According to a statement by the union IT secretary, the amendments to ITA 2000 may be notified within a month.
The Act was passed in the Parliament in December 2008, Presidential assent was given in February 5, and still the date of effectiveness has not been notified. The history of the amendments indicates that there must be vested business and political interests working at delaying the process of notification and probably engineer a dilution of some of its provisions on security. Report in Rediff.com
While this statement is welcome, it is necessary to reflect if the notification actually required so much of time.
Over the past 6 months, the Ministry of Information Technology has been sitting on the amendment act unable to notify even that part of the Act which did not require drafting of rules. For example, many of the offences sections such as Sections 66A, (covering cyber stalking, Phishing etc) 66B (covering theft of mobile phones), 66C and 66D (covering impersonation), 66E (video voyeurism), 66F( Cyber Terrorism), 67A and 67B (Child Pornography) as well as several other sections did not require fresh rules to be framed. It is difficult to understand what prevented the notification of the Act in this respect immediately after February 5th when the presidential assent was provided.
The draft rules on Sections 67C, 69, 69A,69B as well as some other sections pertaining to CRAT have also been available now for nearly two months and have been vetted by industry circles and DSCI. They also could have been notified long time back. It appears that the department is stuck with rules to be framed under Section 79 since this may have an impact on intermediaries.
All those who have followed the history of these amendments are aware of the influence of vested interests in escaping “Due Diligence” responsibilities. The most visible intermediary who was responsible for even initiating the amendment process itself to dilute the then existing provisions was baazee.com (now ebay.in). Fortunately, the amendments were saved in the last minute by the Nikhil Kumar Parliamentary committee and were drafted with some emphasis on security. This necessitated greater responsibility for Intermediaries and the draded “Due Diligence” remained in the statute along with “Reasonable Security Practices” to be notified.
The unreasonable delay in notification has already given room for speculation that there must be some arm twisting going on in the drafting of the rules so that “Intermediaries” so that intermediaries are provided some freedom to “Do Business without Responsibility”. In the meantime Police are already booking cases under the new provisions (Refer Case against Air India official reportedly booked under Section 66 C and 66D of ITA 2008) which when questioned in the Courts would look ackward. Many in India are now under the impression that “Cyber Terrorism” is covered under law. The department must realize that the delay in notification has been providing a greater leeway to Cyber Terrorists.
Sooner the department completes the notification, better it is for the Indian Digital Society. On the Digital Society day this year (17th October 2009) when ITA 2000 would have completed 9 years of existence, we hope ITA 2008 would be operative.
If the notification is delayed beyond 17th October 2009, Naavi.org and Digital Society Foundation is contemplating starting a nationwide campaign against the delay and exploring the possible reasons therefor through RTI and other means.
Naavi
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16 users commented in " Notification of ITA 2008 needs to be expedited "
Follow-up comment rss or Leave a TrackbackActually, the it act 2008 needs to be reformulated as it is neither adequate nor desirable.Even the leading techno-legal experts of India have opined that india needs to reformulate it act. It is clear that there would be no notification of the it act 2008 in its current form. In all probability the act would be reformulated in the winter session of the parliament. It is nice to see that na vijayshankar (naavi) has finally accepted that the act has not been notifed and has correctly appreciated and advocated that offences under the unnotified act should not be tried in india. However, your claims that the act 2008 is good are still not valid and hopefully you may agree for reformulation of the same as well in future.
Improvement is a continuous process. More so in the field of Cyber Legislation where before a new law is formulated the ground would have shifted.
Hence ITA 2000 needed improvement immediately in 2000 itself. I still remember my first response to ITA 2008 in an article titled “ITA 2000 is ready…for modification”. Similarly, ITA 2008 will also need improvement. Even if there is ITA 2009, it also will require improvement. But the path of progressively improving legislation is not to stop the legislation which has taken 9 years to materialize. More so because the Intermediaries have vested interests to get some changes made and any delay will only continue the uncertainty and keep India in Y-2000 itself even in Y-2009.
The improvement which ITA 2008 has sought is a change of basic philosophy of legislation from E-Commerce promotion to E-Security. This should not be kept a prisoner of business interests.
We need E-Commerce with Responsibility not irresponsible E-Commerce. Hence ITA 2008 is worthy of support.
Nice observations naavi. I agree and hope this winter session government of India would further improve the it act 2000. However the ideal course would not be to add few more provisions to either it act 2000 or it act 2008 but to enact an it act 2009. This time it must be more comprehensive and well thought.
Why should we at all notify the inadequate IT Act 2008? Why should not the government come up with something worth notification and less controversial? E-surveillance, blatant violation of civil liberties of indians, diluting the cyber crimes punishment, etc is not worth notification. Even the law minister molly said that we need to strengthen the it act 2000 and the amendments were meant for e-commerce only. Mr naavi why r u so interested in pushing such a weak piece of legislation?
I really do not understand why there is such a drum beat done on the notification and the validity of law..!!?
The moment a law gets the ascent of the president and is published in the gazette extraordinary the law is deemed to have come into force.
Notifications are only for rules and such other gaps left for specific sections which need additional framework.
