CHAPTER-I
The following amendments in the first chapter are worth noticing:
(a) Section 1(4): Section 1(4) now provides that nothing in this section shall apply to such class of documents or transactions as may be notified by the Central Government in the Official Gazette.
The proposed amendment has removed the express restrictions imposed on digitising the documents pertaining to negotiable instruments, power of attorney, a trust, a will, or any contract for the sale or conveyance of immovable property or any interest in such property. The same may, however, be imposed by the Central Government by notification in Official Gazette. It would not a good idea to “notify” these documents as outside the purview of the Act. This is so because to bridge the digital divide the Government must learn to digitalise the documents and it would be good for the growth of electronic governance and electronic commerce that digital documents along with a proper infrastructure must be established as soon as possible. In fact, negotiable instruments like Cheques have already been transformed and legalised in electronic form by the Negotiable Instrument Act amendment, 2002. These restrictions were originally imposed because at that time it was not deemed proper to deal in these documents in electronic form. Now after 5 years, it is high time that those restrictions must be removed. This is the reason why section 9 was incorporated in the Act. It provides that sections 6, 7, and 8 not to confer right to insist document should be accepted in electronic form. Thus, it would have been better if section 9 was amended as well keeping in mind the requirements of electronic governance and electronic commerce. The Government cannot postpone for an indefinite period the digitilisation of documents. The same may hamper electronic governance and electronic commerce.
Sub-section 1(4) has been amended to bring flexibility in respect of applicability of IT Act on certain specific class of documents or transactions. This commendable purpose deserves full support and any impediment in this regard must be removed as soon as possible. It is also important from the perspective of elimination and eradication of corruption and ensuring transparency in governmental functioning. The digitalise environment coupled with the “right to information” will remove red-tapism and corruption to a considerable extent.
Thus, the proposed amendment is a good suggestion, though it would have been better if section 9 was also amended keeping in mind the contemporary needs and globalisation and privitisation.
(b) Section 2(1) (j) (i): The proposed section provides that unless the context otherwise requires, "computer network" means the interconnection of one or more computers or computer systems through the use of satellite, microwave, terrestrial line, wireless or other communication media.
This has been done to include wireless communications explicitly which was previously dependant upon a purposive and updating interpretation deducible through implied construction of the words of the statute.
This is a welcome suggestion.
(c) Section 2 (1) (nn): The expression cyber café has been defined to means a place where access to electronic form is provided to the public.
The term “Cyber Café” has been included to address the issues relating to streamlining the functioning of cyber cafes. The same, however, is not properly described and lot of confusion is bound to happen in the distant future. Now wherever access to public in electronic form is provided, it may not necessarily be a cyber café. Further, cyber cafes may be, and must be, regulated by licensing procedure and there is a possibility that a place may be declared as cyber café even in the absence of a valid license in this regard.
It would be better if the expression cyber café is defined in a more appropriate manner.
(d) Section 2 (1) (v): The proposed amended section includes “messages” as well. It reads now that “information” includes data, messages, text, images, sound, voice, codes, computer programmes, softwares and data bases or micro film or computer generated micro fiche.
The impact of this change has been ignored totally and taken very lightly. Once messages are included in the definition of information, then even a local SMS or MMS may be included in this definition.
This is a welcome change.
(e) Section 2 (1) (w): The proposed amendment defines “intermediary”, with respect to any particular electronic record, as any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that electronic record.
The word “record” has been substituted for the word “message”. This is an attempt to dilute the liability of intermediaries to considerable extent. In a nation that is struggling with pornography and obscenity, this provisions may be a death knell to the deterrent effect of laws preventing the same.
The proposed amendment is not desirable at the moment.
(f) Section 2 (zaa): The expression “person” has been defined and it means any individual, company or body corporate or association or body of individuals, whether incorporated or not or artificial juridical person, whether domiciled or resident in India or outside India.
This is a welcome amendment as the definition of “person’ has a great significance in all laws, including cyber law.
Praveen Dalal
Cyber Law Consultant and Advocate
Delhi High Court
Tele No: 9899169611.
Mail :
pd37@rediffmail.com perry4law@yahoo.com