The passage of the ITA-2000 and the zealousness with which the Pune Court has acted against Rediff.com on an alleged action involving distribution of obscene material, has opened a question mark on whether Indians elsewhere in the world can be punished for offenses under Sec 67 of the ITA-2000 even though such an activity may not be a crime in the country in which they are living.

According to Sec 67 of the ITA Act "Publishing", "Transmitting" or "Causing to publish" in electronic form any obscene material is a punishable offense. The penalty is stiff with a possibility of imprisonment upto 5 years even for the first offense.
The section states as under:
 

Sec 67    Publishing of information which is obscene in electronic form  
 

Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if  its effect is such as to tend 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. 

We need to note that the imprisonment appears to be mandatory even though the term is flexible upto 5 years. Can a judge award "Zero" days of imprisonment?.. If so the section could have been worded as "..imprisonment or fine..". The use of the word "and" appears to be deliberate.

According to Sec 1(2), the Act  extends to 

"the whole of India and, save as otherwise provided in this Act, it applies also to any offense or contravention thereunder committed outside India by any person"

Further expanding on the applicability of the Act, Sec 75 states as follows:
 

75   Act to apply for offense or contravention committed outside India  

  (1)   Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offense or contravention committed outside India by any person irrespective of his nationality.
  

  (2)  For the purposes of sub-section (1), this Act shall apply to an offense or contravention committed outside India by any person if the act or conduct constituting the offense or contravention involves a computer, computer system or computer network located in India

"The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 

and Sec 61 which states
 

"No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. "

the provisions of the ITA-2000 becomes applicable to both Citizens of India and others whether they are living in India or not.
 

 If therefore an offense is committed under the Act and the person is under some control of the Indian Government such as having a passport issued in India, it is likely that the person may be brought to book even though the "Offense" committed may not be an "Offense" under the law of a foreign country where the Indian citizen may be residing.

Under section 75, the applicability is conditional to " the act or conduct constituting the offense or contravention involving a computer, computer system or computer network located in India". This provision is more appropriate to describe a "Hacking" offense. However, in the context of "Causing transmission" of an obscene material, any act including "Providing access to the Internet" may be construed as "Using a computer network in India".

It can therefore be surmised that "No Indian Passport holder should dare to contravene the ITA-2000" since he runs the risk of being extradited and imprisoned.

Does this restrict an Indian from maintaining an objectionable site outside India?.. Practically Yes, unless the site owner has taken reasonable steps to block Indian visitors from visiting the site. If so what would be a reasonable step? Blocking the IP addresses of Indian ISPs? Or should it be a request to the Indian Government to block access to the site from Indian ISP s? Will a notice "This site is not meant to be viewed by Indians. The management of the site is not responsible for any Indian viewing the site..etc'

The situation here is similar to the French case against Yahoo- Nazi Memorabilia site. The larger issue is "Whether the Indian National Government can impose itself on the Cyber activities of a person (Indian or Non Indian)?" not within the geographical jurisdiction of India? And Is it practicable to extend the jurisdiction of the Non Cyber Society to the Cyber Society across borders?
..For the time being, there may not be final answers to these questions. There can be only opinions. 
 

Naavi
December 15, 2000

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