LIMITS OF LEGISLATIVE CLASSIFICATION: SOME REFLECTIONS FROM INFORMATION TECHNOLOGY ACT, 2000

Introduction

The development of modern Information Technology has moulded the human life completely. The very existence of human life is now defined by the information technology. From a daily routine work to a complex financial transaction; professional relations to interpersonal relation, all are assisted, reshaped by the information technology. The dependency on information technology is no more limited to individual or small chat groups. These days, socio-political mobilisation including mass political gathering are managed by means of information technology. The governance, be it administrative, financial or international all are shifting towards new era wherein information technology is playing huge role. The role and prospect of information technology got redefined in the ongoing pandemic COVID-19 wherein from individual to nations, from small businessman to big corporates, all have submitted themselves completely to modern information technology. Regulation of life through apps is the new normal. Question of privacy, data breach, and financial security somewhere took back seat.

Today, the health of everyone is monitored through Aarogya Setu app, and companies in telemedicine are provide immediate medical advice through electronic medium. However, in the process of this transformation, there is an interesting paradox. The information technology has brought a remarkably interesting change the political participation of individual in governance. A well-equipped person having mobile gadget with internet can access information and services easily. For this class, their reach to facilities like health, education, social security, financial transactions and assistance during stress is just a click away. At the same time, there is another class, still wondering about their basic needs. This paradox is not limited to issues of economic welfare and social security, it has creeped into the legal system as well.

In the present work, the author has explored the above paradox of class bias, inherent in the Informational Technology Act, 2000, hereinafter referred as IT Act, 2000. The author has argued that the classification of offences done under the IT Act, 2000 is arbitrary and reflects class bias in its existing framework. The work is divided into three parts. In the Part-I, author has explored the classification of Offences prescribed under the IT Act, 2000.  Part-II of the work will deal about judicial interpretations as to the exclusive applicability of IT Act, 2000, and exclusion of Indian Penal Code, 1860. Part-III will provide arguments about the very rationality into the exclusive application of IT Act, 2000 and its inherent bias.

Information Technology Act, 2000

Internet, which like a spider web, have worldwide presence. Through technology, it connects people sitting at different corners of the world. Having worldwide reach transcending national geographical limits, United Nations through its agencies suggested uniform law dealing with information technology.[1] The Ministry of Information Technology, established in the year 1999 prompted the enactment of its first statute on the pattern suggested by United Nations Commission on International Trade Law. The Information Technology Act, 2000, passed by Parliament got notified and come into force on October 17, 2000. The Act, primarily designed to protect e-governance and e-commerce, shifted towards e-crimes after the amendments in the year 2008. IT Act, 2000 defines various terms dealing with information technology including cybercrimes, prescribed penalties for cybercrimes, and also established a Cyber Regulations Appellate Tribunal to resolve disputes.

While enacting this legislation, certain consequential amendments were made in Indian Penal Code, 1860; Indian Evidence Act, 1872 and thereby necessary changes were brought with respect to offences relating to documents etc. Amendments were also made in the Reserve Bank of India Act, 1934 and the Banker’s Books Evidence Act, 1891 to ensure electronic fund transfer and granting legal sanctity for books of account maintained in the electronic form.

Co-existence of Cyber-Crimes: Multiplicity of Regulations

The penal provisions of punishing cyber-crimes may be in Indian Penal Code, 1860 as well as IT Act, 2000. These parallel provisions need be narrated here for some clarity. For example, penal provisions of data hacking and data theft could be in Section 43 and 66 of the IT Act. These provisions penalise activities of hacking, data theft, introducing and spreading viruses through computer networks, damaging computers or computer networks or computer programmes, disrupting any computer or computer system or computer network, denying an authorised person access to a computer or computer network, damaging or destroying information residing in a computer etc. The punishment for the above offences mentioned in Section 66 is imprisonment of up to three years. fine or both. Similarly, Section 378 of the Indian Penal Code prescribes punishment of ‘theft’ of movable property. Since,  the words “movable property” could include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth, data theft could easily be included under Penal Code as well.[2]  The maximum punishment for theft under section 378 of the IPC is imprisonment of up to 3 years or a fine or both. The same narration would be applicable to Section 424 of the Penal Code which punishes ‘dishonest or fraudulent removal or concealment of property’; Section 425 of Penal Code which punishes ‘mischief’. Again, receiving ‘stolen property’ is made punishable with imprisonment for imprisonment for three years, both in Penal Code as well as IT Act.[3]

