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Free speech and the Internet; analysing Section 66A IT,2000

Conventional legal structures have had great difficulty in keeping pace with the brisk growth of the Internet and its impact throughout the world.  The Internet has tested the limits of regulation, Governments across the world eagerly seem accept the conception that cyberspace can’t be governed. This perception stands miscalculated, underestimating the power governments and businesses posses to change the way things work. Multiple international organisations are currently working on projects that are probable to radically influence the course of domestic bylaws and regulations in areas pertinent to electronic world. This International work must not only assist the Indian set up to the nations’ competitive advantage, but also keep India in compliance with international norms, ensuring that the economic, social and cultural benefits of new technology are maximised. As soon as you enter the virtual world, you leave footprints that are traceable, now the question that arises is- when does communication over the Internet mete out or threaten to impose adequate damage on its recipient that it ceases to be protected by the Freedom of Speech bar set out in the Indian Constitution?

66A OF THE INFORMATION AND TECHNOLOGY ACT, 2000

Section 66A of the IT Act, 2000: If any person sends by means of a computer resource or a communication any content which is grossly offensive or has a menacing character or which is not true but is sent to create nuisance, annoyance, criminal intimidation, hatred or ill will etc shall be imprisoned for an imprisonment term which may be up to two years combined with a fine.

The court in the Singhal Case struck down in its entirety, Section 66A of the IT Act, 2000 being violative of Article 19(1)(a) and not saved under Article 19(2). The Preamble of the Constitution of India also articulates of liberty of thought, expression, belief, faith and worship stating that India is a sovereign democratic republic. Nonetheless it is needless to state that when it comes to democracy, liberty of thought and expression is of paramount and chief implication under the constitutional scheme. Nonetheless the Supreme Court in striking down Section 66A has left the nation affirmative, oppressive censorship law that this country has ever witnessed. It has further introduced imperative procedural safeguards to the blocking rules and to the intermediary liability; it has made the provisions more speech protective than they were earlier.  “It is clear that Section 66A, arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right,” the court said, in its ruling, addition to which it stated that the law “was cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.”

The Supreme Court has rightly upheld “Thought control is a copyright of totalitarianism, and we have no claim to it. It is the function of the Government to keep the citizen falling into error; We could justify any censorship only when the censors are better shielded against error than the censored.”

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Where submission of information is demanded in writing or in the type written or printed form, it is now sufficient and in compliance of law, if the same is sent in an electronic form.  Further, if any statute seeks and provides for affixation of signature in any deed, the same can be done by means of Digital Signature. Similarly, the filing of any form, submission or any other documents with the Administrative Authorities and issue or grant of any license, permit, approval and any receipt acknowledging payment can be performed by the Government offices by the usage of electronic form. Retention of documents, data or information as provided in any regulation, can be done by maintaining electronic records.  The Act, however, affirms that no Ministry or Department of Central Government or the State Government or any Authority established under any law can insist and claim upon acceptance of document only in the form of electronic record.

Under the Act, the Central Government has the power/ authority to stipulate the course of action in relation to electronic records and Digital Signatures securing the Online media, considering the character of the transaction, the level of sophistication of the Parties with reference to their technological aptitude and capacity, the volume/size of transactions and the procedures in general used for similar types of transactions or communications.

DIGITAL SIGNATURE

Any individual may make an application to the Certifying Authority requesting the issue of Digital Signature Certificate. The Certifying Authority while issuing such certificate shall certify that it has complied with the provisions of the Act.  The Certifying Authority has to ensure that the subscriber (i.e., a person in whose name the Digital Signature Certificate is issued) holds the private key corresponding to the public key listed in the Digital Signature Certificate and such public and private keys constitute a functioning key pair. The Certifying Authority has the power to suspend or revoke Digital Signature Certificate

If any person without the acquiescence of the title-holder, accesses the owner’s computer, computer system or computer net-work or downloads copies or any extract or introduces any computer virus or damages computer, computer system or computer net work data etc. He/she shall be liable to pay damage by way of compensation not exceeding Rupees One Crore to the person so affected.   In order to facilitate governance and adjudication, the Central Government may appoint any officer, not below the rank of Director to the Government of India or any equivalent officer of any State Government, to be an Adjudicating Officer. The Adjudicating Officer while trying out cases of the above mentioned nature shall consider the amount of gain of unfair advantage or the amount of loss that may be suffered by a person. The aforesaid provisions were not incorporated in the Information Technology Act, 2000 instead were suggested by the Select Committee of Parliament.

