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the first international conference on security privacy
and Confidentiality Issues in Cyber law
Topic of Paper:
Effective E-governance and Cyber Crime Prevention
in India: A Distant Dream
Author:
Mr. Vipul Jain
B.Com LL.B (Hons.)
III Year Student
Gujarat National Law University, India
vipuljain87@gmail.com
Co-Authors:
Mr. Nakul Bhasin
B.A. LL.B (Hons.)
III Year Student
Gujarat National Law University, India
nakulbhasin2004@gmail.com
Mr. Anurag Misra
B.Sc. LL.B. (Hons.)
III Year Student
Gujarat National Law University, India
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Introduction
The prime objective of any technological revolution is to improve the quality of
human life. This can be achieved by successfully assimilating these technological innovations
into human society. Information Technology is changing the way the society functions.
Internet is the biggest revolution in human history. The impact of IT can be felt in all
economic and social activities in every conceivable manner.
The convergence of all forms of communications on the digital playfield is opening
up immense new possibilities of achieving speed, versatility and space-time independence.
Governments are no exception to this phenomenon. In the post liberalization era
governments across the country have been engaged in improving internal efficiencies,
responsiveness, coordination and integration between various government departments and
external agencies, citizens and businesses. The global trends also point out to the emergence
of e-Government revolution after the Internet and e-commerce revolutions.
E-GOVERNANCE AND ITS RELEVANCE TO INDIA
India is a land of diversity. This diversity spans across culture, tradition, language,
geography and the economic condition of the people. It is a nation that has a significant
number of people who are below the minimal socio-economic benchmarks. This includes
rural and urban poor, women in rural areas, street children, people belonging to historically
disadvantaged castes and people living in less developed areas. The vulnerability of these
sections of society has increased with globalisation and this section is prone to become
even more marginalized - economically and socially.
Successive governments have committed themselves to addressing these divides,
but effective implementation of various economic development programmes aimed at
individuals belonging to these sections of society has proved an elusive goal. Government
of India (GoI) recognizes that e-Governance, in the context of developing countries,
provides an excellent opportunity for improving governance. Used imaginatively, it is a
trigger for introducing various administrative reforms. These changes could not only go a
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long way in improving the quality of life of these sections of society, but could actually
provide them more equitable access to economic opportunities than ever before. In this
context, the Government of India views e-Governance as a strategic tool for transforming
Governance and improving the quality of services provided by the government to its
people.
India’s experience in e-Governance / ICT initiatives has demonstrated significant
success in improving accessibility, cutting down costs, reducing corruption, extending help
and increased access to un-served groups. In this phase of
experimentation, e-government
initiatives have reached millions of people belonging to these sections of society. Improved
access to information and services has provided economic and social development
opportunities, facilitated participation and communication in policy and decision-making
processes and empowerment of the weakest groups. This has led to fostering a sense of
ownership and building of social capital, which in turn, constitute a basis for local
revitalization.
E-Governance is not a mere technological innovation but it is a process of
governance. E-Governance denotes the application of IT (Information Technology) to the
process of government functioning in order to bring about better governance that has been
innovatively termed as SMART (Simple, Moral, Accountable, Responsive and Transparent).
E-Governance seeks to realize processes and structures for harnessing the
potentialities for information and communication technologies at various levels of the
government for the purpose of enhancing good governance. With E-Governance gaining in
its ambit the words “Good Governance” “SMART” are gaining impetus in usage. ‘Good
Governance’ connotes the widest meaning of the three phrases. It encompasses the entire
process of public administration, the processes underlying the formulation of public policies;
the HRD efforts required for re-skilling the government machinery, prioritization, and
efficient management of public resources and above all re-designing the various instruments
used to realize the concept of a welfare state.
‘SMART Government’ is an acronym for Simple, Moral, Accountable, Responsive
and Transparent Government. It is the image of an ideal government through the eyes of its
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constituents. E-Government is a subset of the concepts of Good Governance and SMART
Government. It is the very specific task of using the tools offered by Information
Technology in various aspects of the process of governance with the objective of achieving
efficiency, transparency, accountability and user friendliness in all the transactions that the
citizens and businesses conduct with the Government – that is, providing digital interface in
the G2C and G2B interactions.
E- Governance aims to make the interaction between government and citizens
(G2C), government and business enterprises (G2B), and inter agency relationships (G2G)
more friendly, convenient, transparent and cost effective.
Recent developments brought about by a rapid spread of the Internet, growth in
pervasive computing, and sophisticated new digital technology, have turned the globe into
an increasingly interconnected network of individuals and organizations, communicating and
interacting with each other through a variety of channels. These Information and
Communication Technologies (ICT) are bringing about fundamental changes in all spheres
of human activity - be it in the field of commerce, education, health or governance.
Governments around the world are incorporating the technology into their
functioning so as to reduce costs, provide better service to citizens and be better positioned
in a globally competitive world. Increasingly however, the realization is growing that
successful e-Governance is more about human factors in administration and less about
technology.
