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LAW PROJECT 2011

PERSONNEL LAW AND


MANAGEMENT PROJECTS

Submitted By:
 SUMAIYA DALAL 68
 RAHUL MAHABARE88
 HIMSHREE SHELAR 105
 PRASHANT SONI 108
 DEEPAK SUPAL 109

A REPORT SUBMITTED TO THE UNIVERSITY/INSTITUTE IN PARTIAL FULFILMENT OF THE


REQUIREMENT FOR THE AWARD OF POST GRADUATE MASTERS IN PERSONNEL LAW &
MANAGEMENT FOR THE ACADEMIC YEAR 2010 TO 2013 UNDER THE GUIDANCE OF
PROF. DHONGARE.
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ACKNOWLEDGEMENT

We express our sincere thanks to Professor Dhongare, for his constant encouragement
and support throughout our course, especially for the useful suggestions regarding
this report. He has been a perfect mentor and guide to give us immense
knowledge and understanding for the subject, Personnel Law and Management.
The project has not only given intense knowledge about the subject but also
taught us, its practical implications.
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COMMONWEALTH GAMES:
GAMES OR SHAME?

CONTENTS

1. Introduction to CommonWealth Games Page 4

2. Scam Exposed Page 5

3. Recent Accusations and Committee Probes Page 10

4. Impact of CommonWealth Games on India Page 11


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COMMONWEALTH GAMES: GAMES OR SHAME?


Introduction to CommonWealth Games:

The 2010 Commonwealth Games, officially known as the XIX Commonwealth


Games, were held in Delhi, India, from 3 to 14 October 2010. A total of 6,081 athletes
from 71 Commonwealth nations and dependencies competed in 21 sports and 272
events. It was the largest international multi-sport event to be staged in Delhi and
India, eclipsing the Asian Games in 1951 and 1982.

The opening and closing ceremonies were held at the Jawaharlal Nehru Stadium,
the main stadium of the event. It was the first time that the Commonwealth Games
were held in India and the second time it was held in Asia after Kuala Lumpur,
Malaysia in 1998. The official mascot of the Games was Shera and the official song of
the Games, "Jiyo Utho Bado Jeeto", was composed by celebrated Indian musician A.R.
Rahman.

Initially, several concerns and controversies surfaced before the start of the
Games. Despite these concerns, all member nations of the Commonwealth of Nations
participated in the event, except Fiji, which is suspended from the Commonwealth,
and Tokelau, which didn't send a team. A widely-praised opening ceremony helped
improve the image of the Games. The concerns raised during the buildup to the
Games proved largely unfounded as most events progressed smoothly.

The opening ceremony played a key role in improving the image of the Games.
As athletes arrived and competitions started, many earlier critics changed their view.
The Australian Sports Minister said that India could now aim for the Olympics, and the
President of the International Olympic Committee, Jacques Rogge, said that India had
made a good foundation for a future Olympics bid. As the Games concluded, many
observers remarked that they began on an apprehensive note, but were an
exceptional experience with a largely positive ending. Some observers accused
sections of the media of bias, unfair expectations, and negative reporting. The final
medal tally was led by Australia. The host nation India gave its strongest performance
yet to emerge second, while England placed third.
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Scam Exposed:
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India’s successful bid to host the 19th Commonwealth Games in October 2010
seems like the South Asian giant’s chance to showcase its growth and progress.
Additionally, coming on the heels of China’s triumph with the Beijing Olympics in
2008, anything less than a successful event would be an embarrassment for India.
However, preparations for the Commonwealth Games appear to have been blighted
by delays and allegations of corruption and inefficiency. Thus, what was supposed to
signify India’s arrival on the world stage now appears to typify the problems of
governance in India, in terms of both policy-making and implementation.

India’s successful bid to host the nineteenth Commonwealth Games in 2010


marks a chance for the South Asian giant to showcase its rapid growth and
development to the world. The games, which begin on 3 October 2010, are expected
to attract two million tourists, in addition to the approximately 10,000 athletes from
54 Commonwealth member states, to New Delhi. In preparation, the Indian
government has allocated a generous budget of well over US$1.6 billion – the largest
yet for the Commonwealth Games (CWG) – to prepare the infrastructure and spruce
up the capital ahead of the games. Clearly, the CWG, which will be the most high
profile sporting event to be held in India since it hosted the Asian Games in 1982, is
being viewed by the Indian establishment as a chance to signal its coming of age as
an economic and regional power, if not a burgeoning global power. This is especially
true coming on the heels of Beijing's Olympic success in 2008 and (albeit to a lesser
degree) South Africa's success with the Fédération Internationale de Football
Association (FIFA) soccer World Cup in June and July 2010.

Unfortunately, preparations for the games have been riddled with delays in the
construction of event venues and related infrastructure. In September 2009, a
government report found that ‘work on 13 out of the 19 sports venues were behind
schedule’. At the same time, the Commonwealth Games Federation chief, Mike
Fennell, warned that India was behind schedule in its preparations. In a letter to the
Indian organizing committee, Fennel said that it was ‘reasonable to conclude that the
current situation posed a serious risk to the Commonwealth Games in 2010’. This
warning is said to have caused alarm among Indian ministers who regard the Delhi
Commonwealth Games as a “coming of age” party to herald the arrival of India as a
major power... its failure would be regarded as a national humiliation’.
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While these warnings seem to have sped up construction, there still appear to
be delays in meeting deadlines. Reports indicate that at the end of May 2010, with
around four months to go, work on the Jawaharlal Nehru Stadium (the main stadium),
the swimming pool and other venues was still overdue. Other games-related
infrastructure, like roads, bridges and hotels were also behind time. Additionally, the
promise to generate surplus power by 2010 in readiness for the CWG has also fallen
by the wayside with daily power cuts in Delhi. Hence, for many national and
international observers, what was supposed to symbolize India’s triumphant
ascendance to the world stage has now come to epitomize the problems of
governance in India, in terms of both policy-making and implementation.
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One of the most oft-mentioned challenges to governance in India is the endemic


