BASICS OF LAW

Law is basically a set of rules that are created and enforced by a particular
country or community through social or governmental institutions to regulate
the actions of its members.

In the constitution of India, every citizen has been given several rights and since
the rights are provided, there will infringement of those rights as well. Our
legislature has introduced various laws to enforce and protect such rights, in
order to civilize the society and maintain peace and harmony among the
individuals.

India has a federal judicial system which is primarily based on mixed law i.e.
based on parliamentary legislature, court laws, customary & religious laws as
well. The Indian Judicial System is developed by judges through their decisions,
orders, and judgments.

There are five types of legal system i.e. civil law; common law; customary law;
religious law and mixed law.

Types of law

In Indian Judicial System there are four types of law.

1. Criminal law

The Criminal law is enforced by the police. Cases like murder, rape, assault,
robbery are dealt under Criminal Law. Offenses which are committed against
any individual but are seen as being against everybody, even though it does not,
come under the Criminal law.

For example, if house is burgled then the theft is against the individual, but it
threatens all house owners because they might have burgled their houses.
Because the view is taken that everybody is threatened by the crime this law is
dealt with the public services and not by private investigators.

2. Civil law

The Civil law is law that looks at actions that are not the crime. It is a section of
law dealing with disputes between organizations and individuals. It covers
different areas such as defamation, custody of children, right to education,
divorce, trade union membership, property disputes, ownership issues, Copy
Right, insurance claims etc.
For example, a person by force took over someone else property without his/her
permission and not vacating it or one company sue another over a trade dispute
or car crash victims claims from the driver for loss or injury sustained in an
accident.

3. Common law

The Common Law also known as case law or Judicial precedent or judge-made
law is a section of law which is derived from the judicial decision of courts and
similar tribunals. As the name suggests it is common to all. The example set by
higher courts is binding on cases tried in lower courts. Lower courts can also
choose to overturn the precedent, but this rarely occurs.

Example of a common law marriage is when two people have lived together for
10 or more years. They have thus and legal rights to share their assets because
of it.

4. Statutory law

Statute or Statutory Law is a law established by an act of the legislature that is

signed by the executive or legislative body. For state law, the acts are passed by
the state legislature and signed by the state governor. In rare circumstances, the
executive (President or governor) may refuse to sign the bill or reject it, which
is known as a "veto."

A bill is proposed in the legislature and voted upon. For example, you are given
a citation for violating the speed limit you have broken a vehicle and traffic law.

Cyber law
Cyber laws encompass all the legal issues related to the communicative,
distributive and transactional aspects of network-related information devices and
technologies. It is different from the Property Law or any other law. Unlike
property law, it is not so distinct; it is broader since it covers several areas of
laws and regulations. It encapsulates the statutory, legal and constitutional
provisions related to computers and the internet.
Cyber law deals with the legal aspects of cyberspace, the internet, and computing.
In a broader view, cyber law handles the issues of intellectual property, contract,
jurisdiction, data protection laws, privacy, and freedom of expression in the
digital space.
Cyber Laws and Cyber Security
In order to ensure that humans do not misuse Cyber technologies, Cyber laws are
generated. The overall idea of Cyberlaw is to stop any person from violating the
rights of other persons in Cyberspace. Any kind of violation of Cyber rights is
considered to be a Cyberspace violation and is deemed punishable under Cyber
Laws.

It is important to note that since Cyberspace does not belong to the physical
world, the physical laws do not apply to Cyberspace crime. A separate set of
Cyber laws are formulated by the government to provide Cybersecurity to Cyber
users. Such Cyber laws are needed to monitor and prevent any immoral or illegal
activities of humans.

Some of the common Cyberspace violation activities include hacking, theft,

money laundering, terrorism, piracy, etc. Hackers can get hold of any internet
account through the Domain Name Server (DNS), phishing, IP address, etc. to
get entry into the computer system of any person and steal the data, or introduce
computer bugs and render the system ineffective.