Defining E-governance
“E-governance is the application of information & communication technologies to
transform the efficiency, effectiveness, transparency and accountability of informational &
transactional exchanges within government, between govt. & govt. agencies of National, State,
Municipal & Local levels, citizen & businesses, and to empower citizens through access & use of
information
.”
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Many definitions exist for e-governance. Before presenting an overall definition of egovernance,
the relation between governance, e-democracy and e-government is explained.
E-democracy
: -
It refers to the processes and structures that encompass all forms
of electronic interaction between the Government (elected) and the citizen (electorate).
E-government
: -
is a form of e-business in governance and refers to the processes
and structures needed to deliver electronic services to the public (citizens and businesses),
collaborate with business partners and to conduct electronic transactions within an
organisational entity.
Government
: -
It consists of levels and branches. Government levels include
central, national, regional, provincial, departmental and local government institutions.
Examples of government branches are Administration, Civil Service, Parliament and
Judiciary functions.
Hence we can define the e-governance as the application of electronic means in
i. The interaction between government and citizens and government and
businesses, as well as
ii. Internal government operations to simplify and improve democratic,
government and business aspects of Governance.
E-Governance is the public sector’s use of the most innovative information and communication
technologies, like the Internet, to deliver to all citizens improved services, reliable information and
greater knowledge in order to facilitate access to the governing process and encourage deeper citizen
participation
.1
Electronic Governance popularly referred to as E-Governance or ‘e-gov’ is broadly
defined as an “application of Information technology to the functioning of the
Government”.
2 For the past few years, a great deal of focus has shifted to this concept,
which has varying meaning and significance. Initially, the term was a little more than a
1
UNPA & ASPA, 2001
2
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general recognition of a confluence of information technology developments and application
and use of these technologies by government entities. With the passage of time however, the
term is being used as a reference to both current applications of IT to government
operations and a goal of realizing more efficient and transparent performance of government
functions.
E-Governance involves access to government information and services 24 hours a
day, seven days a week, in a way that is focused on the needs of the citizens.
E-gov relies
heavily on the effective use of Internet and other emerging technologies to receive
and deliver information and services easily, quickly, efficiently and inexpensively. On
the other hand it can be defined as a process of information, engage citizens and deliver
services to external and internal clients for the benefit of both government and the clients
that they serve. Governments harnesses information technologies such as Wide Area
Networks (WAN), Internet, World Wide Web, and mobile computing reach out to citizens,
business, and other arms of the government to improve delivery of services to citizens,
businesses and employees and to engage the citizens in the process of governance through
interaction.
The most precise definition of E-governance is the one given by the Council of
Europe. According to it; the term E- governance covers the use of electronic technologies in
three areas of public action:
i. Relations between the public authorities and civil society
ii. Functioning of the public authorities at all stages of the democratic process
(electronic democracy)
iii. The provision of public services (electronic public services)
This is a broad definition covering the different aspects of relations between the state
and civil society. The Council of Europe is currently considering a recommendation which
will offer a common vision of how digital technology can be incorporated into exercise of
power. Aware of the risks entailed in these technologies, the Council reaffirms the need to
strengthen democratic institutions and processes and to involve the public in political
choices so that their needs and priorities are respected. In this connection, governments
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must ensure that they involve the whole population, in particular by ensuring that the largest
possible numbers of citizens are educated in the use of computers.
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Objectives of E-Governance
The
strategic objective of e-governance is to support and simplify governance for all
parties like government, citizens and businesses. The use of ICTs can connect all three
parties and support processes and activities. In other words, in e-governance uses electronic
means to support and stimulate good governance. Therefore the objectives of e-governance
are similar to the objectives of good governance. Good governance can be seen as an
exercise of economic, political, and administrative authority to better manage affairs of a
country at all levels, national and local.
It is useful here to present objectives for e-democracy and e-government. The two
main objectives of e-democracy are
1. To provide citizens access to information and knowledge about the political
process, about services and about choices available
2. To make possible the transition from passive information access to active citizen
participation by
•
Informing the citizen
•
Representing the citizen
•
Encouraging the citizen to vote
•
Consulting the citizen
•
Involving the citizen
Regarding e-government, the distinction is made between the objectives for internally
focused processes (operations) and objectives for externally focused services.
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External Strategic Objectives
The external objective of e-government is to satisfactorily fulfill the public’s needs
and expectations on the front-office side, by simplifying their interaction with various online
services. The use of ICTs in government operations facilitates speedy, transparent,
accountable, efficient and effective interaction with the public, citizens, business and other
agencies.
Internal Strategic Objectives
In the back-office, the objective of e-government in government operations is to
facilitate a speedy, transparent, accountable, efficient and effective process for performing
government administration activities. Significant cost savings (per transaction) in
government operations can be the result. It can be concluded that e-governance is more than
just a Government website on the Internet.
E-Governance and e-Government are increasingly being emphasized as ways for
governments to strengthen good governance. If implemented strategically e-governance can
not only improve efficiency, accountability and transparency of government processes, but it
can also be a tool to empower citizens by enabling them to participate in the decisionmaking
processes of governments.