Under the Act, the Central Government has the power to prescribe the security procedure in relation to electronic records and Digital Signatures, the ‘Apex Authority’ is to manage the Digital Signature system which aims at promoting the growth of E- Commerce and E- Governance. The Central Government may employ a Controller of Certifying Authority [CCA] who shall exercise supervision over the activities of Certifying Authorities.  Certifying Authority refers to a person who has been provided with a license to issue a Digital Signature Certificate all of which as mentioned above is done to regulate E-commerce.

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The Information Technology Act, 2000 provides for fundamentally economic offences or crimes in the medium that are concurrent and linked to economic loss or injury. Today where most of the work is done by the computers, our entire efficiency and national data was is at the risk of being tampered with, by malicious hackers and hence it becomes important to secure data and prevent Cyber crimes.

COMPUTER EMERGENCY RESPONSE TEAM [CERT]

The amended Act of 2006 presents an Indian Computer Emergency Response Team to take action as a central agency with respect to Critical Information Infrastructure for coordinating all actions relating to information security exercises, procedures, strategies, guidelines for incident prevention, response and reporting. CERT has been active since January 2004. CERT-In is the national nodal agency to act in response and counter, computer security offences as and when they occur. In the recent Information Technology Amendment Act 2008, CERT-In has been selected to serve as the national agency to execute compilation/collection, examination and dissemination of information on cyber incidents in the area of cyber security.  They must forecast and estimate cyber crimes, and alert to such cyber security incidents. Issuing guidelines, procedures for handling cyber security incidents, co ordination of cyber incidents response activities – must be provided for by CERT

AMMENDMENTS; PREVENTION OF CYBER CRIMES

A ‘fresh’ Section 68(A) has been proposed for providing modes and methods for encryption for secure use of the electronic medium. This is a guiding principle, proposed for safer usage of the electronic medium. Section 69, has been amended to take care of the concerns of the Ministry of Home Affairs regarding the safety, sovereignty and integrity of India and further preventing stimulation to the commission of any cognizable offence. This provision relates to the authority/power to issue instructions for interception or monitoring or decryption of any information through any computer resource, which stands rightfully amended.

A new section 79 A32 (Examiners of Electronic Evidence) has been added, taking the EU Directive on E-Commerce 2000/31/EC issued on June 8th 2000  as a guiding document. The objective of the provision is to notify the examiners of electronic evidence by the Central Government, intended to help and assist the Judiciary/Adjudicating officers in handling technical issues. Section 79 has been revised and amended to bring-out unambiguously; explicitly the degree of liability of intermediary in certain cases.

Inclusion of social offences like pornography are overlapping due to the existing provisions in the Indian Penal Code casing and covering pornography. Pornography, although has not been defined under the Penal code, section 292 evidently states that “a book, pamphlet, paper, writing, drawing, painting representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect,” Addition of the  provision forbidding and banning child pornography may perhaps be a case of ‘over legislation’ considering the existing ban on pornography as such; both in the Information Technology Act, 2000 (section 67) as well as the Indian Penal Code, 1860 (section 292). While Sections 67 A and B interleave penal provisions in respect of offenses of publishing or transmitting of material holding sexually explicit act and child pornography in electronic form, section 67C concerns with the responsibility and obligation of an intermediary to preserve and keep hold of such data.

The above are few of the concerned measures adopted over time, to make the Internet more secure and to ensure easy web governance.

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Steps taken in furtherance of Data Protection and Information Security

The main objective of the Information Technology Act, 2000 is to offer legal identification and recognition to transactions carried out by means of electronic statistics/ data exchange and other means of electronic communication, universally referred to as e-commerce,   substituting paper-based methods of communication and depository of information to smooth the progress of electronic filing of documents with the Government bureaus. The Act, apart from India, has extra-territorial jurisdiction to swathe any offence or infringement or contravention committed outside India by any person.

