SECONDARY LEGISLATION UNDER INDIAN CYBERLAW

The great Indian elections are over and with the coming of the new government, here comes the hope of stability. Things appear to be progressing very fast on the legislative drafting of secondary legislation on the Indian cyberlaw. As we know, the Indian Information Technology Act, 2000 was amended by the Information Technology Amendment Act,2008, which was notified on 5-2-2009.

Under the new amended provisions, Powers have been given to the appropriate Governments to make rules and regulations to give effect to the amended provisions.

Some draft rules under some sections have been put up for comments on the Minsitry of Information Technology website. More rules are expected very soon.

While the concept of secondary legislation is indeed laudable, it goes without saying that at no point of time, can the secondary legislation overreach the principal legislation. Some draft rules put up for public comment run the danger of being struck down by a court of law, if enacted, as they are not in line with the principles enshrined in the Constitution of India.

Another major important aspect that needs to be kept in mind, while drafting rules under Section 43A and 79 of the amended IT Act,2000 is that the said rules are likely to impact a huge number of relevant stakeholders.

None of these stakeholders would want to be governed by rules, to which they themselves, have not been previously consulted.

For example, the statutory definition of an “intermediary” is so vast that it incorporates within its ambit numerous businesses, verticals and industries. Having one set of rules , governing diverse industries, is not likely to do justice to the cause of the basic principles, that the Indian Information Technology Act, 2000, as amended, has enshrined.

It would just be prudent to draft separate set of rules, governing separate sets of industries, which would qualify as an intermediary. This is so as, for example, the requirements of the business of online banking, would be completely different from the business on webhosting or network service providing.

Similarly, given the huge ambit of the scope and reach of Section 43A, there is a need for a realization to be dawned that one set of rules, would not fit all. Having one set for rules, without keeping in mind the customized requirements of the relevant stakeholders, is likely to negatively impact the growth of the relevant businesses, apart from not fulfilling the intentions of the legislature.