Cybercrime and cyberterrorism: Preventive defense for cyberspace violations

Date: March 10, 2006
Source: Computer Crime Research Center
By: Praveen Dalal

... sexual harassment at workplace is available even against private employers and individuals. The court held that this protection originates from Articles 14,15,19(1)(g) and 21of the Constitution of India. It is interesting to note that the decision was given even in the absence of any domestic law dealing with protection against sexual harassment. Infact, there have been some instances where no violation of any specified fundamental right was alleged and yet the Supreme Court entertained a petition under Article 32 of the Constitution of India and granted the relief . Further, private individuals would normally not be amenable to the writ jurisdiction U/A 226 of the constitution of India. But in certain circumstances, a writ may be issued to such private person, as there may be statutes, which need to be complied with by all concerned including the private individuals and companies . As far as “Constitutional Rights” are concerned, they can be enforced against private individuals without any doubt or hesitation . For instance, the protection of Articles 19(1)(g) and Article 21 can be claimed as “Fundamental Rights” whereas Articles 300A and Articles 301 to 305 are “Constitutional Rights”. The importance of this distinction is that the former can be enforced under Part III of the Constitution whereas the latter cannot. Thus, a writ petition U/A 32 is directly maintainable in the Supreme Court in case of violation of the former whereas it cannot be in the latter case. Thus, Fundamental Rights, like the nomenclature itself suggests, stand on a higher footing than the Constitutional Rights. If in a given cause of action both Fundamental Rights and the Constitutional rights are pleaded and proved to be violated, then they can be enforced under Part III of the Constitution of India. The remedy for the violation of these Fundamental and Constitutional Rights can be claimed as “public law remedy” or “Private law remedy”. Under the former category, the relief can be claimed only if the aggrieved person can show that there is a violation of his/her Fundamental Rights by the State or its instrumentalities. On the other hand, a private law remedy can be claimed by filing a civil suit for damages or other appropriate proceedings before the competent court. These two remedies are not mutually exclusive and the aggrieved person can combine both of them in an appropriate and deserving case . The following Articles of the Constitution are relevant for our present purpose:
(a) Article 19(1) (g),
(b) Article 21,
(c) Article 300A, and
(d) Articles 301 to 305.

(a) Article 19(1) (g): Article 19 of the Constitution guarantees to the “citizens” of India the six fundamental freedoms which are exercisable by them throughout and in all parts of the territory of India. Article 19(1) (g) guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. This freedom is, however, not absolute and is subject to Clause (6) of Article 19. Thus, reasonable restrictions can be imposed to curtail this right. Since use of information technology is an integral and inseparable part of any trade, occupation or business, the same can safely be presumed to be a part of Article 19 (1) (g). Similarly the reasonable restrictions are equally applicable to it. Thus, if by way of malware the value or utility of information technology is diminished, it will definitely affect the trade of the concerned person, hence his right under Article 19(1) (g).

(b) Article 21: Article 21 mandates that no person shall be deprived of his life and personal liberty except according to procedure established by law. It must be noted that Article 21 is available to all persons, whether natural or artificial. Further, right to life includes right to livelihood because no person can live without the means of living . The question whether deprivation of property leading to “ deprivation of life or liberty or livelihood” falls within the reach Article 21 has been left open though where it does not result in such deprivation, Article 21 has no application . It is submitted that the answer to this question should be in affirmative since if the means of livelihood are themselves taken away, then right to life is definitively violated. The Apex Court in Kapila Hingorani v State of Bihar held that the term “life”, as used in the Article 21, includes livelihood and facets thereof. Thus, it can be presumed that means of livelihood cannot be taken away except by a procedure established by law. One of the means, which is very useful and effective for the successful trade or business of a person, is the use of information technology. It is difficult to visualize that even when the State cannot take the means of livelihood, a private person can do so. The moment a malware is used, it inevitably takes away one of the income earning means of livelihood. Thus, the protection of Article 21 can be taken to prevent such deprivation.

(c) Article 300A: Article 300A of the Constitution confers a right on all persons to hold and enjoy their properties. Thus a person cannot be deprived of his property save by authority of law. Any violation of this right can be challenged in a court of law. In Bhavnagar University v Palitana Sugar Mills Pvt Ltd the Supreme Court held that an owner of a property, subject to reasonable restrictions, which may be imposed by the Legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode or manner laid down under the statute would not be presumed. Thus, no person can be forced to keep his technological property vulnerable to malware attacks and he is entitled to take all legitimate and reasonable precaution to make it safe and secure. In Dharam Dutt v U.O.I the Supreme Court held that the protection of Article 300A is available to any person, including legal or juristic person and is not confined only to a citizen. However, the same cannot be sought to be enforced by a petition U/A 32 of the Constitution, since it is not a fundamental right but merely a Constitutional Right. This judgment of the Supreme Court has strengthened the position of big multinational companies and organisations, which primarily rely upon information technology for its effective functioning. It must be appreciated that the expression “property” is of wide amplitude and it includes tangible as well as intangible properties. It is difficult to accept the proposition that technological property is not a property falling within the scope of Article 300A of the Constitution of India. It is definitely a property within the meaning of this Article and will get the Constitutional protection.

(d) Article 301 to 305: Articles 301 to 305 of the Constitution confers on a person a right to have a free trade, commerce and intercourse throughout the territory of India. This right, however, is subject to the provisions of Articles 302 to 305 of the Constitution. Thus, so long as the individual is carrying on his business in accordance with the law, his business activities cannot be interfered with. A free trade, commerce and intercourse cannot be visualized without protecting the technological property. Thus these beneficial provisions can be effectively used to enhance technological property protection in India.

(2) Protection under other statutes: The protection available under the Constitution is further strengthened by various statutory enactments. These protections can be classified as:
(A) Protection under the Indian Penal Code (I.P.C), 1860, and
(B) Protection under the Information Technology Act (ITA), 2000.

(A) Protection under I.P.C:

The following provisions of the I.P.C, which is a general law dealing with offences in India, are of great significance in dealing with and tackling the use of malware:

(i) Section 22 of the Code gives an inclusive definition of the term “movable property”, which includes all corporal properties. The words “include” in the section indicate that information stored in the computer can be conveniently and safely regarded as movable property, since it is capable of moving from one place to another. Thus, wherever an offence specified under the Code uses the expression “movable property”, then the same will cover all the information stored in the information technology infrastructure and the components used by it to make it functional. It means that whenever the information technology is damaged in any of its form, including the diminishing of its value, the same will be an offence against the property as mentioned in the respective section.

(ii) Section 23 of the Code provides that “wrongful gain” is the gain by unlawful means of the property to which the person gaining is not legally entitled. Wrongful loss is the loss by unlawful means of the property to which the person losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived property. These principles are self-explanatory and they can conveniently be applied to unlawful and illegal gain derived or loss incurred through use of malware.

(iii) Section 29 of the Code specifies the word document as any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter....

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