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Way back in March 2015, the Supreme Court in its judgement said that  Section 66A of ITA 2000/8 as unconstitutional because it curtails Freedom of Speech.  However, the Government had not passed any amendment of law to remove the section. Subsequently, on several instances, some Courts and Police continued to use Section 66A ignoring the Supreme Court observations by ignorance or otherwise.

Now in 2022, Government seems to have decided to formally pass an amendment to remove the Section from ITA 2000/8. Along with it, several other sections of ITA 2000 and many other laws have also been amended to remove select portions with an intention to de-criminalize certain aspects of law considered as minor offences.

For this purpose, the Government has introduced a bill titled Jan Viswas (Amendments of Provisions) Bill 2022

About 42 laws have been amended in this Bill including ITA 2000, Trademark Act, Copyright act, Patent Act, PMLA, Motor Vehicles Act, Payment and Settlements Act etc.

In particular, the following changes have been made in ITA 2000.

(A) In section 2, in sub-section (1), in clause (e), for the long line, the following shall be substituted, namely:—

“the State Government, and in any other case—
(I) relating to relevant provision, or a computer resource, which is controlled by the respective Ministry or Department of the Central Government, such Ministry or Department; or
(II) not covered under sub-clause (I), the Central Government;”.

(B) In section 33, in sub-section (2), for the words “punished with imprisonment which may extend up to six months or a fine which may extend up to ten thousand rupees or with both”, the words “liable to pay penalty which may extend to five lakh rupees” shall be substituted.

(C) In section 44,—

(i) in clause (a), for the words “one lakh and fifty thousand”, the words “fifteen lakh” shall be substituted;
(ii) in clause (b), for the words “five thousand”, the words “fifty thousand” shall be substituted;
(iii) in clause (c), for the words “ten thousand”, the words “one lakh” shall be substituted.

(D) In section 45, for the words “compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees”, the following shall be substituted, namely:—
“penalty not exceeding one lakh rupees, in addition to compensation to the person affected by such contravention not exceeding—
(a) ten lakh rupees, by an intermediary, company or body corporate; or
(b) one lakh rupees, by any other person.”.

(E) In section 46, in sub-section (1), for the words “under this Chapter”, the words “under this Act” shall be substituted.

(F) Section 66A shall be omitted.

(G) In section 67C, in sub-section (2), for the words “punished with an imprisonment for a term which may extend to three years and also be liable to fine”, the words “liable to pay penalty which may extend to twenty-five lakh rupees”
shall be substituted.

(H) In section 68, in sub-section (2), for the words “on conviction to imprisonment for a term not exceeding two years or a fine not exceeding one lakh rupees or with both”, the words “to pay penalty which may extend to twenty-five lakh
rupees” shall be substituted.

(I) In section 69B, in sub-section (4), for the words “three years and shall also be liable to fine”, the words “one year or shall be liable to fine which may extend to one crore rupees, or with both” shall be substituted.

(J) In section 70B, in sub-section (7), for the words “one lakh”, the words “one crore” shall be substituted.

(K) In section 72, for the words “punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both”, the words “liable to penalty which may extend to five lakh rupees” shall be substituted.

(L) In section 72A, for the words “punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both”, the words “liable to pay penalty which may extend to twenty-five lakh rupees” shall be substituted.

The Changes in the definition of the “Appropriate Government” under Section 2 will apply to state laws enacted under List III of the Seventh schedule of the Constitution and  delegates the responsibility in relevant circumstances to the Ministries and Departments or by default on the Central Government.

The changes are significant since apart from officially removing Section 66A, it has removed the criminal provisions in Section 33, 67C, 68, 72, 72A, and hence these sections under Chapter XI now actually belong to Chapter IX where Civil penalties are covered.

This change would also bring these sections under the powers of the Adjudicator and Section 46 has been amended to state “Under this Act instead of Under this Chapter”.

Section 33 has been amended to increase the penalty from Rs 10000/- to Rs 5 lakhs. (Regarding surrendering of license by a Certifying authority on revocation or suspension)

Section 44 which relates to Certifying Authorities, has been amended to increase the penalties

from Rs 1.5 lakhs to Rs Rs 15 lakhs under clause (a), (not furnishing document  to CCA),  from Rs 5000/- to Rs 50,000/- under clause (b) (not filing returns) and

from Rs 10,000 to Rs one lakh under clause (c). (not maintaining books of account)

Section 45 in which residual penalty of Rs 25000/- had been provided has been modified to increase the penalty to Rs 1 lakh in addition to compensation to the person affected to the extent of Rs 10 lakhs by an Intermediary, Company or a Body Corporate or Rs 1 lakh in other cases.

It has reduced the imprisonment under Section 69A from 3 years to one year making it non cognizable and bailable

The fine under Section 70B is raised to Rs 1 crore from Rs 1 lakh.

Penalty under section 67C is increased to Rs 25 lakhs.

Penalty under Section 68 is increased to Rs 25 lakhs

Penalty under Section 69B is increased to Rs 1 crore

Penalty under Section 72 is increased to Rs 5 lakhs

Penalty under Section 72A is increased to Rs 25 lakhs.

The Bill is presented in the Parliament and is due to be passed. The passage of the Bill is likely to significantly improve the Ease of Doing Business index of the country also. At the same time, the MeitY is also working on a comprehensive modification of ITA 2000 by replacing it with a new Act called Digital India Act.

