CHAPTER-XI: OFFENCES
Section 68: Power of Controller to give directions
(1) The Controller may, by order, direct a Certifying Authority or any employee of such Authority to take such measures or cease carrying on such activities as specified in the order if those are necessary to ensure compliance with the provisions of this Act, rules or any regulations made thereunder.
(2) Any person who intentionally or knowingly fails to comply with any order under sub-section (1) shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding two lakh rupees or to both.
It seems the difference between the expression “and” as well as the word “as” is clear as far as this section is concerned. By introducing the “mens rea” in this section, the section has been strengthened. The only requirement is that the appropriate Government, while exercising its rules making powers or by way of explanation, must add the “guidelines” for the proper exercise of such power to avoid the sword of “excessive delegation”.
Section 68A: Encryption and other technologies for security of data: The Central Government may, for secure use of the electronic medium and the promotion of e-governance and e-commerce by rules provide for one or more modes or methods for encryption. Section 68A has been added for providing one or more modes and methods for encryption.
This is a welcome suggestion as it will improve the condition of e-commerce and e-governance in India.
Section 69: Power to issue directions for interception or monitoring or decryption of any information through any computer.
(1) If the (Controller-deleted) Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, security of the State, friendly relations with foreign States or public order ( or for preventing incitement to the commission of any cognizable offence-deleted), it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the government to intercept or decrypt or cause to be monitored any information transmitted through any computer resource.
(2) The Central Government shall prescribe safeguards subject to which such interceptions or monitoring may be done.
(3) The subscriber or any person in-charge of the computer resource shall, when called upon by any agency which has been directed under sub-section (1), extend all facilities and technical assistance
(a) to decrypt the information;
(b) or provide access to the computer resource containing such information
(4) The subscriber or any person who fails to assist the agency referred to in sub-section (3) shall be punished with an imprisonment for a term which may extend to seven years.
The entire section is amended in respect of power to issue directions for interception or monitoring or decryption of any information through any computer resource. (Earlier this power was only with the Controller).
An analysis of the section reveals:
The proposed Section 69 is a combination of both good and bad recommendations.
The good part about it is that it has taken away the powers from the Controller under section 69 that were prone to misuse. Further, the exercise of power by any agency empowered by the Central Government in this behalf is subject to the “safeguards” provided by section 69(2).
The bad part about it is that once again the “quest” for the elimination of the “penal scheme” from the Act pre-occupied the committee concerns and it deleted the provision for preventing incitement to the commission of any cognizable offence. There is no fixed criterion to distinguish between cognizable and non-cognizable offences unlike summons and warrant cases. Cognizable offences are those “serious offences” where the police can arrest the accused “without a warrant” from the court. On the other hand, “non-cognizable offences” are those “minor offences” for which the police cannot take an action without a warrant from the court. Interestingly, the imprisonment provided for refusal to assist the agency is seven years. Now keeping in mind the inhibition of the Committee from “penal impositions”, it seems absurd and unreasonable to provide that much quantum of imprisonment. It must also be at most 2 years.
It is also not possible to contend that “public interest” and “national interest” is dependent upon and flowing from this section only and not the entire Act. The entire Act is in national and public interest and uniformity and reasonableness must permeate it while imposing punishment. The Government, Intermediaries, MNCs etc cannot stand on a higher footing in these circumstances as compared to ordinary citizens of India. The punishment must be reasonable for all keeping in mind the imprisonment provisions suggested by the Committee in other sections.
Praveen Dalal
Consultant and Advocate
Delhi High Court
Tele: 9899169611
PRAVEEN DALAL, CONSULTANT AND ADVOCATE, DELHI HIGH COURT.