According to Ministry of Electronic and Information Technology,

Government of India :
Cyber Laws yields legal recognition to electronic documents and a structure to
support e-filing and e-commerce transactions and also provides a legal structure
to reduce, check cyber crimes.
Importance of Cyber Law:
1. It covers all transaction over internet.
2. It keeps eyes on all activities over internet.
3. It touches every action and every reaction in cyberspace.
Area of Cyber Law:
Cyber laws contain different types of purposes. Some laws create rules for how
individuals and companies may use computers and the internet while some laws
protect people from becoming the victims of crime through unscrupulous
activities on the internet. The major areas of cyber law include:
1. Fraud:
Consumers depend on cyber laws to protect them from online fraud. Laws
 are made to prevent identity theft, credit card theft and other financial
crimes that happen online. A person who commits identity theft may face
confederate or state criminal charges. They might also encounter a civil
action brought by a victim.
2. Copyright:
The internet has made copyright violations easier. In early days of online
communication, copyright violations was too easy. Both companies and
individuals need lawyers to bring actions to impose copyright protections.
Copyright violation is an area of cyber law that protects the rights of
individuals and companies to profit from their own creative works.
3. Defamation:
Several personnel use the internet to speak their mind. When people use
the internet to say things that are not true, it can cross the line into
defamation. Defamation laws are civil laws that save individuals from fake
public statements that can harm a business or someone’s personal
reputation. When people use the internet to make statements that violate
civil laws, that is called Defamation law.
4. Harassment and Stalking:
Sometimes online statements can violate criminal laws that forbid
harassment and stalking. When a person makes threatening statements
again and again about someone else online, there is violation of both civil
and criminal laws. Cyber lawyers both prosecute and defend people when
stalking occurs using the internet and other forms of electronic
communication.
5. Freedom of Speech:
Freedom of speech is an important area of cyber law. Even though cyber
laws forbid certain behaviors online, freedom of speech laws also allow
people to speak their minds. Cyber lawyers must advise their clients on
the limits of free speech including laws that prohibit obscenity. Cyber
lawyers may also defend their clients when there is a debate about
whether their actions consist of permissible free speech.
6. Trade Secrets:
Companies doing businesses online often depend on cyber laws to protect
their trade secrets. For example, Google and other online search engines
spend lots of time developing the algorithms that produce search results.
They also spend a great deal of time developing other features like maps,
intelligent assistance and flight search services to name a few. Cyber laws
 help these companies to take legal action as necessary in order to protect
their trade secrets.
7. Contracts and Employment Law:
Every time you click a button that says you agree to the terms and
conditions of using a website, you have used cyber law. There are terms
and conditions for every website that are somehow related to privacy
concerns.

Cyberspace
The word Cyberspace first made its appearance in Wiliam Gibson’s Science
fiction book Necromancer. The book described an online world filled with
computers and associated societal elements. In that book, the author described
Cyberspace as a 3D virtual landscape created by a network of computers.
Although it looks like a physical space, it is generated by a computer, representing
abstract data.
After the publication of the book, the word Cyberspace became a mainstay in
many English dictionaries. The New Oxford Dictionary of English provides
Cyberspace definition as the notional environment used by the people to
communicate over networks of the computer.
As per the Cyberspace meaning, Cyberspace is a virtual space with no mass,
gravity or boundaries. It is the interconnected space between networks of
computer systems.
Bits and Bytes- Zeroes and ones are used to define Cyberspace. It is a dynamic
environment where these values change continuously. It can also be defined as
the imaginary location where two parties can converse.
If we look into the Cyberspace meaning, it is not a physical space but a digital
medium.
The whole Cyberspace is composed of large computer networks which have
many sub-networks. These follow the TCP or IP protocol.

Jurisprudence

The English word Jurisprudence has been taken from a Latin word

“Jurisprudentia”, which consists of two words, Juris and Prudentia. Juris means
law and Prudentia means Knowledge. Jurisprudence, therefore, literally means
knowledge of law and its application.

Bentham is known as Father of Jurisprudence. Austin took his work further.

Bentham was the first one to analyse what is law. He divided his study into two
parts:

1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.

2. Examination of Law as it ought to be- Censorial Approach- Morality of Law

It is difficult to give a singular definition of term. Since the growth and

development of law in different countries has been under different social and
political conditions, different jurists have given different definitions according to
their own notion of subject-matter and so it is not possible to give universal and
uniform definition of jurisprudence. So different jurists have defined this term in
different ways:

Definition of Jurisprudence

1. Gray-

In his definition, he says that

“Jurisprudence is the science of law, the statements and systematic arrangement

of rules followed by courts and the principles involved in these rules.”

