It is an undisputed fact that the Cyber networking was the flag bearer of Information Technology revolution world saw in post war era. As far as India is concerned the need of providing a legal backbone to regulate the Cyber Operations in India was bestowed upon the Information Technology Act, 2000 (hereinafter IT Act). The legal framework to cyber security needs of India revolves around the 13 Chapters, 90 sections, 2 schedules of this 16-year-old legislation.
The IT Act, 2000 was drafted in conformity with the United Nations Model Law on Electronic Commerce; the same was adopted by General Assembly on 30th January 1997. This Act had to fulfil three-fold objectives-
- provide legal recognition to transactions carried through electronic means and facilitate international trade (E-Commerce)
- Provide alternative to paper based method of storing information and filing of paper-less documents with government agencies.
- To criminalise and penalise offences committed through electronic medium.
The amplitude of this Act is such that it attempts to provide confidence, protection and means of redressal to even owner of a single computer system or network. The provisions of this Act have been discussed hereinafter as to how it affirms the cyber security needs of India.
JURISDICTIONAL EXTENT OF THE ACT
A very interesting feature of this Act is that it has extraterritorial jurisdiction, this can be understood from the reading of section 1(2) and section 75.
it applies to any person, irrespective of his nationality, for any offence or contravention committed outside India, provided that the act or conduct constituting the offence involves a computer, computer system or computer network situated in India.
The first section also provides that the Act extends to whole of India including the state of Jammu and Kashmir, in furtherance of power of Parliament (under Article 253) to implement an International Agreement.
COMMUNICATION PROCESS IN E-COMMERCE AND ELECTRONIC SIGNATURE
The term e-commerce in a loose and brief sense mean business over the internet. Since the business transactions and communication process in e-commerce were conducted over the internet it was never considered secure enough to deny any threat of interception, transmission delay, deletion and authenticity or verification,
To serve the purpose of providing integrity, authenticity and non-repudiation, the Digital Signatures were first introduced based on Cryptographic system. However, the 2008 amendment also introduced Electronic Signatures which widened the scope of authenticating in electronic world by means of Biometrics, Fingerprint, any secret code affixed or PIN codes.
Section 3 provides that a subscriber may authenticate an electronic record by way of affixing his digital signature, subject to provisions of this Act and such authentication shall be done by way of ‘asymmetric crypto system’ and ‘hash function’.
Whereas the newly inducted Section 3A provides that a subscriber may authenticate the electronic record by electronic signature or authentication technique which is reliable and may be mentioned in the Second Schedule of the Act.
PENALTIES AND COMPENSATION UNDER THE ACT
The section 43 formulates from clause (a) to (j), a comprehensive list of acts causing damage to computer, computer system and computer resource. The section mandates that without the permission of owner of Computer, Computer Resource etc. any person-
- accesses or secures accesses to such computer, computer resource
- download, copies or extracts any data including data from removable storage medium
- introduces or causes to introduce any computer contaminant or virus
- damages or causes damage to computer data or network
- disrupts or causes disruption of computer, computer system and resource
- denies or causes denial of access to any authorised person
- provides assistance any person to facilitate access to a computer, computer system or network
- charges the services availed of by a person to the account of another person by tampering or manipulating any computer, computer system or network
- destroys, deletes or alters any information residing in a computer or diminishes its value or utility
- Steals conceal alters or destroys any computer source code or causes any person to do such.
Any person committing any of the abovementioned acts under the section shall be liable to pay compensation up to One Crore Rupees.
This section is heart-of-the-matter of Information Technology Act, 2000.
Further the Section 43A compensates for failure to protect any sensitive personal data, due to negligence bya body-corporate laden with responsibility of such data protection, such as “data processor” or “data controller”. The compensation may amount up to Five Crore Rupees.
The section 43 though being comprehensive solely dealt with unauthorised access and is more of a cyber contravention rather than a cyber offence. Chapter XI of the Act deals with Cyber Offence.
