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On January 07, 2005, the Government of India had set up an expert committee to review and make recommendations to amendments to the Information Technology Act, 2005, within six weeks. There were certain deficiencies in the Act that needed to be addressed by the concerned bodies. The focal points that called for the review of the IT Act was the need for regulating cyber forensics and cyber crime, and at the same time promoting the growth of electronic governance and commerce. The committee set out with the objective to give clear definitions so that the scope for misinterpretation of the Act does not exist and for the Act to adhere to international stipulated IT guidelines. The committee also took recommendations from the inter-ministerial working group on cyber forensics and cyber laws.

Some of the key problems that shouted out for reform were the extensive use of cyber cafes to access the internet, liabilities of network service providers, BPO operations, etc. The cyber cafes needed to be regulated as several crimes by internet users were reported (access to illegal sites, uploading illegal content, etc.) to origin from cyber cafes. Some websites needed to be blocked (child pornography websites, terrorist propaganda websites and affiliated links, etc.) a privacy policy was required by companies and the protection of user data were other areas where the committee had to make new laws and amended existing laws. The immediate events leading to the formation of the Expert Committee was the sale of pornographic content over a portal on the internet which in turn led to the arrest of the CEO of the web portal. India also covered the European Cyber Crimes Treaty in the Report.

The members of the Expert Committee constituted of Shri Kiran Karnik, President NASSCOM; Legal Experts Shri Vakul Sharma and Shri A.K. Singh, Advocates; IT Industry representatives Shri Ajay Chaudhry, Chairman, HCL Infosystems Ltd., Shri R. Ramaraj, MD and CEO, Sify Ltd. and Shri Ajit Balakrishnan, CEO, Rediff India Ltd.; Dr. A.K.  Chakravarti, Adviser, DIT and Shri Antony De Sa, Joint Secretary, Ministry of Commerce and Industry.  Shri M.M. Nambiar, Additional Secretary, Deptt. of Information Technology.

The Objective of The Report

The Expert Committee formulated the Report keeping in mind the objective of employing information technology as a primary tool.

Removal Of Exclusions (Sec 1)

This Act is not applicable to negotiable instruments, power of attorney, trusts, wills, property contracts and any class of documents as notified by the Government in the Official Gazette. The recommendations of the Expert Committee was to remove the exclusion of negotiable instruments, power of attorney, trusts, wills and property contracts from the IT Act so that the Act would apply to the same, though this proposal wasn’t accepted. It does make things flexible for a citizen if the Act can be amended to remove these exclusions so that the same can be executed (on a certain class of documents or transactions) online.

Features Of The Report

The salient features of the Report are listed below:

1. The rate of change in technology is really high, with new technology constantly evolving and replacing older existing technology. The IT Act was amended to be dynamic and quicker to amend existing laws with respect to the change in technology. New changes can be brought about to provisions relating to parameters with the help of rules and notifications from the Government.
2. The Report has amended the Act to include provisions for Electronic Signature. Digital signature is a type of Electronic Signature that is permitted by the Government and Rules issued by the Central Government can be made to incorporate other forms of digital signature as and when the technology develops. This indicates that the Act was technologically neutral with minimum changes to the existing IT Act.
3. Certain amendments were proposed to permit public-private partnerships in e-governance delivery of services to be done by third parties on behalf of the Government.
4. Based on the proposed amendments and operational experience at the time, the relationship between the subscriber, the Controller of Certifying Authorities (CCA) and Certifying Authorities (CA) have been redefined.
5. The following are amendments made with respect to contractual agreements between parties, privacy and data protection.
   
   • Proposals relating to the handling of sensitive personal information or data with respect to reasonable security procedures and practices.
   • Grading computer related offenses (dishonesty, fraud, etc.) based on the severity of the offense and listing the fines and punishments for each grade offense.
   • An additional section was created to secure the interests of the subscriber in terms of privacy. Any breach of confidentiality with intent to cause injury to a subscriber was punishable and against the Act.
6. The Committee called for a ‘balance’ in the proposed amendments. Balance in terms of punishment of digital offenders, but at the same time, the publicity of the computer-related offenses shouldn’t scare new users from availing the facilities of the internet. Sometimes, a new user or netizen may commit a computer-related offense unintentionally or because of lack of knowledge. Proposed amendments have been made in the Report to incorporate the balancing spirit in relevant sections.
7. Revisions made to the Act are in line with the Indian Penal Code (IPC) and other related laws. Obscenity in electronic form has been revised and included in the IPC as well, though the fines and punishment are higher because it is way easier to access and operate such obscene content electronically. A new section on child pornography has been added to the Act that is consistent with the international law, view and norms  on child pornography. The punishment for child pornography in India is severe and the fines are immense.
8. A new proposed subsection was made under Sec 72(3) in the IT Act for violation of the law through voyeurism. The committee’s definition of Voyeurism is “ images of (the) private area of an individual are captured without his knowledge and then transmitted widely without his consent.” At the time, this was a relatively new phenomenon in India and thus the definition provided is very vague and subject to different interpretation as seen in past court cases. The actual definition should be made to include disclosure of intimate pictures in any picture or video format with or without the knowledge of the individual, that tarnishes the modesty of an individual and violates an individual’s privacy rights. Such an Act is punishable under the IPC act.
9. Electronic evidence emerged as a new study and science for handling computer related offenses. The use of electronic evidence in court has been approved and recognized by the judiciary through provisions made under section 78A (Examiners of Electronic Evidence) in the IT Act.
10. Amendments were made recommending the using European Union Directives on e-commerce as guiding principles. The extent of liability of intermediaries in certain sections have been revised and included under section 79 of the Act as well.
11. The term ‘Electronic Signature’ replaced the existing term digital signature in most places of the Act. Recommendations of the Interministerial Working Group on Cyber Laws and Cyber Forensics (IMWG) on proposed amendments have been taken into consideration and incorporated in the Indian Evidence Act (2nd Schedule) and the Indian Penal Code (1st Schedule).
12. The functions of intermediaries such as cyber cafes and internet parlors are provided for under section 87 of the IT Act.

How Has The Expert Committee Helped?

At the time, 5 years since the IT Act was passed, the rate of technology was rapidly evolving and the IT Act had to keep up with the latest developments and advances in Information Technology. The Expert committee was set up to make recommendations to update the IT Act. This was the first of many changes that were to follow in terms of the amendments made to the IT Act and bills passed with respect to the same. The Information Technology Amendment Bill passed in 2008 made amendments to the Information Technology Amendment Bill, 2006. The IT Amendment Bill, 2006, was drafted to make changes to the IT Act, 2000. The Expert Committee did not make changes to include the use of electronic cheques, etc. and this was amended later to be included in the ITAB, 2008.

LegalDesk.com is a legal startup that facilitates legal services, digital signature or eSign (in accordance with the IT Act, 2000), documentation services online, third-party eSign services, etc. The IT Act has enabled the existence and growth of our company and as LegalDesk.com strives to disrupt the IT and legal services sector, we are the agents of change that are the reason behind new amendments and laws being made.