Today in the cyber era the web
has addressed as well as influenced each and every aspect of human life.
Its inserverability has grown to such heights that perhaps George Bernard
Shaw would have expressed as 'Cyber-web here, cyber-web there, and cyber-web
everywhere'.
With the enactment of the Information
Technology Act 2000 the electronic document have got legal recognition.
The ever increasing use of 'Electronic Voting Machines' in the elections
to record, process and store the votes cast to record the votes cast will
probably bring section 2(t) of the Information Technology act 2000 into
play. Section 2(t) does cover within its ambit the 'Electronic Voting Machines'
as defined in the explanatory clause to section 61 A of the Representation
of People's Act 1951. As per this section "voting machines" means any machine
or apparatus whether operated electronically or otherwise used for giving
or recording of votes… The key word in the section 2(t) are "electronic
record" means data, record or data generated … On drawing an analogy between
section 61 A of the Representation of People's Act 1951 and section 2(d)
of the Information Technology Act 2000 I arrive at the conclusion that
the data stored by the 'voting machines' are electronic documents. Here
the voting machines are also 'computer system' as defined in the section
2(l) of the Information Technology Act 2000. Section 2 (l) of the Information
Technology Act 2000 defines 'computer system' as follows : "a device or
collection of devices, including input and output support devices and excluding
calculators which are not programmable and capable of being used in conjugation
with external files which contain computer programmes, electronic instructions,
input data and output data, that performs logic, arithmetic, data storage
and retrieval, communication control and other functions" . The above interpretation
leaves no doubt or conflict as to the coming of section 2(t) of the Information
Technology Act 2000 into play.
Once this issue gets established
the other point of law creates confusion and conflict. The various issues
of conflicting nature are: -
1. The Act of 1951 Vs. The Act of
2000
As to which should prevail?
2. Rigging and Tampering of Voting
Machines Vis-à-vis Hacking
3. Corruption of Data Vis-à-vis
Virus
4. Impersonation Vis-à-vis Unauthorized
Access
5. Postal Ballots Vis-à-vis E-mail
The basic point of argument is whether
the Information Technology Act 2000 being a special enactment and later
in date should have an overriding effect on the Representation of People's
Act 1951. The moment the dispute on this point is settled it will satiate
the other relevant issues to be discussed in point ii-iv.
I. Special Act-
It a settled principle of jurisprudence
that when there is a conflict between two statutes, both being special
statute dealing with identical situation, the provision of the subsequent
Act will prevail over the provisions of the earlier enactments. IN MAHARASHTRA
TUBES case the Supreme Court has categorically laid down that in case of
a conflict between two statues the statute which is later in enactment
should normally prevail over the other which is earlier in enactment.
While interpreting a provision
of an Act it happens that the provision is interpreted in the light of
provision of some other Act. The Court while interpreting the provision
should be cautious not to carry too far a construction of a provision with
the help of other provisions and should do so only when it feels that the
legislature must have so intended. Further it would not be carrying away
too far the construction if the offences under the Representation of Peoples
Act 1951 are interpreted in the light of the Information Technology Act
2000.
Whenever a new Act is enacted,
with an intention to mitigate the rigour of existing law, this very intention
is reflected from the Preamble to the Act. The Preamble to the Information
Technology Act 2000 reads- "An Act to provide legal recognition for transactions
carried out by means of electronic data interchange and other means of
electronic communication, commonly referred to as "electronic commerce",
which involve the use of alternatives to paper-based methods of communication
and storage of information, to facilitate electronic filing of documents
with the Government agencies. …" Thereby clearly reflecting the intent
to legalise E-Governance.
At this juncture I must opine that
the conflict between both the statutes have been pacified. Thus the Information
Technology Act 2000 should prevail over the Representation of people's
Act 1951 in matters relating to rigging and tampering of voting machines,
corruption of Data, impersonation etc. and further it would be not at all
incorrect to state that the same offences may attract the penal consequences
as provided in the Information Technology Act 2000.
Non-obstante Clause: -
Section 81 of the Information Technology
Act 2000 contains a non -obatante clause there by giving this Act an overriding
provisions over the Representation of People's Act 1951. It clearly states
that, "The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other
law for the time being in force".
Thus this section of the Information Technology Act 2000 makes this very
clear that in matters pertaining to E-Crimes the Information Technology
Act 2000 should ordinarily prevail.