E-Government services for the poor assist governments in reaching the yet
‘unreached’ and hereby contribute to poverty reduction in rural and remote areas. At the
same time, this process also enables involvement and empowerment of marginalized groups
through their participation in the political process.
Despite the developmental potential, few governments in the Asia-Pacific
region have planned for and implemented e-government strategically directly targeting poor
people. This is despite the fact that more than 60 percent of the population in the Asia-
Pacific region lives in rural areas and the majority of them are poor.
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APDIP’s focus on e-governance and e-government is in line with UNDP’s corporate
priorities for democratic governance. E-Governance and e-government are strategic
interventions that support UNDP’s work with countries to build democratic governance
through institutions and processes that are more responsive to the needs of all citizens,
including the poor. Through its current focus on pro-poor e-Governance, APDIP is
increasingly contributing to strengthening the often-missing link between good governance
and poverty alleviation.
A bare perusal of the E-Governance scenario in India explicitly enunciates that the
proposals by the government to develop ‘IT for the masses’ often place emphasis on
developing software technology parks and improving education at the higher levels of it. But
there is little evidence that the growth of the software industry is reflected in improved living
conditions, more schools, greater justice, better health, more jobs or other benefits for
ordinary indians. An evident example of the proposition is that the development of the
bangalore region goes hand in hand with the persistence of Karnataka as one of the poorer
states in India. However, there are exceptional cases like the Infosys foundation, which is
spreading computer literacy among school children.
In order to make sure that the benefits of IT actually reach the common people of
India i.e., the masses, unless the costs of connectivity devices, computers and local language
software are brought down, the goal of wiring India will remain a dream. Even though the
government has portrayed its sincerity towards effective E-Governance and trickle down
effect for the masses, India like other nations is also plagued by innumerable impediments in
the realization of this dream. The most raging of these impediments have been discussed
below:
Impediments in Effective E-Governance
Inspite of lots of efforts been made in the creation of infrastructure and internal
information handling by govt. bodies as well as public services, the diffusion of technologies
in moving towards e-governance have been rather slow due to several reasons, the following
being the major ones.
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Lack of IT Literacy and awareness regarding benefits of E-governance
There is general lack of awareness regarding benefits of e-governance as well as the
process involved in implementing successful G-C, G-G and G-B projects. The
administrative structure is not geared for maintaining, storing and retrieving the governance
information electronically. And the general public is not very keen to learn new technology
which could better up their lives. They are reluctant to learn new technology given their
‘cyber knowledge quotient’.
Underutilization of existing ICT infrastructure
To a larger extent, the computers in the department are used for the purpose of
word processing only, resulting in the underutilization of the computers in terms of their use
in data mining for supporting management decisions. The time gap between the
procurement of the hardware and development of the custom applications is so large that by
the time application is ready for use, the hardware becomes obsolete.
Attitude of Government Departments
The psychology of government servants is quite different from that of private
sectors. Traditionally the government servants have derived their sustenance from the fact
that they are important repositories of government data. Thus any effort bringing out the
change in the system is met with resistance from the govt. servants.
Lack of coordination between Govt. Department and Solution developers
Designing of any application requires a very close interaction between the govt.
department and the agency developing the solutions. At present the users in govt.
departments do not contribute enough to design the solution architecture. Consequently the
solution developed and implemented does not address the requirements of an e-governance
project and hence does not get implemented.
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Resistance to re-engineering of departmental processes
Successful implementation of e-governance projects requires lots of restructuring in
administrative processes, redefining of administrative procedures and formats that find the
resistance in almost all the departments at all the levels. The content as is collected or
maintained by various e-governance portals is unreliable or full of gaps. In such a scenario,
it’s difficult for any e-governance solution to achieve its intended results.
Lack of Infrastructure for sustaining e-governance projects on national
level
Infrastructure to support e-governance initiatives does not exist within government
departments. The agony is that the government departments are not equipped to be in a
position to project the clear requirements nor are there any guidelines for involving private
sector. Whatever efforts have been made by various govt. organizations may be defined as
islands of computerization. The infrastructure creation is not guided by a uniform national
policy, but is dependent on the needs of individual officers championing a few projects.
Although development policies may have lofty goals, much seems to have happened
only in automation and computerization. The drawback is that these IT policy documents
are not made based upon the requirements and inherent capabilities of the state but are
based on the surveys and strategies used by other nations or other states. Though it’s very
wise to take examples from the successful e-governance strategies of other states and
countries, it’s equally essential that we customize our state policies after a careful study of the
parameters applicable to the particular state in question.
