Previous Articles:
Outrage
Expressed at bazee.com CEO arrest :
What is Due Diligence?..1..Effect of Section 79 of ITA-2000
What is Due Diligence?..2..(Effect of Section 85 of ITA-2000)
Arrest of Avnish..Industry Responds(Should Law Take Its Own Course?)
True to expectation, the intense pressure brought by the
industry and more so by the US administration had its desired effect. Mr Avnish
Bajaj got bail after agreeing to certain conditions that he would not flee the
country etc.
It is good news for the businessmen in the country that if
they have US connections, even the "Law Will Take the US directed Course".
For the removal of all doubts, let me clarify that I am happy
that the discomfiture of Mr Avnish Bajaj was short lived since, as I have
already stated in my earlier articles, I have held that he should be doubly
protected under both Sections 79 and 85 of the ITA-2000.
There is also a legal question as to how much of ITA-2000 is
applicable to bazee.com as to the extension of IPC. Since bazee.com's
involvement in the case is described more precisely to Section 292 of IPC
(Extended to Electronic Documents by virtue of Section 4 of ITA-2000), it is
possible to interpret that the case on bazee.com rests more on IPC than on
ITA-2000. I suppose the legal pundits and the prosecution that have been
expressing their opinion on the case in different media have missed this point.
Section 292 of IPC states : "... Whoever...in
any manner puts into circulation...book, pamphlet, paper, drawing, painting,
representation or figure or any other obscene object whatsoever..shall be
punished with imprisonment of either description for a term which shall not be
less than six months and not more than two years...(See More details in "Bloggers
Beware" at http://www.naavi.org/blog_issues/index.html)
The call for "Change the IT laws", first mooted by Mr Amit
Mitra, Secretary General of FICCI and acknowledged by Mr Narayana Murthy
of Infosys and Mr Kamal Nath, the honourable Minister for Commerce have also
missed the point that even if they can change the IT law (Say with retrospective
effect) , the case may still continue on the strength of IPC.
It has also been pointed out by some that the "Due Diligence"
requirement is not keeping with the principle of Jurisdiction that "Everyone is
Innocent Until Proven Guilty" and the onus of proving innocence is shifted to
the accused by virtue of the "Due Diligence" requirement.
I would like to point out that this may not entirely be
correct. What Sections 79 and 85 of ITA-2000 imply is that after having proved
that a "Crime has in fact been committed in a Network/Company", the "Due
Diligence" will protect the Network Service Provider or the Company official
from any of his responsibilities. Hence the Company or the Network Service
provider will be considered innocent until it is proven guilty. It is only at
the next stage that the "Due Diligence" aspect will come to be looked at. This
is therefore not in any way affecting the Jurisprudence principles as we know
today.
In the case of Bazee.com, there was no doubt that the crime
had been committed by Bazee. The point under discussion was whether it can be
absolved of its responsibility under Section 79. If not whether Mr Avnish Bajaj
could be personally absolved of his responsibility (though some other official
would have been responsible).
I request industry captains not to raise the bogey of
"Law is Wrong". Give some time for people to understand the law. Instead I would
like Industry captains to think, "What have they done to let the industry
players and professionals understand the law as it is". Why they should not
instill a discipline amongst it's members to go for a Cyber Law Compliance Audit
from time to time to mitigate the Techno Legal Risks. (See
www.cylawcom.org for details)
By applying pressure on the Police and Judiciary, and getting
a short term relief, it appears that the Industry captains have done a
disservice to the Criminal Investigation system in the Country and shown that it
can be made to buckle under pressure. It would have been better if they had
worked for long term goals of defining the "Need For Arrest" and "Need for
Special Provisions for the remanded prisoners" than use the bogey of "Law is Bad
" argument.
Naavi
December 22,2004
Also See
Bloggers Beware..Set of 10 articles
Advertising Code?..or Section 67 of ITA 2000?
Related Articles:
Times of India report
India Plans
US Type Law..TOI
It is Like
Arresting the PM of India for a Crime
