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Can States Pass Laws for the Cyber Space?
When Information Technology Act 2000 (ITA-2000) was passed in 2000, it was thought to be a special central legislation passed at the instance of UNO. Hence it was given jurisdiction over Jammu and Kashmir along with the extra territorial jurisdiction under Section 75. The Act gave powers to State Government to pass rules under Section 90. These powers are restricted however to what was required to give effect to the provisions of the Act.
Now it is reported that Orissa Government is planning to introduce new laws to protect Children. Earlier Haryana Government had constituted a Cyber Regulations Advisory Committee though no such powers were conferred on the State. Tamil Nadu Government also passed a notification on Cyber Cafe regulations under the State Police Act. Mumbai passed a legislation equating Cyber Cafes with "Cabaret Center". These developments give raise to an important issue of whether such legislation comes under the jurisdiction of the States. Though "Law and Order" is a State responsibility, "Is Law and Order in Cyber Space" a State Responsibility? is a question which needs to be settled.
Every "Individual's Cyber Space" is at the border of the national sovereign jurisdiction. Across this space is the sovereign country outside the jurisdiction of the Country. Are State Governments the appropriate authority for such legislation? Do they have sufficient expertise to pass such legislation? are questions that stand out.
Today, even at the Central Government level there is no clear understanding of the "Cyber Space" and its legislative requirements. This is well demonstrated by the proposed amendments on ITA 2000 which are presently before the Parliament which skirted all essential amendments such as Spam and Domain Name regulations, but focused more on "How to avoid Police misuse of the provisions".
If State Governments take over Cyber Space legislation, then there will be no uniformity of laws even within India let alone "Harmonization of global laws" as envisaged by UNCITRAL Model law.
In the recent times, reports have been received by the Cyber Crime Complaints and Resolution Assistance Center that Cyber Crime Police in Chennai and Bangalore are manipulating evidence to fix chosen persons at the instance of influential complainants. In one of these cases, even a Government owned forensic department's report has also been misused. These instances indicate that State Governments are presently not equipped to take up Cyber Space legislations and should desist from doing so. Any such attempt should perhaps be considered "Ultra Vires" the ITA 2000.
Naavi
September 5, 2007
