * *
In my opinion this sub-section is a drafting mistake. There is no such thing as ‘Certificate Practice
System’ for applicants of Digital Certificate. (1) Therefore it should be deleted. This section does
not belong to the section covering issues of Digital Certificates, to those who apply to the
Certifying Authorities. It actually belongs to the section relating to Certifying Authorities applying
for license with the controller.
Further in the light of the above-suggested change section 35 (4) should also be amended.
E-Governance: Chapter III of the Information Technology Act deals with the electronic
governance. This chapter in my opinion is the soul of this whole Act.
The distinguishing feature of this chapter may be discussed as below :-
i. Electronic Records - Section 4 of this chapter gives legal recognition to electronic records. This
section provides that instead of written, typewritten or printed form any document may be
presented in electronic form for present and subsequent reference / use.
ii. Digital Signatures - This chapter gives a legal recognition to digital signatures as well. Section
5 provides that where it is required or mandatory by law to affix signature, stamp or any such

11
symbol, instead of this (i.e. signature) the electronic document may be secured or authenticated
by affixing digital signature.
iii. E-Governance - In fact it is section 6 that actually provide for E-governance. Section 6
provides for use of electronic records and digital signature in Government and its agencies. The
filing of any form, application or any document with any office, authority, body or agency owned
or controlled by the appropriate Government in a manner, the issue or grant of any license, permit,
sanction or approval by whatever name called in a particular manner, the receipt or payment of
money in a particular manner then such requirement shall be deemed to have been satisfied if such
filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic
form as may be prescribed by the appropriate government. Thus it is section 6, which actually
legalizes e-governance.
iv. Justice Dispensation - This Act aims at setting up a hiercial set up for justice dispensation.
They are adjudicating officers as mentioned in Chapter IX to deal particularly with offences
committed under this chapter. Further it also provides for setting up of a Cyber Regulation
Appellate Tribunal in Chapter X. Any person aggrieved by the order of the Controller may also
move the CRAT. I will be dealing with the advantage & lacunas of the justice dispensation
mechanism as provided by the Act under the following heads: -
i. Cyber Regulation Appellate Tribunal
ii. Adjudicating Officers &
iii. Right to legal representation
CRAT: Chapter X of the Act deals with the establishment, composition, jurisdiction and powers
of the Cyber Regulation Appellate Tribunal. Section 48 provides for the establishment of Cyber
Appellate Tribunal. One of the outstanding features of the establishment of a Cyber Appellate
Tribunal in my opinion is the fast disposal of disputes.
Further section 49 of the Act deals with the composition of Cyber Regulation appellant Tribunal.
It provides that a Cyber Appellate Tribunal shall consist of one person only, referred to as the
Presiding Officer of the Cyber Appellate Tribunal to be appointed, by notification, by the Central
Government. Regarding the qualification for appointment as Presiding Officer of the Cyber
Appellate Tribunal, section 50 puts forth that either a) he is, or has been, or is qualified to be, a
judge of a high court, or b) is, or has been, a member of the Indian Legal Service and is holding or
has held a post in Grade I of that service for at least three years.

12
What seems to be objectionable over here is the qualification as well as the composition of the
Tribunal. It seems that the position would be somewhat better if the Tribunal consists of one
presiding officer and three-member i.e. a total of four people. One of the members exclusively
from the field of I.T. One out of the remaining two (leaving aside the presiding officer) strictly
from legal / judicial background and the third having experience of both I.T. & legal field. Further
while appointing the presiding officer every endeavor should be made to select a person who has
some background of I.T. as well9.
Adjudicating Officers - Section 46(1) of the Act for the purpose of adjudging provides for
adjudicating officer. This section reads as follows –
Sec. 46. Power to Adjudicate
(1) for the purposes of adjudging under this Chapter whether any person has committed a
contravention of any of the provisions of this Act or of any rule, regulation, direction or order
made there under the Central Government shall, subject to the provision of sub-section (3), appoint
any officer not below the rank of a Director to the Government of India or an equivalent officer of
a State Government to be an adjudicating officer for holding an inquiry in manner prescribed by
the Central Government10.
2) * * *
3) No person shall be appointed as an adjudicating officers unless he possess such experience in
the field of Information Technology and legal or judicial experience as may be prescribed by the
Central Government.
4) * * *
5) * * *
A joint reading of sub-section (1) &( 3) makes it clear that the Act prescribes that no person should
be appointed as an “Adjudicating Officer” unless he possess such experience in Information
Technology and legal or judicial experience as may be prescribed by the Government. It would
not be below the rank of a Director to the Government of India or an equivalent officer of the State
Government.