The Act shall not apply to the following categories of operation:  (a) Any Negotiable Instrument; (b) A Power of Attorney; (c) A Trust; (d) A will including any other testamentary disposition; (e) Any contract for the sale or conveyance of immovable property; and (f) Any other documents or transactions as may be decided by the Central Government.

The economic world of cyberspace at the beginning of the 21st century depends on mutual confidence: confidence on the part of the buyer and seller to conform to legitimate expectations. E-commerce has become an increasingly significant segment of the global economy. Including voluntary codes of conduct, the prerequisite of private adjudication for the resolution of disputes, escrow accounts, agreements between buyers, sellers and credit card companies, amongst others form a part of this rising global virtual economy.

Technology reduces and repeatedly may eliminate the need for physical contact in the formation of legally significant relationships between parties or between an actor and the state acting as regulatory valve.

JURISDICTION OVER CYBERSPACE

The Act prescribes the Central Government the authority to lay down the security procedure in relation to electronic records and Digital Signatures, making an allowance for the nature of the transaction, the rank of sophistication of the Parties with reference to their technological capacity, the degree of transactions and the procedures used in broad-spectrum used for similar types of transactions or communications. If any individual without the authorization of the owner, accesses the owner’s computer, computer system or computer net-work or downloads copies or any extract or introduces any computer virus or damages computer, computer system or computer net work data etc. He/she shall be accountable and liable to pay damage by way of compensation not exceeding Rupees One Crore to the individual so affected. The Act authorises any subscriber (i.e., a person in whose name the Digital Signature Certificate is issued) to authenticate electronic record by attaching his/her Digital Signature.

LEGAL CONSEQUENCES

Fiddling with computer resource documents shall be punishable with imprisonment up to three years or fine up to Rs. 2 lakhs or with both. Correspondingly, hacking with computer system necessitates punishment with imprisonment up to three years or with fine upto Rs. 2 lakhs or with both.

Publishing of information/ particulars/ data, which is obscene in electronic form, shall be punishable with imprisonment up to five years or with fine up to Rs. 1 lakh and for second conviction with imprisonment up to ten years and with fine up to Rs. 2 lakhs.

DATA PROTECTION AND INFORMATION SECURITY

In view of recent apprehensions about the operating provisions in the IT Act related to “Data Protection and Privacy” in addition to contractual agreements between the parties the existing Sections (viz. 43, 65, 66 and 72A) have been revisited and more stringent provisions; amendments, have been incorporated in the Act. Notably amongst these are:

• Section 43(A) is associated to managing/handling of sensitive personal data or information with reasonable security practices and procedures. This section has been introduced to defend and protect sensitive personal data or information, dealt or handled by a body corporate in a computer resource which such company owns, is in command of or operates. If such body corporate is negligent in executing and maintaining reasonable security practices and procedures and in so doing causes wrongful loss or wrongful gain to any person, it shall be liable to pay damages by way of compensation to the individual so affected.
• Section 72 IT ACT, 2000: If a person is found in ownership and possession of some confidential information like electronic record, book, register, correspondence and he is found disclosing it to any third party without the consent of the person concerned, then he shall be punished with imprisonment for a term which may be up to two years, or a fine which may extend to One Lakh rupees, or with both.
• Section 72A IT Act, 2000: If any person is liable to abide while providing services and  under the terms of the contract, has attained access to any material containing personal information about another person, with the intent to cause wrongful loss or wrongful gain disclosed the information, without the person’s consent or in breach of a lawful contract, shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees or with both.

Right to speedy trial is a right which is granted to the accused in order to relieve him from criminal proceedings and to provide justice to the person who has suffered injuries. In common parlance, speedy trial means that the trial should be conducted in such an orderly and systematic manner that no one is deprived of his personal liberty. It is however to be noted that the right to speedy trial in India does not mean exaggerating the process of rendering justice, but it means and strives to remove the hurdles which come in the way of execution of justice. If the process of rendering justice is exaggerated then the accused and the claimant may not get proper chance to represent their case, which will ultimately lead to injustice being served.