II. Rigging and Tampering of voting
machines Vis-à-vis Hacking
The Representation of People's Act
1951 vide section 135 A deals with offences of booth capturing. As per
this section 'rigging and tampering of voting machines' at the time
of 'polling' would or during 'counting', would definitely constitute an
offence of 'booth capturing'. It is very much evident, as mentioned above,
that the data stored in 'voting machines' do fall under the ambit of section
2(t) of the Information technology Act 2000, hence 'rigging and tampering'
with 'voting machines' tantamount to 'hacking with computer system'.
Section 66(1) of the Information
Technology Act 2000deals with and defines 'Hacking'. As per this section
-"Whosoever with the intent to cause the or knowing that he is likely to
cause harmful loss or damage to the public or any other person destroys
or deletes or alters any information residing in a computer resource or
diminishes it value or utility or affects it injuriously by any means,
commits hacking."
Thus the rigging and tampering
of voting machines do constitute 'Hacking' and there by any person/s
who indulge themselves in such activity, commits cyber crime i.e. Hacking.
Illustration: -
To make the situation more
clear lets consider this situation: 'A' rigs or tampers a voting machine
be it at the time of polling or counting there by alters, deletes, or destroys
the information which is to be stored or stored in the voting machine.
Does this act of 'A' amounts to hacking under the Information Technology
Act 2000?
III. Corruption of Data due to Induced
system error Vis-à-vis Virus
Before I proceed further the following
situation need to be considered:-
a) 'A' programmes the machines
in such a way that the votes cast are not recorded in the right manner
e.g. votes cast in favour of 'x' gets recorded in favour of 'y'.
b) 'A' induces a program
of such nature which destroys/damages the information stored in the machine.
Illustration 'a' is the live example
of the Bengal elections. It was alleged and even reported in the leading
regional newspapers that such incidence has occurred .
A 'computer virus' as explained
in the Information Technology Act 2000 reads as follows -" any computer
instructions, information, data or programme that destroys, damages, degrades
or adversely affects the performance of a computer resource and operates
when a programme, data or instruction is executed or some other events
take place in that computer resource."
Thus the corruption of data due
to induced system error in voting machines is in reality a virus attack.
IV. Impersonation Vis-à-vis Unauthorised
Access :-
Impersonation that is 'bogus voting'
is a well established practice in Indian Elections. It is a crime basically
bi-dimensional. On one hand it affects the right of the person whose franchise
has been misused and on the other hand the candidate who suffers the loss.
Impersonation if viewed in the light
of the Information Technology Act 2000 will amount to "unauthorized access"to
a computer system. In this regard chapter IX of the Information Technology
Act 2000 vide section 43(f) provides for penalty for unauthorized access
to a computer system. This section reads as follows :-
" If any person without permission
of the owner or any other person who is incharge of the computer system
or computer network (f) denies or causes the denial of access to any person
authorised to access any computer, computer system or computer network
by any means;he shall be liable to pay damages by way of compensation not
exceeding one crore rupees to the person so affected."
Illustration: If B ,instead of A
exercises his franchisee pretending to be A undoubtedly A is accessing
the voting machines in an unauthorized way. Thereby causing denial of access
to A.
In the light of this section
and the above illustration there remains no space for any controversy on
the point that 'impersonation' (bogus voting) amounts to 'unauthorized
access' to computer system.
V. Postal Ballots Vis-à-vis Electronic
Ballots :-
This particular topic i.e. voting
through the internet, has no bearing with the current debate. I have included
this topic here, only with an intention to visualize in-toto the techno
savvy era, on the threshold of which we have steeped in. With the coming
of the internet it has been strongly felt, though by a minority group,
that the postal ballots should give way to e-ballots. People may be allowed
to cast their votes through e-mails by affixing proper and valid digital
signatures. This will in reality simplify the complex process of postal
ballots.
The ideas expressed herein
are undoubtedly for the sake of academic purpose, but with India going
cyber voting it should not be surprising if similar views are expressed
and the Information Technology Act 2000 is invoked by the learned counsels
before the electoral courts to further their cause.
P.A.S.Pati
Contact Address:
Parthasarathi Pati
7 C, Ashok Nagar, Road No 1, Ranchi,
Jharkhand
885/4/1 Bandarkar Road, Deccan
Gymkhana, Pune 4
E-Mail