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January 5, 2000


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Devangshu Datta

Y2K and the police bug

Triskadekaphobia is the fear of the number "13". Tris" originated from 13 people being present at The Last Supper where Judas betrayed Jesus. It ought to be an entirely Christian superstition, but it is all-pervasive. Few hotels have a thirteenth floor. Every flat numbered 1313 in everyone of the Vasant Kunj sectors in New Delhi has lain vacant since completion! According to real estate brokers, other VK flats retail at around Rs 2.5 million but the value of flats numbered 1313 is ZERO.

As and when the new IT Bill comes through, the Indian IT industry will also develop a healthy fear of 13. Check out the site for the entire bill. Pay special attention to chapter XIII, which is innocuously headlined "Miscellaneous" and you will understand what I'm talking about.

I checked out Chapter 13 with several practicing criminal lawyers. Assuming the Bill becomes an Act, the following situations are possible. One: the local Deputy Superintendent of Police tells his boys to check out every house in a neighbourhood where there is "reasonable suspicion" of a cybercrime. A constable walks in while my 11-year-old nephew is playing hearts on my home PC. He arrests my nephew and me, and confiscates my PC. There is "reasonable suspicion" that we are gambling with cards visible on screen. He can even arrest me just because I have MS Hearts on my PC so I could be gambling! If I've removed the hearts icon, I could still be arrested under "reasonable suspicion" of using a pirated operating system! He doesn't need a warrant - just a "reasonable suspicion".

Another situation. A software company is raided. All the equipment is confiscated. Somebody is "reasonably suspected" to have been downloading porn and the machines and all floppies, CDs etc must now be scrutinised for evidence. Again, no warrants are required - just reasonable suspicion.

A third situation. Rediff publishes a piece that suggests that the clauses relating to power of search and arrest are Draconian. The local DSP has a "reasonable suspicion" that, given Rediff's multifarious activities on the Net, somebody there, must sometime have committed a cybercrime. His men walk out with every machine and also arrest everyone from the guard to the CEO.

Until the current date, the Indian IT industry has been mainly governed on the Indian Penal Code of 1860 and the Indian Telephone and Telegraphs Act of 1882. For some reason, both fail to account for the existence of electronics, let alone that of computers! These lacunae have been ingeniously exploited. Notably when Doordarshan prevented uplinking by other TV operators, and also in numerous ways by the Dept of Telecom to delay entry of private operators.

E-commerce faces a hurdle since, as of now; electronic documentation has no legal sanctity. The IT bill changes that. It details a complicated and expensive procedure for the creation and administration of digital signature systems and it also suggests amendments to the Indian Reserve Bank Act (1934) and the Bankers Book Evidence Act (1891) to facilitate e-commerce and also to the Indian Evidence Act (1872) to allow the admission of electronic evidence. Maybe the suggested controller system for digital signatures is clunky but it is a start.

E-crime is undefined right now. It's anyone's guess whether hacking is a crime. Or, just who is liable in case of offensive material up there on a website on an American server with an Indian-owned domain name? Is an Indian citizen committing a crime by running a virtual gambling site on an American server?

The state of West Bengal had a difficult time closing down a site called in 1998. This had a bulletin board that carried anti-Bengali jokes and much material that vilified Jyoti Basu and his government. It was hosted on a US server and the domain owner, who is based in Calcutta, could not be held legally liable for stuff posted there anymore than DoT can be held liable for obscene calls. The IT Bill modifies the IPC 1860 and clarifies such issues.

But chapter 13 does not deal with either e-commerce or electronic evidence. It doesn't even deal with the modifications of the IPC. It defines the police powers of search and arrest instead. And as the three outlined situations suggest, it could create a police state.

According to Clause 79 which inaugurates chapter 13, "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any police officer, not below the rank of a Deputy Superintendent of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected or having committed or of committing or of being about to commit any offence under this Act.

Translate that into English and it means that any policeman under orders from a DSP or any other deputed government servant can walk into any place that can be loosely defined as an office, a public conveyance, a hotel, or shop, or any place at all, and search and arrest anyone present. A warrant is NOT required. Just "reasonable suspicion". Your equipment can be confiscated and taken away for leisurely examination. It will be stored in the police "malkhana" along with seized liquor, cars, arms, and narcotics.

If the "reasonable suspicion" is wrong, you will eventually get your equipment back and be released. You have no redress for damage caused - "No suit, prosecution or other legal proceeding shall lie against the Central Government, the State Government, the Controller or any person acting on behalf of him, the Presiding Officer, adjudicating officers and the staff of the Cyber Appellate Tribunal for anything which is in good faith done or intended to be done in pursuance of this Act or any rule, regulation or order made thereunder."

Clause 80 also states that this power of search and arrest "shall have effect notwithstanding anything inconsistent contained in any other law". Which means that the law has approximately the same force as TADA, which was withdrawn only after such blatant abuse. And the public servant who misuses it is, in practice, totally immune.

Clause 84 goes on to state: "Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly". This means that a company could be liable if one of its employees is say, downloading porn and the burden of proving innocence will lie on the company concerned.

The code of criminal procedure isn't suspended in the case of murder, dacoity or rape. In each instance, the police have to convince a magistrate that they have enough evidence to ask for a search warrant. Similar procedures must be followed to obtain an arrest warrant for a non-cyber crime. "Reasonable suspicion" isn't enough.

Why is the code suspended for IT? I have an answer and I don't think it's paranoid. The politician-bureaucrat nexus knows that the IT industry cannot be squeezed via normal means. The normal inspector-raj harassment or hafta routine via Income Tax/Excise inspector is impossible because of the nature of the industry. IT also doesn't need either licenses or government contracts. So, set up a DSP Raj, and use the threat of confiscating machinery and threatening IT professionals with arbitrary arrest. Surely the industry will now pay hafta to get off the hook?

Chapter 13 pays a left-handed compliment for a DSP is senior to an inspector. A long time ago, Infosys chairman Narayan Murthy did time in a Bulgarian jail as a suspected spy. He could do time again in an Indian jail along with every other employee of a company that is a byword for honesty. All because Infosys doesn't pay off a DSP with a "reasonable suspicion". Anyone who has anything to do with IT could go to jail because of chapter 13. Isn't Chapter 13 a great way to kickstart a new millennium and enable a growth-industry?

Devangshu Datta

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