There is a thin line demarcation between the Cyber Contravention and Cyber Offences, the difference lies in the degree and extent of criminal activity. This head attempts to cover major Computer Related Offences.
Tampering with computer source code required to be kept or maintained by law.
Whoever intentionally or knowingly conceals, destroys, alters any computer source code used for a computer or causes another to do so is punishable with imprisonment up to three years or fine up to two lakh rupees or with both.
This section provides that, any act referred in section 43 (a)-(j), done fraudulently or dishonestly, is punishable with Imprisonment up to 3 years or with fine up to five lakh rupees or with both.
This section punishes for sending offensive messages which include-
- Sending any information that is grossly offensive or menacing
- Sending Any false message persistently for purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity or hatred
- Sending any electronic mail for purpose of causing annoyance or inconvenience or to deceive or mislead the addressee.
Punishment under this section is imprisonment up to 3 years and with Fine.
This section punishes for dishonestly receiving or retaining any stolen computer resource or communication device, for which punishment is imprisonment up to 3years or fine which may extend to one lakh rupees or with both.
This section punishes fraudulently or dishonestly makes use of the electronic signature, password or any other unique identification feature of any other person. Punishment for which is imprisonment up to 3 years or fine extending to one lakh rupees.
The section punishes cheating by personation, by way of or using any communication device, with imprisonment with a term extending to three years and fine up to one lakh rupees.
Section 66E – Violation of Privacy
This section protects privacy of a person. It punishes capturing, publishing or transmitting the image of a private area of any person without his/her consent with imprisonment up to three years or fine up to two lakh rupees, or with both.
Section 66F -Cyber Terrorism
When a person-
- denies access or causes denial of access to any person authorized to access such computer
- attempts to penetrate or secure access without authorization or exceeding such authorization.
- Introduces or causes to introduce any computer contamination
Does such with an intent to threaten Unity, Integrity, Security or Sovereignty of India or strike terror in the people or section of people and by such mean causes or likely to cause death of person or damage to property is punishable with imprisonment which may extend to life.
This Act under sections 67, 67A and 67B makes an attempt to combat publication and transmission, in and through electronic medium an obscene material, materials containing sexually explicit acts and Child Obscenity and Abuse.
However, the Act exempts any publication which is justified for public good and which is kept for bona-fide heritage or religious purpose.
AUTHORITIES AND AGENCIES UNDER THE ACT
The Act mandates creation of various authorities and Agencies to perform the duties and providing cyber security to the persons concerned.
Controller of Certifying Authority
The Certifying Authority is a trusted third party which verifies and authenticates the identity of a subscriber. The Certifying Authority receives license from Controller of Certifying Authority. The IT Act, 2000, under Chapter VI, provides detailed provisions for Controller of Certifying Authority to regulate Certifying Authority.
National Nodal Agency
The major amendment introduced in 2008, mandated establishment of a National Nodal Agency by Central Government. The agency is entrusted with responsibility of research and development relating to protection of Critical Information Infrastructure.
The Indian Computer Emergency Response Team (ICRT) serves as the National Nodal Agency; the ICRT performs following functions to ensure cyber security-
- Collect, analyse and disseminate the information related to cyber incidents
- Forecast and alert of cyber security incidents.
- Emergency measures for handling cyber security incidents and coordination of cyber incidents response activities
- The ICRT also issue guidelines, advisories, vulnerability notes and white papers relating to information security practices, prevention, response and reporting of cyber incidents.
The ICRT while discharging its functions, may call for information or direct any service providers, body corporate, data centres, intermediaries, failure to comply with such direction attracts a punishment of imprisonment up to 1 year or with fine which may extend to one lakh rupees or with both.
Further the Courts are barred from taking cognizance of any offence under this section unless the complaint is made by the Officer authorised.
ADJUDICATION OF CLAIMS UNDER THE ACT
The Central Government appoints any officer not below the rank of Director to Government of India or equivalent officer as Adjudicating Officer. The Adjudicating Officer has the jurisdiction over claim or injuries up to five crore rupees.