corruption. Corruption can lead to inefficiency in two major ways. One, misspent and
misappropriated funds can cause budgetary strain, which can take time to resolve.
Two, corruption can also lead to the appointment of incompetent individuals in
positions of power. This can lead to extensive inefficiency, especially in a bureaucratic
setting. Additionally, perceptions of corruption can also cause delays as they create
controversy and impede the timely implementation of projects. According to a study
of governance indicators worldwide commissioned by the World Bank, India’s
percentile rank for control of corruption is 44.4, giving it a score of -0.37. The
preparations for the games have also been surrounded by allegations of corruption.
Leaders of the opposition, Bharatiya Janata Party (BJP), including Vijay Kumar
Malhotra, who is a senior vice-president of the Indian Olympic Association (IOA) and
Vijay Goel have accused the government of ‘mindlessly’ spending money on the CWG
and have alleged that ‘there has been mass corruption in the [CWG] funds as
suggested by the unaudited increase in the budget of various projects’. According to
Malhotra, the Delhi Development Authority (DDA) – a civic agency – ‘under pressure
from the builders’ cartel’, was forced to fork out over US$2 million towards the
completion of the Games village. Members of various civil societies have also heaped
accusations of corruption. Allegedly, of the US$70 million accumulated by builders for
a workers’ welfare fund – as required by the 1996 Building and Other Construction
Workers Act – only US$30,000 have trickled down as benefits for workers. Activists
have also accused the police of ignoring cases of construction-site accidents.
Furthermore, the Central Vigilance Commission (CVC) has accused the Union Power
Ministry and the Damodar Valley Corporation (DVC) – which is to provide additional
power to the capital for the games – of corruption. Since then DVC engineers have
admitted that the power company, which was to provide 2,500 megawatts of power to
Delhi, will not be able to provide even ‘a single megawatt (of power) for the
Commonwealth Games’.
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In India, matters are complicated by overlapping jurisdictions in certain matters.


According to the Seventh Schedule of the Indian Constitution, the centre and the state
have separate jurisdiction over some items and joint jurisdiction over others. For
example, items on the ‘Union list’, like foreign policy, defense policy, banking and
currency are under the sole purview of the central government. Other items, like
public health, land and certain duties, and taxes are under the ‘State list’ and are the
responsibility of the respective state governments. However, items like criminal law,
social insurance and forests are on the ‘Concurrent list’ and are jointly administered
by the central and state governments. This last list can lead to some time consuming
wrangling when the state and central governments are not in agreement over certain
issues or policies. With regard to the CWG, matters are still more convoluted as the
games are being hosted in the National Capital Region, which not only comprises
Delhi, but also Noida, which is in Uttar Pradesh and Gurgaon, which is in Haryana. As a
result, not only are the central and Delhi state governments involved in the policy
formulation and implementation concerning the CWG, but in certain matters such as
land acquisition for the Games Village in Noida, the state authorities are also involved.
Tellingly, it has been noted that Delhi’s chief minister has often ‘complained’ about
the lack of cooperation from agencies like the DDA and Delhi Police, both of which are
under the central government’s, and not the Delhi government’s control. These
factors are likely to have contributed to the delay in construction. Finally, accusations
of environmental damage by activists also delayed land acquisition for the Games
Village.

Another problem that has exacerbated matters and arguably also contributed to
the opportunities available for corruption is the lack of communication and
cooperation amongst the various committees and agencies involved in the
preparations for the games. As mentioned above, Delhi’s chief minister has often
found central government agencies like DDA, the police and the Municipal Corporation
of Delhi (MCD) uncooperative. This plays out on a more ‘micro’ level as well.
According to Randhir Singh, secretary-general of the IOA, the chairmen of the 23
organizing committees ‘hardly ever meet’. He also said that the committees needed
to be run more ‘professionally’. Moreover, various complaints about discrepancies in
the work under the purview of agencies like the DDA, New Delhi Municipal
Corporation, MCD and the Central
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Public Works Development has lead to the CVC to post vigilance officials at the
agencies to ‘double check’ procurement and other procedures. The organizing
committees have also been blighted by much in-fighting and lack of cooperation. In
one such incident, Goel, who claimed to have been expelled from the CWG Organizing
Committee, said the chairman of the committee, Suresh Kalmadi, was a ‘short-
tempered’, ‘autocratic’ and ‘arrogant’ man, and also accused him of ‘rampant
corruption’. On another occasion, a tussle between Kalmadi, who is also president of
the IAO and Union Minister of Youth Affairs and Sports, M. S. Gill over the tenure
duration of sports officials, also, arguably, distracted attention and effort away from
the CWG.
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These delays and accusations also highlight the challenges faced by the central
government in implementing policy. Given the sometimes uneasy relations India has
had with China, their concurrent economic rise and the resultant competitiveness
between the two, India’s success in hosting the CWG is seen as a major foreign policy
goal, especially in light of China’s success with the Olympics. However, despite
assurances (and undoubted effort) by Prime Minister Manmohan Singh and the second
United Progressive Alliance (UPA-II) government, clearly, major projects are still behind
time. According to a Hindustan Times report, with around a 100 days left to the start
of the games, there are some areas of concern remain, including insufficient rooms to
house the visitors expected for the games; the completion of roads, flyovers and
bridges; and the completion of the parking facilities at the main stadium and other
venues. Only the Delhi Metro projects have been completed ahead of schedule.
Certainly, the challenges to and problems of governance in India are well
documented. And given that India has not hosted a major sporting event since 1982,
it is not surprising that it has had some ‘teething problems’. Also, as India is a
democracy with a robust press and civil society, it is not surprising that inter-agency
disagreements, allegations of corruption and other problems have played out publicly
in a fashion that may not be so apparent in other polities. However, in the midst of the
chaos surrounding the CWG, it appears that preparations have accelerated
significantly. As mentioned above, the metro projects were completed ahead of time.
Also, while the main stadium is still not ready, latest reports indicate that a ‘majority
of the stadia have been inaugurated’ and the new Terminal 3 at the Indira Gandhi
Airport is expected to be ready by 3 July 2010. Indeed, in early January 2010 there had
been fears that the revamped Major Dhyanchand National Stadium – which is also a
venue for the CWG – would not be ready for the Hockey World Cup held in February
2010.33 Despite these fears, the stadium was reopened, refurbishments completed,
just later that month. Hence, it would appear that the authorities in India have a steep
learning curve. Moreover, with all eyes on India, the central government certainly has
sufficient motivation to ensure the realization of all projects in time for the Games.
While it remains to be seen whether it will achieve this goal, the preparations (or lack
thereof) for the CWG highlight the systemic challenges India faces in terms of policy
implementation. The overlap in authority, the lack of communication and coordination
between agencies and the opportunities for corruption, and the subsequent
squandering of funds and incompetence are problems all major projects in India are
afflicted with. Nonetheless, since the government failed to complete all projects and
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successfully host the CWG; it would be safe to say that India, like China, failed have
effectively announced its arrival on the world stage. The day after the conclusion of
the Games, the Indian Government announced the formation of a special investigation
committee to probe the allegations of corruption and mismanagement that had
marred the buildup to the Games.