Non notifying dates does not mean that law is still waiting to be given life and all the cases booked have no legal validity, departments only have powers to make rules and not the Act so Mr.Naavi your contentions that still ITAA2000 has not come to force is not correct. For further clarifications please do refer interpretation of statutes and basic principles of making a legislative enactment.
R.Sundaram
Thanks Mr Sundaram for your views.
The confusion is caused by the ambiguity of section 2 of the ITA amendment act 2008. The Gazette notification of February 5 failed to clarify if it can also be deemed to be a a notification under Section 2 of ITAA 2008.
I will be happy if your interpretation is universally accepted.
However, with a similar clause in ITA 2000, there were two separate notifications, one on June 9th about the Presidential assent and the other for the date of effectiveness on October 17, 2000.
Hence it may be better even if it is for clarificatory purpose for the department to give a gazette notification under Sec 2 of ITAA 2008. Otherwise there could be challenges in the Court when prosecution is launched.
Ramanan Sundaram is wrong in his analysis and interpretation. The IT Act 2008 is very clear that till the same is notified in official gazatte, it will not come into force. There is nothing like “deemed to come into force”. Here again he is wrong. He is again wrong when he claims that notifications are for rules purposes and not Act. Even Naavi is wrong in presuming that this is mere “clarification”. I suggest both Ramanan Sundaram and Naavi must go through interpretation of statutes and basic principles of making a legislative enactment properly and thoroughly. Do not be legally ignorant and confused like our law enforcement which has already violated the basic human rights of many accused by booking them under a non-existent law.
Mr.Keith, For a second taking your contentions to be true….
Does it mean that if the departments choose not to notify the law, the law never come into force…?
Does it mean that the signature of president of India who is the highest authority in the country has no value and is subjected to whims and fancies of IAS officers manning the respective departments..?
What if the departments say we give a retrospective effect to the present law from Oct 17 2000 by a notification…?
Mr.Keith, Please go through the fundamentals of interpretation of a statute and jurisprudence to understand how a law comes into force in a dicam legislative system before you claim others to be wrong. Do not forget ITAA 2000 itself was published in offecial gazatte and not in the blog of president of india.
If you are so sure please quote the relevant constitutional provisions/central enactments that empower the departments to decide on the effective date of law coming to force…?
R.Sundaram
A-1 It is not the department but the Central Government that has to notify the IT Act 2008 u/s 1(2) of the IT Act 2008. See here u and naavi r wrong.
A-2 Yes if the Central Govt does not notify the law, it will never come into force despite all spade work.
A-3 Again IAS have nothing to do with the IT Act 2008. Again wrong. Yes President signatures are useless till the central govt notifies the samer u/s 1(2) for the present IT Act 2008. Do not confuse.
A-4 Departments has no power to give retrospective effect to any law, much less IT Act, 2008. Again wrong assumption.
A-5 Finally, again wrong as you are paying too much stress upon department without knowing how a law comes into force. Kindly go through Interpreation of statutes once again especially literal interpretation and giving effect to the intention of the legislature.
A-6 If you are really interested in knowing the exact status of IT Act, 2008, go and read section 1(2) of the IT Act, 2008 properly and look forward for a notification under the same. If you cannot find the same you are just moving round and round in the maze and glare of department and interpretation of statutes.
Keith thanks for clarifying the present position of cyber law in india. Naavi u seems to be fighting a lost battle here as there seems to be no chances of notification of the 2008 law. In fact, the law minister has openly declared that he would come up with a new law very soon to make the otherwise imadequate cyber law of india adequate. So this post and your present as well as proposed nationwide campaign publicity stunt is worthless. Now i wonder how would u react to the proposition of ur law minister and behave one the new 2009 law is out? I suggest u concentrate upon some constructive efforts so that the 2009 law may be benefitted from your comments, if any.
ITA 2008 was notified on 27th October 2009
This is really good news. At last the ITA 2008 has come in to force. Any way where can I get the notification order. Please furnish the url if any.
This seems to be a rumour in the absence of notification. None of the govt websites have provided any link to such notification. 33ps3op dig up the search engine and you would get the truth of these rumours.
For truth of these notification rumours see [http://lnav.wordpress.com/] and judge yourself.
Dear Rajesh
Please show some commonsense.
PIB news report cannot be dubbed as a rumour.
The publication will be in a gazette notification. It should be available in due course. I agree that the notification could have been copied in the MIT website. But there are several things not updated in the site. This administrative laxity cannot be considered as “not notified”.
As soon as I get a copy of the notification, I will provide the same.
A copy of the notification is now available at http://www.naavi.org/cl_editorial_09/ita_2008_notification.pdf
As per the notification, the entire act will be deemed to be effective from October 27, 2009.
The group(most of them consisting of proxy members) of people from Delhi who were flooding the web with false information and crying that ITA 2008 was a “Weak law”, “Law Minsiter has asked for a change”, “Judge has asked for a change”, “Expert Praveen Dalal has said it should be changed”.. etc will now do well to stop their tirade and use their resources towards a more positive contribution to the development of a more secure Cyber space in India.
Naavi is happy that the ITA 2008 has been notified in full and is confident that it will change the cyber security scenario in India for the better. There will ofcourse be room for improvements and we shall strive towards improvements as we go along.
Naavi of http://www.naavi.org
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