Act of Cheating, impersonation etc. is being made punishable by both two legislations. The IT Act provides penal provision for ‘identity theft and cheating by personation’ by virtue of Section 66C.[4] Again, Section 66D of the IT Act prescribes punishment for ‘cheating by personation by using computer resource’. Both offences are punishable for imprisonment up to three years, and fine which may extend to rupees one lakh. The punishment for the act of ‘cheating by impersonation’ is punishable under Section 419 of the Penal Code, with an imprisonment up to three years or with a fine or with both. However, when, Cheating relating provisions are read along with provisions dealing with cheating under Section 420 or forgery under section 463, 465 or 468 of Penal Code, the punishment provides under these section are imprisonment up to seven years and also a fine. The ‘cheating’ under Section 420 of Penal Code provides punishment for act “where the offender cheats anyone and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security”. The offence is punishable with an imprisonment up to seven years, and fine. ‘Forgery’ under Section 463 of Penal Code means the making of a false document or part thereof with the intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed. These days, most of these forgeries are made through computer system.

Sections 67, 67A and 67B of the IT Act prescribe punishment for publishing or transmitting, in electronic form any obscene material; material containing sexually explicit act, etc. and the same is punishable with imprisonment up to three years, and fine which may extend to Rs. rupees five lakhs. These acts are like the offences described under sections 292 and 294 of the Indian Penal Code. Which are punishable on a first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to Rs. Rupees two thousand.

The only difference between the punishments prescribed under sections 66C and 66D of the IT Act and section 419 of the IPC is that there is no maximum cap on the fine prescribed under the IPC. However, the punishment under section 468 is much higher in that the imprisonment mat extend to 7 (seven) years. Further, whilst the IT Act contemplates both the imposition of a fine and imprisonment, the IPC uses the word ‘or’ indicating that the offence could be punished with imprisonment or by imposing a fine. Most importantly, the fundamental distinction between the IPC and the IT Act in relation to the offence of identity theft is that the latter requires the offence to be committed with the help of a computer resource.

IT Act, 2000: Classification of Offences

Chapter XI of the IT Act, 2000 exclusively deals about the Offences. Penalties, compensation and adjudication are separately dealt under Chapter IX of the Act. These offences include tampering with computer source documents[5]; computer related offences,[6] punishment for sending offensive messages through communication service,[7] punishment for identity theft,[8] punishment for cheating by personation by using computer resource,[9] cyber terrorism,[10] publishing or transmitting of material containing sexually explicit act, etc., in electronic form,[11] etc. It also prescribes punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.[12] Except ‘cyber terrorism’, ‘publishing or transmitting of material containing sexually explicit act’, and ‘publishing or transmitting of material depicting children in sexually explicit act’, all other offences mentioned above are made punishable with imprisonment up to three years. Interestingly, Section 77B of the IT Act, 2000 states that “notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable (emphasis supplied). Thus, most these offences are made bailable under the IT Act, which mean that as and when these offenders will be arrested, they will have right to get bail.

Section 77A of the IT Act further provides that the categories of offences mentioned above, would be compoundable. This section provides that “a court of competent jurisdiction may compound offences, other than offences for which the punishment for life or imprisonment for a term exceeding three years has been provided, under this Act….provided further that the court shall not compound any offence where such offence affects the socio economic conditions of the country or has been committed against a child below the age of 18 years or a woman”.

The classification of offences, whether bailable or non-bailable; whether compoundable or non-compoundable is left to the wisdom of legislature. There is no hard and fast rule in this regard. The Schedule 1 of the Code of Criminal Procedure, 1973 prescribed a rule that cases which are offences which are defined under any special law, but the legislature has not prescribed any rule as to these being bailable or non-bailable, in such cases those offences will be classified as per the Part-II of the Schedule. The Part-II of the Schedule inter alia provides that such offences, being punishable for imprisonment for more than 3 years would be non-bailable, unless otherwise prescribed under the special law.

However, a close comparative examination provisions contained in IT Act, and the Penal Code would suggest that some of the offices which are similar in their nature are classified differently. For example, the offences under Penal Code Sections 420, 468, 411, 378 and 409 are non-bailable, whereas offences of the same nature under IT Act are bailable. Similarly, offences under sections 463, 465 425, 426, 468, 292 of the IPC are non-compoundable offences.