Recent Accusations and Committee Probes:

A major scam hit the Commonwealth Games with allegations being made that a
substantial sum of money was transferred to a little known U.K. company from the
Games Organizing Committee (OC) about which the British government has raised
questions. Television channels reported that over £ 4.50 lakhs were transferred
through a British bank to the A M Films company, said to be a one man show and
which was also receiving £ 25,000 a month. ‘Times Now' quoted documents to show
that the entire deal came to light when the OC asked for a VAT refund of £ 14,000 in
March 2010 for the payments made to the British company. The channel quoted a
letter of the British Revenue and Customs Department to the Indian High Commission
stating that there was no written contract between the CWG and A M Films and that
no tendering procedure had been followed and there was no paper work regarding the
contract. The OC is reported to have made a payment of nearly £2.5 lakhs for video
equipment purchase while A M Films had claimed that it provided services of car hire,
makeshift toilets, barriers and electricity. In Delhi, Cabinet Secretary K.M.
Chandrashekhar has conveyed concern over the charges as well as delay in
preparations to the OC of the mega sporting event in October 2010. Mr.
Chandrashekhar held a review meeting in 2010. It was attended by secretaries of
agencies concerned, including officials of the OC, and Ministries of Youth and Sports,
Urban Development, and Tourism. His remarks come close on the heels of the Central
Vigilance Commission asking its officers to re-examine all the tenders and
procurement process related to the projects. Enforcement Directorate sources in Delhi
said the agency was probing the issue. The company was involved in the
arrangements for the Queen's Baton Relay when it started its journey from London
with a function outside the Buckingham Palace. Late in the night, the OC refuted the
allegations about financial irregularities with relation to the launch of the QBR in
London on October 29 2009. The British authorities have sought to know details of
how A M Films which supplied cars for rentals was involved in supply of video
equipment and providing consultancy for costume designing.
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Impact of CommonWealth Games on India:


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A) Financial costs

Azim Premji, founder of Wipro Technologies, remarked that India faced several
socio-economic challenges and "to instead spend on a grand sporting spectacle
sounds like we [India] have got our priorities wrong." Miloon Kothari, a leading Indian
expert on socio-economic development, remarked that the 2010 Commonwealth
Games will create "a negative financial legacy for the country" and asked "when one
in three Indians lives below the poverty line and 40% of the hungry live in India, when
46% of India's children and 55% of women are malnourished, does spending billions of
dollars on a 12-day sports event build national pride or is it a matter of national
shame?" One of the outspoken critics of the Games is Mani Shankar Aiyar, former
Indian Minister for Youth Affairs and Sports. In April 2007, Aiyar commented that the
Games are "irrelevant to the common man" and criticized the Indian government for
sanctioning billions of dollars for the Games even though India requires massive
investment in social development programs. In July 2010, he remarked that he would
be "unhappy if the Commonwealth Games are successful".

B) Labour laws violations


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Campaigners in India have accused the organisers of enormous and systematic


violations of labour laws at construction sites. Human Rights Law Network reports that
independent investigations have discovered more than 70 cases where workers have
died in accidents at construction sites since work began.Although official numbers
have not been released, it is estimated that over 415,000 contract daily wage workers
are working on Games projects. Unskilled workers are paid 85 (US$1.9) to 100
(US$2.2) per day while skilled workers are paid 120 (US$2.7) to 130 (US$2.9) INR per
day for eight hours of work. Workers also state that they are paid 134 (US$3) to 150
(US$3.3) for 12 hours of work (eight hours plus four hours of overtime). Both these
wages contravene the stipulated Delhi state minimum wage of 152 (US$3.4) for eight
hours of work. Nearly 50 construction workers have died in the past two years while
employed on Games projects. These represent violations of the Minimum Wages Act,
1948; Interstate Migrant Workmen (Regulation of Employment and Condition of
Services) Act 1979, and the constitutionally enshrined fundamental rights per the
1982 Supreme Court of India judgement on Asiad workers. The public have been
banned from the camps where workers live and work – a situation which human rights
campaigners say prevents the garnering of information regarding labour conditions
and number of workers. There have been documented instances of the presence of
young children at hazardous construction sites, due to a lack of child care facilities for
women workers living and working in the labour camp style work sites. Furthermore,
workers on the site of the main Commonwealth stadium have reportedly been issued
with hard hats, yet most work in open-toed sandals and live in cramped tin tenements
in which illnesses are rife. The High Court of Delhi is presently hearing a public
interest petition relating to employers not paying employees for overtime and it has
appointed a four-member committee to submit a report on the alleged violations of
workers rights. During the construction of the Games Village, there was controversy
over financial mismanagement, profiteering by the Delhi Development Authority and
private real estate companies, and inhumane working conditions.

C) Sex slavery and prostitution boom


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There has been a boom in the number of young girls, mostly from impoverished
parts of India, coming to Delhi after being offered jobs by disguised criminals, only to
be taken prisoner and forced into sex slavery. The number of victims is believed to be
in the hundreds. Many brothels have been running English courses for sex workers
and upgrading their facilities in anticipation of a business upturn during the games.
Overseas prostitutes are also expected to come as tourists and ply their trade. One
anti-trafficking NGO has claimed that there are reports of 40,000 women being
brought in from northeastern India alone. A spokesperson said that recruits from that
part of India were favoured because of their lighter skin. It has been reported that
over 3,000 bar girls in Mumbai have stopped going to work; this has been blamed on
an exodus to Delhi for the Commonwealth Games.

D) Racial Discrimination Allegations

African countries have complained that they are getting second-class treatment
from the Games organizers, in spite of them offering India a hand in the preparation of
the Games. They have alleged that accommodation given to them was inferior
compared to the accommodation provided to the Australian and New Zealand teams.
They went on to state that India was complaining about being victims of racial bias in
the reporting of the Games; while simultaneously perpetrating the same kind of
racism against the African countries.

THE INFORMATION TECHNOLOGY ACT


2000
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CONTENTS

1. Introduction to the Act Page 14

2. Definitions Page 16

3. Digital Signature Page 19

4. Electronic Governance Page 20

5. Regulation of Certifying Authority Page 24

6. Duties of Subscribers Page 31

7. Penalties and Adjudication Page 32

8. Offences Page 36

9. Case Study Page 38

10. Bibliography Page 40

THE INFORMATION TECHNOLOGY ACT 2000


Introduction to the Act:
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The law relating to ‘information technology’ is contained in the Information


Technology (IT) Act, 2000 which came into force on 17th October, 2000. It is the first
Cyber Law in India. It is mainly based on the UNCITRAL Model Law. The United Nations
Commission on International Trade Law (UNCITRAL) adopted the Model Law on
Electronic Commerce in 1996. This Model Law provides for equal legal treatment of
users of electronic communication and paper based communication.
Objects Of The Act:

The Information Technology Act, 2000 seeks to achieve the following objects:

1. To grant legal recognition to electronic records.

2. To grant legal recognition to Digital Signature for authentication of lie information or


matters requiring authentication under any law of the country

3. To permit retention of information, documents and records in electronic form where


any law requires such retention for a specific period.

