Cyber Laws Notes

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CYBER LAWS

1. INFORMATION TECHNOLOGY AND LEGAL RESPONSE

1 Introduction

We begin by giving you a brief picture of the electronic world we all live in. It is

apparent that geographical divide is no longer a limiting factor for doing business.

Electronic commerce has literally shrunk the globe and has virtually made it a market

without boundaries.

1.1 Objective

At the end of this chapter you will be able to understand the relationship between

electronic world and our lives. You will also be able to explain the nature of the net,

the features of the net and the impact of information technology revolution on

society.

1.2 We, Cyberspace and Our Lives

The virtual world has taken over the real one. Our society is increasingly relying on

new information technologies and the Internet to conduct business, manage industrial

activities, engage in personal communications and perform scientific research.

E-business and e-commerce are the new mantras and electronic transactions

dominate the overall business paradigm.

While these technologies facilitate enormous gains in efficiency, productivity and

communications, they also create new vulnerabilities in terms of possibilities of

misuse. The same interconnectivity that allows us to transmit information around the

globe at the click of a mouse or push of a button also creates unprecedented

opportunities for criminals, terrorists and hostile foreign nation - states, who might

seek to steal money or proprietary data, invade private records, conduct industrial

espionage, cause a vital infrastructure to cease operations, or engage in information

warfare.


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Digitalization has radically transformed the ways of accessing and using information.

Technical convergence not only rendered fillip to this process, but also as a result,

affected positive impact on economics of the nations. The influence of cyber is so

striking in our day to day lives that one would discern not only in the realm of trade

and commerce, but also in the ambit of personal communications, academic and

scientific research, critical infrastructure and the like. But for the inherent lack of

capacity in terms of PC penetration, basic telephony, speaking for Indian context, the

obtaining cyber influence would have been far different from our own contemplation.

In view of, two significant strengths of internet, namely, connectivity and the pace

and accuracy with which the transmission of information takes place, online

transactions, particularly that of commercial nature, secured tremendous social

receptivity. The resultant outcome, as a natural corollary of the same, can be

observed not only in terms of swelling numbers of online users but also creative and

expansive nature of services t hat are rendered by the Internet providers. For

instance, in the initial stages of cyber influence, broadly, if one may put it, the

subject matter of substantial part of online transactions was merely focusing on

tangible or physical property and service rendering. Now, with the convergence,

digitalization of various products is taking place, as a result, transactions involving

particular kind of subject matter are more effectively facilitated by the cyber medium.

For instance, online music and software tools and techniques are some of the

products falling under this category. This clearly indicates how the strides in

information technology are changing the facets of cyberspace.

Again, the advent of global computer networks has rendered geographical

boundaries increasingly porous and ephemeral. As Internet subscription increases,just as any sizeable number of human beings interact, disagreements may be

expected to arise. As the community of Internet users grows increasingly diverse, and

the range of online interaction expands, disputes of every kind may be expected to

occur. Online contracts will be breached, online torts (any kind of civil wrong) will be

committed and online crimes will be perpetrated. Although, many of these disputes

will be settled informally, others may require formal mechanisms of dispute resolution

and adjudication of liability.


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1.3 The Nature of the Net

The Internet has been called a network of networks - with local computer systems

hooked to regional systems, and to national or international high capacity backbone

systems. Each link, or node, in this web is a computer or computer site, all

connected together by a variety of connections fiber optic cable, twisted - pair

copper wire, micro wave transmission, or other communications media. Each

computer in the network communicates with the others by employing machine

language conventions known as the IP or Internet Protocols. It is these protocols that

define a network. Those machines that talk to one another using IP are the Internet.

This medium defined by these shared protocols is distinctly unlike any other. First,

the Internet is a packet switching network. Unlike communications media that tie up

the entire channel in real time during transmission, the Internet breaks information

into discreet packets of bits that can be transmitted as capacity allows. Packets are

labeled with the addresses of their final destination, and may follow any of a number

of different routes from computer to computer until finally their final destination,

where they are re-assembled by the recipient machine. Thus, packets from a variety

of sources may share the same channel as bandwidth allows, promoting more

efficient use of available carrying capacity. (Dan L. Burk, 1999).

There is no centralized control of packet routing, or for that matter, of almost any

other aspect of the Internet. From a technical standpoint, each computer acts

autonomously, coordinating traffic with its nearest connected neighbors, and guidedonly by the 'invisible hand' that arises from the sum of millions of such independent

actions. From a management standpoint, each node is similarly autonomous,

answering only to its own systems administrator. This means that there is no central

authority to govern the Internet usage, no one to ask for permission to join the

network, and no one to complain to when things go wrong.


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1.4 Features of the Net

The IP provides for tele presence' or geographically extended sharing of shattered

resources. An Internet user may employ her Internet link to access computers,

retrieve information, or control various types of apparatus from around the world.

These electronic connections are entirely transparent to the user. Access to Internet

resources is provided via a system of request and reply; when an online user

attempts to access information or services on the network, his/her local computer

requests such access from the remote server computer where the addressee is

housed. The remote machine may grant or deny the request, based on its

programmed criteria, only if the request is granted does the server tender the

information to the user's machine.

These features make available a vast array of interconnected information, including

computerized digitalized text and graphics and sound. A crop of private Internet

access providers has developed to offer network access and facilities to such

customers outside the research community. Consequently, although the academic

and scientific research community remains an important part of the Internet

community as a whole, private and commercial traffic is becoming a dominant force

in the development and growth of the electronic frontiers'. In particular, the network

offers novel opportunities for transactions involving information - based goods and

services.

1.5 Geographical Indeterminacy

The rules of the road for online commerce are different from business interactions in

real space. Much of this difference stems from the Internet's telepresence features,

which render the network technologically indifferent to physical location. Soinsensitive is the network to geography, that it is frequently impossible to determine

the physical location of a resource or a user. In real space, a business can usually

locate a person or entity with which it is interacting; this tends to facilitate

identification of partners and validation of transactions. This process is far more

difficult in cyberspace, when the parties in a transaction may be in adjoining rooms,

or half the world away, and the network offers no way to tell the difference. In other

words, there is no nexus between cyberspace and real space. Even in some instances

an Internet address tells something about the location of a given machine; it tells

nothing about the location of the user of that machine.


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To fully appreciate the inchoate nature of Internet geography, it is important to

consider the common Internet practice ofcaching' copies of frequently accessed

resources. In order to better to manage packet traffic, some Internet servers will

store partial or complete duplicates of the materials from frequently accessed sites;

keeping copies on hand elevates the need to repeatedly request copies from the

original server. An Internet user attempts to access the materials will never know the

difference between the cached materials and the original. The materials displayed on

the user's machine will appear to come from the original source, whether they are

actually transmitted from there or fro m a nearly cache. Nearby' connotes logical

proximity but not physical.

The modern world relies on computerized systems for almost everything in life from

air, train and bus traffic control to medical services and co-ordination of national

security. Even a small glitch in the operation of these systems can jeopardize human

lives. The society's dependence on computer systems, therefore, has a profound

human dimension too. The rapid boundary-less expansion of large-scale computer

networks and the ability to access systems through regular telephone lines increases

the vulnerability of these systems. And it also increases the opportunity for

perpetrating crimes. The consequences of computer crime may have serious

economic implications, as well as invaluable loss in terms of human security. In this

context, it is important to understand the motivation behind cyber crimes in terms of

perceived value of information as a critical source in today's digital society. This value

of information revolves around six factors:

a) The person's concerns and commitments;

b) The person's capabilities;

c) Availability of information resource to the person;

d) Availability of information resource to other persons affected;

e) Resource integrity;

f) Time. (Nina Godbole, 2000)


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1.6 Information technological revolution and societal impact

Many of us tend to simplistically dismiss the potential impact of information

technology on our society. According to a recent treatise on Cyber Laws, while

comparing with erstwhile technologies and their impact with that of information

technology, the authors went on record by saying that; People often compare the

growth of the internet to the historic growth of other technologies, sometimes to

suggest that the internet is just the latest technological advance and may not signal a

revolutionary advance. But there are differences between the birth of the Internet

and technologies that preceded it. For example, electricity was first harnessed in

1831, but it was not until 1882 that the first power station was built, and it was

another 50 years before electricity powered 80 per cent of the factories and

households across the United States. Radio was in existence 38 years before 50

million people used it; TV took 13 years to reach the same benchmark. It was 16

years before 50 million people used a personal computer. Once the Internet was

made available to the general public, it took only 4 years for 50 million people to go

on -line.

