Two Acts, One Trick

Within hours of the terrorist attacks in Mumbai, news channels were making comparisons of the attacks to the terror strike on the World Trade Center on September 11, 2001. The invented coinage, “India’s 9/11” gained quick currency and was applied to how the attacks had affected each one of us individually. The similarity is not limited to the effects of the attack but also stretches to the response. The most obvious legal response has been a call for stricter anti-terror laws, which increase the detention periods on suspicion of terrorist activities and provide for stricter sentences upon conviction. A non-obvious though significant parallel is found in the recent amendments passed to the Information Technology Act (IT act).

The amendment was portrayed as a substantial anti-terror legislation and was passed along with 7 other bills in 17 minutes on the last day of the monsoon session of the Lok Sabha. This should not be mistaken for efficiency as the amendment was languishing as a bill before parliament for more than 2 years. However, it is not entirely through accident that serendipitously legislators realized, the teething flaws in the IT act were bad cavities.

What is perceptible is that sometimes legislations are shown to be ostensibly anti-terror to make them more amenable. The motive behind such a strategy is simple but effective, it whittles opposition and belittles debate. In a climate vitiated by a terror attack, a legislator does not want to appear quibbling over semantics of an anti-terror legislation or at worst appear unpatriotic. This strategy was effectively employed in the United States to overcome the opposition of a large number of local banks to the Check Clearing for the 21st Century Act (Check 21 act), a proposed law which allowed the electronic processing of checks. These local banks derived substantial processing charges on physical checks and successfully prevailed over their congressmen in blocking the legislation. This changed after 9/11 when there was total suspension of air traffic to and from New York and physical checks could not be transported to their destination. Seeing this as an opportunity Check 21, a purely fiscal statue was portrayed as an anti-terror legislation and passed through the Senate to become law.

A similar route has been taken to amend the Information Technology Act. The Information Technology Act is based on the UNCITRAL Model Law on E-Commerce, essentially aimed to facilitate the growth of electronic commerce. Even though the Act substantially deviated from the model law and introduced a chapter on offences it was limited to criminalizing behavior which jeopardized online commerce. Ever since the original act was passed a need was felt to augment the body of laws regulation online behavior, some proposed an amendment to the Information Technology Act and some preferred a separate enactment addressing the discrete issues which arose out of the increased role of internet in work and play. In 2005 there was an expert committee constituted which tendered a highly detailed draft law with revisions in trackchanges, no less. There were more reviews and further reports and finally in 2006 a Bill to amend the IT act was introduced in parliament.

Throughout this process the scope and the contents of the proposed amendments differed substantially however a common thread ran through them, they did not contain any anti-cyber -terrorism offense and it was not modeled as an anti-terror amendment. Even if belatedly legislators realized that the general offences in the IPC were inadequate to convict a cyber-terrorist and added a specific section through the amendment the utility of such a provision is doubtful. At best such a specific section prescribes an offence and a penalty and does little to bolster the information gathering framework which requires augmentation. This brings us to the second stated objective of the, “anti-terror” amendment, the addition of a provision on interception of electronic communications. Contrary to popular belief the Government ever since the enactment of the IT Act had the statutory power to intercept electronic communications. The Bills and the reports merely attempted to amend the section, to harmonize it with a Supreme Court judgment and provide safeguards in cases if interception. Irrespective of the final version of amendments to the IT Act passed by parliament calling it “anti-terror” would be a stretch even a Russian gymnast would not attempt.

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