4. To foster use and acceptance of electronic records and digital Signatures in the
Government offices and its agencies

5. To prevent the possible misuse arising out of transactions and oilier dealings
concluded over the electronic medium.

6. To prevent and arrest offences as well as deter abuse of Information Technology.

7. To deal with civil and criminal liabilities arising out of contravention of the
provisions of the law.
8. To provide for necessary changes in the various provisions, which deal with offences
relating to documents and paper-based transactions.

9. To facilitate electronic fund transfers between the financial institutions and banks.

10.To give legal sanctity for books of account maintained in the electronic form by the
banks.

Documents (Or Transactions) Excluded From The Scope Of Information


Technology Act:
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a. A negotiable instrument as defined in section 13 of the Negotiable Instrument Act,


1881.

b. A power-of-attorney as defined in Section 1 A of the Powers of Attorney Act, 1882

c. A trust as defined in section 3 of the Indian Trusts Act, 1882

d. A will as defined in section 2 (h) of the Indian Succession Act 1925

e. Any contract for the sale or conveyance of immovable property or any interest in
such property

f. Any such class of documents or transactions as may be notified by the Central


Government in the Official Gazette.

Definitions:
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Access [Sec. 2 (1) (a))

“Access” means gaining entry into, instructing or communicating with the


logical, arithmetical, or memory functions resources of a computer, computer system
or computer network.

Affixing digital signature [Sec. (1) (d)]

Affixing digital signature means adoption of any methodology or procedure by a


person for the purpose of authenticating an electronic record by means of digital
signature.

Asymmetric Crypto System [Sec. 2(1) (f)]

“Asymmetric crypto system” means a system of a secure key pair consisting of


a private key for creating a digital signature and a public key to verify the digital
signature.

Computer [Sec. 2(1) (i)]

“Computer” means by electronic magnetic, optical or other high speed data


processing device or system which performs logical, arithmetic and memory functions
by manipulations of electronic, magnetic, or optical impulses, and includes all input,
outpost, processing, storage, computer software, or communications facilities which
are connected related to the computer in a computer system or computer network.

Computer System [Sec. 2(1) (h)]

“Computer system” means 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 conjunction 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 functions.

Data [Sec. 2(1) (o)]

“Data” means a representation of information, knowledge, facts, concepts or


instructions which are being prepared or have been prepared in a formalized manner

and it is intended to be processed, is being processed or has been processed in


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computer system or computer network, and may be in any form (including computer
printouts magnetic or optical storage media, punched cards, punched tapes) or
stored Internally in the memory of the computer.

Digital Signature [Sec. 2(1) (p)]

“Digital signature” 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.

Electronic Form (Sec. 2(1) (r)]

“Electronic form” with reference to information means any information


generated, sent, received or stored in media, magnetic, optical, computer, memory,
micro film, computer generated micro fiche or similar device.

Electronic Record [Sec. 2(1) (t)]

“Electronic record” means data, record or data generated, image or sound


stored, received or sent in an electronic form or microfilm or Computer generated
micro fiche or similar devices.

Information [Sec. (1) (v)]

“Information” includes data, text, images, sound voice codes computer


programmes, software and databases or micro film or computer generated microfiche.

“Originator” means a person who sends, generates, stores or transmits any


electronic message or cause any electronic message to be sent, generated stored or
transmitted to any other person, but does not include an intermediary. [Section 2 (1)
(za)]

Key pair: In an asymmetric crypto system, ‘key pair’ means a private key and its
mathematically-related public key, which are so related that the public key can verify
a digital signature created by the private key. [Sec. 2(l)(x)].

Private key: It means the key of a key pair used to create a digital signature.
[Sec. 2(l)(zc)].

Public key: It means the key of a key pair used to verify a digital signature and
listed in the Digital Signature Certificate. [Sec. 2(l)(zd)J.

Subscriber: It means a person in whose name the Digital Signature Certificate is


issued, [Sec. 2(l)(zg)].
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Secure System [Sec. 2(l) (ze)]

“Secure system” means computer hardware, software, and procedure that:

a. are reasonably secure from unauthorized access and misuse;

b. provide a reasonable level of reliability and correct operation,

c. are reasonably suited to performing the intended functions, and

d. adhere to generally accepted security procedures;

Hash function [Sec. 3(2)1]

Hash function means an algorithm mapping or translation of one sequence of


bits into another generally smaller, set known as ‘hash result’ such that an electronic
record yields the same hash result every time the algorithm is executed with the same
electronic record as its input making it computationally infeasible (a) to derive or
reconstruct the original electronic record from the hash result produced by the,
algorithm (b) that two electronic records can produce the same hash result using the
algorithm.
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Digital Signature:

Digital signature is authentication of an electronic record by a subscriber by


means of an electronic method or procedure. Digital signature is created in two
distinct steps:

First, electronic record is converted into a message digest by using a


mathematical function known as ‘hash function’ which digitally freezes the electronic
record thus ensuring the integrity of the content of the intended communication
contained in the electronic record.
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Second, the identity of the person affixing the digital signature is authenticated
through the use of a private key which attaches itself to the message digest and
which can be verified by any person who has the public key corresponding to such
private key.

This will enable any person to verify whether the electronic record is retained
intact or has been tampered with. Any subscriber may authenticate an electronic
record by affixing his digital signature. The authentication of the electronic record
shall be effected by the use of asymmetric crypto system and hash function which
envelop and transform the initial electronic record into another electronic record. Any
person by the use of a public key of the subscriber can verify the electronic record.
The private key and the public key are unique to the subscriber and constitute a
functioning key pair.

Electronic Governance:
25

Legal recognition of electronic records [Sec. 41]

Where any law provides that information or any other matter shall be in writing
or in the typewritten or printed form, then such requirement shall be deemed to have
been satisfied if such information or matter is—

(a) rendered or made available in an electronic form; and

(b) accessible so as to be usable for a subsequent reference.

Legal recognition of digital signature [Sec. 51]

Where any law provides that information or any other matter shall be
authenticated by affixing the signature or any document shall be signed or bear the
signature of any person then, such requirement shall be deemed to have been
satisfied, if such information or matter is authenticated by means of digital signature
affixed in such manner as may be prescribed by the Central Government.

Use of electronic records and digital signatures in Government (Sec. 6)

Where any law provides for (a) the filling of any form, application or any other
document (b) the issue or grant of any licence, permit, sanction or approval (c) the
receipt or payment of money in a particular manner, such requirement shall be
deemed to have been satisfied if such filling, 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.

