Are judicial decisions in Cyber crime cases justified or does India need a dedicated Cyber security law?

A. Introduction to Cyber Crime.

About 10 years ago no one knew what cybercrimes are. The term, on the other hand, has now become an integral part of our everyday language. With the advancement of technology, internet connectivity, and living conditions, we have achieved significant progress. We can't, however, only claim the advantages of greater technology. Cybercrime, a new type of crime, has also grown in popularity throughout the world.

B. Law governing Cyber Crime in India

The Model Law on Electronic Commerce was adopted in 1996 by the United Nations Commission on International Trade Law. India has to sign and review existing legislation in accordance with the Model Law. The Indian government also saw the necessity of legislation to facilitate e-commerce and e-governance along with its duties as signatories. The Information Technology Act was therefore enacted in 2000.

Certain punishments and offenses were specified in the IT Act, and other legislation, such as the Indian Penal Code and the Indian Evidence Act, were amended to encompass offences categorically referred to as cybercrimes.

C. Judicial Decisions in India

“Shreya Singhal Versus Union of India” was one of the major rulings of 2015 by the Hon’ble Supreme Court of India. The constitutionality of provisions 66A and 69A of the IT Act was questioned in this case. The Supreme Court ruled that section 66A was unconstitutional since it included all types of information. This provision was found to be unconstitutionally ambiguous and outside the scope of the Constitution's reasonable limits, as established in Article 19(2). It was ruled that it infringed on the basic right to freedom of expression.

The Supreme Court has often voiced its worry about the increasing threat of cybercrime and has given the language of current legislation a clear meaning.

1. Tampering with Computer source code

The Andhra Pradesh High Court decided in “Syed Asifuddin Versus The State of Andhra Pradesh” that a mobile phone is a computer by definition and by the definitions contained in the IT Act. To use the services, each service provider must keep track of its own System Identification Code and provide a unique number to each instrument. As a result, when the Electronic Serial Number (ESN) is changed, section 65 of the IT Act is invoked. On the other hand, in “Diebold Systems Pvt Ltd Versus The Commissioner of Commercial Taxes”, the court determined that ATMs are electronic equipment connected to a computer system that executes the functions requested by the individual utilizing the ATM.

Under sections 420, 467, 468, and 471 of the Indian Penal Code, the accused was held guilty of dishonestly falsifying bank documents in order to cause unjust loss to the bank and unlawful gain to himself in “Sanjay Kumar Versus State of Haryana”. The accused, on the other hand, had interfered with the computer source code and modified the information stored in the computer resource, thereby violating sections 65 and 66 of the Information Technology Act.

2. Hacking

In the case of “State of Andhra Pradesh Versus Prabhakar Sampath”, the accused was found guilty of hacking the complainant company's systems under section 43(a) read with section 66 of the IT Act. The prosecution proved the accused's guilt beyond a reasonable doubt. The court ruled that the accused does not deserve leniency since the research papers are the result of a thorough investigation by highly trained experts who spent a great deal of time and money.

3. Identity Theft and Cheating by Personation

In “NASSCOM Versus Ajay Sood”, the defendant pretended to be the plaintiff in order to acquire personal information from multiple addresses. Phishing was recognized by the Court as a type of online fraud as well as a security issue. The court also pointed out that there were no anti-phishing laws in India. Under Indian law, phishing is defined as a deception made in the course of business that causes doubt about the email's source and origin. It would also be considered a forgery.

In the Nigerian email scam case, The Court determined that the accused people defrauded others by deceiving them into believing they would win a lottery or acquire a job by sending e-mail/SMS on the internet and via mobile. They defrauded people by impersonating them using e-mails and mobile phones, and therefore violated section 66D of the IT Act.

4. Obscenity and Pornography

The Hon'ble Supreme Court addressed the issue of what is obscene in “Aveek Sarkar Versus State of West Bengal”. The Court used the Community Standard Test to determine that the image in question must be considered in light of the context in which it was shown and the message it must send to the general public.