2. Jeremy Bentham-

According to him, there are two approaches to study law that are-

 Expository Approach – examination of law as it is. It was about

commands and sovereign
 Censorial Approach – examination of law as it is ought to be. It
dealt with the morality of law.
Criticism- Bentham’s theory fails to balance the interest of the individual with
that of the community’s interest and materialism and idealism cannot be
blended.

3. John Austin-

He refers to jurisprudence as the “philosophy of positive law”.

According to his definition, the science of jurisprudence is concerned with

positive law. He said about laws strictly so-called. These laws are given by the
political superior authority for controlling the conduct concerning subjects under
the control. He does not go into the goodness or badness of law. He divides
jurisprudence into two parts –

 General Jurisprudence- It includes that subjects or ends of the

law which are common to all system.
 Particular Jurisprudence – jurisprudence is a science of any
actual system of law or any portion of it that means it is confined.
Criticism – Salmond, Holland, and Dias had criticized his theory by saying that
there could be a concept that falls in neither of these categories. The main
contention in rejecting the classification of Austin is based upon its
impracticability of the definition.

4. John Salmond-

Jurisprudence is the science of law.

By this, he meant that jurisprudence meant only certain species of law like the
law of the state or civil law. He divided jurisprudence into parts-

 Generic Jurisprudence- amalgamated form which is the entire

body of legal doctrines
 Specific jurisprudence – any particular form, any particular
department, or any particular portion of doctrine.
Criticism- His definition was not considered accurate because there was no
clarity of thought.

5. Hollands-

Jurisprudence is defined as a formal science of positive law.

Formal science is distinguished from material science as it is one that deals not
with concrete details but with the fundamental principles underlying them.
Formal science = Analytical science.

Criticism – This definition was only concerned with forms, not intricacies.

6. Julius Stone –

Jurisprudence is lawyers’ extraversion. It means lawyers’ skills of examination

of ideas and techniques of law.
7. Oxford dictionary-

states that “Jurisprudence is the systematic and formulated knowledge or the

science of human law.”
8. Keeton-

In his definition, “Jurisprudence is the study and systematic arrangement of the

general principles of law. It means it deals with Public and Private Laws and
the contents of principles are considered a department of law.
9. Roscoe Pound-

In his famous definition defines that “ Jurisprudence as the science of law using
the term law in a juridical sense, as denoting the body of principles recognized
and enforced by the public and regular tribunal in the administration of
Justice.”
It is difficult to give a uniform and universal definition of jurisprudence as there
are so many different opinions set by jurists. Every jurist has his notion of
subject-matter and proper limits of Jurisprudence depends upon his ideology
and the nature of society.

Nature of Jurisprudence

Jurisprudence in its nature is entirely a different subject from other social

sciences. The reason for this is that it is not codified but a growing and dynamic
subject having no limitation of itself. Every jurist does not base his study on rules
made but tries to understand their utility after due deliberation. So, it can be said
that jurisprudence has no limited scope being a growing subject. There is a
difference of opinion about nature of jurisprudence. It is called both Art and
Science. But to call it science would be more proper and useful. The reason for
this is that just as in science we draw conclusions after making a systematic study
by inventing new methods, jurisprudence is concerned with fundamental
principles of law and systematic and scientific study of their methods.

Scope of Jurisprudence

After reading all the above-mentioned definitions, we would find that Austin was
the only one who tried to limit the scope of jurisprudence. He tried to segregate
morals and theology from the study of jurisprudence. There is no unanimity of
opinion regarding the scope of jurisprudence. Differentauthorities attribute
different meanings and varying premises to law and that causes difference
opinions with regard to the exact limit of the field covered by jurisprudence.
Jurisprudence has been so defined as to cover moral and religiousprecepts also
and that has created confusion. It goes to the credit to Austin that he distinguished
law from morality and theology and restricted the term to the body of the rules
set and enforced by the sovereign or supreme law-making authority within the
realm. Thus, the scope of jurisprudence was limited to the study of the concepts
of positive law and ethics and theology fall outside the province of jurisprudence.

OVERVIEW OF INDIAN LEGAL SYSTEM

Indian Judicial System is largely based on English Common Law system (where,
law is developed by judges through their decisions, orders, and judgments). It has
created a federal system; with a Central government coupled with State
government.