The real challenge is how to develop and sustain successful e-governance projects
and deliver state of the art e-services to citizens. Unfortunately its not as easy as adding “e”
in front of your service delivery mechanism. Successful e-governance initiatives can never be
taken in haste. Particularly for the democratic nation of the billion people like India, e-
Governance should enable seamless access to information and seamless flow of information
across the state and central government in the federal setup. No country has so far
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implemented an e-governance system for one billion people. Some of the requirements for
implementing successful e-governance across the nation are:
i. E-Governance framework across the nation with enough bandwidth to service a
population of one billion.
ii. Connectivity framework for making the services reach rural areas of the country
or development of alternative means of services such as e-governance kiosks in
regional languages.
iii. National Citizen database which is the primary unit
of data for all governance vertical and horizontal applications
across the state and central governments.
iv. E-governance and interoperability standards for the exchange of secure
information with non-repudiation, across the state and central government
departments seamlessly.
v. A secure delivery framework by means of virtual private network
connecting across the state and central government departments.
vi. Data centers in the center and in the states to handle the departmental
workflow automation, collaboration, interaction, and exchange of
information with authentication.
For successful e-governance projects and superior service delivery, it is imperative
that the government agency focuses on whole citizen experience. Focusing on the citizen is
essential for long-term success. The govt. agency needs to integrate information from all
points of citizen interaction. The overall architecture for E-Governance needs to ensure that
the architecture components are extensible and scalable to adapt to the changing
environments. The E-Governance applications that are emerging as islands of successes
have to be interoperable. Following are some of the suggestions:
1. Create Literacy and commitment to E-governance at high level
The most important requirement is a training program for policy makers in EGovernance
(Senior Public Servants), politicians and IT task force members. The training
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program needs to be focused according to the requirements of the policy makers at the top.
Such programs can be need based and outsourced when required. In addition it should be
made mandatory for all the stake holders in implementation and maintenance of egovernance
services to have the general IT skills. There may be specific requirements for
training in certain specific projects. Such programs can be need based and outsourced when
required. A few suggestive programs include e-governance training, Building web interfaces
for citizen interaction, Document management and workflow applications, security and PKI
solutions, Office Automation, networking etc.
2.
Conduct Usability Surveys for assessment of existing e-governance projects
There is a varying degree of development of e-governance among the different states. A
few States have leapfrogged into a digital era whereas a few are yet to start with any initiative.
There is a tremendous divergence in the extent of implementation of the concept of e-
Governance. It is, therefore, not possible to come up with a framework for implementation
of e-Governance which is straightaway applicable to all states and the Central Government.
Therefore an e-readiness exercise should be carried out in all states, government
departments to understand their level of acceptability of the e-governance.
3. Starting with implementation of pilot projects and replicating the successful
ones
The pilot projects taken in various states should be accessed for their achievement levels.
They should be classified as success or failure according to the desired output written down
before implementation of the projects. The study should be carried out by an independent
agency for the implementation agency The study should be carried out at each stage of
implementation. Bottlenecks and causes of delays should be documented, even though they
are removed later. The successful projects should be replicated over the nation with
members drawn from the implementing team. The projects, which could not achieve the
desired outcome, should be documented for possible causes of failure. Various bottlenecks
and causes of delay should be identified.
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4.
Follow the Best Practices in e-governance
The study of Best Practices will bring forward the best practices being followed
nationally and internationally. The national and international Best Practices study will give a
great momentum to the process of E-Governance. The State Governments will not have to
re-invent wheel every time and they can learn from the developments already made.
5. Build National resource Database of e-governance projects
This would allow any organization planning an IT project to instantly ascertain whether
any such project has already been implemented anywhere in the country. Intending
implementers would know who the key people in similar projects are and how to reach
them. It is well known that it is much easier to replicate a solution than to evolve it the first
time around. So the lead-time to implement projects can be reduced substantially.
If a project is already in operation in a similar environment somewhere in the country,
acceptance by all concerned is much faster and smoother elsewhere. So change management
becomes much easier and the time and effort involved in such implementations. Due
recognition would accrue to the pioneers who created the successes. It would enable others
to learn from them if they wish.
For implementing agencies, be they Government owned organizations like NIC, CDAC
and State PSUs or private IT companies, it offers a unique opportunity to derive the full
return and reward, both domestically and internationally, from their successes and the IPRs/
products that they have created. It would help create an archive of e-governance applications
in the country.
6. Have clearly defined Interoperability policy
The e–governance architecture needs to ensure that the components are scalable and
adaptable to the future requirements. It has also to ensure that the Local architecture fits into
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the State level and the same into National and Global architecture. Interoperability is a major
criterion while defining the architecture.
7. Manage and Update content on govt. websites efficiently and regularly
Content is the 'heart' of any IT project. The govt. agency has to keep in mind some of
the important technical guidelines, while developing the software and computerization, to
facilitate the future integration. The department also needs to address the security of
transactions and messages. The process of content development encompasses a whole range
of activities starting with a comprehensive study of the system and identification of the
objectives. It ends up with delivery of the intended benefits to the citizens or other users of
the IT System. The govt. agencies must ensure that the data on the sites is always updated
and relevant.
National E-Governance Plan
Taking note of the potential of e-governance to improve the quality of life of the
vast population of the country, the Government of India has formulated a national program
- the National e-governance Plan (NeGP). This plan attempts to cover all the important
areas relating to e-Governance – Policy, Infrastructure, Finances, Project Management,
Government Process Reengineering, Capacity Building, Training, Assessment and
Awareness etc. across the Central and State Governments.