The court found in “Maqbool Fida Hussain Versus Raj Kumar Pandey” that the test of obscenity under the Information Technology Act and the Indian Penal Code are the same. The Court ruled that while some individuals may be offended or disgusted by the naked portrayal of Mother India, there is insufficient grounds to bring someone to justice. Apart from using the criteria, the judge must also put himself in the shoes of the painter in order to comprehend his topic and mental process, according to the Court.

In the case of “State of Tamil Nadu Versus Suhas Katti”, the accused had created a user id in the name of the complainant and then posted obscene remarks in filthy Yahoo groups. He did it in order to smear her reputation just because she had declined to marry him. The accusations were established beyond a reasonable doubt, and the accused was found guilty of violating sections 469 and 509 of the Indian Penal Code, as well as section 67 of the Information Technology Act.

In “Avinash Bajaj Versus State of Delhi”, The Delhi High Court granted bail to the CEO of bazee.com, a website where an obscene film was published for sale. The court determined that the real tape could not be watched on bazee.com, and that the accused had no involvement in the sale.

D. Analysis of judicial decisions in India

Multiple cybercrime cases have been brought before our country's courts, from district courts to the Supreme Court, some of which have startled the whole country. True, cybercrime's scope continues to increase as a result of technical advancements. Such growth has been acknowledged and accepted by the courts time and time again.

The court in "NASSCOM Versus Ajay Sood" acknowledged phishing as a cybercrime, but also determined that there was no relevant statute in place. When the question of jurisdiction arose in the case of Maqbool Fida Hussain, the Court could only express its hope that the legislature would fill in the gaps. The Court, on the other hand, resolved the question of jurisdiction in the World Wrestling Entertainment case using the Indian Contract Act's provisions.

Mr Bajaj was named an accused in the case of "Avinash Bajaj Versus State of Delhi" since the provisions of section 79 of the IT Act did not exist at the time.

Despite the fact that the conduct occurred in cyberspace, the Ritu Kohli's case was the first cyberstalking case to be recorded in India. However, there are no distinct provisions for it under the IT Act. Despite the fact that it is a serious offense, the legislature has not given it the attention it deserves. In the absence of such, the courts can only try the case under sections 354D and 509 of the Indian Penal Code.

The first time a 16-year-old kid was arrested for violating section 67 of the IT Act was in the Air Force Bal Bharti School case. In numerous cases since then, the courts have clarified that the standard of obscenity in the IT Act and the IPC is the same. Similarly, additional IPC offenses such as theft, fraud, and cheating, among others, will have the same components under the IPC and the IT Act when committed through an internet medium.

Since the passage of the Information Technology Act in 2000, judicial judgements in cybercrime cases have gone a long way. The Court in Syed Asifuddin recognized mobile phones as computer systems under the IT Act, safeguarding the cell phone producers' copyright on the source code used in the manufacture of their phones. This judgment was made in accordance with the Act's provisions as well as the quickly changing technological landscape.

Many people saw Shreya Singhal's case as a triumph, and rightfully so. The Supreme Court of India ruled that section 66A of the Information Technology Act is invalid. It put an end to people being harassed unnecessarily because of their internet ideas or remarks.

As a result, the Court has done its job as an interpreter and upholder of the law. The Court is not responsible for the implementation of its judgment, which is left to the executive and legislative branches.

E. Conclusion

Cybercrime is a fast growing problem that transcends national borders and has the potential to touch nearly everyone on the planet. Every technical advancement has resulted in the emergence of a fresh generation of cybercrime. It is the obligation of the government and the courts to guarantee that the criminal justice system is up to date to combat such crimes in times when a new type of crime has emerged along with the transfer of traditional crimes into cyberspace. The courts are bound by the rule of law and can only act in accordance with the Indian Constitution.