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  • May 31, 2019
    IntroductionAs we all know that this is the era where most of the things are done usually over the internet starting from online dealing to the online transaction. Since the web is considered as worldwide stage, anyone can access the resources of the internet from anywhere. The internet technology is being used by few people for criminal activities like unauthorized access to other’s network, scams etc. These criminal activities or the offense/crime related to the internet is termed as cyber-crime. In order to stop or to punish the cyber criminals the term “Cyber Law” was introduced. We can define cyber law as it is the part of the legal systems that deals with the internet, cyberspace, and with the legal issues. It covers a broad area, encompassing many subtopics as well as freedom of expressions, access to and utilization of the internet, and online security or online privacy. Generically, it is alluded as the law of the web. In Simple way we can say that cyber-crime is unlawful acts wherein the computer is either a tool or a target or both. An example of cyber-crime where computer is a target could be hacking or virus attack and an example of cyber-crime where compute is a tool could be credit card frauds or cyber terrorism.   Analysis Cyber-crime in India is more common than we think it is. There is cyber-crime everywhere and every 10 minute one cyber-crime is taking place in India. Cyber Crimeis not defined in Information Technology Act 2000 nor in the I.T. Amendment Act 2008 nor in any other legislation in India. In fact, it cannot be. Offence or crime has been dealt with elaborately listing various acts and the punishments for each under the Indian Penal Code, 1860 and quite a few other legislations too. Hence, to define cyber-crime, we can say it is just a combination of crime and computer. To put it in simple terms ‘any offence or crime in which a computer is used is a cyber-crime’. Interestingly even a petty offence like stealing or pick-pocket can be brought within the broader purview of cyber-crime if the basic data or aid to such an offence is a computer or an information stored in a computer used (or misused) by the fraudster. The I.T. Act defines a computer, computer network, data, information and all other necessary ingredients that form part of a cyber-crime, about which we will now be discussing in detail. In a cyber-crime, computer or the data itself the target or the object of offence or a tool in committing some other offence, providing the necessary inputs for that offence. All such acts of crime will come under the broader definition of cyber-crime. Cyber-crimes can involve criminal activities that are traditional in nature, such as theft, fraud, forgery, defamation and mischief, all of which are subject to the Indian Penal Code. The abuse of computers has also given birth to a gamut of new age crimes that are addressed by the Information Technology Act, 2000. Cyber Law in India is primarily governed by Information Technology Act, 2000 but is important to be linked with the Indian Penal Code, 1860. Apart from the Information Technology Act and Indian Penal Code, there are certain laws and regulations, which deal with the cyber-crime. Even certain civil laws are relevant in certain misuse in cyber space. However, generally the fraud is there in cyber-crime, therefore it concerns with the criminal law, otherwise even Law of Tort is also relevant and can provide the remedy to unauthorized use of the computer and internet. Apart from The Information Technology Act 2000 and Indian Penal Code 1860, there are various other laws relating to cyber-crime in India. They are as following. Common Law (governed by general principles of law) The Bankers’ Book Evidence Act, 1891 The Reserve Bank of India Act, 1934 The Information Technology (Amendment) Act, 2008 and 2009 Various laws relating to IPRs. The more we are moving to the digital age where everything can be done online, the more number of hackers are going to emerge and thus more number of cyber-criminals. Now from buying movie tickets to transferring money to someone, everything is digital and we can do all of that with our fingertips from anywhere in the world. But, as we get closer to a complete digital and cashless economy, we are providing opportunities for more cyber-crime. United Kingdom is an almost cashless economy and it is a known fact that it has been a hub for cyber-crime. If everything is connect to the internet or if ever machine is a computer, it is vulnerable to be hacked. That means if we have a washing machine that is connected to the Wi-Fi, it can be hacked. Same applies to Bluetooth devices in cars and as well as the air conditioners. This means that if tomorrow we come up with a smart city where we are purely running on computer and internet, we are making ourselves vulnerable to cyber-crime.  Section 43 has of the Information Technology Act is the first major and significant legislative step in India to combat the issue of data theft Section 43 deals with penalties and compensation for damage to computer, computer system etc. The IT industry has for long been clamouring for a legislation in India to address the crime of data theft, just like physical theft or larceny of goods and commodities. This Section addresses the civil offence of theft of data. If any person without permission of the owner or any other person who is in charge of a computer, accesses or downloads, copies or extracts any data or introduces any computer contaminant like virus or damages or disrupts any computer or denies access to a computer to an authorised user or tampers etc, he shall be liable to pay damages to the person so affected. Earlier in the ITA -2000 the maximum damages under this head was Rs.1 crore, which (the ceiling) was since removed in the ITAA 2008. The essence of this Section is civil liability. Criminality in the offence of data theft is being separately dealt with later under Sections 65 and 66. Writing a virus program or spreading a