1.7 Check your progress

Questions:

1. E-Commerce is the new mantra of business -Explain

2. Describe the nature and features of the Internet

3. Discuss the impact of the information technology revolution on society

4. There is no nexus between cyber space and real space - Comment


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2. Sources of the Law

2 Introduction

Despite divergent views and opinions about law, it is universally construed as an

instrument of social change. In other words, law and legal regulation is expected to

bring about desired social change and order which is quintessentially necessary to

maintain societal peace and tranquility. Yet times, it is necessary to facilitate rule or

norm compliance to ensure orderly human conduct in a particular activity like economic

one.

However, this is not to be understood that such desired rule compliance or social

change is only possible because of law and legal system. Suffice it to say that law

and legal system form part of series of measures which would influence such change

like education, economic parity, ethics and the like. But definitely plays a decisive role

in bringing about the required change subject to factors like, social receptivity and

fair and non -discriminatory nature of legal enforcement.

2.1 Objective

The objective of this unit is to give you a brief overview as to the evolution of law.

You will be able to exp lain the sources of law and the different branches of law

needed to cater to societal needs.

2.2 Sources of law

Speaking for our own context, our legal system is based upon the foundations of

common law conceived and shaped by British rulers and jurists. Common law

connotes judicial practice of recognizing customary, traditional practices of the peoplein a formal sense of judgments.

In this kind of system there are three main sources of the law, namely, legislation,

case law and custom.

"Legislation" is the formal enactment of law by the legislature created or authorized

by the Constitution. Essentially, the process of codification or legislative enactment is

the premise. It stands in contrast to judge made law; Legislation consists of leges

scriptae (written laws), as contrasted with judge made law or common law (jus

commune). Legislation also stands in contrast to customary law (consuetudines).


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Common law' comp rises the body of principles, which derive their authority solely

from the decisions of courts. It is a body of law that develops and derives through

judicial decisions, as distinguished from legislative enactments. Its principles do not

derive their validity from formal law making by anybody of persons, but from their

enunciation through decisions of courts. Judicial decisions become a source of law by

reason of the practice of courts (in common law jurisdictions), of accepting

precedent" as a source of law, that is, the established judicial practice that a court

must follow the law laid down by a decision of the higher judiciary in the country or

State and the law laid down by itself in an earlier judgment, if it is itself an organ of

the higher judiciary.

Custom' (as a source of law) denotes a usage or practice of the people (including a

particular social group or a group residing in a particular locality) which, by common

adoption and acquiescence and by long and unvarying habit, has become compulsory

and has acquired the force of law with respect to the place or subject matter to which

it relates [Black, Law Dictionary, (1990), page 385]. Legislation and case law can

(subject to constitutional limitations) operate in any sphere of human activity, while

the operation of custom is generally restricted to a particular locality, group or

family. (P.M. Bakshi, 1996)

2.3 The Significance of Legislation

As a source of law, legislation assumes and is considered to be the foundation of

democratic polity. The main points are:

The legislature can legislate in advance. Judges cannot do so.

The legislature can make a law on any subject within its competence. But Judges can

deal with a subject, only when the point arises before them. They cannot spread their

canvas beyond the point or points that have actually arisen before them.


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The legislature (both of parliament, state or even local self Government) can (subject

to constitutional limitations) override the law laid down by the courts, on a particular

point (though, because of the doctrine of separation of powers, the legislature cannot

reverse or modify the actual decision rendered by the court in a particular case). In

contrast" courts cannot repeal or modify a legislature enactment (though they can

declare it to be void, as unconstitutional).

Legislation is the most fertile source of law. Subject to limitations flowing from the

constitutional doctrine, that matters of policy cannot be delegated, the legislature can

vest a subordinate authority with power to make ru les, orders, etc. But a court

pronouncing a judgment cannot do so.

A legislative enactment is not subject to appeal; and the law enacted by it cannot be

reversed, as such, by a higher authority (though it can be declared to be void, if it is

unconstitutional). In contrast, the law laid down in a judgment of a court laying down

the law may be reversed on appeal by a higher judicial authority, which may take

a different view of the law. (P.M. Bakshi, 1996)

2.4 The common law or uncodified law

In earlier days, commands issued by the sovereign authority were considered as

either laws or norms to be obeyed. Similarly, the process of dispute resolution or

adjudication of liability by either village elders or people holding power through the

process of issuing commands has also received social acceptance. Thus uncodified

law or common law is the law flowing from judicial decisions. Fairly large segments ofthe legal regime are governed, in a substantial measure, by uncodified law. The

judgment pronounced by an organ of the higher judiciary performs at least two

important functions.

(a) For the immediate parties, the judgment becomes a source of rights and duties;

(b) For the world at large, it becomes a source of law, it happens to deal with a legal

proposition - and to make a definite pronouncement on the subject.


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There is a difference between the two aspects set out at (a) and (b) above. As

regards (a), the, judgment can grant a concrete relief to the parties and that relief

can (if necessary) be enforced through the machinery of "execution" (if it is a civil

suit). If the judgment results in conviction and sentence (having been pronounced in

a criminal prosecution), the punishment so imposed will be appropriately carried out.

Thus, under aspect (a) above, the focus is on the individual plaintiff, defendant or

accused.

In contrast, when one comes to aspect (b) above, the judgment does not grant any

relief to an individual. Its impact is on the society at large. Aspect (a) creates no

ripples in the legal system (though it may seriously affect the fortunes of the

individual litigants). But aspect (b) may affect the content of the law. (P.M. Bakshi,

1996)

2.5 Precedent as a Source of law

In addition to what has been enumerated as sources of law, in common law system;

precedent also plays a vital role. When a higher court pronounces a judgment

deciding a question of law, it is reported in the law reports. A future judge,

confronted with the same question of law, will have to cull out from the judgment the

legal proposition flowing from the judgment. It is to be remembered that the earlier

judgment may not necessarily have enunciated the legal proposition in so manywords. The decision in the judgment may be found to be mixed up with the facts of

the case. The law, then, has to be isolated from the facts. The complex and concrete

factual matrix would have to be converted into an abstract proposition.

While one is so extracting the legal proposition, a problem may sometimes arise. One

has to decide which of the facts in the earlier judgment materials were for the legal

conclusion arrived at. One may have to formulate the "ratio decidendi", (means basis

or grounds of a particular judgment) forming the basis of the earlier judgment. On


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this point, differences of opinion can arise. Ascertaining the ratio decidendi of the

earlier judgment is not only very important, but also a complex task. This is precisely

because it is the basis or ground alone, which has the character of binding the

subordinate courts and none other.

The situation becomes more complex, when, in the earlier judgment, there was a

plurality of judgments. Different judges who took part in the earlier judgment might

have expressed themselves in different manner (even if they have reached the same

conclusion). The later judge must analyze them, dissect the reasoning and come to

his own conclusion, as to what was the substantial conclusion arrived at, in the earlier

judgment. (P.M. Bakshi, 1996)

2.6 Branches of law

In the above backdrop of information, law within the realm of common law system,

could be at a fundamental level classified as substantive law and procedural law.