This classification of offences may result into an anomalous situation in its application. If a person is charged for ‘theft’ of a smart phone, a moveable property, he shall be prosecuted under Section 379, which is classified as nonbailable offence under Schedule 1, the Code of Criminal Procedure, 1973. However, if the investigating officer report the same act as an act of ‘data theft’, then the offender will be charged under Section 66 read with 43 of the IT Act, then the offence is bailable. Same is true for offence with respect to offence of ‘receiving of stolen property’, under section 411 of Penal Code and section 66B of the IT Act. The offence of ‘identity theft’ and ‘cheating by personation’, which are punishable offences under sections 66C, 66D of the IT Act and related provisions of Section 420, 468 respectively have similar anomalies. Thus, the classification done by the IT Act seems is not only about ‘form’ but of ‘substance’. The classification so made, is causing severe damage to once liberties related to bail. Once the offence is made bailable, even after having severe impact on society, law and order, the whole process becomes questionable.

The anomalies are not limited to classification only. Offences prescribed under Indian Penal Code and their counterparts under IT Act are punished differently as well. For example, under Penal Code, most of the offences described above are punished with imprisonment or Fine, whereas under IT Act fine is in addition to the imprisonment. Again, the under Penal Code, the except in few cases, the Penal Code does not prescribes any outer limit over the amount of fine, whereas in IT Act, the outer limit of fine is fixed in all cases.

One can always argue that the provisions contained in Penal Code have their own nature. For example, the ‘theft’ of moveable property as described under Penal Code would not attract IT Act because the nature of the property under IT Act is different. However, these differences in classification may provide ample opportunity for state to treat offences differently, and thus may result into arbitrariness.

Information Technology Act, 2000- Exclusive Application

Immediately after the enactment of IT Act, 2000 academic discourse started about the applicability of those other legislations which are operating directly or indirectly in the same field and same subject matter. Questions were raised about exclusionary clause provided under the IT Act and its possible impact on Indian Penal Code, 1860.

By virtue of Section 81, the IT Act, 2000 becomes special Act having overriding effect over the other legislations dealing in the same field. It provides that “the provisions of [IT Act, 2000] shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.” However, since IPC and IT Act both share considerable portions together, questions were raised about simultaneous application of these laws. It would be pertinent to note that Code of Criminal Procedure, 1973 does not provide any guideline as to applicability of simultaneous legislations over the same act/offence going to prosecuted.

Judicial Interpretation

Supreme Court of India in Sharat Babu Digumarti v. Govt Of NCT Of Delhi,[13] observed that IT Act shall exclude the applicability of all other legislations with respect to matter enumerated and covered under the IT Act, 2000. According to the Apex Court “[IT Act 2000 contains] special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent.” In order to comprehend the law laid down by the Hon’ble Supreme Court of India, cases may conveniently be divided into two categories. ‘Category A’ cases will cover those situations where:

An offence attracting the identical/similar provisions defined under IT Act and IPC such as section 67 of IT Act and Section 292 of IPC wherein both the provisions deal with punishment for publishing, transmitting obscene material. Further, the cases covered under this category requires “Cyber Component” as an essential ingredient to keep these offence within ambit of IT Act

Whereas, under the ‘Category B’,

If an act results in two independent and distinct offences forming part of same transaction, in such a manner that one attracts the provision of IT Act like, Section 67, 67A and 67B  while the other not only falling out of the preview of IT Act but also independently attracting Penal provision laid down under IPC, then such acts will still attract provisions of IPC.”

If the ratio of the judgement is appreciated in this context, the law laid down by Hon’ble Supreme Court of India in Sharat Babu Digumati case can safely be operate distinctly. The Court has further guided that “………… Once the special provision having the overriding effect do cover a criminal act and the offender, he gets out of the net of Indian Penal Code and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.” (Italics supplied). Thus, cases falling under ‘Category B’, complete exclusion of the provisions of IPC, unlike ‘Category A’ would not be possible.

Narrating the problem of interpretation in cases where two or more laws operate in the same field and each contains a non- obstante clause, the court should not be oblivious of rules of statutory interpretation and the conventional protocol that such cases/conflicts have to be decided in reference to the object and purpose of the laws under consideration. Going through with the scheme of the IT Act covering ‘obscenity pertaining to electronic record’ apex courts ruled that transmission of obscene materials will under the IT Act, 2000, and thus will exclude the applicability of Indian Penal Code., 1860.

Similarly, in Gagan Harsh Sharma v. State Of Maharashtra,[14] where the offender was prosecuted under Sections 408/420 of the IPC and Sections 65 & 66 of the IT Act, 2000, the Bombay High Court rules that both the offences charged under different Acts are same, and thus, it amounts to double jeopardy. The Court further added that once the IT Act is attracted, the offender “gets out of the net of the IPC”.