NeGP is a comprehensive “programme” of the Government of India and is
designed to leverage capabilities and opportunities presented by ICT to promote good
governance across the country. One of the learning that is at the core of the NeGP is the
emphasis on implementation of such projects with clear timelines and responsibility
allocations – in a “Mission Mode”. The Plan initially extends over a 4-year period at an
estimated cost of over USD 3 billion. NeGP is aimed at introducing e-Governance
systematically through 25 Mission Mode projects, which would touch the lives of more than
1 billion people.
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The vision of NeGP is to make all Government services accessible to the common
man in his locality through common service delivery outlets. The implementation strategy
envisages clear definition of service goals and metrics for each project and structured
stakeholder consultations with all stakeholders including citizens and civil society
organizations before the service goals of each project are firmed up. Even at the stage of
formulation of the NeGP, its vision and proposed strategy, consultations were held with
various stakeholders including state governments, ministries/departments, IT industry
representatives and civil society organizations.
The focus of the plan includes the following sectors/projects:
Agriculture
E-governance projects in the agricultural sector can provide benefit to farmers and
the rural people and also enhance the lives of urban poor. There are numerous sub-projects
pertaining to provision of timely expert advice to farmers, food security, marketability and
commercial information relating to agricultural products, enhancing crop productivity,
enhancing the reach of and ease of access to micro-credit, etc.
Municipalities
The coordinating agency is the Ministry of Urban Development. The main programs
relevant to vulnerable and marginalized groups are registration of births and deaths,
grievances and suggestions, health programs, etc.
Gram Panchayats (elected village administration)
The important programmes being implemented by the Ministry of Rural
Development for poverty reduction are employment generation, provision of basic
services, infrastructure development etc.
The objective is to increase participation of rural population in the government and women
empowerment.
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Common Service Centres (CSCs)
It is one of the integrated projects envisioned in NeGP. The CSCs provide assisted
community access points – a necessity in a country with relatively low levels of literacy and
ICT penetration in rural areas. These centres are very effective in providing multiple services
provided by different departments at a single location. For a common citizen, it is often
confusing and time-consuming to have to visit different departments and identify the right
official or office to avail of some service. This one stop shop is also helpful in increasing
accessibility, enabling faster service delivery, curbing corruption and reducing difficulties
faced by vulnerable and marginalized groups. Under this program, it is aimed to establish
100,000 CSCs predominantly in the rural areas to serve the needs of the traditionally
underserved areas.
Core Infrastructure
Such as State Wide Area Networks, Data Centres, Gateways, etc. forms another
critical element of the NeGP. Approximately 15% of the total program outlay is earmarked
for common core and support infrastructure that is shared across projects, excluding the
cost of infrastructure that is created specific to, and as a part of, individual projects.
The diagram presents the E-Governance framework that includes back-ends
(databases of different government agencies, service providers, state governments etc.),
middleware and front-end
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delivery channels (home PCs, mobile phones, kiosks, integrated citizen service centers etc)
for citizens and businesses. The middleware comprises of communication and security
infrastructure, gateways and integrated services facilitating integration of inter-departmental
services.
GOI has further planned to carry out Impact Assessments of such projects to see
whether the benefit is actually percolating to the marginalized sections of society. The
Impact Assessment would cover the following:
i. Efficiency Attribute - Are the type of e-services given through the e-governance
initiatives benefiting the socially and economically backward users?
ii. User Convenience Attribute – The suitability of the service locations and ease of
access by socially and economically backward users.
iii. Citizen centricity attributes –
(a.) Reduction of visits to government offices - it is very annoying to have to
meet several officials for a task that actually takes perhaps just 5 minutes.
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Sometimes this also entails a number of visits that a citizen has to make to an
office.
(b). User friendliness – The service provider should have sufficient
knowledge or access to it to answer the queries of the common user. The
familiarity of the service provider with the services applicable to different
user groups becomes an important element in faster and hassle-free service
delivery.
However, implementing the e-Governance agenda needs to be seen in the context of
the federal structure of the country. The Indian Constitution declares that India is a Union
of States, with a three-tier federal structure – the Union, State and Local Bodies/Authorities.
Although the legislative and policy-making powers are vested with the Central (Federal) and
State Governments with clearly defined lists of central and state subjects, the delivery of
most common services to citizens are overseen by the local bodies such as municipalities
(town councils) in urban areas and panchayats (village bodies) in rural areas. This is
appropriately reflected in the comprehensive plan and policies prepared by the GoI for
implementing e-Governance across India, especially under the National eGovernance Plan
(NeGP). The NeGP also lays emphasis on capacity building that is discussed in detail in the
subsequent sections.
