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Dark Web: Regulating Internet Crimes And Under Regulated Guilty Mind

The Dark Web facilitates new ways how crimes are been conducted in contemporary times. It been used to promotes cross-borders crimes, real global organized crime, the main players, the proof, and the criminal gains can all be allocated to one single platform that is the Dark web internet which has layers that are hidden and unconventional[1]. The Dark web offers to hide both the identification of the criminals and the crimes' specific details by providing layers of encryption and safeguards users on the Dark web making them untraceable.

The criminal justice system in India is currently underregulated when it comes laws regulating Dark web. The efficacies of criminal justice system and criminal laws in other conventional crimes are overused and abused. The identified shortfalls in our criminal justice system and laws in India are over criminalizing and we need to responsibly and adequately regulate them, but we haven't been able to regulate the crimes on Dark Web, and there are need for more and new punitive measures compared to conventional crimes to deal with crimes that are committed on Dark web.

In criminal law civil crimes are strict liability crimes and the commission of the crime in not a necessary element is some cases, but accessing Dark Web should be considered as a complete crime, or should be regarded with crime committed with Mens Rea. The effect of having no proper laws in place to access to Dark web can be very detrimental to society such as to economy as Dark web arguably has played a major role to revolutionized crypto currency, and opened a shortcut for earning monies by assuring anonymity and therefore increasing criminal tendencies in younger generations[2].

The aim of this paper is to unearth the layers of dark web and propose criminalizing Dark web by creating a robust tracking systems to take on dark web markets with a aim to identify the current shortfalls to tackle the phenomenon of the Dark web by educating people and society of all generations, claiming to grant online anonymity over Dark.

Dark web, facilitator of crimes and criminal tendencies

To understand the intricacies of the subject matter not just the term used as 'Dark web' but how it functions and what is the gravity of such a platform and why it needs constant vigilance and should be airtightly regulated. A problem that experts openly discuss is the tools available to access "Dark-Side" of internet use, commonly referred to as the "TOR," "Dark-web," or "Deep-web," where all data is protected under veil of multi layered encryption, concealed behind payment gateway barriers, accessible only with specialised software. This "digital underground" is thought to be far larger than the mainstream internet, where hackers, criminals, terrorists, and paedophiles are all free to engage in illicit activity.

The Dark-Web, also known as the Dark-Net, is a part of the Internet that cannot be accessed by the use of standard software and tools, yet is necessary for tying together numerous unlawful operations carried out online. For people who wish to buy and sell narcotics, counterfeit documents and currencies, firearms, or explosives, to order and pay for contract killing, or to traffic human organs, the Dark-Web is the "promised land"[3]. A unique method of online payments that masks identification exists on the dark web.

Comprehensive quantitative and qualitative research on this issue is still in the early stages of development since cyberterrorism and unlawful actions on the Dark Web are relatively fresh instances of potential computer and network misuse and criminality. The criminal laws aims to deter or minimize the crimes that take place in our day to day lives, Dark web and its structure are not so effectively regulated with current laws in place.

There is need to have safeguards which should prevent young generations, provoking criminal mindset and also creating a haven for recruiting and nurturing terrorism. We may think cybercrime is a gateway for youngsters to fulfil their whims and fancies but there needs to be more research to understand it rippling effect how it is evolving every day. Criminal laws do focus on civil crimes and determine when does the liability but on Dark web these civil crimes become an act with Mens Rea. We need to understand the rippling effect of Dark web and why freedom of internet should not apply on crimes on Dark web.

To the extent that mere accessing Dark Web should be criminalized as these platforms are modern form of challenges posing threat to the society at large without even creating a panic. No description is available that defines cyber terrorism, however, make clear that certain of the elements of this illegal behaviour also include identity theft or data hacking called ransomware, planning terrorist activities, inciting suicidal attacks by way of teaching on Dark-Web, and attacks on computer networks and information systems to target specific economic sector.