Substantive law is one, which basically recognizes, defines and confers rights on the

parties. Whereas procedural law focuses on procedure to be followed to give effect to

the predetermined rights, duties and obligations both outside and inside the courts of

law.

Similarly, another categorization is civil and criminal laws.

Another criterion for division could be connected with the impact and coverage of the

particular rule of law. Does it relate to the public domain, or does it concern

individuals, rather than the public, as such? The former categorizes "public law". For

instance, laws like constitution law, administrative law and criminal law are construed

as public laws as their impact can be discerned on the public at large. The latter

concerning individual is labeled as "private law". The law of contracts as envisaged by

the Indian Contract Act, 1872 is one example in this regard.


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2.7.

Check your progress

Questions:

1. Explain the different sources of law.

2. Discuss the significance of legislation

3. Distinguish between the different branches of law

4. What is common law? How does it differ from codified law?

5. Exp lain howcustom' is a source of law.


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Unit 3

The Judicial System

3 Introduction

Government under the Constitution consists of three independent units, namely, the

Legislature, the Executive and the Judiciary. Laws enacted by the Legislature laydown the rights and obligations of citizens in different situations. Law is not self-

executing. They require enforcement machinery, which is provided by the executive

government. Whenever the executive fails to implement the laws or implement them

improperly, citizens can seek relief through the Judiciary. The Judiciary also oversees

the working of the Constitution, thereby ensuring that the three wings of the

government act within their respective jurisdiction as conceived by the Constitution.

3.1 Objective

The object of this unit is to explain the hierarchy of the judicial administration in our

country. By reading through this unit you will be able to exp lain the different layers

that comprise the judicial set up. You will also be able to explain the jurisdiction of

each of the courts at the different levels.

3.2 Institutions of the Judicial System

The judicial system consists of a number of institutions such as Courts and Tribunals,

a code of procedural rules for conducting the adjudicatory process in fair manner,

and a set of personnel including lawyers and judges.

3.2.1 Courts

The Supreme Court of India is the supreme judicial body. It has at present 25 Judges

and a Chief Justice of India. The number can be increased by the Government if

found necessary. The Judges of the Supreme Court are appointed by the President

on the advice of the Union Council of Ministers and in consultation with such Judges

as the President may think necessary. The Judges retire at the age of 65 years. They

enjoy complete independence and cannot be removed except through an elaborateprocess of impeachment.

The Supreme Court has four types of jurisdiction. Disputes between two States ~; or

between a State and the Union of India are decided by the Supreme Court. This is

called original jurisdiction. The Supreme Court also has concurrent jurisdiction with

the High Courts to issue writ or direct ion to enforce fundamental rights. The third

type of jurisdiction is to hear appeals fro m civil and criminal cases decided by the

High Courts. The appellate jurisdiction is limited as defined by the provisions of the

Constitution. Finally, the President can seek advisory opinion from the Supreme

Court on any question of law of fact of public importance.


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Being the highest court of the land, the law laid down by the Supreme Court in its

judgments is binding on all the courts in India.

Below the Supreme Court, in each State, is the High Court, which is the highest court

of the respective States. The High Court Judges are also appointed by the President

of India on the advice of the Chief Justice of India. Each High Court has several

Judges and a Chief Justice. They ret ire at the age of 62 and they also enjoy the

privileges and immunities guaranteeing independence essential for judicial function.

The High Courts have supervisory jurisdiction over all the courts and tribunals within

the State. It hears appeals fro m the superior courts and tribunals within the State. It

hears appeals from the superior courts and tribunals within the State. Finally, it

exercises writ jurisdiction along with the Supreme Court for enforcement of

Fundamental Rights of citizens.

The Courts and tribunals below the High Court in various States may be broadly

indicated by the following chart. There can be variations in the type and

nomenclature of these bodies in different States. (N.R. Madhava Menon, 1994)

Supreme Court

!High Courts

!Subordinate Courts -Special Courts/Tribunals

!District and Sessions Court

Civil Courts (District Judge) Criminal Courts (SessionsJudge)

! !Civil Judge Assistant Sessions Judge

! !Munsiff Chief Judicial Magistrate

!Magistrate

The civil courts are empowered to hear and settle disputes of a civil nature i.e.,

infringement of legal rights. The jurisdictions of the various courts are determined by

law (Code of Civil Procedure) on the basis of the nature of the claim, the value of the

subject matter and the territorial limits where the dispute has arisen. The jurisdiction


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of the Civil Courts can be ousted in specific type of cases by express provisions of

law. There are numerous laws, like the Income Tax Act, which bar the jurisdiction of

the ordinary civil court and provide that those disputes be decided by special

tribunals (Inco me Tax Tribunals).

On the criminal side, the jurisdiction of courts is determined on the basis of the

authority to pass particular punishments (Death, imprisonment, fine etc.) and the

territorial areas where the court is located. Sessions Judge can award any

punishment though the award of death penalty has to be confirmed by the High

Court.

As the High Court exercises jurisdiction throughout the territory of the State, the

District Court or the Civil-Judges Court or the Munsiff Court can exercise jurisdiction

only in defined territories. Similarly, the values of the suit, as determined by the

Suits Valuation Act, determine the pecuniary jurisdiction of the various civil courts.

3.2.2 TribunalsThe Tribunals are set up to adjudicate not only tax cases (Income Tax Tribunal, Sales

Tax Tribunal), but also labor disputes (Industrial Tribunal), disputes of civil servants

(Administrative Tribunal) motor accident cases (Motor Accident Tribunal) etc. When

the Tribunals are set up all cases pending in courts and relating to such matters are

transferred to the respective tribunal. Tribunals are generally not bound a by

technicalities of procedure as in regular courts. They have usually subject matter

specialists sitting as Judges' along with professional judges. They also generally

enjoy the same powers as courts in conduct of trials before them. Appeals from these

tribunals generally lie to the High Court or the Supreme Court only.

3.3 Procedure in Civil Cases

A civil case ordinarily starts with a 'suit' (a grievance of claim filed in court). The

plaintiff (claimant) files a 'plaint' which carries the description of parties, the facts on

which the claimarises, the law on which the claim is based and the nature of relief

asked for. A civil suit has to be filed within the period of limitation prescribed under

the Limitation Act. The Court Fees Act also prescribes small fees to be paid by theplaintiff at the time o f filing the plaint which is excused in the case of indigent

persons. The suit must be filed in the court of competent jurisdiction as provided


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under the Civil Procedure Code. If the plaintiff is a minor or a person of unsound

mind, the suit can be filed only through the lawful guardian.

If the court finds the suit properly filed, it issues a 'summons' to the opposite party

called the defendant along with a copy of the plaint. If the defendant does not appear

after receiving the summons, the court may proceed to decide the suit in his

absence, in what is called 'exparte' proceedings. If the plaintiff absents himself, the

suit can be dismissed.

If the defendant appears and accepts the claim, the court may decree the suit.

Otherwise, the defendant has to file a "written statement" containing facts he admits

and facts he denies. He may also give additional facts in support of his side of the

case.

These documents filed by the plaintiff and defendant are ordinarily called "pleadings"

of the parties. The court can seek clarifications on their pleadings wherever

necessary. Thereafter the court frames "issues" which are the main points are

perceived by the court for decision of the suit.

Thereafter comes the crucial part of the proceeding called "trial" in which parties are

expected to prove the facts alleged through "evidence" acceptable in legal

proceedings. What facts can be proved, by whom and what facts the court can

presume etc, are laid down by law in the Evidence Act. When is a fact proved or

disproved or not proved depends on the satisfaction of the court arising out of

evidence produced before it.

The Evidence act declares that it is the burden of the party which allege certain facts

to prove his part of the case to lead evidence on them. The party relying on a

document has to file th at document. In fact, a list of documents each party wants to

rely upon is invariably filed with the pleadings before the issues are framed.