Cyber Appellate Tribunal
The Central Government under Chapter X establishes Cyber Appellate Tribunals, presided by a Chairman. The Tribunal is empowered to hear appeals lying from any decision of Controller or adjudicating officer. The Tribunal in discharging its function is guided by the principles of Natural Justice.
Any person aggrieved by the order or decision of the Cyber Appellate Tribunal may file an appeal before the High Court, within sixty days of communication of such order or decision.
The cyber security regime of India under the Information Technology Act is often cited as inadequate in providing a backbone to India’s burgeoning e-commerce and insufficient in managing techno legal issues of cyber world. Moreover, the provisions of the Act evade making any reference to mainstream cyber security issues such as, sending bulk of importune e-mails (Spamming) and obtaining fraudulently information from people (Phishing).
However, the Central and State Governments are entrusted with power of making Rules for carrying out provisions of this Act, which is more of an attempt to mitigate any shortcomings of this Act in providing a concrete support to cyber security needs of India.
First decade of 21st century was the time when Indian economy was blooming with high GDP growth rates and emerged as economic power at the global platform. Indian Middle Class was the biggest gainer from the escalating economy.
A stalwart in India’s Automobile Industry – “TATA Motors” had sensed the dire need of burgeoning middle class and came up with an innovative idea of presenting a car which could be afforded by them. “The people’s car,” they said when Ratan Tata unveiled TATA Nano at 2008 Auto Expo at a base price of Rs. 1 Lakh leaving people awestruck.
However, the story of Nano didn’t go well and consequentially it could never be sold at its proclaimed price, all credit to the land acquisition controversy in Singur causing transition of TATA Motor’s car manufacturing plant from Singur to Sanad, a total distance of 2000 kilometres approx., costing more than Rs. 300 crores to the TATAs.
The Left Front government registered its 7th consecutive victory in 2006 Elections consolidating their position in West Bengal under the leadership of Buddhdeb Bhattacharya.
West Bengal Government entered into a discussion with TATA Motors Ltd. in pursuance of their policy of establishing Automobile Industries to curb unemployment among the youths. TATA Motors proposed their land and infrastructural need for setting “small car project” in a letter dated 19th January to the Principal Secretary of Commerce and Industries department.
24th January 2006
Principal Secretary (C&I) wrote to Principal Secretaries of Land and Land Reforms and Finance Department attaching the proposal of TATA Motors seeking their view on the same.
8th and 17th March 2006
The representatives of TATA Motors held meetings with representatives of West Bengal government and West Bengal Industrial Development Corporation (hereinafter WBIDC) twice in Kolkata and Mumbai.
TATA Motors assessed that the Small Car Project would pour in direct investment of 650 Crores and indirect investment of 200 Crores by the vendors.
Tata motors enumerated their final requirement of land which was-
- 400 Acres for the Plant
- 200 Acres for the vendor’s factories supplying parts to the plant and
- 100 Acres for the township to be developed near the plant
TATA motors was also offered an incentive by the State Government; the excerpts of the package are
- 600 Acres of land for lease of 30 years at annual rental of 10 lakhs which can be renewed for block of 30 years at the option of TATA Motors,
- Construction of factory and allied amenities and lease it at annual rent of 90 lakhs
- Developing a township of 2000 dwellings
23rd March 2006
The Principal Secretary (Commerce and Industries) communicated the Deputy General Manager of TATA Motors (Government and Collaboration Affairs) approval of the proposal.
5th May 2006
Representatives of Tata motors visited the site in Singur and confirmed it to be the ideal for the small car project.
Protest begins by blocking way of TATA team which went to survey the fields on 25th May 2006.
30th May 2006
Principal Secretary (C&I) wrote cabinet memo in which WBIDC proposed the acquisition of 1053 acres of land within six Mouzas of Singur namely Bajemelia, Beraberi, Gopalnagar, Khaserberi and Singherberi district Hooghly for TATAs small car project and same was approved.
