With regard to the Cyber Cafe Case at Meerut, the
act of the district administration can be said to be autocrat,arbitary
and unjustifiable. This present event has given birth to a number of issues
–
Applicability of I.P.C to cases of cyber crime
Applicability of section 67 on cyber café owners
Breach of fundamental right
Applicability of I.P.C to Cases of Cyber Crime
The threat given by the district collector of booking the café
owner under I.P.C is immaterial. The provisions of penal code does not
hold good in matter relating to cyber crime.
Section 81 read along with section 80(3) makes the position crystal
clear . The heading to section 81 reads "Act to have overriding effect".
It further adds –"the provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other law for the time
being in force".
Section 80(3) supplements this section by stating that the provisions
of Cr.P.C 1973 shall subject to the provisions of section 80 shall, apply,
so far as may be in relation to any entry, search or arrest made under
this section.
Thus the café owners should not be terrorized by such autocratic
acts of the public servants rather they should move the court of justice
to get their rights enforced and make the public servants understand that
their service is mend for the public rather than the misconception which
they carry that public is their servant.
The Delhi (go2nextjob) case –the evolution of new concept of hacking,
the Belgaum Cyber Cafe case, and the present case – give the clear picture
of inefficiency of the administration in handling the typical cyber crime
case. The second and third case clearly revels the decaying position of
beaurocratic system on which our country is resting. This is a situation
which need not be criticized nor pitied but should be fought back strongly.
The situation has so much worsened and the system has corroded to such
an extent that it requires a thorough overhauling.
Applicability of Section 67 on Cyber Café Owners
Though section 67 if read individually gives an impression that the
cyber café owner along with the customers are responsible for surfing
pornographic sites. But this section for all- purpose has to be read with
section 79. Section 79 provides for the exception where service providers
are not liable.
Before proceeding to the exception we must see as to who comes under
the purview of service provider –Explanatory clause states that "network
service provider" is an intermediary.
Section 2(w) states that an intermediary with respect to any particular
electronic message means any person who on behalf of another person receives
stores or transmits that message or provides any ‘service’ with respect
to that message .
Here for the purpose of the Act the word service shall be taken in the
same sense as defined in the Consumer Protection Act,1986 . hence it will
include the cyber cafe owners in the scope of service provider.
Thus a cyber café owner stands on equal footing with the I.S.Ps
. Though this immunity granted to the cyber café owner is not absolute
but collateral to the fulfillment of certain requirements-
-
Knowledge
-
Intention
The first important ingredient is knowledge. The commission of the act
should be beyond the knowledge or perception of the service provider and
inevitable. Further the service provider should prove balance of conveyance
in his favor . He should show that he taken due diligence . He should act
in a prudent way to prevent the commission of the offence .(Here it is
clear from the e-mail of the café o wner that he has taken all possible
steps to prevent the commission of offence, thus it was unjustifiable on
part of the collector to order to demolish the cabins on the pretext of
immorality).
Breach of Fundamental Right
It needs no mention that the fundamental rights are guaranteed by ‘the
State’ and hence can be enforced against the State. The district administration
is the instrumentality of the State and hence falls within the ambit of
"the State" as laid down in our constitution.
Here the implication of the order of the collector is three folds. First
of all it abridges –
-
Right to Equality as enshrined in article-14.
-
Freedom to carry on any trade, occupation or business guaranteed by article-19
-
Right to Privacy &Right to Life which flows from article-21
All these three articles are to be construed together as all are equally
dependent on the other. Articlle-14 deals with Equality before law and
Equal protection of the laws. Though the both are consistent with each
other a thin line demarcates between both the concepts. The former is more
of negative concept implying absence of special privilege in favour of
any individual and the equal subjection of all to the ordinary law, while
the other is more of a positive concept implying equal treatment in equal
circumstances.
Further article 19 grants the right to carry on any trade, occupation
or business. Thus the act of the collector to issue order to demolish the
cabins would amount to a substantial loss to the café owner. Thereby
tantamount to closure of his business- the source of his livelihood. The
reason behind issuing the order does not even sound good. It is based on
the pretext of assumption that it will promote immorality.
This affair does not cease here. There is a one another groups of person
to be affected- the consumer. Their rights all needs equal protection.
P.A.S.Pati
Contact Address:
Parthasarathi Pati
7 C, Ashok Nagar, Road No 1, Ranchi,
Jharkhand
885/4/1 Bandarkar Road, Deccan
Gymkhana, Pune 4
E-Mail