Because the majority of cyber perpetrators conceal themselves behind false IP addresses and online anonymity the crimes are done with impunity with a premeditated intent by accessing Dark web, it would be even more difficult to identify the identity, motivation, or political motivation of the perpetrators if cyber terrorism were to be compared with daily attacks on personal computer and corporate network systems. For this reason, cyber terrorism is appropriately described as "politically motivated use of computers as weapons or as targets, by sub-national group or clandestine operatives intent on violence, to persuade an audience or cause as government to change its policies"[4].

We need to understand when it comes to conventional crimes the society looks down and the after effects to criminality such as social stigma and authoritative dogma extends to the family of the person committing crime, but on the other hand we need to understand the covert nature and no awareness and due to privacy the realm of dark web gives that immunity from such deterrence. We need to have an awareness in society and evolve more responsible such crimes are covert and society awareness towards dark web is not so much that the government authorities have regulating and policing it as national security threat. The ineffectiveness on the regulating crimes on internet that happens on surface web a far-fetched, to reach the level of such consciousness strict criminal liability should be imposed so that deterrence can be created.

Access To Dark Web And World Of Crimes

Accessing Dark web is illegal, what is legal and lethal is its initial promise of anonymity and lack of reference to a physical entity, the dark platform attracts lucrative trends that would otherwise be restricted or banned through legislative oversight[5]. This feature of the dark web has various ways of deceiving method just like a teenager may fall prey to bad company. They include operations of banned goods and contraband substances, engaging in altruism, radical organizations that involve jihadist training, recruitment, and non-state actors propagandising on divisive issues from politics to religion, which dark web helps carrying out and facilitating financial transactions without leaving a trail of paper[6]. It is accessible through known platform such as the onion ring (herein after referred as TOR), like an onion, data in TOR is encrypted in layers.

Through the usage of this encryption, user privacy is anonymous. The deep-web's and black-web is where such illegal and banned operations are carried out. It continues to be the main internet intermediary for people with criminal intentions and with purpose of soliciting their illegal operations, including organized drug racketing, trading in the trade of arms and other weapons, due to the high degree of anonymity and inability to trace the person's IP address and location. So in real sense accessing Dark web is not legal but the information and the tools available on surface to penetrate Dark web is so easily accessible that a person with basic skills of using the internet would easily get an access to Dark web.

Hence mere making it illegal and the shortfall of policing such available content is imperative. If person avails or buys goods which could be used to make a bomb doesn't make him a criminal. In criminology mere preparation is not a offense but attempt is, but when a person in theory accesses Dark web it still a premature act to and make us wonder whether is it still in a stage of preparation, either way both of them according to criminal jurisprudence cannot be a crime. Accessing Dark web is illegal but one cannot be punished merely accessing Dark web hence the laws made for criminal offences do not touch base with Dark web hence accessing Dark web in true sense accessing Dark web legal with all tools at disposal on surface web which are legal projects the inefficacies of criminal laws not ensuring safeguards making young generations minds criminal in nature.

How India Regulates Dark Web

Since no country encourages accessing Dark web, Indian laws also do not consider accessing Dark web unlawful. Criminal guilt cannot be always attributed to a person for violation of law which is an offense, though this rule is not fool proof in nature due to the limitations indicated in the maxim "actus non facit reum, nisi mens sit rea" which means, there can be no crime without a guilty mind but this principle doesn't apply when we consider strict liability crimes. To account for an act to be criminally liable physical element and mental element both needs to be present in an act, however strict liability could serve the purpose for such crime of accessing Dark web, to be noted we are just talking about accessing Dark web.

Right to access internet comes under the ambit of Article 21[7] of the Indian Constitution. According to the hon'ble supreme court, this right serves as the cornerstone of the fundamental rights. We cannot restrict anybody using internet and to do so it will be against their freedom of speech and expression because merely accessing the dark web is not criminalised in India, this poses difficulties and hurdles for law enforcement agencies and justice a cumbersome process due to lack of special legislation regulating internet. Other than this, there aren't many restrictions on online activity in India with respect to surface web activities.

