another example of the Credit Card industry's deceptive advertising targeting children
cartoon of the month

Monday, May 23, 2005

Cyber law and privacy in India

surprising the Times of India missed out on the Supreme Court's "Auto Shankar" judgement

The law isn't much help


Technology is advancing, voyeurs are getting ever more intrusive, but India's laws are struggling to keep pace. As things stand, if your privacy has been intruded upon and you want to get the offender punished, the law isn't much help.

Cyber law expert and advocate Pawan Duggal points out: "There is legal protection against the Centre and states violating the privacy of an individual, but there is nothing to stop another private individual from doing so."

The Supreme Court first recognised in 1964 that the right to privacy is implicit in the Constitution under Article 21, which specifies the fundamental right to life. But the ruling applies only to the state and falls under the Protection of Human Rights Act, which led to the formation of the national and state human rights commissions. What about the recent wave of hi-tech crimes? Most of these cases would fall under the IT Act, 2000, and the Indecent Representation of Women (Prohibition) Act, 1987, and some sections of the Indian Penal Code. While showing and distributing pornography is illegal, viewing it is not.

The IT Act deals with offences of publishing or transmitting or causing to be published any kind of obscene information. Its ambit extends over information that is lascivious, or which appeals to prurient interests or if the effect is such as to deprave or corrupt persons who are likely to hear, see or read it. While the IT Act is not gender-sensitive, it is relatively stringent. It overrides inconsistencies due to any other act. The first conviction is punishable with a five-year sentence and a Rs 1-lakh fine; the second 10 years in jail and a Rs 2 lakh fine

Section 292 of the IPC deals with selling or distributing of obscene information like brochures and pamphlets. Conviction could result in three years in prison, while the fine is determined by the judge. There's also the Indecent Representation of Women (Prohibition) Act, which seeks to check this practice in advertisements, publications, writing, painting, figures or any other manner. But the maximum penalty is just two years in prison and a Rs 2,000 fine.

The issue of the right to privacy also raises another question. Should the use of hidden cameras be regulated so that they can be used for 'fair' purposes – like exposes by the media? Duggal says he would support such regulation, but adds that in cases where "the rights of the individual are infringed and unsuspecting individuals are filmed to cater to voyeuristic needs of others, the law should have stringent punishments like five years in prison not just for the cameraman but also the distributor." Senior lawyer Kirti Singh agrees. "The laws need to be made strong enough to ensure such incidents are curbed."

Duggal also stresses the need to train the police. "It is essential that the police be equipped to handle such crimes as they are the first contact with the complainants," he says. He claims that 500 cyber crimes occurred in Delhi last year, of which only 50 were reported and charges framed in only one case.

Deputy Commisioner of Police Tajinder Luthra agrees: "Some changes are needed in the IT Act, as under it only ACPs or Deputy SPs can investigate such crimes. This restricts and makes our resources smaller."


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