The case of a school boy being arrested in Delhi for creating a web site
carrying pornographic information has raised several issues for the Law
Making Community. The boy has been remanded to judicial custody which would
extend to more than a week before the bail application comes up for hearing
next.
While the Police can pat their backs for having booked the "Second Land
Mark Case in Cyber Crimes in India", it is time to reflect on the impact
of this action on the future of the boy.
It is reported that the student was otherwise a normal student. This
indicates that this behavior could be a temporary abnormal phase which
is found in most teen agers. Any parent of a teenage boy or girl will testify
that children tend to develop sadistic behavior as an outlet for
their emotions. In some children this behavior translates into "Ragging"
their juniors. In some cases this results in obscene writings on the toilet
wall. In some cases, the need to show adventurism leads to lifting of small
objects from the College laboratories. Some may forge a leave letter in
their parent's name and some may give a proxy attendance to their friends.
Some may indulge in eavteasing and some in making catcalls when the teacher
is writing on the board.
It is often observed that many children maintain a "Jekyl-Hyde" behavior
pattern between the school and the home. Those who are very docile in the
school tend to be mischievous at home and rag their younger brothers and
sisters. Those who are aggressive in the school are often found to be very
well behaved in front of their parents.
Even though a tinge of criminal brain is evident in all the above cases,
if a survey is undertaken amongst the middle aged successful Corporate
executives, one would find that most of them may have indulged in one or
more such acts during their teen age. Most such people would haave got
over this habit by themselves and become good citizens later in their lives.
Cyber Pornography is the latest addition to such abnormal behavior pattern
observed amongst the teen age persons. Biologically, it is stated that
hormonal imbalances occur during this development stage which leads to
such lack of maturity in that age group.
It is therefore not correct to brand such youngsters as "Criminals"
and invoke the stringent provisions of Law as envisaged in the ITA-2000.
Probably, if the Principal of the school had reprimanded the student
in private, it would have not only had the desired effect but would have
avoided the permanent blot on the career of the student.
It is regrettable that the Police have not only decided to press the
charges, but also keep the boy under custody. It is high time that the
Police should stop using "Arrest" as a primary action in respect of all
crimes. Arrest is warranted only when there is a danger of evidence being
tampered with. It is not a means of showing the media that the "Police
are Acting" In the Radiant Software case, Go2Nextjob.com case and this
case, the Police have resorted to arrests when not warranted. This should
stop forthwith. Otherwise, public will lose confidence on the Law Enforcement
Machinery.
However, it is not fair to put all the blame on the Police. They are
left with no option but to press the charges since the law doesn't make
any distinction between juvenile Cyber Crimes and other Cyber Crimes. It
is here that one has to point out that the framers of ITA-2000 didn't foresee
that the "Cyber Society" consists of many young kids who accidentally cross
the "yellow line". If we are formulating traffic regulations in front of
a school, we have to factor in the possibility of kids running across the
street. We therefore need speed limits or a traffic cop to see that the
traffic offenses of children does not end in a tragedy for themselves.
Similarly, the law of Cyber crimes has to be judiciously applied in case
of youngsters.
It is necessary that this factor has to be incorporated in the Law itself
so that the Police are not left to handle vague pieces of Law. While it
may be possible for the Police to exercise discretion at the top level,
it is difficult to prevent abuse of law at all levels.
Probably this could have been done if the framers of the ITA-2000 were
conversant with the way the Cyber Society functioned. They lacked the in-depth
experience of the society and failed to see the impact of some of the provisions
of the law.
This case will not be the last that will raise the question of "How
Practical is ITA-2000 in controlling Cyber Crimes? Let's hope that at least
now an effort is made to prevent misapplication of law in the Cyber Society.
It may be even necessary that the law is amended to protect innocent persons
being inflicted with penalties that would be unwarranted. This is also
required since the absence of such protection may lead to "Selective Prosecution"
which is an open invitation to corruption.
Naavi
April 28, 2001
Report
in Hindustan Times
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