Our country's laws lack efficacies in them, and the dark-web has its own peculiar set of problems. Only six sections of India's Information Technology Act, 2000 address cybercrimes. Individuals click random links on internet when browsing the internet, an individual who has not been acquittanced with something called dark-web can be introduced to this dangerous phenomenon within a single browsing session with fully detailed tutorials available on well-known streaming platforms.

But usage of Dark web is a deliberate attempt to complete and act which is a crime, hence accounting a deliberate usage of Dark web would amount to series of crime and hence I advocate in making laws that would ban such internet intermediaries and law enforcement should augment the regulations with respect to Dark web and other tools which help access such platforms through legitimate websites . The culture of the dark internet should be openly discussed and should be simplified for a layman to understand the consequences and punishment should be able to deter the young individuals using such platforms and one cannot deny the purpose of accessing of Dark web is inherently to commit a crime which is conventional in nature.

According Indian Express report , five Mumbai students were arrested who ordered drugs in commercial on the dark-web to make fast money to fulfil their teenage whims and fancies. These five students spent 70 lakhs to procure 1,400 LSD dots[8]. Such crimes in itself have layers and different repercussions similar to layers of onion as we see in Onion theory that we saw to access Dark Web. The law enforcement agencies face lot of difficulties due to lack of substantial laws in place for crimes done through the Dark web and regulating or policing the specific side of the internet is a must and right to internet should be curtailed reasonably. It is not to restrict someone's right but sometimes people are unaware of pit they are falling into, 'Ignorance of law is no excuse' but rationally it is also true that every person cannot be acquainted with all the laws that are made.

Immunity to internet intermediaries in India

There are severe punishment for accessing content related to child pornography. Sec 67 (B) of the Information Technology Act, 2000[9] and Sec 13 to Sec 15 of the POCSO Act, 2012[10]. However these provisions are not sufficient and only address a part of the problem there is no accountability of the people who are the intermediaries including the internet platform. I would like to that think that there should be fool proof and substantive laws to book internet intermediaries because of unawareness and lack of commitment and restraints to criminalize the entities behind the entire act as a whole and not just the person only involved in transmitting or watching such explicit content via Dark Web. In addition the punishment for offenses against minor girls are prescribed under IPC 366 (A)[11].

There are other Sections like section 372 and section 373[12] in IPC related to trafficking and similar nature of forced prostitution directly or indirectly. These laws directly do not deal with the problem of Dark Web as an intermediary. We must think holistically in this regard and also augment our scope criminal liability. Internet The task of enabling online transactions between different Internet users falls to internet intermediaries. These Internet intermediates are required by law to perform numerous gatekeeping duties to regulate and police the virtual multi layered world of cyberspace. Internet intermediaries are legally protected in India from vicarious criminal culpability under certain conditions. If curtain of protection is lifted the Internet intermediary would automatically become liable alongside the actual perpetrator if the legislative requirements are broken[13] .

Internet Intermediaries Accountability

Worldwide, developed countries have passed laws requiring Internet intermediaries to be held accountable in some way. The kind of liability therefore imposed differs from nation to nation. Many models of intermediary liability can be identified based on these laws to safeguards the interest as according the difficulties they face and types of crimes that are committed in the countries.

Louise Timmerman's model of internet liability is called strict liability model, where the intermediaries are held strictly liable for the content that passes through them. This ensures and imposes a duty on such intermediaries to continuously and vigilantly monitor and take down all illegal content from their platforms and also at the same time report them to respective authorities, non-adherence to such preventive mechanism imposes variety of fines, sanction and also charge them with criminal liability including revocation of business licenses.[14] These strict liability model is followed in countries like China and Thailand[15].

Another model that is practised in USA under section 230 of the Communication Decency Act, 1996[16] which to the contrary to the strict liability model known as Broad Immunity Model. Internet intermediaries are given immunity and excludes them from any obligations of monitoring content.[17] Known as the defenders of internet freedom in India have been advocating this model where internet intermediaries get immunity and are not treated publishers of content which could termed as crime under strict liability model. Before the IT act, 2000 there was no law governing internet intermediaries which defaulted under general laws civil or criminal based on the nature of crime committed on Dark web.

