CYBER LAW THE KEY TO ELECTION

Today the whole world depends upon technology in this era technology is showing
their different nature and its natural beauty. The cyber law plays a very important
role in advancing the technology and enhance the nation`s development. Today the
human life is fully influenced and depends on the web. Its popularity has grown to
such heights and reaches to every corner of the world.

Now a days the electronic technology and the documents have got the legal
recognition by the enactment of the Information Technology Act, 2000. Our
country is a developing country in the world at this moment and to rapidly grow in
this world - economy, the democracy plays an important role. As like many
countries, our country also uses the ‘Electronic Voting Machines’ in the elections
to record and store the votes cast by the public. These recorded data or votes will
come under the ambit of Section 2(t) of the Information Technology Act, 2000
which says - "electronic record" means data, record or data generated, image or
sound stored, received or sent in an electronic form or micro film or computer
generated micro fiche1.

Now the question arises that the ‘Electronic Voting Machines’ comes under the
ambit of Information Technology Act, 2000 or not?

The Section 2(l) of the Information Technology Act, 2000 defines computer
system as follows - A device or collection of devices, including input and output
support devices and excluding calculators which are not programmable and
capable of being used in conjugation with external files which contain computer
programmes, electronic instructions, input data and output data, that performs
logic, arithmetic, data storage and retrieval, communication control and other
functions2 . This above interpretation clears the doubt of the jurisdiction of
‘Electronic Voting Machines’.

The basis issue is coming that the Information Technology Act 2000 being a special
enactment and later in date should have an overriding effect on the Representation

1
Information Technology Act, 2000 , sec.2 , cl. (t)
2
Information Technology Act, 2000 , sec.2 , cl, (l)
of People's Act 1951. The SC clears the confusion that which law should be prevail.
There is clear principal that the statute which come into force later always shows
the upper hand. While interpreting a provision of an Act it happens that the
provision is interpreted in the light of provision of some other Act. Whenever the
new act is enacted the intention is to mitigate the rigor of existing law. This
intention is reflected from the Preamble of the Act which says - An Act 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 agencies3. At this crunch I must opine
that the conflict between both the statutes have been pacified and the IT Act should
prevail over in various matter relating to ‘Electronic Voting Machines’ like rigging
or tampering of Voting Machines vis-a-vis Hacking, Corruption of data vis-a-vis
Virus, Impersonation vis-à-vis unauthorized access, Postal ballots vis-a-vis E-mails
etc.

It is very much evident that all the data contained in ‘Electronic Voting Machines’
would came under the ambit of Section 2(t) of the Information Technology Act,
2000. So if anyone tries to tamper the data of respective EVM`s which prevail
under Section 2(t) then this will be the booth capturing and Section 135(a) of the
Representation of people`s Act, 1951 deals with the offence of booth capturing -
which says whoever commits an offence of booth capturing shall be punishable
with imprisonment for a term which 4 [shall not be less than one year but which
may extend to three years and with fine, and where such offence is committed by a
person in the service of the government, he shall be punishable with imprisonment
for a term which shall not be less than three years but which may extend to five
years and with fine]4.

Similarly the Section 66(1) of the Information Technology Act defines the term
‘Hacking’- Whoever with the intent to cause or knowing that he is hacking with
computer system. 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

3
Information Technology Act, 2000 , (21 of 2000) , preamble
4
Representation of people`s Act, 1951 . sec. 135 , cl. (a)
or diminishes its value or utility or affects it injuriously by any means, commits
Hacking5. Thus, the rigging and tampering of EVM`s do constitute hacking.
Therefore, if any citizen involve in the similar activities do commits the Cyber
crime i.e. hacking.

In present time, the various questions arises about the EVM`s hacking and the
corruption of data. Many political parties claim that the vote is going in favour of
the one party by pressing any button.

For example:- The vote cast by the people in favour of "X" party will be recorded
in the favour of "Y" party.

CASE :

Subramanian Swamy vs Election Commission of India

In this case the Supreme Court has held that VVPAT (Vote Verifiable Paper Audit
Trial) is “indispensable for free and fair elections”. In accordance to that, the
Supreme Court has directed the ECI to equip Electronic Voting Machines (EVMs)
with VVPAT systems to “ensure accuracy of the VVPAT system”. Also The Court
directed the government to provide the key financial assistance to the ECI to cause
VVPAT systems to be deployed along with EVMs6.

The IT Act 2000 reads the computer virus are as following:- any computer
instructions, information, data or programme that destroys, damages, degrades or
adversely affects the performance of a computer resource and operates when a
programme, data or instruction is executed or some other events take place in that
computer resource. These virus induced the system of voting machines and corrupt
the data of the EVM`s.

In the Indian election system ,the impersonation i.e. 'bogus voting' is a well
establish practice. Basically, casting a vote through bogus voting is a crime and
also the misuse of the right of the particular person and causing the harm to the
candidate who lose the election. The Section 43(f) of the Information Technology
Act, 2000 says if any person without permission of the owner or any other person

5
Information Technology Act, 2000 , sec. 66 , cl. (1)
6
Subramanian Swamy v. ECI , Civil Appeal no. 9093 of 2013
penalty for who is incharge of a computer, computer system or computer damage
to network,- denies or causes the denial of access to any person authorised to
access any computer, computer system or computer network by any means 7;
contains the penalty of the unauthorised access to a computer system through
bogus voting.

Today, there is no doubt that the voting through the ‘Electronic Voting Machines’
is the best method to cast votes in the elections with the advancement of
technology. But there is no doubt that these machines can be hacked. This will
happens before in the various countries like US , Italy , France , etc. The EVM`s
are made to cast a vote in a proper manner but in the addition the use of internet in
this technology to cast the vote, just work like to remove the disease from the
body. The government must think more to make the effective use of this
technology. And in addition to this one more thing the government can think of for
the betterment of people and for our Governance the use of E-mails technology to
cast the vote by affixing proper and valid digital signature. This simplify the
process of Postal ballots to caste vote. Also to see on the betterment of EVMs and
the VVPAT system.

7
Information Technology Act, 2000 , sec. 43 , cl. (f)