Cyber law jurisprudence is still evolving in India
despite the fact that Indian cyber law was enacted almost 15 years
back. This is so because Indian Legislature and Executive are not at
all comfortable to deal with technology related laws. Techno legal
experts have been maintaining that India must establish a techno
legal framework to deal with growing cases of cyber crimes
and cyber attacks. Nevertheless the position has remained the same
and India is still lagging far behind in formulating technology
related laws.
Not only Indian Parliament is not capable of
enacting good and effective techno legal laws but it is also very
keen in abdicating its duties to Executive. As a result successive
Indian governments have used subordinate/delegated legislations to
impose draconian and civil liberties violating laws upon Indians.
Obviously, the Supreme Court of India is not pleased to either
such draconian laws or to the approach adopted by Indian Executive
and Parliament.
Recently Supreme Court held that Aadhaar
is not compulsory to avail government services in India.
Now Supreme Court has struck down Section 66A of Information
Technology Act, 2000 (IT Act 2000) as unconstitutional. The case of
Shreya
Singhal v. Union of India (24th
March 2015), Writ Petition (Criminal) No.167 Of 2012 (PDF)
can be analysed for more details in this regard.
However, the judgment is not just about Section 66A
but many other sections and rules as well. For instance, Section 79
of IT Act 2000 and Rule 3 of Information Technology (Intermediaries
Guidelines) Rules, 2011 have also
been analysed by Supreme Court. As the constitutionality
of these provisions was challenged, Supreme Court had limited
choices. Supreme Court preferred to narrow down these provisions to
keep them operational and constitutional. But it has not been
realised at what cost this has been done.
According to Praveen Dalal, managing partner of ICT
law firm Perry4Law,
Supreme Court’s Judgment on Section 66A is a big
blow for Cyber Law Due Diligence in India and reading down
of Section 79(3) (b) and Rule 3(4) by Supreme Court in the present
manner is “Counter
Productive” in long run. He has also suggested that Modi
Government must urgently bring suitable
Amendments in the IT Act 2000 to tackle growing Cyber
Threats and Cyber Crimes in India.
Indian cyber law has not been appropriate since its
inception. Too much stress is given to suppress civil liberties and
enhance e-surveillance. However, it has now reached a stage where
immediate steps must be taken to protect civil
liberties in cyberspace on the one hand and projects like
Digital
India on the other. This is also the high time to leave
politics and do positive things for Indian masses.
Ed Note:
This is the updated version of the article titled “Supreme
Court Erred In Reading Down Section 79(3)(b) And Rule 3(4): Praveen
Dalal” published by my friend Priyanka Sharma. For
reasons unknown it failed to appear at Google News. Hence this
updated article has been posted for our readers.