Section 79 of the IT Act 2000[18] helped garner immunity from crimes committed on internet on surface web but the effect trickles down to Dark web crimes too. Such interpretation of laws are detrimental to countries economy, morality and society as well and can affect international relations also to some extent. Though this protection was only extended to the contravention under IT act and rules which had on the other hand allowed prosecutions under Section 292 read with Section 109 of the IPC in case against the CEO of where a MMS clip with explicit content was put up for auction by an user of the website[19].

Insofar as Section 79 of the IT Act, 2000[20] harbours conditional immunity to internet intermediaries with respect to criminal prosecution. They can still be subjected to criminal liability along with the real offender, under the principle of vicarious liability. Internet usage now becoming a fundamental right it is an absolute duty of the State to prevent crimes and compel the legislation to make laws which would impose strict liability and public awareness to prevent any outcry opposing such strict measures to regulate all levels of internet and intermediaries.

This not an duty which is difficult as the intermediaries are well equipped to monitor data flowing through their platform. Since they are the gateway to provoke such criminal mindset for consideration of monies a strict liability should be imposed on them and the protected veil should be removed by creating substantive special laws and augment the criminalisation under the general principles of law.

The entire approach towards Dark web and its evolution of crimes on the platform is still rudimentary, with this affect the crimes that take place on internet have taken a huge leap ahead of the laws and the most important the victims because of the non-willingness to push the envelope and forfeit their rights and an excuse for legislations due to less of awareness and panic in the public at large. It would be wrong to say that legislations, law enforcement agencies and to the extent internet intermediaries have realised this lapse in the system as well as society at large. The most important is the common people who should compel the authorities to push the limits of legal and criminal jurisprudence on this aspect.

Finally tried to examine how much the perpetrators uses the aid the freedom guaranteed to us and abet their crimes against us. It is our boon that should not become our curse and aim to help legislation, judiciary and creators of technologies to draw line in subconsciously helping criminal enterprises. By this one must understand that the existence of such phenomenon is completely in our hands to regulate. A single click of a mouse may land up and expose a person to the world of Dark Web and instigate his or her criminal instinct.

No human is born without such instinct the absence of such behaviour does not mean it is not present but provoke the criminal tendencies in humans which is dormant. The fact that to prove help was not necessary for the crime is no defence, the exchange of money becomes a component of a drug trade, as courts frequently affirms the conviction of middlemen who solely helped with the financial end of a deal[21]. Though technologies are not created intending criminal uses, and should be capable of innocent use it should at the same time able to safeguards and foresee the dangers of it.

For example guns and ammunitions are made to protect and self defense but mostly used in committing crime which are completely defeats of making such invention. Can we stop manufacturing ammunitions? But the laws related to ammunitions are so stringent and the culpability interpretated by laws are strict. When we invent something, technologies are designed for good, such software concealing identities and other spams software and viruses are made to test make the same technology more robust but not to adversely used it against the same intention the technology is invented for, this is called substantial unoffending use of technology.

Whether this theory water tight with respect to aiding and abetting is a tougher question for our future. Biggest intermediary on internet which is a doorway to Dark Web is TOR framework and browser which has completely legal to download anywhere in the world and inasmuch we have seen that internet intermediaries have limited accountability so I can say zero culpability for the crimes they facilitate. Such platform conceal the identity and encourages lot of criminal activities such as hiring hitman, child pornography, drug peddling and also other cult and ritual practices which are heinous and cannibalistic in nature which if done without the help dark web will be condemned internationally and we surely would see that main subject of debate and stir up things in a very heated manner.

But given the fact the intermediaries are not only allowed to conceal the identities from the law enforcement and other authorities, it leaves the general masses completely unaware and seldom make it to news and discussions. When legislations would make laws without any interference and outcry of liberators and people fighting for freedom against the state all the time, our learned fighter of the rights should also understand when we should surrender them. Merely accessing Dark web is not a offense in India which I would to say it is legal in India with no substantial laws that ban such platforms or even regulate them.