Retention of electronic records [Sec. 71]


Where any law provides that documents, records or information shall be
retained for any specific period, then, that requirement shall be deemed to have been
satisfied if they are retained in the electronic form and if

(a) the information contained therein remains accessible so as to be usable for a


subsequent reference;

(b) the electronic record is retained in the format in which it was originally generated,
sent or received or in a format which can be demonstrated to represent accurately
the information originally generated, sent or received;
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(c) the details which will facilitate the identification of the origin, destination, date and
time of despatch or receipt of such electronic record are available in the electronic
record.

Publication of rules, regulation, etc., in Electronic Gazette [Sec. 8]

Any rule, regulation; order, bye-law, notification or any other matter shall be
published in the Official Gazette or Electronic Gazette, if it is so required by law and
the date of publication shall be deemed to be the date of the Gazette in which it was
first published.

Power to make rules by Central Government in respect of digital


signature (Sec.10)

The Central Government may by rules, prescribe:

(a) the type of digital signature;

(b) the manner and format in which the digital signature shall be affixed,

(c) the manner or procedure which facilitates identification of the person affixing the
digital signature;

(d) control processes and procedures to ensure adequate intergrity,

security and confidentiality of electronic records or payments, and

(e) any other matter which is necessary to give legal effect fo digital

signatures.

Attribution of electronic records (Sec. 11)


An electronic record shall be attributed to the originator

(a) if it was sent by the originator himself

(b) by a person who had the authority to act on behalf of the originator in respect of
that electronic record; or

(c) by an information system programmed by or on behalf of the originator to operate


automatically.

Acknowledgement of receipt [Sec. 121]

Where the originator has not agreed with the addressee that the
acknowledgement of receipt of electronic record be given in a particular form or by a
particular method, an acknowledgement may be given by:

(a) any communication by the addressee, automated or otherwise; or


27

(b) any conduct of the addressee, sufficient to indicate to the originator that the
electronic record has been received.

Where the originator has stipulated that the electronic record shall be binding
only on receipt of an acknowledgement, then if acknowledgement has not been so
received the electronic record shall be deemed to have not been sent by the
originator. Where the originator has not stipulated, such acknowledgement, and the
acknowledgement has not been received, then the originator may give notice to the
addressee specifying a reasonable time by which the acknowledgement must be
received. If no acknowledgement is received within the aforesaid time he may after
giving notice to the addressee, treat the electronic record as though it has never been
sent.

Time and place of dispatch and receipt of electronic record [Sec.131]

(1) The despatch of an electronic record occurs when it enters a computer resource
outside the control of the originator.

(2) The time of receipt of an electronic record shall be determined as follows:

(a) if the addressee has designated a computer resource for the purpose of receiving
electronic records,

(i) receipt occurs at the time when the electronic record enters the designated
computer resource, or

(ii) if the electronic record is sent to a computer resource of the addressee that is not
the designated computer resource, receipt occurs at the time when the electronic
record is retrieved by the addressee;

(b) if the addressee has not designated a computer resource along with specified
timings, receipt occurs when the electronic record enters the computing resource
of the addressee.

(3) An electronic record is deemed to be despatched from the place of business of the
originator. The electronic record is deemed to be received at the place where the
addressee has his place of business.

If the originator or the addressee has more than one place of business the
principal place of business, shall be the place of business, if the originator or the
addressee does not, have a place of business, his usual place of residence shall be
deemed to be the place of business;
28

Secure digital signature [Sec. 151]

Digital signature shall be deemed to be a secure digital signature if at the time it


was affixed, was:

(a) unique to the subscriber affixing it,

(b) capable of identifying such subscriber;

(c) created in a manner or using a means under the exclusive control of the subscriber

(d) linked to the electronic record to which it relates in such a manner that if the
electronic record was altered the digital signature would be invalidated.

Security procedure [Sec. 161]

While prescribing rules for the security procedure, the Central Government shall
have regard to commercial circumstances prevailing at the time when the procedure
was used, including:

(a) the nature of the transaction;

(b) the level of sophistication of the parties with reference to their technological
capacity-

(c) the volume of similar transactions engaged in by other parties;

(d) the availability of alternatives offered to but rejected by any party;

(e) the cost of alternative procedures; and

(f) the procedures in general use for similar types of transactions or communications.
29

Regulation Of Certifying Authorities:

Certifying Authority is a person who has been granted a licence to issue a digital
signature. The certifying authorities are under the supervision of Controller of
Certifying Authorities including Deputy Controllers and Assistant Controllers.

Appointment of Controller Certifying Authorities (Sec. 17)

(1) The Central Government may, by notification in the Official Gazette appoint a
Controller of Certifying Authorities and such number of Deputy Controllers and
Assistant Controllers as it deems fit.

(2) The Controller shall discharge his functions subject to the general control and
directions of the Central Government while the Deputy Controllers and Assistant
Controllers shall perform the functions assigned to them by the Controller.

(3) The Controller may, in writing, authorise the Deputy Controller, Assistant Controller
or any officer to exercise any of his powers (Sec. 27)

(4) There shall be a seal of the Office of the Controller (Sec. 17 (b)J.

Power to investigate contravention and making access to computers The Controller or


any officer authorised by him shall investigate any contravention of the provisions
of this Act, rules or regulations made there under. Those officers in such cases,
shall have access to any computer system, data or any other material connected
with such system for the purpose of searching for obtaining any information or
data contained in such computer system (Sec. 28).

Functions of Controller [Sec. 18]

The Controller may perform all or any of the following functions:

exercising supervision over the activities of the Certifying Authorities;

certifying public keys of the Certifying Authorities;

laying down the standards to be maintained by the Certifying Authorities;

specifying the qualifications and experience which employees of the Certifying


authorities should possess;

specifying the conditions subject to which the Certifying Authorities shall conduct their
business;
30

specifying the contents of written, printed or visual materials and advertisements that
may be distributed or used in respect of a Digital Signature Certificate and the
public key

specifying the form and content of a Digital Signature Certificate and the key;

specifying the form and manner in which accounts shall be maintained by the
Certifying Authorities;

specifying the terms and conditions subject to which auditors may be appointed and
the remuneration to be paid to them;

facilitating the establishment of any electronic system by a Certifying Authority either


solely or jointly with other Certifying Authorities and regulation of such systems;

specifying the manner in which the certifying Authorities shall conduct their dealings
with the subscribers;

resolving any conflict of interests between the Certifying Authorities and the
subscribers;

laying down the duties of the Certifying Authorities,

Maintaining a database containing the disclosure record of every Certifying


Authority containing such particulars as may be specified by regulations, which shall
be accessible to public.

