The WikiLeaks episode in India has raised a serious legal question about the effectiveness of the Indian laws in taking action against such encroachments and publication of the classified information related to the diplomatic and strategic relations of the country. The Wikileaks episode in India has proved that the kind of information leak, extraction, and publication has been done by WikiLeaks is a peculiar and unique phenomenon which triggers a large debate about the legality of the matter besides the other aspects of the matter.
In India, the legal set up for protecting the interests of the Indian State from unauthorized extraction and use of the classified information are mainly contained in The Officials Secrets Act, 1923, Indian Penal Code, 1860 and Information Technology Act, 2000. The above said act provides a basic framework for dealing with the matters related to the offenses against the state including the extraction and leak of the secret official documents of the country and the manner in which such cases are to be handled under the Indian laws.
THE OFFICIALS SECRETS ACT, 1926:
This act was enacted to safeguard the strategic interest of the country; the basic act was enacted by the British rule in Indian and has been amended from time to time to suit the legal requirements. This act defines the prohibited information which can be of various types namely document, model, articles, photographs etc. under Section 2 of the act.
It further provides a complete ban on leaking, forwarding any kind of secret information which may affect the sovereignty and integrity of India, the security of the state or relation with any foreign state or which may be useful to the enemy. It further defines the various types of penalties under the act for committing prohibited acts by any person. It also defines the word foreign agents and imposes a restriction on sharing or forwarding any information to such foreign agents. It also imposes a restriction on the communication, use of the said information for the benefit of any foreign power which may be prejudicial to the safety of the state.
It also contemplates penalty for harboring spies and in some cases denies the right to the accused to claim the copies of the documents against which prosecution has been launched against him by the state. The act also contemplates the exclusion of the public from proceedings. The Wikileaks episode in India has proved that the Indian laws are not so strong to deal with such situations as created by the Wikileaks.
The main thrust of the said act is to prevent the handling and misuse of the information which is basically secret or classified and can harm the strategic interests of the State. The entire scheme of the act is dealing with such cases of passing off the classified information to spies or foreign nationals. The Wikileaks episode in India has however proved the weaknesses of the said Act.
INDIAN PENAL CODE,1860:
The provisions of the Indian Penal Code of 1860 also deal with such cases wherein any act which amounts to an offence against the state has been committed by any person. Section 121 and 124-A of IPC deals with the offence related to waging of war or abetting waging of war against the Government of India. The said section is as under:
121. Waging or attempting to wage war or abetting waging of war against the Government of India.-Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war shall be punished with death, or imprisonment for life and shall also be liable to fine.
124-A.Sedition.- Whoever by words, either spoken or written, or by sings, or by visible representation, or otherwise, brings or attempts to bring into hatred or content, or excites or attempt to excites disaffection towards, the govern established by law in India, shall be punished with imprisonment for life, to which fine may be added , or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Besides this, the Constitutional dignitaries by virtue of their oath are prohibited and restrained from disclosing any information related to the secrecy of the state. The employees of the Government, defense services are bound by their conduct rules and are restrained from disclosing any information which they deal with during their incidence of employment with the government.
The provisions to deal with such instances of the leak of the official information are dealt according to their service rules. The entire legal set up in this regard has remained operative and has remained by and large successful till date. The Wikileaks episode in India has however proved the ineffectiveness of the said provisions as no such offense is made out in the present case.
THE INFORMATION TECHNOLOGY ACT, 2000:
The provisions relating to offense of Hacking in India has been made under the Information Technology Act of 2000 wherein the unauthorized use of the contents of a particular website or information has been prohibited. The Indian Legal system is not much prepared to deal with the matters pertaining to the hacking of the websites or hacking servers to extricate information in any unauthorized manner by any hacker.
As a matter of fact the entire set up of the Information Technology law in India has been recently enacted which has failed to keep the speed at which the technology is growing as a result of the same, the entire legal set up become outdated and ineffective to deal with the offences related to the hacking or unauthorized extraction of information by anybody. The Wikileaks episode in India has shown that the said provisions as contained under the IT Act are also ineffective in dealing with such a situation.
Section 43 of the Information Technology Act, 2000 deals with such situations but is mildly worded hence the violation of the said provision by any hacker or even WikiLeaks does not attract criminal prosecution as the said section does not provide for any criminal prosecution for hacking and only provides for monetary compensation to the party whose system has been unauthorized entered by any person. The main provisions of the said Section 43 are as under:
Penalty for damage to computer, computer system, etc-If any person without permission of the owner or any other person who is in-charge of the computer, computer system or computer network,
(a)accesses or secures access to such computer, computer system or computer new or;
(b) downloads, copies or extracts any data , computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
He shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.? The said act also provides a general penalty in Section 44 against other violations of the Act. Section 66 of the said act deals with Hacking although the word hacking has not been defined under the act neither any specific explanation of the said word has been made. The said section reads as under:
Hacking with Computer System.- (1)Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.
(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
THE RIGHT TO INFORMATION ACT, 2005:
The paradox now with the Indian democracy is the provisions contained in the Right to Information Act of 2005 which gives freedom to the citizen of India to get almost all kinds of the Information from a Government department. This act empowers the Indian citizen to apply and get the desired information after paying nominal fees. The citizen is thus entitled to ask and collect whatever information they want under this act. All kinds of government records are supplied under this act to the applicants. There is a specific bar under section 8 of this act regarding information related to the defense strategy, foreign policy, and other diplomatic and strategic issues. Such information can not be supplied which is excluded under Section 8 of the said act which mainly relates to the strategic details, defense forces information and other vital information related to the country. Section 8 of the said Act reads as under:
The citizen is thus entitled to ask and collect whatever information they want under this act. All kinds of government records are supplied under this act to the applicants. There is a specific bar under section 8 of this act regarding information related to the defense strategy, foreign policy, and other diplomatic and strategic issues. Such information can not be supplied which is excluded under Section 8 of the said act which mainly relates to the strategic details, defense forces information and other vital information related to the country. Section 8 of the said Act reads as under:
Exemption from disclosure of information.-(1) notwithstanding anything contained in this Act, there shall be no obligation to give any citizen.
(a) information , disclosure of which would prejudicially affect the sovereignty and integrity of India, the security , strategic, scientific or economic interest of the State, relation with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;