9
Purview of the Information Technology Act, 2000.pdf PDF14.139.60.114 › jspui › bitstream › Purv... (as accessed
on 23-10-2018)
10
Section 46: Power to Adjudicate - Information Technology Act, 2000 www.itlaw.in › section-46-power-to-adju...
(as accessed on 23-10-2018)

13
At this juncture light is to be thrown upon the pecuniary jurisdiction provided under this Act. In
the present legislations financial penalty imposed by this Act is highest i.e. up to on corer rupees.
This indeed is a praiseworthy attempt to bring at least some relief to the aggrieved.
The adjudicating officer has powers to dispense punishment of up to 10 years of imprisonment and
up to one crore of financial penalty based on his findings. Analysts who are terming the powers
vested with the Police Authorities under this Act as “Draconian” should consider the possibility
of misuse of powers by one of the many adjudicating officers who may be operating under the
system. Notwithstanding the possibility of an appeal, the damage that a dishonest or an inefficient
adjudicating officer may inflict on innocent Neteziens, Network manager, cyber cafe owners, ISPs,
or IT companies could be deliberating. The Act does not specify any checks and balances to
prevent misuse of the powers of the adjudicating officers.
On the other hand, section 84 provides protection from legal action to the adjudicating officer for
acts done in good faith. These provisions are quite loose and vague. Further these provision need
to be reviewed and a proper system for appointment, periodical review, transfer, and removal of
the adjudicating officer need to be provided.
One of the solutions to this problem is to mandate that all enquires will be held in the presence of
an “Expert watch-dog Committee” consisting of at least three members with requisite knowledge
of law and information technology and persons of integrity. This committee can be drawn from a
pool of talented persons created for the purpose with the assistance of the Cyber Regulation
Advisory Committee. The member of this committee should record their comments independently
in a confidential report to the CVC or such other authority which can be referred to in the event of
necessity and when an appeal being heard.
Deemed Public Servants - Sec. 82
According to section 82, all officers of the Cyber Regulation Appellate Tribunal and the Office of
the Controller would be deemed as “Public Servants under section 21 of I.P.C.”. This clause does
not include the Adjudicating officer. Also experts feel that the public servant definition should be
linked to the definition in the “Prevention of Corruption Act” and not “I.P.C.”, Necessary
modifications are required to put a rein on the “Multiple Draconian Powers bestowed on the
Adjudicating officers under the Act”.
iii. Right to legal representation:

14
Section 59 of the Act deals with the “Right to Legal Representation”. This section states –“The
appellant may either appear in person or authorize one or more legal practioners or any of its
officers to present his or its case before the Cyber Appellate Tribunal”.
At the same time, under section 58 (1) the Cyber Regulation Appellate Tribunal is empowered to
define its own procedures for conduct by stating –“The cyber Appellate Tribunal shall not be
bound by the procedure laid down by the code of Civil Procedure, 1908 but shall be guided by the
principles of natural justice and, subject to other provisions of this Act and of any rules, the Cyber
Appellate Tribunal shall have powers to regulate its own procedures to regulate its own procedure
including the place at which it shall have its sitting”11.
In view of these provisions, there was no need for the Act to specify in section 59 who can
represent the appellant. This could have been left to the Tribunal to define, section 59 is restrictive
in the sense that the right to legal representation is limited to a “Legal Practitioner”. Since the
Cyber Law is a complicated stuff and a “Legal Practitioner” may not be competent enough to
handle the requirements of the case without an active assistance of technology expert, the enquiry
process can be highly inefficient.
Further it is not clear what is meant by “or any of its officers”. Probably this refers to the case of
a corporate entity being the appellant where he can depute one of its officers. If this is so, the
company will have the option to depute a competent person even if he is not a legal practitioner.
A similar freedom should be available to non-corporate appellants also and they should be
permitted to represent themselves through any person of their choice.
Electronic Hearing - Additionally the procedure for conduct should include electronic hearing
through secured mode of real time communication over internet. (Secured Chat mode with digital
identity of parties).
4. Offences and Penalties:
The provisions pertaining to offences covered and penalties provided by the Act are scattered in
Chapter IX and XI of the Act. Section 43 provides for penalty up to rupees one corer by way of
damages, in case of unauthorized access, contaminating the computer/ computer system, inducing
virus or causing damage.

11
Privacy and the Information Technology Act — Do we have the Safeguards for ...https://cis-india.org › blog ›
safeguards-f... (as accessed on 24-10-2018)

15
Though the damage which one might suffer may exceed one corer so in that case the compensation
might not be adequate. However such cases are rare and the damages provided by this section in
my opinion is adequate.
Further chapter XI in a magnificent manner covers all aspects of cyber- crime. This chapter covers
within its ambit-unauthorized access, hacking, obscenity, misrepresentation, and breach of
confidentiality and privacy, fraud. One of the remarkable features of this chapter is section 75.
This section gives an extraterritorial effect to offences in contravention to the provisions of this
12
Act .