Procedures which Certifying Authority has to follow [Sec. 30]

Every Certifying authority shall:


(a) make use of hardware, software, and procedures that are secure from intrusIon
and misuse;

(b) provide a reasonable level of reliability in its services which are reasonably suited
to the performance of intended functions,

(c) adhere to security procedures to ensure that the secrecy and privacy of the digital
signatures are assured;

(d) observe such other standards as may be specified by regulations.

Recognition of Foreign Certifying Authorities [Sec. 19]

The controller may with the previous approval of the Central Government, and
by notification in the Official Gazette, recognize any Foreign Certifying Authority as a
Certifying Authority for the purposes of this Act Where any such Certifying Authority is
recognized, the Digital Signature Certificate issued by such Certifying Authority shall
be valid for the purposes of this Act.
31

License To Issue Digital Signature Certificates [Sec. 21]

Any person can make an application, to the Controller, for a licence to issue
Digital Signature Certificates. No licence shall be issued to such applicants unless the
applicants fulfill such requirements with respect to qualification expertise, manpower,
financial resources and other infrastructure facilities, which are necessary to issue
Digital Signature Certificates as may be prescribed by the Central Government. A
licence granted under this section shall:

(a) be valid for such period as may be prescribed by the Central Government;

(b) not be transferable or heritable;

(c) be subject to such terms and conditions as may be specified by the regulations.

Application for licence [Sec. 221]

(1) Every application for the issue of a licence shall be in such form as maybe
prescribed by the Central Government

(2) Every application for issue of a licence shall be accompanied by:

(a) a certification practice statement;

(b) a statement including the procedures with respect to identification of the


applicant; (c) payment of such fees, not exceeding twenty-five thousand rupees as
may be prescribed by the Central Government;

(d) such other documents, as may be prescribed by the Central Government.

Renewal of licence [Sec. 231]


An application for renewal of a licence shall be in such form and accompanied
by such fees, not exceeding five thousand rupees, as may be prescribed by the
Central Government and shall be made not less than forty-five days before the date of
expiry of the period of validity of the licence.

Procedure for grant or rejection of licence [Sec. 24]

The Controller may, on receipt of an application after considering the documents


accompanying the application and such other factors, as he deems fit, grant the
licence or reject the application; however, no application shall be rejected without
giving the applicant a reasonable opportunity for presenting his case.

Suspension of licence [Sec. 251]

(i) The controller may revoke the licence, if he is satisfied after making such
inquiry, as he may think fit, that a Certifying Authority has,
32

(a) made an incorrect or false statement in the application for the issue or renewal of
the licence.

(b) failed to comply with the terms and conditions subject to which the licence was
granted;

(c) failed to maintain the standards specified in Sec. 20 (2) (b).

(d) contravened any provisions of this Act, rule, regulation or order made there under.

However, no licence shall be revoked unless the Certifying Authority has been given a
reasonable opportunity of showing cause against the proposed revocation.

(ii) The controller may, if he has reasonable cause tc believe that there is any
ground for revoking a licence, by order suspend such licence pending the completion
of any inquiry ordered by him; However no licence 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.

(iii) No Certifying Authority whose licence has been suspended shall issue any
Digital Signature Certificate during such suspension.

Notice of suspension or revocation of licence [Sec. 261]

Where the licence of the Certifying Authority is suspended or revoked, the


controller shall publish notice of such suspension or revocation, as the case may be, in
the database maintained by him. However, that the database containing the notice of
such suspension or revocation, as the case may be, shall be made available through
web site which shall be accessible round the clock.

Display of licence [Sec. 32]

Every Certifying Authority shall display its licence at a conspicuous place of the
premises in which it carries on its business.

Surrender of licence [Sec. 33]

Every Certifying Authority whose licence is suspended or revoked shall


immediately after such suspension or revocation, surrender the licence to the
Controller. If he fails to surrender the licence, he shall be guilty of an offence and shall
be punishable.

Disclosure

Every Certifying Authority shall disclose (Sec. 34)


33

(a) its Digital Signature Certificate which contains the public, key corresponding to the
private key used by that Certifying Authority to digitally sign another Digital
Signature Certificate

(b) notice of the revocation or suspension of its Certifying Authority Certificate,

(c) any other fact that materially and adversely affects the reliability of a Digital
Signature Certificate.

Issue of Digital Signature Certificate [Sec. 35 and Sec. 361]

Any person may make an application to the Certifying Authority for the issue of
a Digital Signature Certificate in such form as may be prescribed. Every such
application shall be accompanied. by such fee (not exceeding twenty-five thousand
rupees) as may be prescribed by the Central Government, to be paid to the Certifying
Authority. However, different fees may be prescribed for different classes of
applicants.

Every such application shall be accompanied. by a certification practice


statement or where there is no such statement, a statement containing such
particulars, as may be specified by regulations.

On receipt of an application, the Certifying Authority may, after consideration of


the certification practice statement and after making such enquiries it may deem fit,
(a) grant the Digital Signature Certificate or (b) for reasons to be recorded in writing
reject the application: However, no Digital Signature Certificate shall be granted
unless the Certifying Authority is satisfied that:

(a) the applicant holds the private key corresponding, to the public key to be listed in
the Digital Signature Certificate;

(b) the applicant holds a private key, which is capable of creating a digital signature,

(c) the public key to be listed in the certificate can be used to verify a digital signature
affixed by the private key held by the applicant; However, no application shall be
rejected unless the applicant has been given a reasonable opportunity of showing
cause against the proposed rejection.

Representation upon issuance of Digital Signature Certificate (Sec. 36)

A certifying authority while issuing a Digital Signature Certificate shall certify


that

(a) it has complied with the provisions of this Act and the rules and regulations made
there under;
34

(b) it has published the Digital Signature Certificate or made it available to such
person relying on it and the subscriber has accepted it.

(c) the subscriber holds the private key corresponding to the public key, listed in the
Digital Signature Certificate;

(d) the subscriber’s public key and private key constitute a functioning key pair,

(e) the information contained in the Digital Signature Certificate is accurate, and true.

Suspension of Digital Signature Certificate [Sec. 371]

The Certifying Authority which has issued a Digital Signature Certificate may
suspend such Certificate:

on receipt of a request to that effect from the subscriber or any person authorized by
him.

If it is of opinion that the Certificate should be suspended in the public interest.

The certifying Authority shall communicate the suspension to the subscriber.

A digital Certificate shall not be suspended for a period exceeding fifteen days unless
the subscriber has been given an opportunity of being heard in this matter.