virus mail, a bot, a Trojan or any other malware in a computer network or causing a Denial of Service Attack in a server will all come under this Section and attract civil liability by way of compensation. Under this Section, words like Computer Virus, Compute Contaminant, Computer database and Source Code are all described and defined. Another challenge that we face as per cyber law experts is dismal under-reporting of cybercrime cases. While the National Crime Records Bureau (NCRB) stated that India recorded 9,622,11,592 and 12,317 cases of cybercrime in 2014, 2015 and 2016 respectively, experts stated that this data accounted for merely 1% of the cybercrimes that actually took place in the country. Talking about criminal liability, let’s start with section 65 of the Information Technology Act which deals with tampering source documents. Concealing, destroying, altering any computer source code when the same is required to be kept or maintained by law is an offence punishable with three years’ imprisonment or two lakh rupees or with both. In the case of Bhim Sen Garg vs State of Rajasthan and others, 2006, Cri LJ, 3463, Raj 2411it was held that fabrication of an electronic record or committing forgery by way of interpolations in CD produced as evidence in a court attracts punishment. Section 66 of the Information Technology Act deals with computer related offences such as data theft with criminal intention. Section 67 of the Information Technology Act deals with publishing or transmitting obscene material in electronic form. Section 67A deals with sexually explicit act and section 67B deals with child pornography. Section 67 has historical importance since the landmark judgement in what is considered to be the first ever conviction under Information Technology Act, 2000 in India. This section was obtained in the famous case of State of Tamil Nadu vs Suhas Katti, 2004. The strength of the Section and the reliability of electronic evidences were proved by the prosecution and conviction was brought about in this case, involving sending obscene message in the name of a married women amounting to cyber stalking, email spoofing and the criminal activity stated in this Section. Challenges with respect to cyber-crimes in IndiaSection 67A also makes me think about transnational jurisdiction. Since section 67A deals with publishing of sexually explicit act, it is an offence in India to upload pornographic material on the internet or share it with someone but, pornography is legal in the state of California in United States. There are few important cases which provides the real picture of Indian cybercrime Scenario. Sharat Babu Digumarti case:It was held that Information Technology Act is a special provision, so it must have special effect only. It was held that when in a cybercrime matter, an accused was acquitted in Section 67 and 67A of the act, the provision of Section 292 of Indian Penal Code cannot be used to institute new proceedings.  Kalindi Charan Leka case:In the state of Odisha, this case is of stalking and defamation of a girl. Her pictures were morphed by a boy she rejected the marriage proposal of. These pictures were then used to create profiles in her name and also pamphlets were printed and pasted across her hostel and her college. Resulted in conviction.  In the case of State of Uttarakhand vs Raju Thapa:In this case a teacher was accused of enticing a girl into sexual favours on the pretext that she would fail her exams if she wouldn’t give in. She was raped several times by the teacher and a video was recorded of the act as well. Later on this video was circulated through a mobile repair shop in the area. He was initially convicted for rape and publishing and transmitting obscene content but later preferred an appeal in the Uttarakhand High Court. Due to delay in filing FIR and no clear identification of the person in the video, the court went on to say that the accused did in fact deserve the benefit of doubt and was acquitted. It was said that it is not possible to force a girl, rape her and record the whole thing at the same time. Appeal in SC is pending.  The above mentioned cases clearly indicates the lot of challenges of Electronic Evidence. There is a debate about what is a primary or secondary electronic evidence. Let us assume a chat which is happening between two persons with no records on any server. Whose version will be primary if the original phone is produced in court? Even in cases secondary evidence exists, there is a practice today that advocates give the Section 65B certificate as affidavit in their own name. It clearly violates the provisions of Sections 65B. There is no regime on Section 65B mandatory certification. ConclusionThe main challenge with laws against cyber-crimes is that the technology is changing faster than the laws. Cyber law is unable to keep up pace with the technological changes.the nature of the cyber-crime is technical, therefore it require the technical process to execute the criminal law in proper sense. The technical process is lacking in Indian legal system, therefore though the substantive criminal law is sufficient, but due to lacking in procedural aspect its unable to execute it in India. The basic problem in the cyber-crime is that, there is specific manner by which the internet can be misuse; it is on the criminals, that they always misuse it in different manner, therefore it is not possible to the legal system to meet with the need. Apart from this, the nature of cyber-crimeis transnational, therefore it requires international co-operation. Also, looking at the challenges regarding cyber-crimes in India, largely the problem with cybercrime against individuals in India is underreporting. Most of the provisions are bailable if only IT Act is used. This often leads to mandatory granting of bail to an accused. The provisions of IT Act needs to be revised to think about non-bailable offences and awareness about convergence laws and IT Act needs to be spread to frame charge sheets.
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