Following which Mamta Banerjee opposed the setting up of car plant apprehending the displacement of poor farmers from their fertile land.
21st July 2006
The Notification for Land Acquisition under section 4(1) of the Land Acquisition Act, 1894 was published in Calcutta Gazette.
29th August 2006
Land Acquisition Collector (hereinafter Collector) submits the enquiry report conducted by him under section 5A of the Act dismissing the objections.
30th August 2006
On perusal of the report submitted by Collector, the State Government issued, under section 6, declaration for acquisition of land.
After award of compensation, WBIDC started taking possession of land amidst heavy resistance by the people. 78 activists were arrested including Mamta Banerjee and MLA of Singur. People accused government and police of brutal action.
Upcoming months saw a series of state-wide Bandhs and Hunger strikes against the acquisition supported by different classes of society including Academicians, Human Rights Activists, Trade Unions, Students and Social Activists.
On 4th December Mamata Banerjee started indefinite hunger strike in Esplanade, Kolkata against the fencing of disputed land, the same was called off after 26 days.
WBIDC asked the TATA motors to take the permissive possession of the land pending the finalisation of lease deed and its terms and conditions, same was later executed on 15th March 2007.
TATA Motors starts construction of manufacturing plant for Nano in Singur, amidst heavy opposition of land owners.
Prohibitory Order under section 144 of CrPC imposed in Singur again. Calcutta High Court quashed the same order in the area calling it an abuse of executive power.
18th January 2008
Calcutta High Court dismissed the writ petition filed challenging the acquisition of land in Singur and upholds the acquisition of land for Public Purpose. Subsequently, farmers and NGOs filed special leave petition in Supreme Court challenging the judgement.
Mamta Banerjee staged indefinite strike in front of the TATA small car plant and gives ultimatum to the government.
Talks between Government and Trinamool Congress mediated by the then Governor Gopal Krishna Gandhi failed.
3th October 2008
Ratan Tata officially declares pull-out from West Bengal, said cannot run a plant under police security. 4 days later he announced new location at Sanand, Gujarat.
10th November 2008
TATA starts relocation procedure, removes machineries and equipment from the allocated land.
How The Acquisition Of Lands Took Place In Singur?
Before 2014, Land Acquisition Act, 1894 was used for acquiring private land of individuals by government which became inoperative after coming into force of new Land Acquisition, Rehabilitation and Re-Settlement Act, 2013.
Acquisition of Land in Singur was hit by the old Land Acquisition Act of 1894 which conferred power on the appropriate government to acquire private land for serving “Public Purpose”.
Term “Appropriate Government” under section 3 (ee) of the Act includes Central Government and State Government.
What exactly is Public Purpose?
Power of eminent domain confers legal capacity on the state to take property of individuals to serve the greater “Public Purpose”. Public purpose defined under Section 3 (f) includes-
- provision of land for town planning or rural planning,
- provision of village sites,
- provision of land for planned development from public funds under policy or schemes of government and subsequent disposal in whole or in part for securing further development
- provision of land for state-owned or controlled corporation
- provision of land for residential purpose to the poor or landless
- provision of land for carrying out education, housing, health or slum clearance scheme sponsored by government/authority established by government/by local authority with prior permission of the appropriate government
- provision of land for any other scheme of development sponsored by government
but the definition does include acquisition of land for companies.
Procedure followed for acquisition of land for Public Purpose (Part II of the Act)
Section 4 of the said Act provides that if a land is likely to be needed by the government for public purpose a notification to that effect shall be published in the official gazette and in two daily newspapers circulating in the area and collector of area should cause the public notice of the notification.
After the publication of notification, the officer of the government can enter upon the land notified to conduct investigation.