On the date of hearing of the suit, parties lead oral evidence through witnesses and

experts. A witness is examined by the party who brings him (examination in chief).

The opposite party will have a right to cross -examine him, which is intended to test

the veracity of his statements. Witnesses are required to take oath before making


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statements to ensure truthfulness. Sometimes, facts can be proved through

'affidavits' which are statements affirmed on oath.

The proceedings of court are open to public unless declared otherwise in certain

cases. The Judge is expected to record the evidence read over to the witness and get

signed by him. Sometimes, when the witness is sick or lives far away and cannot

appear in court, the Court may appoint a person to record the statement of such

witness 'on Commission'. Such court-appointed persons called 'Commissioners' can

also be directed to visit the area and hold local investigation, which is later submitted

as a report to the court concerned.

If any of the parties dies, the suit can be preceded by his legal heirs. Parties can

always compromise the dispute with the approval of the court. They can take the

matter to LokAdalats for informal negotiated settlement without full-fledged

adjudication.

On conclusion of evidence, parties present arguments through their lawyers. At the

end of the Court gives its Judgment in writing on the issues framed and decides on

the relief to be allowed or disallowed. A 'decree' is then prepared on the basis of

judgment, which contain briefly the relief allowed or disallowed. The court can award

costs from either party to the other if justice so demands.

On getting the Judgment and the decree, the party concerned (decree -holder) has to

seek execution proceedings against the "Judgment debtor" (the party against whom

judgment is given). An application for execution has to be made to the court, which

decided the case in the first instance. The method of execution of a decree depends'on what is required to be done in the circumstances of the case. In this process, the

court can attach and sell the property involved, eject the Judgment-debtor, arrest

and detain him, appoint a receiver, auction the property etc.

Finally in Civil Proceedings, the law allows parties dissatisfied with the Judgment to

prefer an appeal to a higher court or seek a review on some new facts from the same

court which passed the Judgment . In limited cases where no appeal lies, a superior

court can allow a revision of Judgment of the lower court as well. (N.R. Madhava

Menon, 1994)


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3.4 Procedure in Criminal Cases

The Criminal Procedure Code not only lays down the jurisdiction and powers of th e

criminal courts but also the procedure to be followed in investigation of crimes and

trial of persons accused of crimes. What acts and omissions constitute crimes and

what punishments are provided therefore are contained in the Indian Penal code and

in some special and local laws. How is crime to be proved and by whom are laid down

in the Evidence Act.

A criminal proceeding starts with a First Information Report (FIR) which is

information of the occurrence of a crime received by the police. This information is

reduced into writing at the police station and a copy of it is given to the informant.

Recently, Supreme Court held that filing or registration of FIR need necessarily take

place in a police station having territorial jurisdiction. Territorial jurisdiction means

the identified geographical territory will be ascribed to a given police station. If the

alleged offence takes place in a particular territory, police station located in such

territory will have jurisdiction for the purposes of inquiry and investigation. In view of

Supreme Court ruling, the informants will not be constrained by the technical

requirement of territorial jurisdiction of police stations. In cases of non-cognizable

offences, the police cannot investigate the crime on their own and, as such, directs

the informant to the concerned Magistrate. In cases of cognizable offences (serious

crimes punishable with death or imprisonment) the police proceeds with

investigation which consists of proceeding to the spot, interrogating witnesses,

apprehending suspects, conducting search and seizure and other steps directed

towards collection of evidence in the case. Police can summon any person for

interrogation and persons are expected to answer truthfully. In the case of women

and children, statements are to be recorded in their houses rather than at police

stations. Statements made to police, if recorded in writing, need not be signed by thewitnesses. Police can make witnesses give statements to Magistrates during

investigations. If they are in the nature of a confession (admission of guilt) the

Magistrate has a duty to warn the accused that he is not bound to make it and that if

recorded it may be used against him. It is the duty of the Magistrate to satisfy

himself that confession is being made voluntarily and not out of coercion or

inducement.

During investigation of a cognizable offence, police can arrest persons suspected of

involvement in the offence. Arrest is a denial o f freedom of movement and force is

not necessarily an element of arrest. But if force becomes necessary the minimum


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required force can be used. Ordinarily, arrest is made on the basis of a warrant

(order) issued by the Magistrate and persons to be arrested are served the warrant.

Arrest is a powerful weapon, which has to be exercised only when absolutely

necessary. To ensure that persons are not deprived of their freedom beyond what is

necessary to answer the charged, Criminal Procedure Code provides for liberal

granting of bail. In the case of bailable offences the arrested person has a right to be

released on bail if he furnishes bonds with or without sureties as demanded.

Similarly, a person arrested without a warrant has to be produced before a

Magistrate within 24 hours, excluding the time taken for journey. The Magistrate may

remand him to custody of the police or of jail authorities up to a period of 15 days.

The total period of detention before trial cannot exceed 90 days (60 days in less

serious offences). On the expiry of that period he has to be released on bail. In

recent times, while taking note of gross and blatant abuse of human rights in the

context of arrest, the Supreme Court in a substantive sense supplemented various

mandated procedures to be followed by the arresting officer. (N.R. Madhava Menon,

1994)

An investigating police officer can also search a place with or without warrant (in

cases where he thinks that he may not recover in case he spends time in securing a

warrant). A search has to be witnessed by two persons of the locality a

memorandum m of search and a list of articles found have to be prepared and a copy

of it is to be given to the occupier of the place.

When the police submits a report on completion of investigation to the Magistrate

competent to hear the case, a charge sheet is framed. Criminal proceedings can also

be initiated otherwise than a police report, through private complaints made to aMagistrate. On receiving a complaint, the Magistrate records the statement of the

complainant and witnesses present, if any, and then cause an enquiry himself or

through the police or any other person. If on enquiry he does not find sufficient

ground for proceedings, he dismisses the complaint, recording reasons for doing so.

Otherwise he issues summons to the accused.

The trial in Criminal cases can follow one of the three procedures depending on the

nature of the crime. They are Warrant trial, Summons trial and Summary trial. In

Summary trial, the Magistrate hears the case summarily, recording only the


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substance of evidence. The maximum punishment that can be given in these cases is

a fine only or imprisonment of three months. In Summons trial, it is not necessary to

frame a formal charge. The accused is told about the particulars of the offence and, if

he pleads guilty the plea is recorded and he is convicted. If he does not, the evidence

of prosecution, the statement of the accused and any other evidence he may give are

recorded and, depending on the evidence, he is convicted or acquitted by the

Magistrate. In Summons cases, the complainant can withdraw or compromise the

case also.

In warrant cases (cases for which death, life imprisonment or imprisonment

exceeding 2 years) the trial can proceed either on police report or on a complaint.

There are minor differences of warrant trial on these two types of cases.

When an accused appears before a Court of Sessions, the prosecutor describes the

charge against him and informs the evidence he proposes to advance. After hearing

the parties and examining the materials if the judge finds no sufficient ground to

proceed, he discharges the accused. Otherwise, the judge frames a Charge and tries

it himself or sends to the appropriate judge. If the accused pleads guilty he may be

convicted. Otherwise, a date is fixed for prosecution evidence. (In criminal cases the

burden of proving the case against the accused is entirely about the prosecution side.

In cases of doubt on the prosecution case, the benefit is given to the accused and he

is acquitted). After prosecution evidence is over, the accused is given an opportunity

to explain the evidence against him. The accused may also lead evidence in his

defense. After evidence and arguments, judgment is pronounced in open court. If the

accused is found guilty, he is heard again on the question of sentence (punishment).

The Public Prosecutor can withdraw a prosecution with the permission of the Court.

Some criminal cases of a minor nature can be compounded which in effect would

mean acquittal. Giving false evidence in court is an offence liable to punishment.

In criminal proceedings, right to legal aid in case of indigent accused is guaranteed

under the Constitution of India. Constitution also provides that a person tried and

convicted or acquitted of an offence cannot be tried again for that offence.