Article 21 of the Indian constitution mentions about ‘Right to life and liberty’. Liberty is the term, of such a broad nature, that it includes right to get justice by execution of a fair trial. Right to speedy trial is the fundamental right mentioned in the fundamental legal document of England, Magna Carta. Thus every person who feels that his right to speedy and fair trial is infringed, can knock the doors of Supreme Court under Article 32 of the Indian constitution and can enforce his right. The Supreme Court is also bound to recognize the plea of the plaintiff and ensure justice to him.

Justice Krishna Iyer while dealing with the bail petition in Babu singh v. sate of UP, remarked, “Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is the component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished with a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”

This delay in the process of administration of justice can be because of various reasons. This can be grouped into two broad heads: Delays caused by Courts, and Delays caused by Advocates. Some of the important reasons ascertained for this are- Huge numbers of cases being undecided and the less number of judges available (compared to the cases) for deciding the matter in dispute, the adjournments which are granted by the courts on vexatious grounds, and the delay which is caused by the investigating agencies.

The right to speedy trial strives to achieve the below three ends:

• The minimum possible time for period or remand should be allocated
• Worry, anxiety, expenses and disturbance in conducting the trial should be minimal
• Undue delay may result in impairment of the disability of the accused to defend him.

Justice Bhagawati in Hussainara Khatoon case observed that, “the state cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. It is also the constitutional obligation of this court as the guardian of fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by enforcing necessary directions to the state which may include taking of positive action, such as augmenting and strengthening the investigation machinery, setting up new courts, building new court houses, providing more staff and equipment’s to the court, appointment of additional judges and other measures calculated to ensure speedy trial. The similar view was reiterated by the honourable Supreme Court in Khadra paharia v. state of Bihar, and State of Maharashtra v. Champalal Punjaji Shah. In the latter case, Justice Chinnappa Reddy observed that it is a prejudice to a man to be detained without trial. It is a prejudice to a man to be denied a fair trial.

Keeping the importance of speedy trial as the inevitable right available to the accused, it is suggested that ‘Right to Speedy Trial Act’ should be enacted in India, as prevalent in the United States of America. For this, the 221^st Law Commission of India Report should be taken into consideration. The need for this act is felt is because of the reason that there is no sifting observed in the administration of criminal justice in India. The right to speedy trial must also apply to post-trial criminal proceedings also, such as parole and probation hearings.

The guideline of natural justice is a result of custom-based law framework.  With the evolving time, the forces gave to the State have expanded. Presently, the State deals with the Government issues as well as exercises prefer business, enterprises and correspondence. The fundamental point of this rule is to make a check and adjust technique, essentially to keep the self-assertive utilization of force by the State.

In The Constitution of India, no place for the expression Natural Justice is utilized. Introduction of the constitution incorporates the words, ‘Equity Social, Economic and political’ freedom of thought, conviction, love… What’s more, balance of status and of chance, which not just guarantees reasonableness in social and conservative exercises of the general population additionally goes about as shield to people freedom against the subjective activity which is the base for standards of Natural Justice.

The word “natural justice” is mainly related with two rules: 1) Audi alteram partem. 2) Nemo judex in causa sua.

Audi alteram partem: It means the right to be heard. It can be said along these lines, that at whatever point there is a case under the steady gaze of an official courtroom, the accused and the respondent must have a privilege to be heard under the steady gaze of the court. So the charged likewise has a privilege to think about the body of evidence which is made against him, the confirmations which will be used against him and so forth so that he additionally gets an opportunity to substantiate himself as not guilty.

Nemo judex in causa sua: The meaning of this maxim is no one should be a judge of his own cause. As indicated by this rule the choice of any judicial or quasi judicial power will be proclaimed as void if the judges of these powers have some individual or monetary enthusiasm for the case.

Rule of Natural Justice is an extremely center idea of the Indian Constitution. Article 14, 19 and 21 of the Constitution of India set out the foundation of this rule. The Supreme Court of India assumes a fundamental part to build the significance of the rule of normal equity in India.