Section 5A (2) provides an opportunity to raise objection by the person interested in the land within 30 days of publishing the said notification. Every objection made must be in writing and the person shall be given opportunity of being heard by the Collector. Thereafter, the Collector shall conduct an inquiry and a report regarding the same is submitted to the appropriate government.
Declaration by Government
When the government is satisfied, after considering the said report, that a particular land is needed for a Company or for a public purpose, a declaration regarding the same is published in the Official Gazette and in two daily newspapers, by the government.
The declaration is conclusive and the appropriate government may proceed acquisition of the land in the manner provided further.
Public Notice to take possession
Under section 9, a public notice is served by collector to the occupiers of land and the interested person communicating the intention of the government to take possession of the land and for inviting their claims of compensation and objection in measurements of land. The claims, if any, shall be heard after expiry of 15 days following the date on which notice is published.
Enquiry and Award of compensation
In pursuance of the claims, if any, the collector enquires into-
- the objections to the measurements of land
- value of land at the time of publication of notification under section 4(1)
- the respective interests of the person claiming compensation
and awards compensation after completion of enquiry. No compensation shall be granted by the Collector unless the Government approves the same. The said compensation shall be given within two years failing which the proceedings will lapse.
Section 16 provides that subsequent to the award of compensation, the land vests in the government, free from any encumbrances and the Government may take possession of the land.
In case of emergency, the Government has right to acquire the land, after expiry of 15 days, following the date on which notice is issued, without granting any award to the occupier of land and the interested person. Such land vests absolutely with the government, free from any encumbrances.
Acquisition of land for a private company (Part VII of the Act)
Procedure followed for acquisition of land for a company is covered under the Part VII of the Land Acquisition Act, 1894.
Section 39 lays down two conditions required for acquisition of land for company-
- that there is previous consent of the appropriate government followed by a previous enquiry under section 40 and,
- that the agreement between the company and government has been executed under section 41
According to Section 41 after receiving a report from the collector, the appropriate government may enter into an agreement with the Company.
Section 44B of the Act states that when a land is to be acquired for a private company the only purpose for which acquisition can be made is for erection of dwelling-houses for workmen of the company or to provide amenities connected thereto.
In the instant case acquisition of land by West Bengal Government and WBIDC in Singur for TATA Motors’ small car project was done in compliance with Part II of the Act which was contented in High Court and after dismissal later in the Supreme Court.
After apparently endless protests and strong opposition, the TATAs left West Bengal for good to their new destiny Gujarat. The efforts of Mamata Banerjee yielded and her party Trinamool Congress conceded a thumping victory in 2011 West Bengal Legislative Assembly election winning 227 seats out of 294 seats ending the 34 years rule of Left Front.
Singur Act, 2011
West Bengal’s newly formed government passed the Singur Land Rehabilitation and Development Act, 2011 aimed to take over the land which was granted by lease to TATA Motors.
TATA Motors challenged the validity of Act before Calcutta High Court by way of Writ Petition. Single Judge upheld the validity of the Act, but TATA appealed against the decision and it was heard by a Division Bench. The Division Bench found sections 2, 4, 5 and 6 of the Singur Act in conflict with Land Acquisition Act, 1894 and further held the Act void and unconstitutional.
In KedarNath Yadav v State of West Bengal, the Supreme Court after hearing the special leave petition, quashed the acquisition proceedings in Singur and granted relief to the land owners. The common judgement of the Calcutta High Court dated 18th January 2008 which upheld the acquisition was set aside by the apex court.
The petition was heard by a Division Bench presided by Justice V. Gopala Gowda and Justice Arun Mishra. Their Lordships had different opinions as to answering the points formulated specially the public purpose. Nevertheless, both the judges concurred in declaring the acquisition illegal and void. Further, their lordships ordered that the land to be returned within 12 weeks to the owners. The land owners were allowed to retain the compensation awarded as a relief for the deprival from enjoyment of land for 10 long years.
 Civil Appeal No. 8438 of 2016, arising out of SLP(C) no. 8463 of 2008