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3.5 Officers of Court

Lawyers (advocates) who assist the judges on behalf of the parties are often referred

to as officers of court. It is the Constitutional right of everyone to be represented in

legal proceedings through a lawyer of his choice. And if the person is unable to afford

one because of his socio-economic position, legal aid is provided by the State in

certain circumstances.

Advocates have an exclusive monopoly in practicing law. They are people trained in

law and court procedures that give advice to parties and plead their cases before

courts and tribunals. They belong to an independent professions governed by a code

of ethics and managed by a representative body of lawyers called the Bar Council. In

case a litigant has a complaint against any individual member of the legal profession,

a complaint can be preferred to the Bar Council o f the State concerned. The Council

has power to investigate the complaint with same status as that of a Court and award

punishments or direct compensation to the aggrieved litigant. (N.R. Madhav a Menon,

1994)

Check your progressQuestions:

1. Discuss the hierarchy of the judicial administration system in India

2. Exp lain the jurisdiction of the courts at different levels3. Distinguish between the procedures in a civil case with that of a criminal case.


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Unit 4

Structure of Government

4 Introduction

The adoption of the Constitution and India becoming a Republic in 1950 was a

culmination of events that took place ever since the British landed in India. The

legacy of British rule left an indelible mark in the framing of the Constitution of

India. The Constitution has always been a Live' document. The fact that the

Constitution has been amended time and again shows that the Constitution has been

responsive to the changing aspirations and needs of the people.

4.1 Objective

By reading through this unit you will be able to explain in brief the history behind the

framing of the Constitution of India. You will also be able to explain which functions

of the government are the exclusive privileges of the Central Government and the

functions that are shared between the Central government and the state.

4.2 Framing of the Constitution

After the British rule in India which lasted for about 350 years. India gained

independence from the British on August 15, 1947. The series of charters issued by

the Crown in England from time to time, since 1600, the East India Company's rule,

the first war o fIndian independence, the establishment ofIndian National Congress,

the role played by great heroes like Gandhiji, Nehru, Tilak, etc. in the freedom

struggle, the two world wars were the few land marks in the development of

constitutional history of India prior to independence. Shri Rajagopalachari becamethe first and the last Governor-General o ffree India. To draft a Constitution for India

defining the structure of the Government, the powers and functions of different

authorities under the Constitution and the Fundamental Rights of citizens was the

first major task for the free India. For this a constituent Assembly, consisting of

eminent persons like M r. B.N .Rau, Dr .B.R.A mbedkar, Babu Rajendra Prasad,

Pandit Govind Vallabh Pant, Dr. S. Radhakrishnan and Maulana Abdul Kalam A zad

was appointed to draft a Constitution for the free India. Dr. B R. Ambedkar was the

Chairman ofthe Drafting Committee ofthe Constituent Assembly. It took almost two

years to complete the task, which was debated at length by the members. Finally,


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the draft ofthe Constitution ofIndia was adopted on November 26, 1949. Some of

the provisions ofthe Constitution came into effect with immediate effect. The full text

of the Constitution came in to force on January 26, 1950, the day India became a

"Republic".

The Constitution of India, which is the fundamental law o f land, consists of a

preamble, 395 Articles, divided into 22 parts and 10 Schedules. According to the

Preamble of the Constitution, the sovereign power is vested in the hands of the

people. The organization, power and functions of the three different branches of

Government both at the Center as well as States are provided under the Constitution.

Accordingly, the executive power ofthe union is vested in the hands ofthe President,

the legislative power in the Parliament and the judicial power in the Supreme Court.

While the legislature/Parliament has the power to enact laws, the president executes

them and the judiciary interprets the law. A system ofchecks on these organs ofthe

state is also provided in the Constitution.

Although India is a Republic, it has adopted the parliamentary form ofgovernment

and made the executive power a nominal authority. The Preamble to the Constitution

describes India as a Sovereign, Socialist, Secular, and Democratic Republic. Along

with this, the object ofsecuring the social, economic and political justice, liberty of

thought and expression and equality ofstatus and opportunity to all citizens is also

provided. Moreover, the states are guided by the Directive Principles of the State

Policy. Both the Union and State governments have an obligation under Part IV of the

Constitution to formulate policies in the implementation of the Directive Principles of

State policy. Although the Directive Principles are not justifiable in the Courts of Law,

they provide the general guidelines for the realization of these goals. The judiciaryhas interpreted the Directive Principles in such a way to make them enforceable in

the day to day administration.

Some of the important Directive Principles of State policies are

a) to secure social, economic and political justice;

b) to minimize inequalities in income;

c) to provide free legal aid to economically backward classes;

d) Workersparticipation in management of industries;

e) Free and compulsory education for children;


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f) to secure a uniform Civil Code and

g) protection and improvement of forest and wild life and to protect the monuments

and places of national importance.

In the conflicts arising between the fundamental rights and directive principles, the

judiciary exercises the power to review such laws.

4.3 Government Functions

The governmental functions under the Constitution have been divided and given

predominantly to the different levels of government. At the apex is the national or

central government and followed by twenty -five state governments. The State

governments have absolute powers over the organization of the local self-

governments within the State. The powers of the national and state governments

have been provided under the Constitution whereas that of the local

self-government does not find a place in the constitutional order. These three levels

of government jointly discharge different functions to keep the administration

moving. In the division of powers between the national and state governments the

Center has a dominating role both under the Constitution as well as in practice. The

nature and extent of such powers can well be understood with the help of the fo llo

wing chart:

Distribution of power -VII Schedule to the Constitution

Government List

No

Total no

of

Entries

Total No of Examples Remarks

Center/nati

onal

i 97Defense, foreign affairs,banking laws with currency

reference currency etc.

States cant make to

these powers. Only the

center can do so.

state ii 66 Police, local govt, public

health, sanitation,

agriculture etc.

The states as well as

the center can legislate

upon these powers. The

center can gets the

powers under article249,250,252 and 253.

Concurrent iii 4 Criminal laws, criminal Both states and center


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powers procedure insolvency,

trust/trustees.

can legislate on these

powers. But in the

event of any conflict

only central law can

prevail over the state

law.

Residuary

Powers

-- -- Vested in the Central

government only under

the Entry 97 of List I

read with Art. 248 of the

Constitution.

Thus all the subjects of national importance are vested in the hands of the Central

Government. Although the State governments have 66 subjects, the national

government can also legislate upon any of the powers of the state under Articles 249,

250, 252 and 253. Accordingly, the Center can legislate on the State subjects in the

"national interest" (Art.249), during proclamation of emergency (Art.250) with the

consent of the States (Art.252) and for giving effect to treaties and international

agreements. The powers or subjects not mentioned in any of these three1ists are

known as 'Residuary power'. All the residuary powers are the Central Government

enjoys majority of the powers including those powers given to the states.

4.4 Processing of Bills

When a bill gets the assent from the executive (the President or the Governor as the

case may be), it becomes a law, till then it is referred to only as a bill. The Presidenthas no power to Veto (reject) a bill passed by both the Houses of Parliament. He may

refer the bill back to the House for reconsideration. If the bill is p assed as it is for the

second time after the reconsideration, the President has to give his assent. So far

this has been use only, once by the former President Mr. GianiZail Singh with regard

to the Postal Bill. Each of the Houses of the legislature has different committees

nominated and elected to consider the bills in detail. These committees have an

important role to play by checking the powers of the legislature from time to time. To

quote few examples of such Committees, mention must be made to the Committee

on Subordinate Legislation, Committee on the privileges of the House etc. If there is


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any difference between the two Houses of Parliament over a particular Bill, which is

not a financial or money Bill, a deadlock emerges and the procedure comes to a

standstill. To resolve the deadlock between the two Houses of Parliament, the

President can summon a joint sitting of both the Houses, where the Bill will be

debated and votes by the members in that joint sitting.

