Author: Deobrat S. Gaur
Designation: B.COM LL.B (H) Student, UPES Dehradun
Email ID: Deobrat11gaur@gmail.com
With the vibrant dependence on electronic medium in-order to reach consensus in the commercial agreement the Information technology act was passed on [9th June, 2000.] which became enforceable on October 17th 2000. This is the first and the primary legislation which deals with the subject matter of cybercrime e-governance and commercial agreement etc. Information Technology Act is based on the international obligation proposed by UNICITRAL Model Law on Electronic Commerce, which was adopted by United Nations on International Trade law on 30th January, 1997.
The prime objective, of the UNICITRAL model law was to provide a structure or the framework so that the countries can restructure their domestic laws in consensus or in parity with the Model Law on the subject matter of electronic commerce. The UNICITRAL Model acted as a source of inspiration for many countries to enact legislation for potent e-commerce recognition. India is one of the countries which took inspiration from the Model law, and drafted the domestic legislation.
The Information Technology Bill was for the first time tabled in the parliament on December 16th 1999, it was referred to the standing committee on Science And Technology on 17th Jan 2000, the committee submitted the report on 12th May 2000 which included several amendments to be included .The changes were duly considered and debated and finally they were accepted and the Bill was duly introduced on May 15th 2000. The parliament passed the Bill and it finally received the assent of the President on June 9th 2000.
THE OBJECTIVE OF THE LEGISLATION
To acknowledge the agreement or the transaction which have been reached and concluded through electronic medium, and to provide legal infrastructure for the potent expansion of E-commerce in India.
It provides a framework so that the status of validity and enforceability can be accorded to all the electronic records and not to discriminate the records on the basis or solely on the ground that such documents or the records are in electronic form; this is based on the principle of Non discrimination of the UNICITRAL Model
Principle of Non-discrimination which categorically states that the law will not make any distinction between online and offline documents, records, agreements etc, and none of the aforementioned can be rejected or termed invalid solely on the grounds that the said document is in electronic form.
With the enactment of Information Technology Act, India also witnessed the changes and amendments made under various other laws, primarily the procedural law, this step was based on the principle of Functional Equivalence of the UNCITRAL Model
Functional Equivalence states that the law enacted i.e. Substantive will only become functional if the procedural laws are also accommodated and amended so as to involve the implementations of the particular law, for an e.g., India enacted Information Technology Act but the procedural laws do not prescribe the implementation of the rights and obligation of the Information Technology Act then, the rights and obligation in substantive law will become sham.
MAJOR AMENDMENTS UNDER INFORMATION AND TECHNOLOGY ACT
The quintessential amendment made under IT act in 2008 , which was basically to restructure the legislation and to make it more flexible to accommodate issues which were not catered with the Information Technology act at the time of the enactment to provide true spirit to the objective of the legislation.
It introduced section 10A which talks about the validity of E-contract, i.e. contract which are entered by the parties through electronic means i.e. where offer, acceptance, consensus ad idem, consideration, etc is done electronically.
Section 66A was added, which make provision with regard to the penalty of the messages which are offensive.
Section 69 was amended, which authorizes the Government to monitor, intercept, encrypt or decrypt any information available in the computer resource. This amendment was highly controversial as with the recognition of Right to Privacy as the Fundamental Right enshrined under Article 21 of the Indian Constitution 1950 as per the landmark judgment of KS.Putta Swami Vs UOI.
Apart from them, there are various amendment, which added the provision with regard to Child Sexual Abuse, pornography, Child Pornography, Cyber Terrorism and Voyeurism, the peculiarity of the amendments were that, there was no disagreement or debate on them, it got passed firstly in Lok Sabha, and the very next day in Rajya Sabha.
QUINTESSENTIAL CASE ON CONSITUTIONALITY
SHREYA SINGHAL VS UOI
In this case a law student filed a Public Interest Litigation which challenged the constitutionality of section 66A, 69A, 79 as violative of fundamental right enshrined under Part 3 of the constitution majorly article 19(1)(a) and article 21.
Supreme court held that section 66A was unconstitutional as it was infringing article 19(1)(a) whereas section 69A, 79 were held to be constitutional which dealt with the mechanism and safeguards regarding blocking of websites.
But the point of criticism over there was, no matter the apex court of India held 66A to be violative of Fundamental rights and held it unconstitutional, still the police held several people liable under the aforementioned section.
Over the period of 20 Years India , has dealt very with the various issues which has surfaced through cyberspace and technology ,With the vibrant dependence on electronic medium to bridge the gap of territorial difference and to reach to commercial agreement. The Information Technology Act was enacted and further, Information Technology Act has also been amended in 2008 to restructure the legislation and to make it flexible to accommodate issue which were not catered with the Information and Technology Act at the time of the enactment,
There is still Requirement of Stringent measures- India holds second position after China , for having the highest number of internet Users , in the World , and with the dynamic nature of the technology the law should also be aligned , so that laws does not become obsolete, thereby changes should be taken from time to time, in the best interest of the public, based on the principle of technological neutrality , which states that law should be aligned and should be in position to deal with the issues arising from the dynamic changing technology.