Proposed Amendments to the Information Technology Act
Comments from Mr Kamal Dave, Advocate
The government of India has proposed many amendments by the
Information Technology (Amendment) Act, 2005. The government of India, owing to
the recent spurt of cyber crimes & exposures, has proposed amendments to the
Information Technology Act 2000. Amongst the proposed amendments, major are :
1. Provision for technology neutral authentication mechanism : The
amendment Act provides for Electronic Signature (however it includes digital
signature) instead of Digital Signature as a move towards for providing
technology neutral authentication mechanism for authentication of electronic
Analysis of the proposed amendments : The analysis to amendments as proposed
by the Act are as follows :
2. Generalising/ Broadening the definition of Cyber offences to include more
computer related offences viz. Cyber Crimes : Provision for including cyber
crimes under the head computer related offences with penal punishment instead of
hacking of the computer by broadening the definition of cyber crimes.
3. Reduced Punishment : Reduction of punishment for Cyber offences viz.
punishment for computer related offences to imprisonment for one year or two
years respectively and for publishing the pornography/ obscene matter on the
electronic media to three years. Specific enhanced punishment for child
4. Provision for compounding of offences : Provision for compounding of
offences even for matters pending prosecution/ adjudication before the court.
5. Exclusion of liability : Specific provision explicitly reducing the
liability for offence committed by the intermediaries.
6. Introduced provision for punishment for Invading Privacy : Punishment
for offence of unauthorizedly recording pictures/ photographs of persons thereby
invading their privacy.
7. Provision for a authority/ body of expert of examiner of Electronic
Evidence : Provision for a authority/ body of examiner of Electronic
8. Reducing the burden on CCA : Reducing the burden on CCA (Controller of
Certifying Authorities) by excluding it from being a repository for Digital
Signatures issued by the CAs (Certifying Authorities).
Analysis of Amendment 1 : Provision for technology neutral authentication
The step to have a technology neutral mechanism as valid electronic signatures
is a welcome step. However, the step is wanting in practical perspective as the
Amendment Act itself mentions that the technology is yet to be developed and
that rules can not be formed in absence of fully developed technology.
Furthermore the technology is required to meet three primary/ elementary
criteria/ condition viz. firstly, the technology should be able to detect any
alteration in the electronic document; secondly the electronic documents should
have provision for distinct & unalterable date & time stamp on them; And thirdly
it should be able to provide for signature & counter signatures (without
limitations of levels) and entire contents should be capable of being distinctly
identified and separately authenticated and counter authenticated with specific
electronic signatures of individual & authorities.
Amendment 2 : Generalising/ Broadening the definition of Cyber offences to
include more computer related offences viz. Cyber Crimes
The broadening of definition of the Computer related offence attempts to define
the situations and circumstances that makes the act an offence. However, an
attempt is made by the amendment to include any act out that may fall in the
category of offence. However, the two terms viz. "Fraudulently" & "Dishonestly"
tend have subjective interpretations.
The main fallback of the proposed amendment is the generic definition of the act
forming offence leads to discretionary/ skewed interpretation due to absence of
specific definition/ terminology to the offence leading thereby the to chances
of biased decisions. This may lead to complete disruption in delivering
impartial justice and putting off the lid from the discretionary powers to
authorities giving rise to multiple interpretation of the proposed provision and
variation in decision could be attributed to probability or discretion. The
matter sub-judice i.e. the act should withstand the scrutiny of law, but with
such provision, the veracity of decision gets shaken.
Furthermore the amendment has twin effect, firstly adjudication gets adversely
impacted due to the inclusion of two subjective clauses, which tends to have
discretionary interpretation to the matters sub-judice; secondly, in cases where
the act is not done "Fraudulently" & "Dishonestly", however causes substantial
loss remain unpunished and offenders remain undeterred. This will lead to
adventurism and increase in cyber crimes and would tend to lower the confidence
on the entire process of electronic commerce and electronic governance and the
government/ corporate houses/ individual would suffer due to the voyeurism of
the youthful offenders.
The lowering of the punishment for the offence, reduces the fear of law thereby
creating a perception of non-existence of effective law and order machinery in
the state leads to increase in offences & contravention of law. This overall
effect of it would be chaos/ jeopardy in the state administration & collapse of
Amendment 3 : Reduced Punishment
The reduction of punishment is a regressive step. By this proposed amendment,
the offences gets loose string of being categorized into bailable category
meaning thereby accused/ offender on his/ her arrest, as a matter of right, can
claim to be released on bail despite having committed offence grave enough to
jeopardize/ collapse the system itself. With disproportional punishment, i.e.
lower punishment the deterrence of law & administration reduces. The law would
loose its due respect and result in increase in crimes, leading to diminution of
faith & confidence in administration of justice. Thus with reduction of
punishment for the offence will encourage offenders to commit cyber crimes more
freely. Thus to control these offences appropriate check & balance and controls
on electronic transactions is necessary.
Amendment 4 : Provision for compounding of offences
The introduction for a clause for compounding of offences is a regressive act.
The amendment makes the provision allowing/ enabling the authorities to compound
the offences and it even allows the authorities to compound the offences pending
trial before the court. This may send wrong signals that any such illegal act/
offence/ contravention can be done away with by paying a paltry sum and it will
further lead to diminution of faith & confidence in law and collapse of system
of administration of justice and lead to chaos in the society.
Amendment 5 : Exclusion of liability
The proposed amendment to exclude the liability of Intermediary in fact exists
in the existing act also but the amended provision, explicit provision to
exclude the liability of intermediary, however, it is with two riders i.e.
preconditions viz. "conspiracy" or "abetment" in commission of offence. However
the amendments, imposes no direction/ condition on authorities concerned to take
necessary preventive/ remedial steps to avoid any such disorderly situation. It
also does not impose any liabilities on authorities to have recourse to remedial
measure to prevent any such illegal/ prohibitive action or its recurrence in any
Amendment 6 : Punishment for Invading Privacy
The proposed amendment is a welcome step as right to have privacy &
confidentiality gets protected. The amendment, however, is difficult to be
implemented in case the offender remains elusive due to the technology itself.
Amendment 7 : Provision for a authority/ body of expert of examiner of
The proposed amendment for establishing a separate authority a creation of
separate body of Expert for examining Electronic Evidence is like creating
another authority parallel to the Centre for Forensic Science Laboratory (CFSL).
The composition and place of offices too are not mentioned. Further the
amendment makes no option for parties in dispute or any interested person to
approach the authority for redressal of their private grievance and the fee
thereof need also to be decided keeping into mind the liability of it on the end
Amendment 8 : Reducing the burden on CCA
The proposed amendment of reducing the liability of CCA by discharging it from
maintaining the database of private keys of the certificate holder (Digital
Signature Certificate), inline with practice in other countries, will although
reduce the burden on CCA. However, this will, in case of any question arising
out of authenticity/ veracity of electronic transaction based on the digital
signature would not be able to withstand test legal scrutiny and would tend to
become a matter of discretion and likelihood of unfair play.
These proposed amendments although are patchwork sort of amendments and are
outcome of recent cases of cyber crimes cases exposed by the media and not a
result of serious analysis of all the problems. These are piece meal
arrangements to the problems. The proposed amendments should incorporate not
only specific act or omission forming offences but also include provision
relating to cyber terrorism in the present act to prevent commission of any
cyber crime including heinous cyber crime i.e. cyber terrorism.