This paper has insofar identified that existing research on Dark web and the scope of strict liability of crime are still rudimentary. According to the findings scholars, academicians, jurist and most importantly the people must urge to continue research and spread awareness to fulfil the gap that this article is trying to indicate. The anonymity that TOR provides is major setback and in process of discovering crimes which also hinders the research for law enforcement in study of systematic methods for investigating and creating a safeguard and legal framework, without curtailing fundamental rights to the extent that would unnecessary trigger people and if needed educate masses where to surrender the rights to prevent other life and liberty which is taken away by Dark web.

By this paper I have tried to map the existing studies and the scope of criminal laws and trying to suggest methods of implementing laws with strict liability. The limitations of the legislations in context of dark web crimes and efficacies of law, despite of all the challenges law enforcement agencies are trying to work with existing legal framework and educating victims and extend that to masses whichever way possible. Criminalisation of crimes which would be inchoate in nature, such accessing dark web should be good cause of attributing strict liability. Creating awareness in society leveraging populist theory to set our narratives right in direction, all other evaluation criteria should be looked into to further this argument to reach more comprehensive results.

  1. Eric Jardine, The Dark Web Dilemma: Tor, Anonymity and Online Policing (September 30, 2015). Global Commission on Internet Governance Paper Series, No. 21, Available at SSRN: or
  2. Id
  3. Vida Vilić, Dark Web, Cyber Terrorism And Cyber Warfare: Dark Side Of The Cyberspace, Dec 2017,
  4. Wilson, C. Computer Attack and Cyber terrorism: Vulnerabilities and Policy Issues for Congress. CRS Report for Congress. Retrieved January 17, 2017 from
  5. Gabriel Weinmann, Going Dark: Terrorism on the Dark Web, Vol. 39 Studies in Conflict & Terrorism 1-24 (2018)
  6. Michael Chertoff & Tobby Simon, The Impact of the Dark Web on Internet Governance and Cyber Security, 6 Global commission of internet governance. (2015)
  7. Constitution of India, 1950, article.21
  8. Mohamed Thaver, 'The dark web and how police deal with it' (The Indian Express, 17 September 2018)
  9. Information Technology Act, 2000, Section 67B. (Provides punishment for publishing or transmitting of material depicting children in sexually explicit act in electronic form)
  10. Protection of Children from Sexual Offences Act, 2012. Section 13 to Section 15. (It talks about punishment for using child for pornographic purposes, Section 15 Punishment for storage of pornographic material involving child)
  11. Indian Penal Code, 1860, Section 366A. (Talks about minor girl under the age of 18 is forced to leave a place or to do anything else with the intent that she might be persuaded or seduced into engaging in illicit sexual relations with another person, or with knowledge that such persuasion is likely to occur, they could be fined or sentenced to up to ten years in prison)
  12. Indian Penal Code, 1860, Section 372 & Section 373 (Talks about selling, letting on hire, or otherwise disposing of a kid, or, as the case may be, buying, hiring, or otherwise getting ownership of such child' is prohibited)
  13. Ajoy P.B, The Criminal Liability of Internet Intermediaries in India: A Theoretical Analysis (March 17, 2022). Multidisciplinary Subjects For Research-Viii Volume-2 (2021)
  14. Louise Timmermans. The Role of Internet Intermediaries in the Protection of Freedom of Expression and Personal Data (Human Rights in a Digital Age)2017. University of Montpellier
  15. Hilary Young and Emily Laidlaw. Internet Intermediary Liability in Defamation: Proposals for Statutory Reform. (February 1, 2017)
  16. Communication decency act, 1996. Section 230 (U.S Department of Justice)
  17. SLFC, Internet Liability 2.0 A shifting paradigm, (Mar. 1, 2019)
  18. The Information Technology Act, 2000. Section 79. (It exempts liability of internet intermediary in certain cases)
  19. Chinmayi Arun, Gatekeeper Liability and Article 19(1)(a) of the Constitution of India, 7 NUJS L. Rev. 73 (2014)
  20. Supra. See note 17
  21. Benton Martin and Jeremiah Newhall, Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices, 105 J. Crim. L. & Criminology (2015)

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