E-Governance and Law
The main concern of bodies like civil servants, political and IT task force members
of various state and central bodies is the structural, legal and policy changes that would be
necessitated by the implementation of e governance framework as the online services can be
accessed by the people from any part of the world (e.g. Indians staying in geographical
boundary of the country plus all other Indians staying anywhere in the world). As the
business communities, Service Providers, Government Organizations and also Criminals
start exploiting the global reach of these technologies, the requirement of appropriate
policies, regulations and legislation changes becomes increasingly important to be able to
create a governable infrastructure required by this so called Cybernation.
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This paper seeks to address some of the ethical, social and legal implications for the
society, regulatory authorities, citizens and business; of continued implementation and
exploitation of ICT and start a debate on the necessity of creating uniform global laws for
governing the e-Infrastructure.
The Cybernation as describer above, as evident is seemingly unbound by the
geographical boundaries. As more and more people start going online for accessing
government services, doing business and other day to day activities, the countries are bound
to witness the traditional social, banking and legal systems creaking under the strain of rapid
technological changes. As more and more transactions including the government services are
shifted to the Internet, a totally new relation between the nations, governments to citizens
and businesses is bound to emerge. We have to start thinking and inventing ways to organize
ourselves as global community governed by new age laws and behavior patterns. We will
have to start debating the issues of online education, marketing, teleworking, advertising and
trading; to deal with virtual companies and organizations. Taxation and governance, security
& trust, freedom of expression and privacy, the ownership of information policies etc. are all
to be comprehensively dealt with. Both the governments and citizens have in front of them
the challenging task of mindset change throughout the society and particularly in
government and its organs of administration. This paper does not deal with the issues
comprehensively but merely acts as a reference and preparation point for the change we are
witnessing.
The laws which have been developed by various countries over the years, are applied
according to a complex basis of jurisdiction; the area within which the law applies. Activities
which may be legal in one country - are illegal within another and vice versa. The question of
where an act occurred has immense importance while prosecuting the criminals. The
internet, however, presents access to a domain ostensibly outside of geography. The
application of a legal framework and a regulatory structure therefore becomes a complex
issue requiring extensive cooperation between independent countries. Cooperation,
moreover, that must be between nations that might have radically different views on legality
and morality of particular practices. Because of the global nature of Internet, and other ICT
tools being used by citizens and governments of various nations, there is a need to develop
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cyber laws or IT Acts keeping global perspective in view rather than country specific laws.
The regulations and controls have to be developed and exercised on a global basis. The
focus of examination of these perspectives is India and other developing countries.
Lacunae
After having discussed the important provisions of the Act, attention should also be
drawn to some of its loopholes.
Inapplicability:
The first and foremost setback is that the provisions of the Act do not apply to the
following:
i. A negotiable instrument as defined in Section 13 of the Negotiable Instruments
Act, 1881;
ii. Power of attorney as defined in Section 1A of the Powers-of-Attorney Act, 1882;
iii. A trust as defined in Section 3 of the Indian Trusts Act, 1882;
iv. A will as defined in Section (h) of Section 2 of the Indian Succession Act, 1925,
including any other testamentary disposition by whatever name called;
v. Any contract for the sale or conveyance of immovable property or any interest in
such property.
It is envisaged that the efficacy of the Act may not be considerable owing to its
restrictive applicability.
Digital Signatures:
Act deals only with PKI framework for authentication. It does not recognize any
other authentication procedure though the ambit of ‘legal record’ is wide. This may cause
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problems for m-commerce transactions that may not necessarily use the PKI system for
authentication and security purposes.
Qualifications and Powers of Adjudicating Officers Unclear:
The Act is unclear as to the qualifications of an adjudicating officer and the manner
in which he shall adjudicate.
Moreover, though the statute is supposedly a ‘long arm statute’, it does not indicate
the powers of the adjudicating officers when a person commits a cyber crime or violates any
provisions of the law from outside India. Several practical difficulties may also arise in
importing the cyber criminal to India. The Act does not lay down any provisions whereby
extradition treaties can be formed with countries where the cyber criminal is located.
Therefore, the extra-territorial scope of the Act may be difficult to achieve.
Furthermore, the powers to impose a penalty for a computer crime upto Rs. 1 crore
offers a large discretion to adjudicating officers and may turn out to be harmful.
Possible Violation of Fundamental Rights:
The provision that no order of the Central Government appointing any person as
the presiding officer of a CRAT shall be called into question in any manner and no act or
procedure before a CRAT shall be called into question in any manner merely because there
is a defect in the constitution of the CRAT may be violative of the fundamental rights of
citizens under the Constitution of India. This provision could be misused by the Central
Government in an unfair and arbitrary manner. It is recommended that is provision be
modified so that the interests of the public at large are safeguarded.
Misuse of Police Powers:
The search and arrest powers given to police officers are without any definite
guidelines and may be ill-used.
23
ISP Liability - Responsibility for Content Regulation not attributable:
While Section 78 absolves a network service provider of its liability if it can prove its
ignorance and due diligence, it fails to specify as to who would be held liable for such
contravention in such an event. This provision will certainly cause problems when an
offence regarding third party information or provision of data is committed.