Bill

Lok Sabha or Rajya Sabha

First Reading

Second Reading

Committee Stage

Report Stage

Third Reading Bill goes to next House Presidential

which also follows assent.

all these steps.

4.5 Legislation: Subject to judicial review

The validity of the laws passed by the legislature can be called in question in any

Court of Law. The Constitution of India has established Courts at two levels. There is

a Supreme Court at Delhi consisting of a Chief Justice and twenty five other judges.

There are about 18 High Courts with a Chief Justice and other judges depending upon

their sanctioned strength. The validity of a law can be questioned in either of these

two courts whenever the law has violated any of the provisions of the Constitution or

the fundamental rights of the Citizens. The courts can declare such laws are

unconstitutional. This power is known as judicial review, which is one among the

basic procedures have been prescribed under the Constitution itself and by the rules

made by the respective Courts.


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4.6 Public interest litigation

During the last 20 years, (i.e. from 1976), the courts have become active in

rendering Social justice. As such it has waived all procedural requirements in few

cases where the aggrieved persons have sent letters, post cards and telegrams to

the Supreme Court. The Court considered these as Writ petitions and granted

remedies. The other important development is the liberalization of the concept of

"Locus Standi" by the Courts which has le d to numerous public interest Litigation. It

is also known as the Social Action Litigation in India. Under this any person having

concern about a particular issue can move the Court to protect the interest of the

general public or a group of people. Various Social activists are involved in this

process. Prof. Upendra Baxi and Ms.Sheela Barse have made full use of the activist

role of the courts. These social activists made a sincere attempt to reduce the gap

between the theoretical existences of law and are practice. Thus, with the help of

both judicial activism, and public interest litigation, we have entered into the last

decade of 20th Century to make laws instruments of social justice.

Whenever the rights and liberties of the Citizens are violated by any state actions,

the aggrieved person has the right to seek remedy from the administrative

machinery itself. Appeal provisions have been provided in the set up to facilitate this.

When all these remedies are exhausted, the citizens can move the High Court or the

Supreme Court to protect their interest. As the population along with mass illiteracy

is increasing alarmingly it becomes the function of the 'social activists' to educate the

masses about their rights and obligations to make the social justice a reality. When

the government has failed in its endeavor the responsibility to create the awareness

among the people must be shared by the people themselves with the assistance of

the social activists. (N.R. Madhava Menon, 1994)


Questions:

1. Discuss the distribution of powers between the central government and the state

government

2. Exp lain briefly what you understand by the term public interest litigation'


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Unit 5

Information Technology and the Attempted Legal Response

5 IntroductionLaw always finds it very difficult to respond effectively to a technological process.

Obviously, technological pace is something insurmountable for the law to keepabreast. In addition, the process of 'law making' itself has a definite contribution

towards this. A look into the assumptions upon would give an idea on the factors

involved in law making.

5.1 ObjectiveAfter going through this unit will be able to explain the primary assumptions which

any legal system is based upon. You will be able to understand the relationship

between national law, sovereignty and world commerce especially in the age where

world commerce is blurring geographical boundaries.

5.2 Primary assumptions of a legal systemAny legal system is premised upon the following primary assumptions as a

foundation. They are:

a) Sovereignty

b) Territorial Enforcement

c) Notion of property

d) Paper based transactions and

e) Real relationships

5.2.1 SovereigntyLaw making power is a matter of sovereign prerogative. As a result, the writ of so

vereign authority runs throughout wherever sovereign power exercises authority.

Beyond its authority, which is always attributed to determinate geographical

boundaries, the sovereign cannot regulate a subject matter through legal

intervention. However, in the cyber context, geography is a matter o f history, in the

sense that barriers in terms of distance and geographical boundaries do not make

much sense.

5.2.2 Territorial EnforcementAny law in real world context can only be subjected to predetermined territorial

enforcement. In other words, the territory over which the sovereign authority


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exercises power without any qualification or impediment will be able to enforce the

law. However, this proposition carries some exceptions. It is a normal practice in the

case of criminal law, the sovereign authority enjoins extra -territorial jurisdiction as

well. It is to indicate that even if the crime is committed beyond the limits of

territory, still the sovereign authority will be able to initiate prosecution, provided if

the custody of the person is fetched. Towards this end, it is a normal practice to

invoke extradition proceedings (which reflect mutual understanding and undertaking

to Co -operate with each other nation in cases of crime commission). However,

serious impediment in this respect is, the proceedings must comply with the principle

of 'double criminality'. It means that, in both the countries, the alleged act of

commission must have been criminalized. In the context of cyber law, there are only

twelve countries in the g lobe, where relevant laws have been enacted. But when it

comes to Civil law, say in the case of international contracts, pertinent principles of

Private International Law are invoked to address these issues. When it comes to

cyber context, territory does not hold any meaning. Connectivity without any

constraint is the strength of cyber world.

5.2.3 Notion of Property

The obtaining premise (though of late subjected to marginal change) of the legal

response considers 'property' as tangible and physical. With the advent of intellectual

property, undoubtedly, this concept or understanding of 'property' has undergone

change. In the cyber context, 'property' in the form of digitized services or goods

pose serious challenges to this legal understanding. Similarly, 'do main names' raise

fundamental questions vis--vis the legal understanding of what constitutes

'property'.

5.2.4 Real Relationships

Quite often, legal response considers relationships, which are real world oriented. In

view of connectivity, pace and accuracy as to transmission, in the cyber context,

these relationships acquire unique distinction of virtual character. In the broad ambit

of trade and commerce, it is the commercial transaction in the form of contracts,

which constitutes the foundation of legal relationship. Hence, if the relationships are

virtual, what should be the premise of contract law, which is basically facilitating in

nature? Even with regard to other activities, which are potentially vulnerable to

proscription, what kind of legal regulation is required to be structured?


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5.2.5 Paper Based Transactions

Obtaining legal response considers and encourages people to create and constitute

legally binding relationships on the basis of paper-based transactions. No doubt, the

definition of 'document' as is obtaining under Section 3 of Indian Evidence Act, 1872

takes within its fold material other than paper also; still popularly the practice covers

only paper based transactions. But in the cyber context, it is the digital or electronic

records, which form the basis of electronic transactions. As a result of which

transactions will be on the basis of electronic records.

In the light of these seemingly non-applicable foundations, the legal system

originating from a particular sovereign country has to face complex challenges in

formalizing the structure of legal response. However, the inherent complexity did not

deter select countries in making an attempt in this regard. From the obtaining

patterns it can be understood that, substantial numbers of these countries have

apparently considered the following benchmarks in structuring the relevant legal

response.

Application of the existing laws duly modified to suit the medium of cyber context

with an appropriate regulatory authority monitoring the process and adjudicating the

rights and liabilities of respective stakeholders; Respective legislations enacted by

the concerned sovereign states with a deliberate attempt to encourage and facilitate

international co-operation to enforce these laws.

5.3 Role of the Judiciary in the evolving legal frame

work

Apart from these, while interpreting the pertinent laws, judiciary has also played an

active role in evolving and conceptualizing various legal issues and responses.


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The rapid development of information technology presents challenges for the law.

Challenges which are not confined to any single one of the traditional legal

categories but which arise in, for example, criminal law, intellectual property law,

contract law and tort law. For instance, presently, the following issues are being

addressed by law.

How does the law deal with computer hackers or those who introduce viruses? Should a contract for the acquisition of software be categorized as one dealing with

goods?

Similarly, should software be regarded as a product? Can copyright subsist in acomputer program? Would patent protection be more appropriate?

Does the widespread dissemination of text on networks herald the death of copyright? Should the content of the material on the Internet be regulated and, if so, by whom?

What about freedom of information and expression?

How is the privacy of the individual to be protected amid the increasing capacity forstoring, gathering and collating information?

