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Introduction
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 2000into 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 disruption of any computer, computer system or
computer network , he shall be liable to pay damages by way of
compensation not exceeding one crore rupees to the person so
affected.
In the light of this
section 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.
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Article
21 Of The Constitution Of India -
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The
author can be reached at: p.a.s.pati@legalserviceindia.com
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