(P.S: The above changes have been incorporated in the copy of ITA 2000 in several sections of this website and www.ita2008.in )

Naavi

Also Read:

NDTV.com

For easy reference the affected sections of ITA 2000/8 are available here:

Kerala High Court has pronounced a significant judgement in respect of Right to Forget by distinguishing cases where the “Open Court Justice System”  is not recognized and in-camera proceedings are permitted. In matrimonial cases it has ruled that on request the identities of the parties may be masked in the published judgements.

More details in livelaw here.

Copy of the judgement is here

The discussion is relevant since in the new DPDPB 2022 there is no mention of Right to Forget which automatically places it as a right to be exercised only on specific request in a judicial forum.

The Right to Erase which is the closest right  to “Right to Forget” is considered as limited to the removal of personal data from active use which is an obligation on the data fiduciary when the purpose of processing is deemed to have  been completed or the consent has been withdrawn. However “Right to Erase” does not extend to refuse “Disclosure” if the request for disclosure is from an authorized law enforcement agency or is otherwise required in the legitimate interest situation.

In such circumstances, Personal data on expiry of processing would be retained for a reasonable period as per other legislations like the Income Tax act or IPC or ITA 2000 as long as it is legally required. It would have to be however secured and disclosed only under due process.

Some clarification on these thoughts are expected after the new Act becomes a law and until that time we need to keep our fingers crossed and consider the Right to Forget as a grey area under the new Act.

Naavi

On 17h December 2022, Cyber Society of India, ExNoRa and SPIN-to Chennai conducted an event in Chennai in which Naavi was conferred a Life Time Achievement Award for his contributions to the Cyber Jurisprudence. Simultaneously three other persons who along with Naavi were instrumental in the first conviction under ITA 2000 which occurred in 2004 namely the Magistrate Sri Arul Raj, The IO, Sri Balu Swaminathan and Special Public prosecutor, Mr Kodandaraman were also facilitated with life time achievement awards.

PROGRAM

The event was held at Hotel Raj Sundar Palace, Raja Annamalai Puram. Several dignitaries including senior advocates participated in the event.

Sitting Judge of Madras High Court, Honourable Sri Bharata Chakravarthy gave away the awards.

Further, Advocate M A Ranganath who argued the Umashankar case in the Madras High Court was also facilitated as a Guest of Honour.

Suhas Katti case was historical because it was the first criminal conviction under ITA 2000 which occurred in the year 2004. It was also the first case in which Section 65B certificate was admitted as an evidence and was the main evidence of the offence. Naavi had presented the evidence. (Copy of the judgement is available here:

Copy of Suhas katti Judgement

Umashankar Vs ICICI Bank adjudication was historic because it was the first instance of Adjudication under ITA 2000 resulting in the liability of the Intermediary Bank was upheld in a Phishing Case. The award was given by the then IT Secretary of Tamil Nadu, Mr P W C Dawidar in 2010.

It was subsequently confirmed by the TDSAT under the chairmanship of Honourable Retired Supreme Court Justice, Sri Shiva Kirti Singh in 2019. (During the intervening period the trial continued in Cyber Appellate Tribunal for 2 years before the Tribunal became dysfunctional and later re-started its activities under TDSAT in 2018).

Further the Bank filed an appeal in Madras High Court and the trial was concluded and Judgement dismissing the appeal was released on November 9, 2022.

Naavi argued the case under a Power of Attorney on behalf of the victim Sri S Umashankar who is an NRI, in Adjudication, Cyber Appellate Tribunal and TDSAT. In Madras High Court he was the Expert to assist the Court and Advocate Ranganath presented the arguments.

The  judgement copies in S Umashankar case are available below:

1. Adjudication award from Adjudicator of Tamil Nadu
2. TDSAT Judgement of January 2019 and Reviewed Judgement from TDSAT of March 2019
3. AO’s order following TDSAT Review
4. Madras High Court order on Naavi as PIP
5. Judgment of Madras High Court.

Naavi

Also read: Magistrate D Arul Raj is an unsung hero in development of Jurisprudence under Section 65B of Indian Evidence Act : December 9, 2017 The beginning The End Also view the Discussion on the case at FDPPI Some videos I found on Youtube :

RBI has released an instructive booklet on Cyber Frauds  which should be of great use to common people.

Since this is meant for public awareness, a copy is provided here. 

Naavi

 

While we carry on a discussion on the “Right to Privacy” as a fundamental right and what should be the provisions of regulation such as Digital Data Protection Act or GDPR etc., there is a need to also have a firm understanding of the foundation and legislative background for the law.

The DPDPB2022 has skirted the issue by making this Bill only as an attempt to regulate Governance of Digital Personal Data in a manner that it would ensure that Personal Data is not misused to cause infringement of Privacy Right.

But the real nature of the Right to Privacy beyond it being a part of the Fundamental Right to Life and Liberty under the Article 21 of the Indian Constitution is not clearly explained even in the Puttaswamy Judgement.

There is therefore a need for a continued academic debate on this topic since this will come to haunt us even when regulations are notified under DPDPB 2022.

Naavi.org would like to start a debate on the “Theory of Privacy” for academic purpose with the hope that we would add to the global knowledge base on the topic.

I invite participation of other academicians in this respect. Watch out for series of articles that would be released over a period of time.

Naavi