The source of law largely depends on the type of any country’s legal system.
There are five types of legal system i.e. civil law; common law; customary law;
religious law and mixed law.

India has a federal judicial system which legal system based on mixed law i.e.
based on parliamentary legislature, court laws, customary & religious laws as
well.

The main sources of law are the following:

 The Constitution of India. This is the supreme source of law.
 Statutes. Statutes are enacted by the Parliament or the state legislatures.
At local level, subordinate delegated legislation (such as rules,
regulations and bye-laws) is passed by local authorities (such as
government departments, municipal corporations, municipalities
and gram panchayat).
 Customary law. In certain aspects, local customs and conventions
(usually religious in nature) that are not against any statute or morality are
also applicable.
 Judicial decisions. While technically not law, judicial decisions of
superior courts like the Supreme Court of India and High Courts are
another important legal source, and have precedential value.

The Indian judicial system is a single integrated system. The Constitution of India
divides the Indian judiciary into superior judiciary (the Supreme Court and the
High Courts) and the subordinate judiciary (the lower courts under the control of
the High Courts).

The Supreme Court of India is the apex court of the country and sits in New Delhi.
It is presided by the Chief Justice of India. There are twenty-four High Courts in
the country. Each state has one High Court, although some High Courts have
jurisdiction over multiple states and Union Territories. For administrative
convenience, states are further sub-divided into districts, each of which has its
own District Court. Barring a few states, the original jurisdiction for both civil
and criminal cases vests with the District Court. The judicial system also consists
of tribunals and commissions which are established under, and to deal with,
specific statutes.

Information Technology Act 2000

The Information Technology Act, 2000 (also known as ITA-2000, or
the IT Act) is an Act of the Indian Parliament notified on 17 October
2000. It is the primary law in India dealing
with cybercrime and electronic commerce.

In 1996, the United Nations Commission on International Trade Law

(UNCITRAL) adopted the model law on electronic commerce (e-
commerce) to bring uniformity in the law in different countries.

Further, the General Assembly of the United Nations recommended

that all countries must consider this model law before making
changes to their own laws. India became the 12th country to enable
cyber law after it passed the Information Technology Act, 2000.

While the first draft was created by the Ministry of

Commerce, Government of India as the ECommerce Act, 1998, it
was redrafted as the ‘Information Technology Bill, 1999’, and passed
in May 2000.

Objectives of the Act

The Information Technology Act, 2000 provides legal recognition to
the transaction done via electronic exchange of data and other
electronic means of communication or electronic commerce
transactions.

This also involves the use of alternatives to a paper-based method

of communication and information storage to facilitate the electronic
filing of documents with the Government agencies.

Further, this act amended the Indian Penal Code 1860, the
Indian Evidence Act 1872, the Bankers’ Books Evidence Act 1891,
and the Reserve Bank of India Act 1934.

The objectives of the Act are as follows:

i. Grant legal recognition to all transactions done via electronic

exchange of data or other electronic means of communication
or e-commerce, in place of the earlier paper-based method of
communication.
ii. Give legal recognition to digital signatures for the
authentication of any information or matters requiring legal
authentication
iii. Facilitate the electronic filing of documents with
Government agencies and also departments
iv. Facilitate the electronic storage of data
v. Give legal sanction and also facilitate the electronic transfer
of funds between banks and financial institutions
vi. Grant legal recognition to bankers under the Evidence Act,
1891 and the Reserve Bank of India Act, 1934, for keeping
the books of accounts in electronic form.

Features of the Information Technology Act, 2000

a. All electronic contracts made through secure electronic
channels are legally valid.
 b. Legal recognition for digital signatures.
c. Security measures for electronic records and also digital
signatures are in place
d. A procedure for the appointment of adjudicating officers for
holding inquiries under the Act is finalized
e. Provision for establishing a Cyber Regulatory Appellant
Tribunal under the Act. Further, this tribunal will handle all
appeals made against the order of the Controller or
Adjudicating Officer.
f. An appeal against the order of the Cyber Appellant Tribunal
is possible only in the High Court
g. Digital Signatures will use an asymmetric cryptosystem and
also a hash function
h. Provision for the appointment of the Controller of Certifying
Authorities (CCA) to license and regulate the working of
Certifying Authorities.
i. The Act applies to offences or contraventions committed
outside India
j. Senior police officers and other officers can enter any public
place and search and arrest without warrant
k. Provisions for the constitution of a Cyber Regulations
Advisory Committee to advise the Central Government and
Controller.
Applicability and Non-Applicability of the Act

Applicability

According to Section 1 (2), the Act extends to the entire country,

which also includes Jammu and Kashmir. In order to include Jammu
and Kashmir, the Act uses Article 253 of the constitution. Further, it
does not take citizenship into account and provides extra-territorial
jurisdiction.