Differential Treatment: Rationality     

Both above decisions are based on certain primary assumptions. Firstly, the rule of generalia specialibus non derogant leaves the court with no choice but to fall in the line of legislative Intent. Under this rule, the general law [Indian Penal Code] will have to kept on side in presence of special law [the IT Act, 2000]. Secondly, that IT Act, 2000 is a self-contained code with respect to all electronic offences and the punishment therefor. This assumption is fortified by the fact that, the amendment in the year 2008 expanded the scope of IT Act, 2000 without touching upon the Indian Penal Code, 1860.[15] Thirdly, in comparison to Indian Penal Code, 1860, the punishment under IT Act, 2000 is less stringent and thus, favourable to accused. This encourages the court to apply the fundamental rule of criminal jurisprudence and follow a course which favours the accused.

The applicability of generalia specialibus non derogant has been examined by the Apex Court in various cases.[16] The doctrine states that if there is any conflict between a general provision and special provision, it is the special provision that shall prevail. The doctrine is applicable vis-à-vis two statutes or provisions within a statute or even within the legal instruments. However, this doctrine is to be invoked only when conflict between the two provisions of which one is specific about a subject matter while the other is general and covers the same subject-matter apart from other subject matter. The maxim generalia specialibus non derogant is dealt with in Volume 44 (1) of the 4th ed. of Halsbury’s Laws of England at paragraph 1300 as follows ” if Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament’s true intention was to establish thereby a rule of universal application, then the special provision must give way to the general.”

With reference to the above, one needs to examine the ‘Statement and Reason’ presented before the Parliament. The statement nowhere suggests that the IT Act is going to be the complete code on offences dealing relating to cybercrimes. The argument can be substantiated by the very fact that some of the IT related offences still have place in Indian Penal Code. It is further argued that IT Act does provide some special offence relating to cyber, to that extent only, the Act may have overriding power. It must be noted here that merely Special Law will not replace the general law automatically, unless the both cannot stand together having substantial contradictions.

Classification or Class Legislation?

The IT Act, 2000 along with the opinion of Supreme Court, it is categorical that even though an act may fall under both the legislations i.e. IT Act as well as Indian Penal Code, still, the IT Act will prevail. This kind of interpretation would necessarily result into curious cases. Mr. A, who has allegedly stolen a mobile phone could easily be prosecuted for the offence of [mobile] theft under section 379, and thus would be liable for stricter penal rules, where as if he is charged under IT Act, for data theft via stealing the mobile, he will dealt differently. Similarly, in an ordinary form of cheating under Section 420 IPC, the punishment would be an imprisonment of seven years, and the offence would be non-bailable. But, if same is done via electronic medium like email, the punishment would be an imprisonment for three years, and the offence will be bailable. Thus, the effect of Section 81 of IT Act, and the decision of Supreme Court in Sharat Babu Digumati case raises many questions. The Supreme Court finds the offence under Section 67 of IT Act, 2000 ‘identical’ to that of Section 292 of Indian Penal Code, 1860.  Similarly, Bombay High court rules that ingredient of Sections 408 & 420 of the Indian Penal Code are ‘identical’ to Sections 65 & 66 of the IT Act. Since, all these offences have their own legal consequences, the comparison formula adopted by the court may sound good in theory, but in practice it would result into bizarre situation.

It is submitted that above interpretation would tend to encourage the investigating officer towards whimsical application of IT Act. Here, the accused may be favoured altogether differently with less stringent law, permitting him immediate bail, even though his act might fall squarely under Indian Penal Code. Thus, the law provides opportunity for whimsical and arbitrary application of law.

It is further submitted that the Code of Criminal Procedure, 1973 provides effective remedy to such anomalies. By virtue of Section 4 of Code of Criminal Procedure, 1973, even, “the offences under any other law [i.e. special law] shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions [i.e. the Code of Criminal Procedure], but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” [emphasis supplied]. Thus, the special law will regulate the manner of investigation, trial, etc. and the court at this stage may conveniently frame the charges under the suitable category depending on availability of evidence. The Constitution Bench in A.R. Antulay v. R.S. Nayak,[17] has cautioned that “the Code of Criminal Procedure, 1973 is the parent statute which provides for investigations, inquiry into, and trial of cases and unless there is specific provision in other statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced.”