Revocation of Digital Signature Certificate [Sec. 381]

A Certifying Authority may revoke a Digital Signature Certificate issued by it


where the subscriber or any other person authorised by him makes a request to that
effect; or upon the death of the subscriber, or upon the dissolution of the firm or
winding up of the company where the subscriber is a firm or a company. A Certifying
Authority may revoke a Digital Signature certificate which has been issued by it at any
time, if it is of opinion that

a material fact represented in the Digital Signature Certificate is false or has been
concealed; a requirement for issuance of the Digital Signature Certificate was not
satisfied; the Certifying Authority’s private key or security system was
compromised in a manner materially affecting the Digital Signature Certificate’s
reliability; the subscriber has been declared insolvent or dead or where a
subscriber is a firm or a company, which has been dissolved, wound up or
otherwise ceased to exist.
35

A Digital Signature Certificate shall not be revoked unless the subscriber has
been given an opportunity of being heard in the matter. The Certifying authority shall
communicate, the revocation to the subscriber. Where a Digital Signature Certificate is
suspended or revoked, the Certifying Authority shall publish a notice of such
suspension or revocation [Sec. 39].
36

Duties Of Subscribers:

Where the public key of any Digital Signature Certificate corresponds to the
private key of that subscriber which is to be listed in the Digital Signature Certificate
has been accepted by the subscriber, then the subscriber shall generate the key pair
by applying the security procedure [Sec. 40]. While accepting a Digital Signature
Certificate, a subscriber shall publish or authorise the publication of a Digital
Signature Certificate. By accepting a Digital Signature Certificate the subscriber
certifies to all who reasonably rely on the information contained in the Digital
Signature Certificate that:

the subscriber holds the private key corresponding to the public key listed in the
Digital Signature Certificate and is entitled to hold the same

all representations made by the subscriber to the Certifying Authority and all material
relevant to the information contained in the Digital Signature Certificate are true;

all information in the Digital Signature Certificate that is within the knowledge of the
subscriber is true [Sec. 41(2)].

Every subscriber shall exercise reasonable care to retain control of the private
key corresponding to the public key and take all steps to prevent its disclosure to a
person not authorized to affix the Digital Signature of the subscriber. If the key has
been compromised, then the subscriber shall communicate the same without any
delay to the Certifying Authority [Sec. 42]
37

Penalties And Adjudication:

Penalty for damage to computer, computer system etc [Sec. 31]

If any person without permission of the owner or any other person who is in
charge of a computer, computer system or computer network:

accesses or secures access to such computer, computer system or computer


network;

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;

introduces or causes to be introduced any computer contaminant by computer


virus into any computer, computer system or computer network;

damages or causes to be damaged any computer, computer system or


computer network, data, computer data base or any other programmes residing in
such computer, computer system or computer network;

disrupts or causes disruption of any computer, computer system or computer


network;

denies or causes the denial of access to any person authorised to access any
computer or computer system or computer network by any means;

provides any assistance to any person to facilitate access to a computer,


computer system or computer network in contravention of the provisions of this Act,
rules or regulations made there under,

charges the services availed of by a person to the account of another person by


tampering with or manipulating any computer, computer system, or computer
network, he shall be liable to pay damages by way of compensation not exceeding
one crore rupees to the person so affected.

Penalty for failure to furnish information, return, etc. [Sec. 441]

If any person who is required under this Act or any rule or regulations made
there under to-
38

Furnish any document, return or report to the Controller or the Certifying


Authority fails to furnish the same, he shall be liable to a penalty not exceeding one
lakh and fifty thousand rupees for each such failure.

File any return or furnish any information, books or other documents, within the
time specified therefore in the regulations fails to file return or furnish the same within
the time specified therefore in the regulations, he shall be liable to a penalty not
exceeding five thousand rupees for everyday during which such failure continues;

Maintain books of account or records fail to maintain the same, he shall be liable
to a penalty not exceeding ten thousand rupees for every day during which the failure
continues.

Residuary penalty [Sec. 451]

Whoever contravenes any rules or regulations made under this Act, for the
contravention of which no penalty has been separately provided, shall be liable to pay
a compensation not exceeding twenty five thousand rupees to the person affected by
such contravention.

Power to adjudication [Sec. 46]

For the purpose of adjudication whether any person has committed a


contravention, of any of the provisions of this Act, the Central Government shall
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 the manner prescribed by the Central Government.

The adjudicating officer if on inquiry, satisfied that the person has committed
the contravention, he may impose such penalty or award such compensation as he
thinks fit

No person shall be appointed as an adjudicating officer unless he possesses


such experience in the field of Information Technology and legal or judicial experience
as may be prescribed by the Central Government.

While adjudicating the quantum of compensation, the adjudicating officer shall


have due regard to the amount of gain of unfair advantage as well as the amount of
loss caused to any person as a result of the default and the repetitive nature of the
default [Sec. 47]

Cyber Regulations Appellate Tribunal:


39

The Central government shall, by notification, establish one or more appellate


tribunals to be known as the Cyber Regulations Appellate Tribunals and specify in the
notification, the matters and places in relation to which the Cyber appellate Tribunal
may exercise jurisdiction [Sec. 48]. A Cyber Appellate Tribunal shall consist of one
person only referred to as the Presiding Officer, appointed by the Central Government
[Sec. 49]

Appeal to Cyber Regulations Appellate Tribunal (Sec. 57)

Any person aggrieved by an order made by Controller or an adjudicating officer


under this Act may prefer an appeal to a Cyber Appellate Tribunal within a period of
forty-five days from the date on which a copy of the order made by the Controller or
the adjudicating officer is received by the person aggrieved and it shall be in such
form and be accompanied by such fee as may be prescribed. On receipt of an appeal,
Tribunal may after giving the parties an opportunity of being heard, pass such orders
thereon as it thinks fit, confirming modifying or setting aside the order appealed
against The Cyber Appellate Tribunal shall send a copy of every order made by it to
the parties to the appeal and to the concerned Controller or adjudicating officer, The
Cyber Appellate Tribunal shall be guided by the principles of natural justice and
subject to the other provisions of this Act. The Tribunal shall have the same powers as
are vested in a civil court under the Code of Civil Procedure (Sec. 58). The appellant
may either appear in person or authorize one or more legal practitioners or any of its
officers to present the case before the Cyber Appellate Tribunal (Sec. 59). The
provisions of the Limitation Act, 1963 shall apply to an appeal made to the Cyber
Appellate Tribunal. (Sec. 60). No court have jurisdiction to entertain any suit or
proceeding in respect of any matter which an adjudicating officer or the Cyber
Appellate Tribunal is empowered by this Act to determine. No injunction shall be
granted by any court in respect of these matters (Sec. 61). Any person aggrieved by
any decision or order of the Cyber Appellate Tribunal may file an appeal to the High
Court within sixty days from the date of communication of the decision or order of the
Cyber Appellate Tribunal. (Sec. 62)

Compounding of contraventions (Sec. 63)


40

Any contravention may either before or after the institution of adjudication


proceedings, be compounded by the Controller or such other officer as may be
specially authorised by him in this behalf or by the adjudicating officer, as the case
may be, subject to such Conditions as the Controller or such other officer or the
adjudicating officer may specify;

Provided that such sum shall not, in any case, exceed the maximum amount of
the penalty which may be imposed under this Act for the contravention so
compounded

Nothing in above shall apply to a person who commits the same or similar
contravention within a period of three years from the date on which the, first
contravention, committed by him, was compounded.

