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 HackingThe 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.
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 VirusBefore 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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