In kharak Singh v State of U.P the court takes an extremely stagnant view and says that “method built up by law” of Article 21 of the Constitution implies any methodology sets around any Statute. Such technique can abrogate the idea of sensibility or characteristic equity or due process while translating this Article. On account of Maneka Gandhi v Union of India the court says that “individual freedom” of Article 21 is restricted to the real limit as well as incorporates shifts different sorts of rights, that implies rights given in Article 19 additionally, to make the individual freedom of any man. the court says that the system mulled over in Article 21 can’t be irrational or out of line .The standard of sensibility is a basic component of fairness. So any strategy which takes away individuals’ entitlement to travel to another country, without giving a sensible chance of being listened, will be considered as infringement of Article 21 as it disregards the standard of characteristic equity

Along these lines, the run of regular equity predominantly manages the standard of reasonable hearing. Along these lines these taking after parts are likewise incorporate into the control of regular equity:

Right to notice: The both parties of any case have a right to get notice, which means, the time and space of the hearing, legal authorities under which the hearing is going to be made, specification of charges etc.

Right to know evidences against him: All the parties of a case have this right to prove them innocent.

Right to cross examination: Cross examination is a really useful tool to bring the truth out.

The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.

Actually the idea of judicial review implies the amendment of the declaration or sentence of a lower court by a higher court. Judicial review has a more specialized importance in pubic law, especially in nations having a composed constitution which are established on the idea of restricted government.

The convention of judicial review has been started and created by the American Supreme Court, in spite of the fact that there is no express arrangement in the American Constitution for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had the force of judicial review.

There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts proclaim void the demonstrations of the council and the official, on the off chance that they are found disregarding the arrangements of the Constitution.

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No official courtroom there can pronounce a parliamentary order invalid. In actuality each court is compelled to implement each arrangement” of the law of parliament. Under the constitution of India parliament is not Supreme.

Its forces are constrained in the two ways. To begin with, there is the division of forces between the union and the states. Parliament is equipped to pass laws just regarding those subjects which are ensured to the residents against each type of authoritative infringement. Being the guardian of Fundamental Rights and the referee of protected clashes between the union and the states regarding the division of forces between them, the Supreme Court remains in an interesting position where from it is skilled to practice the force of investigating administrative institutions both of parliament and the state governing bodies.

Dr. M.P. Jain has rightly observed: “The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.”

The power of judicial review of legislation is given to the judiciary both by the political theory and text of the constitution. There are several specific provisions in the Indian constitution, judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372. Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly. Article 13 specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights shall be void.

Under our Constitution, judicial review can conveniently be classified under three heads:

(1) Judicial review of Constitutional amendments.-This has been the subject-matter of consideration in various cases by the Supreme Court; of them worth mentioning are: Shankari Prasad case , Sajjan Singh case, Golak Nath case , Kesavananda Bharati case , Minerva Mills case, Sanjeev Coke case and Indira Gandhi case. The test of validity of Constitutional amendments is conforming to the basic features of the Constitution.

(2)Judicial review of legislation of Parliament, State Legislatures as well as subordinate legislation.-Judicial review in this category is in respect of legislative competence and violation of fundamental rights or any other Constitutional or legislative limitations;

(3) Judicial review of administrative action of the Union of India as well as the State Governments and authorities falling within the meaning of State.

Therefore judicial review is a fundamental principle of law that every power must be exercised within the four corners of law and within the legal limits. Exercise of administrative power is not an exception to that basic rule.

At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts were to assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the courts would assume jurisdiction to do the very thing which is to be done by administration.

The historic case of Golak Nath vs. The state of Punjab was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed. (1) Article 368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. (3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression ‘law’ as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power. (5)The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the constitution. (6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution. (7) Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined there in

The improvement of judicial review in India is acquired from the British frontier time and its protected framework and the result of precedent-based law legal framework is the entrepreneur way of the established instrument.

“CrPC is more far reaching about the entire issue when contrasted with the Constitution.”

In the Indian Constitution, Article 20(2) says that “No Person shall be prosecuted and punished for the same offence more than once”. This article is a fundamental right guaranteed to every person in the constitution. The doctrine of double jeopardy is based on the principle that a man should not be put in peril twice for the same offence. The Latin maxim for the same is ‘Nemo debet bis vexari’.