With respect to prosecuting the offender under IT Act and the Penal Code together when the offence done is of that character, one may argue that such things should be left to the prosecution and trial court. However, it is beyond doubt that such approach would be again dangerous to once liberty. Police Officer or the trial court, as per the present set up, may end up harassing the suspects. Such an approach will negate the very effect of offence being bailable under IT Act, and the court might deny the bail when the offence is prosecuted simultaneously. What need to be noted here that it would be fair enough if the matter is left to the court

Classification of Offence and its Nexus with the Objective

The equality law as prescribed under the Article 14 of the Constitution prohibits class legislation. Thus, separate legislation dealing differently to person situated similarly, will violate the equality clause. What is permitted here is to classify these class of persons with intelligible differentia, and then setting up a clear nexus between the classification so done and the objectives sought to be achieved. In Anwar Ali Sarkar case, the Apex Court observed that “in order to pass the test of permissible classification two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them.”

The classification of offences under IT Act, 2000 seems to disregard the well settled rule of equality, equal protection and non-arbitrariness. The differential treatment of offender with respect to punishment and procedural safeguard available under Indian Penal Code and IT Act, 2000 need to be based on intelligible differentia.[18] The classification prescribed by the legislature seems to be devoid of rationality. It submitted that the offences under IT Act, such as data theft, identity theft etc. are not only on rampant but also done with most precisions and professionalism. The offender involve in this process are trained most of the time, and causes severe damage to person and his property. These offences, further has capacity to damage the society at large. By one single click of computers, millions and millions of people and their property might get damaged. Though, the similar offences of theft under Penal Code might not have this much impact. These facts seem to be ignored while making classification of these offences.

Further, one should not lose sight of the very nature of accused involved in cyber-crime, unlike the accused of a traditional offence. The economic status, literacy, being aware about norms needs to have been taken into consideration while making these classifications.

It seems that the differential treatment of the offender for offences having ‘identical ingredients’ should have been examined in depth by the apex court. There is no reason to afford differential treatment when person is situated similarly. The purpose of the IT Act is to prescribe punishment to offender committing cybercrimes. The different standards of punishment, bail and compounding in the IT Act are violative of the classification test. The cybercrime which often have severe effect over the social/economic order is required to be dealt strictly.

Conclusion

The purpose of the IT Act is to enforce certain desirable code of conduct while dealing with information technology medium. The enactment carefully provides legal sanctity to certain types of act done through the medium of technology. However, while prescribing penal provisions, regards should have been made towards harmonising the existing laws. Creating a whimsical classification for similar act having equally same impact over the society should have been dealt with cautions. The impact of Section 81 on future cases under IT Act need to be examined a fresh, especially with some form of empiricism to see if the same is resulting into the violation of the equality clause.


This Article has been written by Dr. Girjesh Shukla working as an Associate Professor (Law), Himachal Pradesh National Law University Shimla.


References:

[1] Resolution A/RES/51/162 adopted by the General Assembly of the United Nations on January 30, 1997

[2] Indian Penal Code, 1860, S. 22

[3] 66B. Punishment for dishonestly receiving stolen computer resource or communication  device.–Whoever dishonestly receive or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both..

  1. Dishonestly receiving stolen property.—Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

[4] Information Technology Act, 2000, Section 66C- Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

[5] Information Technology Act, 2000, S. 65

[6] Id. S. 66

[7] Id. S. 66A

[8] Id. S. 66C

[9] Id. S. 66D

[10] Id. S. 66F

[11] Id. S. 67A

[12] Id. S. 67B

[13] Sharat Babu Digumarti v. Govt of NCT of Delhi (2017) 2 SCC 18

[14] [2019(3) Crimes 618(Bom)

[15] New offences were added to IT Act, 2000 such as punishments for abetment [Section 84B], attempt [Section 84C] and bail provisions [Section 77B].

[16] Commissioner of Income-Tax, Patiala v. M/s. Shahzada Nand and Sons, AIR 1966 SC 1342; See also, Commercial Tax Officer, Rajasthan v. Binani Cements Limited, (2014) 8 SCC 319; RBI v. Peerless General Finance and Investment Co. Ltd., (1987) 2 SCR 1;

[17] A.R. Antulay v. R.S. Nayak, [1984 (2) SCC 500]; See also State of West Bengal v. Narayan K. Patodia [(2000) 4 SCC 447]

[18] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75; Air India v. Nargesh Mirza, AIR 1981 SC 1829; Rajbala v. Haryana, AIR 2016 SC 33

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