No Intellectual Property Rights Protection Guaranteed:
Regulation of intellectual property rights, particularly copyright on the Internet is an
ever-growing problem. The Act does not discuss the implications of any copyright violations
over the net. It has no provisions to penalise copyright infringers, commonly known as
"pirates" for their activities over the net. Internet piracy is a major problem has not been
tackled by this Act. No amendments have been proposed to the Copyright Act of India.
Cyber Terrorism
The traditional concepts and methods of terrorism have taken new dimensions,
which are more destructive and deadly in nature. In the age of information technology the
terrorists have acquired an expertise to produce the most deadly combination of weapons
and technology, which if not properly safeguarded in due course of time, will take its own
toll. The damage so produced would be almost irreversible and most catastrophic in nature.
In short, we are facing the worst form of terrorism popularly known as "Cyber Terrorism".
The expression "cyber terrorism" includes an intentional negative and harmful use of the
information technology for producing destructive and harmful effects to the property,
whether tangible or intangible, of others.
Cyber terrorism is the convergence of cyberspace and terrorism. It refers to unlawful
attacks and threats of attacks against computers, networks and the information stored
therein when done to intimidate or coerce a government or its people in furtherance of
political or social objectives. Further, to qualify as cyber terrorism, an attack should result in
violence against persons or property, or at least cause enough harm to generate fear. Attacks
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that lead to death or bodily injury, explosions, or severe economic loss would be examples.
Serious attacks against critical infrastructures could be acts of cyber terrorism, depending on
their impact.
For instance, hacking of a computer system and then deleting the useful and valuable
business information of the rival competitor is a part and parcel of cyber terrorism. The
definition of "cyber terrorism" cannot be made exhaustive as the nature of crime is such that
it must be left to be inclusive in nature. The nature of "cyberspace " is such that new
methods and technologies are invented regularly; hence it is not advisable to put the
definition in a straightjacket formula or pigeons hole. In fact, the first effort of the Courts
should be to interpret the definition as liberally as possible so that the menace of cyber
terrorism can be tackled stringently and with a punitive hand. The law dealing with cyber
terrorism is, however, not adequate to meet the precarious intentions of these cyber
terrorists and requires a rejuvenation in the light and context of the latest developments all
over the world. The laws of India have to take care of the problems originating at the
international level because the Internet, through which these terrorist activities are carried
out, recognizes no boundaries. Thus, a cyber terrorist can collapse the economic structure of
a country from a place with which India may not have any reciprocal arrangements. The only
safeguard in such a situation is to use the latest technology to counter these problems. Thus,
a good combination of the latest security technology and a law dealing with cyber terrorism
is the need of the hour.
Hypothetical cases of Cyber Terrorism
Imagine that a government network gets hacked into and all of your details are
exposed. With the rising E-governance in the administration one has to give in all details
including personal ones to use any kind of facility. What happens when there is a virtual
break-in and all the information so collected is taken by these hi-tech terrorists to do
unlawful activities against a country only.
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Through use of conventional computer technology, a terrorist disrupts the computer
communications of major banks, financial institutions, and stock markets and other similar
government organizations. The economy as we all know will plummet into abyss.
Using the same technology, the terrorist remotely alters the formulas for prescription
medicine at a major pharmaceutical manufacturer, inserting dangerous amount of chemical
ingredients into over-the-counter medication. Allergic reactions and over-doses afflict and
kill thousands.
Ineffectiveness of Cyber Law in India
The cyber law, in any country of the World, cannot be effective unless the concerned
legal system has the following three pre requisites:
(1) A sound Cyber Law regime,
(2) A sound enforcement machinery, and
(3) A sound judicial system.
Let us analyse the Indian Cyber law on the above parameters.
(1) Sound Cyber Law regime:
The Cyber law in India can be found in the form of IT Act, 2000.[1] Now the IT
Act, as originally enacted, was suffering from various loopholes and lacunas. These “grey
areas” were excusable since India introduced the law recently and every law needs some time
to mature and grow. It was understood that over a period of time it will grow and further
amendments will be introduced to make it compatible with the International standards. It is
important to realize that we need “qualitative law” and not “quantitative laws”. In other
words, one single Act can fulfill the need of the hour provided we give it a “dedicated and
futuristic treatment”. The dedicated law essentially requires a consideration of “public
interest” as against interest of few influential segments. Further, the futuristic aspect requires
an additional exercise and pain of deciding the trend that may be faced in future. This
exercise is not needed while legislating for traditional laws but the nature of cyber space is
26
such that we have to take additional precautions. Since the Internet is boundary less, any
person sitting in an alien territory can do havoc with the computer system of India. For
instance, the Information Technology is much more advanced in other countries. If India
does not shed its traditional core that it will be vulnerable to numerous cyber threats in the
future. The need of the hour is not only to consider the “contemporary standards” of the
countries having developed Information Technology standards but to “anticipate” future
threats as well in advance. Thus, a “futuristic aspect’ of the current law has to be considered.