It is to be noted here that, this right of double jeopardy is not an additional feature added in the Constitution because this already existed in Indian jurisprudence, under Criminal Procedure Code. The guarantee against Double jeopardy could be found in Sec. 26 of the General Clauses Act and Sec.403 (1) of the Cr PC 1898. Reminiscence of this can be still found under Sec. 300 of the Cr PC, 1973. In fact Sec. 300 elaborates the principle of double jeopardy much better than does Art. 20 (2) of the Constitution. It is also widely believed that Art. 20 (2) of the Constitution only provides Parliamentary gloss over a prevalent doctrine already incorporated within the Cr PC.

From the historical point of view, it is believed that the principle of Double Jeopardy since the beginning of criminal procedure. This maxim stemmed from St Jerome’s commentary in AD 391 on the prophet Nahum: “For God Judges not twice for the same offence”. This rule was later also depicted in common pleas “autrefois convict” and “autrefois acquit”. Autrefois convict means a plea that the prisoner had already been tried for and convicted of the offence. Autrefois acquit means that the prisoner has already been tried for and acquitted of the same offence.

The concept of this principle was well explained by the decision in Connelly v Director of Public Prosecutions (UK) [1964] AC 1254 in which it was laid down that: “For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that which he is then charged. The word ‘offence’ embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.”

Under the Indian Constitution the ambit of Art. 20(2) is, however, narrower than the English or the American rule against Double Jeopardy.  This article only covers the principle of autrefois convicts and it does not cover autrefois acquits. Autrefois acquit is covered under section 300 of CrPC. In the article 20(2), the word prosecution is used.

In Kalawati v. State of Himachal Pradesh a person accused of committing murder was tried and acquitted. An appeal by the state was preferred against the acquittal. It was held by the court that the accused could not plead Article 20(2) against the appeal. Hence the principles of double jeopardy do not apply to appeal. Article 20(2) does not apply when there was no punishment for the offence at the earlier prosecution.

In the case of State of Bihar v. Murad Ali Khan, the Supreme Court held that in order for the prohibition to apply under Article 20(2), the same act must constitute an offence under more than one Act. If there are two distinct separate offences with ingredients under two different enactments, a double punishment is not barred. In the case of State of Bombay v. S.L. Apte, the Supreme Court explained the legal position as follows: “To operate as a bar the second prosecution and the consequential punishment there under, must be for the ‘same offence’. The crucial requirement therefore, for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.”

In the Cr PC, the arrangement to anticipate discipline for a similar offense twice can be found under Sec. 300. This segment of the CrPC fuses the supplications of autrefois vindicate and autrefois convict. These supplications are taken as a bar to criminal trial on the ground that the denounced individual had been once effectively charged and strove for the same asserted offense and was either cleared or sentenced.

Sec. 300 of the Cr PC has six sub-sections and six illustrations which expansively deal with the principle of Double Jeopardy.

With the end goal of Sec. 300 of the CrPC, the expression “absolution” has been clarified in negative terms by saying that the expulsion of a grumbling or the release of the blamed is not acquittal.

In the case of Krishna Sen Gupta v. Manjula Mukherjee, the brother of the aggrieved filed a complaint under Sec. 494 I.P.C. However, the accused was discharged because the complaint was not filed by the complainant. The Calcutta High Court held that a subsequent complaint by the complainant for the same offence is not barred by the principle of double jeopardy. The reason for having such an explanation is that the dismissal of a complaint or the discharge of the accused is not considered as final decision regarding the innocence of the accused person.33 However, if a court applies a wrong provision of law erroneously, it would be deemed that the order in effect, was one under the provisions of law applicable to the facts of the case.

The essential point that goes over from examining the whole segment is that lone subsection (1) manages the correct arrangement identifying with Double Jeopardy. Alternate segments are only supplementing the principle sub-area with regards to the different possibilities which may emerge in the genuine usage of the precept of Double Jeopardy.