An overview of these concerns will enable us to broadly identify the applicab le

parameters for better comprehension and understanding:

Cyber crimes; Cyber contracts; Cyber privacy; Cyber intellectual property rights.


Questions:

1. State and discuss the primary assumptions of a legal system


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Unit 6

CYBER CRIMES

6 Introduction

At the outset, terminological clarification about usage of this phrase namely, cyber

crimes is warranted. Many a time, cyber crimes' is used synonymously to indicate

computer crimes also. However, technically speaking, the phrase cyber crime entails

a different and unique understanding. No doubt, computer, in whatever sense we use

the term, basically is required to undertake any activity in the cyber context. In other

words, possible crime can be perpetrated with the help of a computer devoid of cyber

context. But as matters stand now, without the help of a computer network it is not

possible to involve in any kind of activity in the cyber context.

6.1 Objective

The objective of this unit is to define what constitutes Cyber Crime. You will be able

to identify the offences that constitute Cyber Crime under the I.T. Act 2000.

6.2 Cyber Crime - A perspective

In an influential research work, Pro f. Ulrich Sieber observed that; the vulnerability

of today's information society in view of computer crimes is still not sufficiently

realized: Businesses, administrations and society depend to a high degree on theefficiency and security of modern information technology. In the business

Communities, for example, most of the monetary transactions are administered by

computers in form of deposit money. Electronic commerce depends on safe systems

for money transactions in computer networks. A Company's entire production

frequently depends on the functioning of its data-processing system. Many

businesses store their most valuable company secrets electronically. Marine, air, and

space control systems, as well as medical supervision rely to a great extent on

modern computer systems. Computers and the Internet also play an increasing role

in the education and leisure of minors. International computer networks are the


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nerves of the economy, the public sector and society. The security of these computer

and communication systems and their protection against computer crime is therefore

of essential importance.

In the course of this development computer crime has developed into a major threat

of today's information society. The spreading of computer technology into almost all

areas of life as well as the interconnection of computers by international computer

networks has made computer crime more diverse, mo re dangerous, and

internationally present. An analysis of relevant criminogenic factors shows that

modern computer and communication networks have specific characteristics which

are highly useful for perpetrators but which imply difficulties for potential victims and

for law enforcement (such as complex security questions, multiple hardware and

software systems, inexperience of many users, anonymity, encryption and

international mobility). Groups active in organized crime, professional business

espionage and secret services around the world are already exploiting these new

features of computer crime. However, many governments, businesses and private

users are not aware of the attacks that happen or could happen to them in the data

processing area. Thus, governmental agencies, the industry and private users should

be made aware that protection against computer attacks is of great significance.

They should be informed about the main threats of computer crime and the

responses thereto. (Prof. Ulrich Sieber, 1997)

6.3 The Problem: Current Forms of Computer CrimeIn most countries, the discussion about computer misuse began in the 1960s with

the endangerment of privacy, which was discussed under the headword of "data

protection" and was later integrated with in the concept of "computer crime". Since

the 1970s, scientific research concentrated on computer-specific economic crimes,

especially computer manipulations, computer sabotage, computer espionage and

software piracy. The rap id growth of the telecommunications sector since the 1980s

and especially the spread of the WWW since the 1990s then brought along the

dissemination ofillegal and harmful contents, such as pornography, hate speech and

other communication offences in international computer networks. At the same time,


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the use of computers and modern communication technology by perpetrators in new

fields of crime, e.g. in organized crime, made it obvious that there were almost no

boundaries for computer-related crime and that from a phenomenological point of

view - homogeneous computer crime no longer existed. Since the respective

Modioperandi no longer follow a continuous path, but constantly adapt to new

technologies, the following analysis of these four main groups of computer crime will

each start with a short description of the historical development and then give an

analysis of the present main forms of crime.

6.3.1 Infringements of Privacy

While computers began their triumph in the 1960s, it was realized in several western

countries that the collection, storage, transmission and connection of personal data

endangered the personal (ity) rights of citizens. Orwellian visions and the mistrust of

the revolting youth of the late sixties inspired the discussion about the dangers of the

"big brother". However, during the 1980s, the old pattern of the computer as an

exotic instrument in the hands of the powerful became obsolete with the massive

spreading of personal computers. It became clear that the protection of privacy

within the data processing area also had to consider the multitude of private

computer systems and to establish a difficult balance of interests between the

privacy interests of data subjects concerned and the economic freedom of the holders

of personal data.

6.3.2 Economic offences

Since the 1970s, the discussion about computer misuse was not only marked by

infringements of privacy but also by computer-related economic crimes, which todayare regarded as the central area of computer crime and which were at first

exclusively characterized by that term. During the 1970s, fraudulent computer

Manipulations were the starting point of the discussion about computer-related

economic offences and the core center of computer-related economic crime.

However, today hacking has increasingly become a "basic offence" which is then used

to commit acts of espionage, software piracy, and sabotage as well as computer

fraud.


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6.3.3 Computer Hacking

The term "computer hacking" traditionally describes the penetration of sabotage or

espionage but for the pleasure of overcoming the technical security measures. In

practice, this kind of offence can be frequently found. As far as the damage of these

cases is concerned, a differentiation is essential: In numerous cases, the penetrated

computer user is not actually harmed, but only endangered. However, in these

cases, too, the formal sphere of secrecy or the integrity of the concerned

computer systems is violated. Contrary to this considerable damages occur in other

cases especially when the perpetrators later use their knowledge for committing

espionage, sabotage or fraud.

Due to recent developments in the field of telephone and telecommunications

technology (such as ISDN hacking does not only affect classic computer systems but

also increasing telephone lines, answer phones and voice -mail- systems. "Telephone

hackers" dial themselves in to the telephone companys local phone exchanges and

are thus able to eavesdrop on the digitally led conversations in a respective part of

town. In the US, besides other confidential information, especially the numbers of

telephone access cards (so -called calling cards) are eavesdropped on, which are

then resold.

6.3.4 Computer Espionage

Computer espionage only rarely appearing in official statistics- constitutes a special

danger compared with traditional economic espionage, because in computer s stems

huge quantities of data are store in an extremely narrow space, and the data can becopied quickly and easily with the help of modern technology, also via data

telecommunication. The objects of offence are especially computer programs, data of

research and defense, data of commercial accounting as well as addresses of clients.

As the modus operandi, the simple copying of data is predominant; the theft of data

carriers the evaluation of "remaining data" or the absorbing of electromagnetic

emissions are also affected. Besides young hackers and competing business

enterprises, secret services increasingly appeared to be dealing with economic

espionage in recent years.

With the convergence of data processing and telecommunication as well as with the


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digitalization of telecommunication, the line between traditional computer espionage

and telephone fax and e-mail monitoring becomes increasingly blurred. In the case of

telephone tapping, the criminals are able to penetrate the telephone exchanges of

the telephone companies especially via normal data lines. Car phones, directional

radio stations and satellite connections are particularly easy to attack in case of

uncoded communication.

6.3.5 Software Piracy and other forms of Product

Piracy

The unauthorized copying and use of computer programs -often called theft of

software or software piracy at first involved, in accordance with the historic

development of computer technology, the copying of individual software which

frequently contains important internal company know-how. Therefore software theft

overlaps with computer espionage in many cases.

6.3.6 Computer Sabotage and Compute r Extortion

The high concentration of data stored in the electronic devices mentioned above,

along with the dependence of many companies and administrative authorities on

data processing, make computer sabotage another particular danger for business and

administration. The objects of computer sabotage are the tangible computer

Facilities as well as the intangible data containing computer programs and other

valuable information.

For the modi operandi, one can be differentiate between methods causing physical

damage and those causing logical damage. During the 1970s, the most frequently

practiced methods of causing physical damage were igniting or bombing a building.

