Information and Communication Technology (ICT) is a real enabler that improves the efficiency and brings transparency and accountability. However, in the Indian context the same has failed to get the desired results. This is because the Governmental corridors have no place for ICT and there is no accountability of those who are managing the ICT.
The self contradictory shades of Indian ICT skills and expertise is really amusing. While Indian citizens are famous for their expertise and professional skills yet Indian Government and bureaucrats are infamous for their ignorance. The latest example being the proposed Information Technology Amendment Act 2008 (Act 2008). Initially the lack of knowledge and insight was attributable to a self-claimed cyber law observer named Na Vijayshanker (Naavi) who claimed that the proposed Act has been “notified”. While Naavi being a non-lawyer with no knowledge about law at all and limited knowledge about cyber law and techno-legal issues yet Indian bureaucrats like Dr. Gulshan Rai must not show ignorance about the law making process and its coming into force. There is a clear difference between “publication” of an information for public purposes and “notification” of a statute “under official gazette”. Even a query to clarify the issue remained unanswered.
For the sake of public interest, we have been publishing many articles clarifying the legal position in this regard. We clarified the “Status” of the Act 2008. We also explained when a Bill becomes an applicable law in India. For the sake of clarity, we consulted Mr. Praveen Dalal, Managing Partner of Perry4Law and also the leading Techno-Legal Expert of India. He clarified that the proposed Act 2008 is “Not Notified” yet. According to him, the Information Technology Act, 2000 (IT Act, 2000) is still “Unamended” and governs the legal rights and liabilities. Repelling the fear of many netizens he informed that no rights and liabilities can be claimed under the Act 2008 till it is notified by the Central Government U/S 1(2) of the Act 2008.
Citing a recent example he informed that the government of India (GOI) has decided to leave out of the just-amended Criminal Procedure Code (CrPC) by not “notifying” it. A notification is a mandatory process for any legislation to become effective. The CrPC (Amendment) Act, 2008 was passed by Parliament in December last year and got the Presidential assent in January this year. Even the proposed Act 2008 has gone through similar procedure. The government may bring in a couple of changes in the CrPC (Amendment) Act, 2008, in the next Parliament session. The call will, however, be taken by the new government.
Meanwhile, the Department of Information Technology (DIT) has prepared the draft rules under IT (Amendment) Act, 2008. However, the bigger question is what is the “legal significance” of such draft rules in the absence of “Notification” of the IT Amendment Act 2008 and “Publication” of drafted Rules in the Official Gazette? The DIT is “erroneously claiming” that the Amendments have been notified. There is no information whatsoever about the claimed notification at the site of DIT. The readers can themselves analyse that there are many notification regarding Information Technology Act, 2000 yet none about the Amendments. Is the DIT ignorant about the basic procedure as to how laws are made applicable in India? This is more so when the fact of this “mistake” has been brought to their notice in writing. It seems the DIT is deliberately “misleading” the public in this regard even after the notice of this irregularity.
In nutshell, the proposed Act 2008 cannot come into force till the Central Government “Notify” the same as per the requirements of Section 1(2) of the same. The same has not been done yet there cannot be any question of the Act 2008 coming into force. All rumours about the coming into force of the Act 2008 must be ignored.