In the wake of investigating all the different sub-segments of Sec. 300 of the Cr PC furthermore Article 20(2) of the Constitution of India which articulate the convention of Double Jeopardy, it is clear from what has been examined that the Doctrine of Double Jeopardy has been all the more obviously expounded in the CrPC (Section 300) instead of Article 20 (2) of the Indian Constitution. In any case, what likewise goes over is that individuals like to allude to the Constitution when arguing a case which is secured by Double Jeopardy than the Cr PC which unmistakably gives a superior safe watch frame being indicted twice for a similar offense. The Constitution manages the whole matter in a couple lines. In any case, these few lines have been discussed about a considerable measure and the sort of legal examination that has been gotten by this is immense. On a similar hand there is less civil argument about Double Jeopardy in the Cr PC. This is additionally expected shape the way that the CrPC is more far reaching about the entire issue when contrasted with the Constitution.

John Doe, conceptually is a legal personification of the unknown, the untraceable. In this age of rampant online piracy, copyright owners, especially movie studios and online broadcasters face the trouble of not knowing the identity of potential infringers to prevent them from causing any damage. In such a scenario, the courts, taking into consideration the huge risk of revenue loss to the plaintiff owing to the copyright infringement and to avoid delay in justice-delivery, name the unidentified defendants as ‘John Doe’ a.k.a ‘Ashok Kumar’(the Indian Counterpart) and then issue ex-parte temporary injunctions by invoking Order 39 Rule 1 and S.151 of the Code of Civil Procedure. Once the identity and particulars of the defendants are found out, they are merely substituted in place of John Doe and thus without further ado the order is instantly made enforceable.

When and how is it made enforceable in practice?

Such orders, essentially, being in the nature of ex-parte injunctions, is subjected to the same standards of judicial tests and safeguards as a precondition. Hence the plaintiff has to establish the well-known triad of prima facie case, balance of convenience and irreparable damage along with details that prove the existence of a right and its potential breach. More often than not, these days such orders are garbed in the secured layer of  a quia timet action in order to prevent imminent violations which may not have already taken place.

John Doe orders, although a brainchild of the English Courts, have found its way to the Indian legal system in recent years, more specifically in the 2003 Delhi High Court Judgment of ‘Taj Television v. Rajan Mandal’ wherein it was held that the lack of identity of the defendant is not a hurdle as the only consideration of the court should be whether their activities fell within the scope of action. Since then John Doe orders have been part and parcel of the copyright jurisprudence and courts generally either direct the Internet Service Providers (ISPs) to block infringing websites and provide identity of illegitimate users or  seek the lesser-trodden path of directing to block only the particular URL that seems to have infringed the copyright.

Issues that have cropped up in recent years through judicial pronouncements

The blocking of entire websites in apprehension of potential infringement has lead to multifarious issues that affect not just the copyright owners, but also the ISPs and the legitimate users of the Internet. While the Delhi High Court’s track record of handling such disputes vide cases involving movies like Singham, Bodyguard and Don 2, has proven to be detrimental to the legitimate users owing to the blanket ban on certain websites, it also has resulted in the violation of consumer’s fair use rights under S.52 of the Copyright Act .

Since in most cases it is entrusted upon the ISPs to enforce the ban and thus forced to compromise with the interests of their customers, their avenue of revenue goes at stake. In a follow up to this, consumer complaints were filed against the ISPs citing deficiency in service  when the Madras High Court continued the trend of blocking entire websites on a petition by the production house of the movie ‘3’, by directing the ISPs to do the same. The Madras Court later, at the instance of the ISPs, rectified  its stand by narrowing down the earlier order to have  covered only those particular URLs which were found to be infringing rather than entire websites. Again Courts reverted back to the tradition of blocking websites, supporting the argument that ban on specific URLs would not hold good as a mere change in a character in the URL paves way for circumventing the order with ease.

Conclusion

The only saving grace to this vast pasture of ambiguity came out from the mighty pen of Justice  Gautam Patel of Bombay High Court in his latest Judgment in 2016 while giving John Doe order for the movie ‘Dishoom’, where he set out a well-chiselled framework to prevent ISPs from exercising arbitrary powers while blocking websites, to accommodate aggrieved third parties of the order at the earliest and to enforce the statutory limit of enforceability of John Doe orders as per S.52(1)(c) of the Copyright Act i.e 21 days, thus preventing  the ban to go on indefinitely unless further ban is approved by the Court after the limit. Since the Bombay High Court’s decision will only have a persuasive effect, an Apex court precedent is the need of the hour to smoothen this slippery patch of piracy.