These techniques were typically applied by "outsiders" not employed or otherwise

related with the owners of the facilities damaged.


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6.3.7 Computer Fraud

During the era of large mainframe computers, fraud committed by computer

Manipulations constituted a uniform group of crimes. Due to the diversification of

computer systems in the 1980s, nowadays the term computer fraud describes a

spectrum of various cases within the field of economic crimes.

Among the "classic" large-scale computer fraud cases, invoice manipulations

concerning the payment of bills and salaries of industrial companies as well as the

manipulations of account balances and balance sheets at banks were and still are the

predominant offences. In addition to this, an extension of manipulations to increase

the inventory could be perceived due to the recession of the recent year.

6.3.8 Illegal and harmful contents

In the late 1980s, first cases occurred in which information glorifying violence or

information of racist content was distributed with the help of computers especially by

political extremists.

In the USA, the Ku Klux Klan, the White Aryan Resistance, skinheads, and other neo-

Nazi organizations had already realized in the 19805 that it was much more effective

to work with means of electronic communication than with traditional "newsletters".

These groups used electronic communication systems mainly to distribute the names

of Jewish "opponents" and to give advice for violent actions.

In Germany, right-wing and left-wing extremist organizations first used Bulletin

Board Systems (BBS) and other electronic communication systems at the beginning

of the 1995. Right-wing extremist organizations especially used the so called "Thule-

Network", which consists of about 10 BBSs. In these BBSs, information about neo -

fascistic organizations and corresponding propaganda material was stored. The

electronic means of communication were used for the communication within private

groups of users as well as for informing the public. Left -wing radical groups


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(particularly from the anarchistic autonomous scene and fro m the sphere of the so

called Red Army Fraction) distribute their plans of action especially via the BBS-

network "Spinnennetz (cobweb)", which is included in an international exchange of

information via the "European Counter Net work (ECN)".

At the beginning of the 1990s, the triumphant rise of the Internet was accompanied

by an exchange of illegal and harmful material which was intensively monitored by

the press and public. Today the center of attention is focused especially on child

pornography, hate speech and libel in international computer networks.

The distribution of child pornography and contents glorifying violence within the

Internet and similar computer networks was illustrated in the famous "CompuServe-

Case": In 1997, Bavarian State prosecutors indicted the head of the German

CompuServe GmbH subsidiary for not having filtered pornographic newsgroups and

games glorifying violence within the proprietary service, both types of data stored on

servers of CompuServe Inc. in the USA.

In 1996 the Spanish public was stunned by a case of distribution of child

pornography. Two students had a collection of over 150 floppy disks with child

pornography all collected over the Internet. Both had to be released from prison after

3 days because of a legal gap in the new Spanish Criminal Code of 1996.

Increasingly video games with a racial background in which the user could

discriminate against foreigners and ethnic minorities served as propaganda material

for young people. E.g., in the video game "Concentration Camp - Manager"

distributed mostly via BBS -the player must decide whether a foreign worker is first

to be sent to work in a mine or whether he is to be gassed immediately.

An example for libel was dealt with by court in the United States in 1991. In this

case, CompuServe contracted with a third party for that user to conduct a special-


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interest forum (called "Rumorville") on CompuServe. The plaintiff claimed that

defamatory material about its business was posted by a user in that forum, and sued

both the forum host and CompuServe. CompuServe moved for, and received,

summary judgments in its favor.

The prosecution of perpetrators disseminating illegal contents in the Internet is not

only made d ifficu lt by the fact that these perpetrators are acting from abroad and

that the international mechanisms of co -operation are often weak and slow.

Prosecution is often impossible since perpetrators can hide behind the anonymity

which today is granted by anonymous re-mailers and by the abuse of free access

software.

6.4 Other offences

Along with the advance of information technology to new areas of live computers can

be (ab)used for almost all offences. This includes, e.g., threats to human life, various

activities of organized crime as well as electronic warfare.

6.4.1 Attacks on Life

Computer manipulations described above did not only serve the purpose of gaining

pecuniary benefits, but were also used for attacks on life -as in the case of the

manipulation of a flight control system or of a hospital computer. An example for the

spreading of computer crime in traditional fields of offences is the manipulation of aBritish hacker, who accessed the information system of a Liverpool hospital in 1994

because he simply wanted to see "what kind of chaos could be caused by penetrating

the hospital computer". Among other things, he changed the medical prescriptions

for the patients: A nine-year-old patient who was "prescribed" a highly toxic mixture

survived only because a nurse re-checked his prescription.

6.4.2 Organized Crime


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It is obvious that the powerful tools of modern computer and communication

systems to store, administer and transfer data are also used by organized crime

groups in many areas. Organized crime is especially involved in the above described

acts of sophisticated computer fraud, credit card fraud, and telephone fraud as well

as software and product piracy. Computer data stored and transmitted in encrypted

form is also used e.g. by drug and arms dealers to administer their activities. In the

future, electronic money transactions and "cyber money" will be increasingly used for

illegal gambling and for money laundering on the Internet.

The involvement of organized crime groups in the field of computer fraud was

illustrated when a Russian group attacked one of the best known US banks in New Yo

rk via data networks in 1994. Operating from St. Petersburg, the group succeeded in

causing the American bank to transfer over US$ 10 million to foreign accounts.

Monitoring and following the "money trail" of the manipulations, some of the

perpetrators finally could be arrested. The responsible security officer of the bank

told the author that the arrested perpetrators possessed false Greek and Israeli

passports which were forged in a quality which could be produced in Russia only by

members of the former Russian secret service KGB.

6.4.3 Electronic Warfare

In the meantime, the possibilities of computer manipulations have also been

recognized in the military sector. "Strategic Information Warfare" has become a form

of potential warfare of its own. This type of warfare is primarily directed to paralyze

or manipulate the adversary's computer systems. The dependency of military systems

on modern information systems became evident in 1995 when a "tiger-team" of the

US Air Force succeeded in sending seven ships of the US Navy to a wrong destinationdue to manipulations via computer networks.

There is no need to point out the possible danger originating from a manipulated

nuclear power station in order to stress that meanwhile, computer misuse has

become a global threat and the security of modern computer systems has gained

central significance for the information society of our days.(Prof.Ulrich Sieber, 1999)


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Thus broadly speaking, the following specified natures of offences are recognized by

respective nation -states in their legislations. The list by no means is to be construed

as exhaustive but only illustrative. As the technological potential misuse unfolds, we

need to expand the scope of criminalization. The possibility of marginal differences as

to the scope and ambit of respective cyber crimes cannot be ruled out. In addition,

strides in information technology further blurred the legislative understanding of what

constitutes cyber crime.

Computer Fraud: The input, alteration, erasure, or suppression of computer data or

computer programs or other interference with the course of data processing that

influences the result of the data processing, thereby causing economic or possessory

loss of property of another person with the intent of procuring an unlawful economic

gain for himself or any other person; Computer Forgery: The input, alteration,

erasure, or suppression of computer data or computer programs or other interference

with the course of data processing in a manner as prescribed by the law; Damage to

computer Data or computer Programs: The erasure, damaging, deterioration, or

suppression of computer data or computer programs without right; Computer

Sabotage: The input, alteration, erasure, or suppression of computer data or

computer programs or other interference with computer systems, with an intent to

hinder the functioning of a computer or a telecommunication system; Unauthorized

Access: The access without right to a computer system or network by infringing

security measures; Unauthorized Interception: The interception made without right

and by technical means, of communications to, from and within a computer system or

network; Unauthorized Reproduction of a Protected Computer Program: The

reproduction, distribution, or communication to the public without right; Pornographiccontent on the net.

6.5 Classification of Cyber Crimes in I.T. Act, 2000.

While considering the general terrain of cyber law, as of now, the following acts are

construed as cyber crimes in the I.T. Act, 2000.

Without permission of the authorized user Acc

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