Now the big question is whether India is following this approach? Unfortunately, the answer
is in NEGATIVE. Firstly, the IT Act was deficient in certain aspects, though that was
bound to happen. However, instead of bringing the suitable amendments, the Proposed IT
Act, 2000 amendments have further “diluted” the criminal provisions of the Act. The
“national interest” was ignored for the sake of “commercial expediencies”. The proposed
amendments have made the IT Act a “tiger without teeth” and a “remedy worst than
malady”.
(2) A sound enforcement machinery:
A law might have been properly enacted and may be theoretically effective too but it
is useless unless enforced in its true letter and spirit. The law enforcement machinery in
India is not well equipped to deal with cyber law offences and contraventions. They must be
trained appropriately and should be provided with suitable technological support.
(3) A sound judicial system:
A sound judicial system is the backbone for preserving the law and order in a society.
It is commonly misunderstood that it is the “sole” responsibility of the “Bench” alone to
maintain law and order. That is a misleading notion and the “Bar” is equally responsible for
maintaining it. This essentially means a rigorous training of the members of both the Bar and
the Bench. The fact is that the cyber law is in its infancy stage in India hence not much
Judges and Lawyers are aware of it. Thus, a sound cyber law training of the Judges and
Lawyers is the need of the hour. In short, the dream for an “Ideal Cyber Law in India”
requires a “considerable” amount of time, money and resources. In the present state of
things, it may take five more years to appreciate its application. The good news is that
27
Government has sanctioned a considerable amount as a grant to bring e-governance within
the judicial functioning. The need of the hour is to appreciate the difference between mere
“computerisation” and “cyber law literacy”. The judges and lawyers must be trained in the
contemporary legal issues like cyber law so that their enforcement in India is effective. With
all the challenges that India is facing in education and training, e-learning has a lot of answers
and needs to be addressed seriously by the countries planners and private industry alike. Elearning
can provide education to a large population not having access to it.
Need for Amendments in the IT Act, 2000
The proposed IT Act, 2000 is suffering from numerous drawbacks and grey areas.
The amendments must be seen in the light of contemporary standards and requirements.
Some of the more pressing and genuine requirements in this regard are:
•
There are no security concerns for e-governance in India
•
The concept of due diligence for companies and its officers is not clear to the
concerned segments
•
The use of ICT for justice administration must be enhanced and improved
•
The offence of cyber extortions must be added to the IT Act, 2000 along with
Cyber Terrorism and other contemporary cyber crimes
•
The increasing nuisance of e-mail hijacking and hacking must also be addressed
•
The use of ICT for day to day procedural matters must be considered[
•
The legal risks of e-commerce in India must be kept in mind
•
The concepts of private defence and aggressive defence are missing from the IT
Act, 2000
•
Internet banking and its legal challenges in India must be considered
•
Adequate and reasonable provisions must me made in the IT Act, 2000 regarding
“Internet censorship”
•
The use of private defence for cyber terrorism must be introduced in the IT Act,
2000
•
The legality of sting operations must be adjudged
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•
The deficiencies of Indian ICT strategies must be removed as soon as possible
•
A sound BPO platform must be established in India, etc.
The concerns are too many and too myriad to be fully enunciated and discussed in
this paper. The Government must seriously take the “genuine concerns” and should avoid
the cosmetic changes that may shake the base of already weak cyber law in India.
Conclusion
The Government has mistakenly relied too much upon “self governance” by private
sectors and in that zeal kept aside the “welfare State role”. The concept of self-governance
may be appropriate for matters having civil consequences but a catastrophic blunder for
matter pertaining to crimes, offences, contraventions and cyber crimes. Further, the
Government must also draw a line between “privatizationPage 28 of 29’ and “abdication of
duties” as imposed by the Supreme Constitution of India. The concepts of “Public-Private
Partnerships’ must be reformulated keeping in mind the welfare State role of India.[20] The
“collective expertise” must be used rather than choosing a segment that is not representing
the “silent majority”.[21] It would be appropriate if the Government puts the approved draft
by the Cabinet before the public for their inputs before finally placing them before the
Parliament.
It is evident from above discussion that objectives of achieving e-governance and
transforming India go far beyond mere computerization of stand-alone back office
operations. It means , to fundamentally change as to how the government operates, and this
implies a new set of responsibilities for the executive and politicians. It will require basic
change in work culture and goal orientation, and simultaneous change in the existing
processes. Foremost of them is to create a culture of maintaining, processing and retrieving
the information through an electronic system and use that information for decision-making.
It will require skilled navigation to ensure a smooth transition from old processes and
manual operations to new automated services without hampering the existing services. This
can be achieved by initially moving ahead in smaller informed initiatives in a time bound
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manner and avoiding large and expensive steps without understanding the full social
implications. Every small step thus taken should be used to learn about hurdles and improve
upon the next steps, both in terms of direction and magnitude. The proposed changes are
likely to be met with a lot of inertia which can not be overcome by lower and middle level
officials with half hearted attempts to diffuse the technology. The change in the mindset to
develop and accept the distributed and flat structured e-governance system is required at the
top level system to beat the inertia.
