Rethink IT bill
WHILE the passage of the IT Bill has been widely welcomed, the retention of clause 79 — which empowers officers above the rank of deputy superintendent of police to search and arrest without a warrant if he reasonably suspects that an offence has or is about to be committed — has raised the spectre of a police inspector raj.
The government argues that the criminal procedure code allows even a police constable to search without a warrant. The IT industry is, thus, actually better off since only senior police officers are involved. This is, however, a little misleading because this power unde the CrPC can be exercised only under certain specific circumstances, whereas the wording of Section 79 is disturbingly vague. `Reasonable’ suspicion is not defined. The section also allows the police to enter and search if an offence is ``about to be committed’’. This, too, has caused concern. However, this part of the section could possibly be justified on the ground that the police may be required to act in response to, for instance, information that someone is in the act of creating a virus.
Unfortunately, the same cannot be said about another part of Section 79 which says that arrested individuals should be produced before a magistrate ``without undue delay’’. By not specifying a time frame for the detention period, in the Indian context, this could well turn out to be an open invitation to extortion by the police. Section 79 needs to be amended. It should be mandatory for the officer to record reasons in writing for embarking on a search. And except in exceptional circumstances, he needs to have a warrant. The part conferring discretion on the police regarding the length of the custody period also needs to be scrapped. Again, the IT Bill is vague about the liabilities of service providers. It would be absurd if a portal was to be prosecuted because its search engine was used to find a pornographic site. Presently, it is not clear whether or not this is the case. While the Bill is a huge step forward because it allows electronic contracts to be enforced, amendments are needed to remove these glitches.
Source: The Economic Times. May 22, 2000