Section 1 (2) along with Section 75, specifies that the Act is
applicable to any offence or contravention committed outside India as
well. If the conduct of person constituting the offence involves a
computer or a computerized system or network located in India, then
irrespective of his/her nationality, the person is punishable under the
Act.

Lack of international cooperation is the only limitation of

this provision.

Non-Applicability

According to Section 1 (4) of the Information Technology Act, 2000,

the Act is not applicable to the following documents:

1. Execution of Negotiable Instrument under Negotiable

Instruments Act, 1881, except cheques.
2. Execution of a Power of Attorney under the Powers of
Attorney Act, 1882.
3. Creation of Trust under the Indian Trust Act, 1882.
4. Execution of a Will under the Indian Succession Act, 1925
including any other testamentary disposition
by whatever name called.
5. Entering into a contract for the sale of conveyance of
immovable property or any interest in such property.
6. Any such class of documents or transactions as may be
notified by the Central Government in the Gazette.
Amendments
A major amendment was made in 2008. It introduced Section 66A
which penalized sending "offensive messages". It also introduced
Section 69, which gave authorities the power of "interception or
monitoring or decryption of any information through any computer
resource". Additionally, it introduced provisions addressing
- pornography, child porn, cyber terrorism and voyeurism. The
amendment was passed on 22 December 2008 without any debate in
Lok Sabha. The next day it was passed by the Rajya Sabha. It was
signed into law by President Pratibha Patil, on 5 February 2009.

Offences
List of offences and the corresponding penalties:

Section Offence Penalty

Tampering with computer source Imprisonment up to three years, or/and

65
documents with fine up to ₹200,000

Imprisonment up to three years, or/and

66 Hacking with computer system
with fine up to ₹500,000

Receiving stolen computer or Imprisonment up to three years, or/and

66B
communication device with fine up to ₹100,000

Imprisonment up to three years, or/and

66C Using password of another person
with fine up to ₹100,000

Imprisonment up to three years, or/and

66D Cheating using computer resource
with fine up to ₹100,000
 Imprisonment up to three years, or/and
66E Publishing private images of others
with fine up to ₹200,000

66F Acts of cyberterrorism Imprisonment up to life.

Publishing information which is obscene in Imprisonment up to five years, or/and

67
electronic form. with fine up to ₹1,000,000

Imprisonment up to seven years,

67A Publishing images containing sexual acts
or/and with fine up to ₹1,000,000

Imprisonment up to three years, or/and

67C Failure to maintain records
with fine.

Imprisonment up to 2 years, or/and

68 Failure/refusal to comply with orders
with fine up to ₹100,000

Imprisonment up to seven years and

69 Failure/refusal to decrypt data
possible fine.

Securing access or attempting to secure Imprisonment up to ten years, or/and

70
access to a protected system with fine.

Imprisonment up to 2 years, or/and

71 Misrepresentation
with fine up to ₹100,000

Imprisonment up to 2 years, or/and

72 Breach of confidentiality and privacy
with fine up to ₹100,000

Disclosure of information in breach of Imprisonment up to 3 years, or/and

72A
lawful contract with fine up to ₹500,000

Publishing electronic signature certificate Imprisonment up to 2 years, or/and

73
false in certain particulars with fine up to ₹100,000
 Imprisonment up to 2 years, or/and
74 Publication for fraudulent purpose
with fine up to ₹100,000

Summary

The original Act contained 94 sections, divided into 13 chapters and 4 schedules. If against the law
involves any laptop or network settled in India, persons of alternative nationalities also can be
indicted underneath the law. The Act provides a legal framework for electronic governance by giving
recognition to electronic records and digital signatures. It conjointly defines cybercrimes and
prescribes penalties for them. It conjointly established a Cyber proceeding judicature to resolve
disputes arising from this new law.