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Follow UsPavan Duggal, Founder and President, Cyberlaws.net, a consultancy firm
dedicated to cyber laws, has been actively involved in the development of cyber
laws and in creating awareness about it in the country. He has been instrumental
in the formation of The Cyberlaw Association, and the two portals CyberlawIndia
and CyberlawAsia. He has been advising the Ministry of Information Technology on
legal issues of e-governance. In an interview with Rajitha Saleem of DQWeek,
he speaks about the various aspects of the IT Bill that is the only form of
cyber legislation in the country.
What is the relevance of cyber laws globally and in the special context of
India?
The World Wide Web was thought as an anarchy, which doesn’t need any
regulations. But over a period of time, it was found that the Internet needed
some rules and regulations governing it, without which it may go wild and beyond
control and it can be used as a tool for the very destruction of mankind. So, a
new discipline was developed recently called cyber law. Cyber law is a generic
term, which denotes all aspects, issues and the legal consequences on the
Internet, the World Wide Web and cyber space. It is a relatively new concept,
which originated in US about four years back.
As far as India is concerned, there is no cyber law in the country. If you
delve into history, we can see that countries first started regulating the
issues on the Internet using national legislation. India is the 12th nation in
the world that has cyber legislation apart from countries like the US,
Singapore, France, Malaysia and Japan. The IT Bill 2000 has been passed by both
the houses of Parliament and has received the assent of the President. But the
important thing is that it is still not implemented. It will be implemented only
when the Central Government, by notification in an official gazette declares so.
That notification has still not come into existence.
What are the reasons for the delay?
The reasons are manifold. The IT Bill has been passed in a tearing hype. And so,
the IT Act has lots of glaring loopholes. Initially, it was said that the IT
Bill will be passed on the 15th of August. For that matter, a draft set of rules
and regulations were put up. So on the midnight of August 15 they put up nine
categories of draft rules on the Web site of the Ministry of Information
Technology for public comment till the 31st of August. They received some
comments and it is expected that the Bill will be implemented by the end of this
month. It may coincide with the India Internet World.
The Web and the actions that we do on it are very vague and intangible.
Hence, are cyber laws really implementable, not just in India but anywhere in
the world?
If we give a cursory look, it might seem that they are not implementable. But
they can be implementable within the national jurisdiction of countries. So, the
thought process that has been evolving is that we really need to have national
legal boundaries of cyber space.
But isn’t that against the spirit of the Internet, the breaking down of
national boundaries that the Web has been instrumental in?
Yes, exactly. But the fact there should be a global community should not be an
excuse to evade the cyber law. So you just can’t go and release an ‘I Love
You’ virus on the Net and then say that it is a global community and I can do
nothing about that. So, the imagination is really towards evolving a global
cyber law. But it may still take a few years before the cyber law can be
manifest globally. The implementation of the global cyber law is a big
challenge. But countries can take the lead in implementing the law within their
national boundaries. Like the US, which has cyber squatting laws that make cyber
squatting a punishable offence. But other countries are very confused and India
is one of those countries. In fact, the IT Bill 2000 has a provision wherein the
law is not only applicable to Indians but to any contravention or any violation
done by anybody anywhere in the world is also liable to the penalties, which is
very impractical.
In its implementation, would the monitoring mechanism be an infringement
on the privacy of any person?
Implementation is a big question mark. And what I think is practical is that we
should bring in local legislation and encourage countries to bring in laws that
are implementable within their national boundaries rather than look at the
global cyber law. As far as privacy is concerned, I don’t think it is an
absolute right. The right to privacy has to be viewed in the entire context of
your living. I agree that governments should not act as a big brother and snoop
over somebody else’s work. But if there is reasonable suspicion as to whether
the person is doing something that might be harmful to the security of the
country or the Internet, then the government has the right to take action
against them.
When we talk about monitoring and cyberpolice, who is going to decide as
to where we draw the line and who should be monitored?
That is a question the whole world is struggling with. And, the right answers
are yet to be found. To give you an example, the IT Act 2000 says that a police
officer not below the rank of DSP can enter any public space on his own sweet
will, search the place and then without warrant arrest any person who he thinks
is committing a cyber crime or about to commit a cyber crime, which is
phenomenal. What countries like India are doing is that they are blindly
applying the provisions of the Criminal Procedure Code to the Internet without
realizing that it is a different medium and not the real world.
Do you think that the IT Bill will actually boost e-commerce, especially
in India?
Actually what the IT Bill has provided us is to give a legal infrastructure
without which companies had hesitated to move big volumes in e-commerce. They
had this doubt as to what if something goes wrong? Now the mechanism is being
controlled by a certifying officer, the adjudicating officer and the Cyber Laws
Appellate Tribunal. Such proper mechanism will boost e-commerce in as far as it
is now legal and valid. They have made electronic acceptance leading into
electronic agreement legal and valid. But the IT Bill does not talk about the
most important aspect of e-commerce, that is about electronic payments and how
electronic transactions are going to be made. Also, it does not speak anything
about negotiable instruments such as checks, bankers’ orders, pay orders, etc.
So also, it does not speak about intellectual property rights, which is a
very important issue. Domain name issues have also not been touched upon. Unless
all these issues are dealt with, I don’t know how this is going to help
e-commerce. Theoretically, it must, but practically these are the shortfalls.
Another important thing is that consumer issues have not been touched. Unless
there is a redressal mechanism to which either an individual or business house
or a conglomerate of industries consumers can report to, e-commerce might not
really takeoff.
How do you see e-governance happening in India?
It is definitely happening in India at a fast pace. But there is a pipeline
period and many of the projects are in this period. With the convergence of the
Net and cable, there is going to be a great leap forward in Net applications.
Where does Cyberlaw Association feature in the formulation of the IT Bill
2000?
The Cyberlaw Association was formed in 1997 dedicated towards the growth and
development of cyber laws. It is open to all. Today, we have 500-odd members in
the association. Basically, it is an association that is dedicated to spreading
awareness about cyber laws and making it pass. We have two other concerns also–Cyber
Laws India and Cyber Laws Asia. Cyber Laws Asia has been trying to associate
with many other countries. Cyber laws India is India’s first portal on
Cyberlaw. Cyberlaws.net is India’s first online consultancy on Cyberlaw.
Cyberlaw India has been associated with the government in making the first draft
of the IT Bill. We are in constant touch with MIT and I am advising the
government on drafting the IT laws and on various other issues regarding
e-governance for State and Central governments.