Can a State Government notify "Protected Systems" under Section 70?



Information Technology Act 2000 (of India) has prescribed  the highest imprisonment term under the Act for offence under Section 70 of the Act. This section refers to "Access or An Attempt to Access a Protected System" and prescribes a maximum 10 years imprisonment.

A "Protected System" referred to in the section is one which is so notified by the Government.

So far, no such notification has been made by the Government and a question has been raised in some quarters whether a State Government can issue a notification under this section.

In order to understand the section in greater depth, let us see the exact wordings used in the Act.

The section states as under:

70. Protected system

(1) The appropriate Government may, by notification in the Official Gazette, declare that any computer, computer system or computer network to be a protected system.

(2) The appropriate Government may, by order in writing, authorize the persons who are authorized to access protected systems notified under sub-section (1)

(3) Any person who secures access or attempts to secure access to a protected system in contravention of the provisions of this section shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

The key word in the section is "Appropriate Government". Obviously, if the intention of the legislators were to empower only the Central Government, a question arises whether it was necessary to use the word "Appropriate Government".

This doubt is further strengthened because of the section 90 which confers some powers to the State Government to make rules under the Act.

This section reads as follows:

Power of State Government to make rules

(1) The State Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely -

(a) the electronic form in which filing, issue, grant receipt or payment shall   be effected under sub-section (1) of section 6;

(b) for matters specified in sub-section (2) of section 6;

(c) any other matter which is required to be provided by rules by the State  Government.

(3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

Despite the first part of the subsection (2) of this section, it appears that the need for this section is basically to provide the powers to the State Governments regarding the procedures for enabling e-governance under sections 6, 7 and 8 of the Act since these will be matters pertaining to the respective State Government alone.

However, the Section 70 is not a section which limits its scope to the citizens within the State. Consequences of declaring a system as a "Protected System" has global jurisdiction.

Hence it would be inappropriate if each state Government starts declaring some systems within the state as "Protected Assets" on its own.

Since the Act itself is a "Central Act", it is appropriate that any rules that affects the general provisions of the Act must be made only by the Central Government and not the State Government.

A further conformation to this effect can be obtained by the definition of "Appropriate Government" provided in the Act itself.

According to the section 2(e) of the Act, an "Appropriate Government" is defined as follows:

2 (e) "Appropriate Government" means as respects any matter.

(i) enumerated in List II of the Seventh Schedule to the Constitution;

(ii) relating to any State law enacted under List III of the Seventh Schedule to the Constitution, the State Government and in any other case, the Central Government;

List II of the Seventh Schedule of the Constitution contains the matters that come under the State List and List III of the Schedule refers to matters that fall under the concurrent list.

It appears that according to the Constitution, offences falling under the ITA-2000 do not fall under either of the lists.

Hence it appears that the power to make rules under Section 70 should be available only to the Central Government.

I request Constitutional experts to clarify if the above inference is correct or not.


January, 10, 2003

Related Information:

Seventh Schedule of the Indian Constitution

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