Though Chapter XI has been beautifully drafted to cover within its ambit all kinds of cyber-crime
and further it enables the enforcement agencies to investigate offences. But a strong presumption
regarding the misuse of the power to confiscate raises its head. It may be well said that it is a
Draconian Powers conferred upon the investigating authority.
5. Amendments in various Acts:
The I.T. Act has brought amendment in four statutes vide of section 91-94. These changes have
been provided in schedule 1-4. The 1st schedule contains the amendments brought about in the
Penal Code. In short it may be said about this amendment that it has widened the scope of the term
“document” to bring within its ambit electronic documents13.
The second schedule deals with amendments to the India Evidence Act. As stated above the
important change brought in the Evidence Act is that pertaining to inclusion of electronic
document in the definition of evidence. Further the terms / expressions for this purpose have
similar meaning as assigned to them in the I.T. Act.
The third schedule amends the Banker’s Books Evidence Act. This amendment brings about
change in the definition of “Banker’s-book” to include printouts of data stored in a floppy, disc,
tape or any other form of electromagnetic data storage device. A similar change has been brought
about in the expression “Certified-copy” to include such printouts within its purview.

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Offences and Penalties Under the Information Technology Act 2000 - Scribdhttps://www.scribd.com › doc ›
Offences... also, Offences and Punishment under the Information Technology Act, 2000
www.shareyouressays.com › essays › off... (as accessed on 24-10-2018)
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Information Technology Act | Ministry of Electronics and Information Technology ... www.meity.gov.in › content
› informatio... (as accessed on 24-10-2018)

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The fourth schedule amends the Reserve Bank of India Act. This amendment particularly pertains
to the regulation of fund transfer through electronic means between the banks or between the banks
and other financial institution14.

CONCLUSION
All said and done, The Information Technology Act, 2000 is a great achievement and a remarkable
step ahead in the right direction. The IT Act is a first step taken by the Government of India towards
promoting the growth of electronic commerce so that Electronic Commerce in India can leap frog
to success. Despite all its failings, it is a first historical step. The other steps have to follow. Many
of the changes proposed might not be acceptable to the legal fraternity. But these changes will be
strongly felt near future. This legislation overall is a masterpiece. The lacuna it has is only due to
the lack of technical skill while drafting. It is insisted on these proposed changes to realize in to
the purpose for enactment of this statute.
At this point it would be too early to predict as to what kind of legislation it will turn out to be. But
undoubtedly the most important distinguishing characteristic of this Act is that it has provided
legal recognition to the virtual electronic medium.

The inadequacies of the legislation and the resultant realistically anticipated problems reinforce
the notion that criminal legislations cannot be left open to broad interpretations, especially with
regard to internet regulations, considering the fact that cyberspace provides certain liberties in
action that make it easier to transgress laws, and with such characteristics inherent to the

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The Information Technology (Amendment) Act, 2008 – The ... https://internetdemocracy.in › laws › the-... (as
accessed on 24-10-2018)

17
environment, any regulatory mechanism or legislative measure must seek to be comprehensive,
clear and narrow in interpretive scope.

While the purpose of the Information Technology Act was to address increasing trends of cyber
crime and in effect, make it difficult to be a cyber criminal, the irony rests in the fact that what the
Amendment Act eventually has created is a situation wherein it perhaps, isn’t ‘easier to be a
criminal’, but rather, ‘easier to be classified as a criminal’. The danger, in both cases, cannot be
overemphasized.

BIBLIOGRAPHY

● Karnika Seth, Computers, Internet and New Technology Laws, Year of Publication 2013,
Lexis Nexis.
● Apar Gupta, Commentary in Information Technology Act, 2nd edition, Year of
Publication 2011, Lexis Nexis.

WEBLIOGRAPHY

●https://www.lawctopus.com/academike/critical-appraisal-information-technology-act-2000/
(as accessed on 20-10-2018)
● http://www.legalserviceindia.com/articles/itact.htm
( as accessed on 20-10-2018)
● http://www.rediff.com/money/2004/dec/23guest2.htm
( as accessed on 21-10-2018)
● http://shodhganga.inflibnet.ac.in/bitstream/10603/164562/4/chapter%20i.pdf
18
( as accessed on 23-10-2018)
●http://www.mondaq.com/india/x/13430/IT+internet/Cyberlaw+In+India+The+Information+
Technology+Act+2000+Some+Perspectives
( as accessed on 23-10-2018)
● http://www.insightsonindia.com/2015/06/23/6-do-you-think-the-information-technology-
act-2000-is-well-positioned-to-address-the-threats-of-cyberwarfare-and-other-threats-
emanating-from-the-cyberspace-critically-examine/
(as accessed on 24-10-2018)

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