Can Maharashtra Government Amend IT Act?

A news report from UNI states that the Minister of State for Home (Urban) in Maharashtra, Mr Ranjit Patil has made a statement in the legislative Council of Maharashtra that “Maharashtra Government will amend Information Technology Act to regulate illegal online betting and curb debit and credit card frauds”.

The intention of the Minister to control a Crime committed through Internet is well appreciated. However, it is necessary to explore

a) Is the amendment of ITA 2000/8 required to take action against an online betting website?

b) Is the State Government empowered to amend ITA 2000?

If “Betting” is illegal, it is so whether it is done with paper or electronic documents or using digital communication. Prosecution of “Illegal betting” can always be launched under IPC using electronic evidence presented properly under Section 65B of Indian Evidence Act. Hence there is no need to amend ITA 2000/8 and the Government need not waste its time on this matter.

Further the powers of State Government are defined under Section 90 of ITA 2000 which states as under:

Section 90 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;

(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.

These powers are limited to “Making Rules” to carry out the provisions of the Act and does not extend to “Making New Law”.

If it is required to make any amendments, the amendments have to be proposed in the Parliament and passed as a central legislation. One example of such powers would be to carry out the requirements of Sections 6,6A,7,7A,8 or 9 of ITA 2000/8 which relate to E-Governance. Some powers under Sections 69 also may require rules to be made under local laws.

In the past some States did pass laws for Cyber Cafes under the local Police Acts but now there is a separate Cyber Cafe regulation under ITA 2000/8 itself. Some State Governments have used its powers to designate “Protected Systems” under Section 70 though it is considered prudent that the notification under Section 70 should be from the Central Government.

I hope that the Maharashtra Government takes note of the limitations to State Powers under ITA 2000/8 and does not pass any legislation which may not stand the test of law if challenged. if not challenged, such “Ultra Vires” legislation create  problems in future when convictions are challenged under the unconstitutionality of the laws.

What Maharashtra Government can do

If the State Government of Maharashtra has to take steps in strengthening the Cyber Crime system in the State, they need to focus on improving their Cyber Crime Policing system which requires urgent attention.

I have brought to the attention of the Maharashtra Police through these columns one instance where  the Cyber Crime Police Station in BKC, Mumbai failed to undertake investigation of a simple complaint made by a multi national company which required urgent action to trace the IP address from which some offending e-mails were being sent. Neither the officials in charge of Cyber Crime Police Station nor the Police in the jurisdictional police station to which the case was transferred took any action to resolve the case. The top officials of the State police also failed to respond to the request from the undersigned and the case went dead.

There is no use in trying to amend the laws and introduce unnecessary new provisions just to claim that the Government is taking some action. There is need to ensure that Police in the Cyber Crime police stations and the Jurisdictional police stations are properly trained both in the skills required for resolving Cyber Crimes and also the attitude required to help victims of Cyber Crimes without corruption. This will atleast ensure that current laws would be properly implemented.

I have made some suggestion in my earlier article titled How to Relieve Cyber Police in India of needless burden and make them more focused  to improve the Cyber Crime investigation at the base level of IP address resolution. If  Maharashtra Government is interested in improving Cyber Crime handling in the State, I request them to consider the suggestion made here to ensure that Cyber Crime Complaints are resolved more efficiently than at present. This is well within the powers of the State Government.

I appeal  to the  CM of Maharashtra, besides the Minister of State, Mr Ranjit Patil to consider the suggestion made.


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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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