India is the star nation as far as the IT capabilities of
nations are concerned.
India has some of the best IT brains in the world. It has
also strategic advantage of having some of the best-in-the-world and economical
infrastructure backbones, services and human resources potential. Even after a
friendly ground for IT, our country has been the target of many cyber attacks,
as the recent past has shown. For a hacker or cyber-criminal, great satisfaction
comes from committing any cyber crime against India as a nation or anything that
stands for Indian-ness.
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A plethora of attacks on government websites by foreign
hackers is a singular instance to support this thinking. Way back, the websites
of Bhabha Atomic Research Centre, ministry of external Affairs, Atomic Energy
Research Board and All-India Institute of Medical Sciences were hacked, and that
was just the beginning. A majority of these cyber-crimes have been committed to
perpetuate criminal tension, using cyberspace as the medium. The Indian
government and corporate sector have lost billions of dollars of information,
goodwill, credibility and reputation as a result of targeted cyber crime. India
has woken up, but belatedly so, to the challenge of cyber crimes.
In May 2000, the Indian Parliament passed its first cyberlaw,
namely the Information Technology Act. The law, in its preamble, clearly states
that it is targeted at promoting e-commerce. It is to be clearly understood that
the IT Act as a law is not meant to regulate cyber crimes. However, a perusal of
Chapter 11 of the Act makes it clear that the new cyberlaw has defined a couple
of cyber crimes as penal offences punishable with imprisonment and fine. These
include damage to computer source code, hacking, publishing, any information in
the electronic form which is lascivious or appeals to prurient interests, breach
of protected system, publishing of digital signature certificates, and so on.
Punishment for these crimes range from imprisonment for terms ranging from two
years to ten years and fines ranging from Rs 1-2 lakh.
However, the coverage of cyber crimes in the IT Act is
neither comprehensive nor exhaustive. Consequently, India, as a nation, has to
cope with an urgent need to regulate and punish those committing cyber crimes,
but with no specific provisions to do so. Supporters of the Indian Penal Code
school vehemently argue that IPC has stood the test of time and that it is not
necessary to incorporate any special laws on cyber crime. This is because the
IPC alone is sufficient for all kinds of crime, they debate. However, in
practical terms, the argument does not have appropriate backing. It has to be
distinctly understood that cyber crime and cyberspace are completely new whelms,
where numerous new possibilities and opportunities emerge by the day in the form
of new kinds of crimes.
Thus, it is absolutely imperative that India becomes a
signatory to the Cyber Crime Convention. It is the first international point of
agreement between nations at large on putting forth a common face against cyber
crime. Cyber crime, given its intrinsic character, is transient in nature and
evades the application of national penal offences.
One of the advantages for India in signing the cyber crime
treaty would be that India would once again officially reiterate its commitment
to stamping out and fighting cyber crime. As a signatory to the said
international treaty, India would be bound to change its national penal laws and
courts so as to be in consonance with the principles of the treaty. This would
be a singular catalyst in galvanizing India into action in terms of
appropriately amending its existing laws and enacting new ones relating to cyber
crime. This would also exert pressure on the Indian government to start thinking
of having distinct legislation to curb cyber crime.
Today, India is facing massive problems in cracking down on
those committing cyber crimes and taking the shelter in foreign lands to evade
punishment. Recent examples of how hackers defaced and hacked the websites of
ministry of external affairs, AIIMS and Atomic Energy Research Board and the
resultant inability of the government to do anything in this regard should be a
spurring factor for India to sign the treaty.
Pavan Duggal The author is a cyberlaw consultant and a practicing advocate
at the Supreme Court