Where any contravention has been compounded under sub-section (1), no


proceeding or further proceeding, as the case may be, shall be taken against the
person guilty of such contravention in respect of the contravention so compounded.

Recovery of Penalty (Sec. 64)

A penalty imposed under this Act, if it is not paid, shall be recovered as an


arrear of land revenue and the licence or the Digital Signature Certificate, as the case
may be, shall be suspended till the penalty is paid.
41

Offences:

Tampering with computer source documents (Sec. 65)

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
time being in force, shall be punishable with imprisonment up to three years, or with
fine which may extend up to two lakh rupees, or with both.

Hacking with Computer System (Sec. 66)

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. Whoever commits hacking shall be
punished with Imprisonment up to three years or with fine which may extend upto two
lakh rupees or with both.

Publishing of information which is obscene in electronic form (Sec. 67)

Whoever publishes or transmits or causes to be published in the electronic form,


any material which is obscene or if its effect is to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, 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.

Securing access to protected system contravened (Sec. 70)

Any person who secures access to a protected computer system in


contravention of the provisions of this section shall be punished with imprisonment for
a term which may extend to ten years and shall also be liable to fine.

Misrepresentation (Sec. 71)


42

Whoever makes any misrepresentation to or suppresses any material fact from,


the Controller or the Certifying Authority for obtaining any licence or Digital Signature
Certificate 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 (Sec. 71).

Breach of confidentiality and privacy (Sec. 72)

Any person commits breach of confidentiality and privacy of electronic


information or documents 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.

Publishing Digital Signature Certificate, false in certain particulars


(Sec. 73)

Any person who publishes a Digital Signature Certificate false in certain


particulars 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.

Publication for fraudulent purpose (Sec. 74)

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 may
extend to one lakh rupees, or with both.

Confiscation (Sec. 76)

Any computer, computer system, floppies, compact disks, tape drives or any
other accessories related thereto, in respect of which any provision of this Act, rules,
or orders made there under has been contravened, shall be liable to confiscation.

Network Service providers not to be liable in certain cases (Sec. 79)

No person providing any services as a network service provider shall be liable


under this Act, rules of regulations made there under for any third party information or
data made available by him if he proves that the offence or contravention was
committed without his knowledge or that he had exercised all due diligence to prevent
the commission of such offence or contravention.
43

Case Study:

Orkut: The new danger (Section 67)


44

Orkut, the online portal, owned by Google finds itself at the centre of debate. A
nineteen-year-old student has been accused of making a fake account of a girl. Can
we prevent the misuse of this technology by not posting our numbers and pictures?
Abhishek never imagined that the prank he played on his classmate would land him in
jail. Abhishek, a management student and still in his teens, was arrested by the Thane
police following a girl’s complaint about tarnishing her image in the public forum -
Orkut. The report after being published in Mumbai Mirror has created a stir among the
Orkutians and opened up a whole new box of debate.
45

The incident
Abhishek had created a fake account in the name of the girl with her mobile number
posted on the profile. The profile has been sketched in such a way that it draws lewd
comments from many who visit her profile. The Thane Cyber Cell tracked down
Abhishek from the false e-mail id that he made to open up the account.

The question
In this case, the girl has not posted her picture or mobile number in the fake profile. A
brief search in the Orkut profile will reveal many such profiles with pictures of
beautiful girls. My guess is that many of these girls are not even aware of the fact that
their profile exists. These are created by some other people. I will term this as “rape of
the image”. Now the question is “Can we really prevent this rape?”

The debate
The Mumbai Mirror’s report on the issue came with tips to the Orkut users. Police Sub-
Inspector Ravindra Chauhan has been quoted as saying, “Orkut users should not put
up their photographs on the site. They should not reveal personal information in their
profile. Also no cellphone numbers or identity should be mentioned in the scrap book,
as it is open to all.” But whether this really can be a way out, is debatable. “What
about the hundreds of CVs I send to the unknown agencies everyday? They even
contain my mobile number”, says Aditi, a DU student and a hardcore Orkut addict.
She does have a point.

The truth is that in today’s world mobile numbers are far from being personal
information. The proof lies in the numerous sales calls that we receive from credit card
agents. On the issue of the photograph, Aditi says, “When Orkut gives an opportunity
to show your face to the whole world, then why not?” When asked about the risks
involved, she replied, “Who cares?” But everyone is not as carefree as Aditi. A brief
search in Orkut once more will reveal profiles that have pictures of film stars, flowers,
animals, sceneries and not the face of the owner. “I will never put my picture on Orkut
profile,” says Mansi, whose profile in Orkut carries the picture of Aishwarya Rai. “It’s
not safe, anybody and everybody can save it on their computer and can misuse it.”
But here again the question lies - can we really prevent it? What happens to the
hundreds of passport photographs we send with the application forms all our life? Any
of them can be scanned and put up without our notice. Are we sure that all copies of
46

the digital pictures taken at our local photography shop are deleted after we leave? “I
don’t know, but there is no harm in being careful,” says Mansi.
So perhaps even in this age of globalisation and technical advancements we will hold
ourselves from showing our face to the entire world for we never know who is
misusing it in what way. And as the lawmakers say “We cannot do anything, until a
complaint is lodged”.
47

Bibliography:

• http://www.naavi.org/importantlaws/itbill2000/preamble.htm

• http://en.wikipedia.org/wiki/Cyber_Crime

• http://www.expresscomputeronline.com/20020826/cover.shtml

• http://www.expresscomputeronline.com/20040426/coverstory01.shtml

• http://www.expresscomputeronline.com/20040705/newsanalysis01.sht
ml

• http://sify.com/finance/fullstory.php?id=14344751

• http://www.indiaforensic.com/cyberlotto.htm

• http://www.cyberlawclinic.org/cyberlaw.htm

• http://www.cio.in/govern/viewArticle/ARTICLEID=2766

• http://www.timesnow.tv/Cyber_crime_in_schools/articleshow/1885261.c
ms

• http://www.bpoindia.org/research/cyber-crime-asia.shtml

• http://www.dnaindia.com/report.asp?NewsID=6411

• http://www.cidap.gov.in/cybercrimes.aspx