THE INFORMATION TECHNOLOGY ACT, 2000

Section 66E. Punishment for violation of privacy.–Whoever, intentionally or knowingly

captures, publishes or transmits the image of a private area of any person without his or her
consent, under circumstances violating the privacy of that person, shall be punished with
imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or
with both.
Explanation.–For the purposes of this section–
(a) ―transmit‖ means to electronically send a visual image with the intent that it be viewed by a
person or persons;
(b) ―capture‖, with respect to an image, means to videotape, photograph, film or record by any
means;
(c) ―private area‖ means the naked or undergarment clad genitals, public area, buttocks or
female breast:
(d) ―publishes‖ means reproduction in the printed or electronic form and making it available for
public;
(e) ―under circumstances violating privacy‖ means circumstances in which a person can have a
reasonable expectation that–
(i) he or she could disrobe in privacy, without being concerned that an image of his private area
was being captured; or
(ii) any part of his or her private area would not be visible to the public, regardless of whether
that person is in a public or private place.
FINDINGS- Section 66E of ‘THE INFORMATION TECHNOLOGY ACT, 2000’, which
provides punishment for violation of privacy, only takes into consideration the two genders. The
use of the word ‘his’ and ‘her’ takes the usage of the provision to a hetero-normative context.
This establishes gender hierarchies and gender norms, which are extremely vicious. 1 The people
who do not fall in either of the categories are ruled out. This puts them under an invisible cloak
resulting in their muteness in social policy and law. 2 Instead, gender-neutral terms such as
'Whosoever', 'Hir', 'Person' should be inserted in the Act.

1
Fenstermaker, S., West, C. and Zimmerman, D.H., 2002. Gender inequality: New conceptual terrain. Doing
gender, doing difference: Inequality, power, and institutional change, pp.25-39.
2
Sneha Annavarapu, Hetero-Normativity in Rape: Mapping the Construction of Gender and Sexuality in the Rape
Legislations in India, International Journal of Criminal Justice Sciences- Official Journal of the South Asian Society
of Criminology and Victimology, Vol. 8(2): 248-264.

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 THE INFORMATION TECHNOLOGY ACT, 2000

Section 72A. Punishment for disclosure of information in breach of lawful contract. – Save
as otherwise provided in this Act or any other law for the time being in force, any person
including an intermediary who, while providing services under the terms of lawful contract, has
secured access to any material containing personal information about another person, with the
intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses,
without the consent of the person concerned, or in breach of a lawful contract, such material to
any other person, shall be punished with imprisonment for a term which may extend to three
years, or with fine which may extend to five lakh rupees, or with both.
FINDINGS- Section 72A of ‘THE INFORMATION TECHNOLOGY ACT, 2000’
prescribes the punishment for disclosure of information in breach of lawful contract. Though it
uses ‘any person including an intermediary’, it becomes inconsistent when it uses the word
‘he’ while discussing wrongful loss or wrongful gain. The suggestive interpretation of the
provision becomes that only a ‘male’ is likely to cause wrongful loss or wrongful gain without
the consent of the person and shall be punished for the offence. This is flawed because it assumes
that the victim can be any person but the wrongdoer be only male.

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Section 77A. Compounding of offences.– A court of competent jurisdiction may compound

offences, other than offences for which the punishment for life or imprisonment for a term
exceeding three years has been provided, under this Act: Provided that the court shall not
compound such offence where the accused is, by reason of his previous conviction, liable to
either enhanced punishment or to a punishment of a different kind: Provided further that the
court shall not compound any offence where such offence affects the socio economic conditions
of the country or has been committed against a child below the age of 18 years or a woman.
(2) The person accused of an offence under this Act may file an application for compounding in
the court in which offence is pending for trial and the provisions of sections 265B and 265C of
the Code of Criminal Procedure, 1973 (2 of 1974) shall apply.
FINDINGS: Section 77A of ‘THE INFORMATION TECHNOLOGY ACT, 2000’ talks
about Compounding of offences. The Court assumes that the accused be a male by using the
word ‘his’. This suggests that where the accused is anyone else, other than a ‘male’ under the
same exception, a court of competent jurisdiction may compound the offences. This is directly
discriminatory in nature and creates a ‘class’ between sexes.

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 THE INFORMATION TECHNOLOGY ACT, 2000

Section 79. Exemption from liability of intermediary in certain cases. – (1) Notwithstanding
anything contained in any law for the time being in force but subject to the provisions of sub-
sections (2) and (3), an intermediary shall not be liable for any third party information, data, or
communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if–
(a) the function of the intermediary is limited to providing access to a communication system
over which information made available by third parties is transmitted or temporarily stored or
hosted; or
(b) the intermediary does not–
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also
observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if–
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise
or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its
agency that any information, data or communication link residing in or connected to a computer
resource controlled by the intermediary is being used to commit the unlawful act, the
intermediary fails to expeditiously remove or disable access to that material on that resource
without vitiating the evidence in any manner.
Explanation.–For the purposes of this section, the expression ―third party information‖ means
any information dealt with by an intermediary in his capacity as an intermediary.
FINDINGS- Section 79 of ‘THE INFORMATION TECHNOLOGY ACT, 2000’ talks about
the exemption from liability of intermediary in certain areas. The first provision is a ‘Non-
Obstante’ clause. The conditions to be met in order to absolve liability on the part of
intermediary is specified in provisions (2) and (3). However, the usage of the word ‘him’
concretizes the fact that the intermediary is assumed to be a ‘male’. This is consistent throughout
the Section and can be observed in proviso (2) (c) as well as the ‘Explanation’ provided under
this Section. The Section suggests that if a person, who is a ‘female’ or a ‘third gender’ works
as an intermediary and fulfills all the conditions as laid down under provisions (2) and (3), they
could still he made liable. This section fails to recognize them under the ambit of law.

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Section 85. Offences by companies. – (1) Where a person committing a contravention of any of
the provisions of this Act or of any rule, direction or order made thereunder is a company, every
person who, at the time the contravention was committed, was in charge of, and was responsible
to, the company for the conduct of business of the company as well as the company, shall be
guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to
punishment if he proves that the contravention took place without his knowledge or that he
exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the
provisions of this Act or of any rule, direction or order made thereunder has been committed by a
company and it is proved that the contravention has taken place with the consent or connivance
of, or is attributable to any neglect on the part of, any director, manager, secretary or other
officer of the company, such director, manager, secretary or other officer shall also be deemed to
be guilty of the contravention and shall be liable to be proceeded against and punished
accordingly.
Explanation.–For the purposes of this section,–
(i) ―company‖ means any body corporate and includes a firm or other association of individuals;
and
(ii) ―director‖, in relation to a firm, means a partner in the firm.
FINDINGS- Section 85 of ‘THE INFORMATION TECHNOLOGY ACT, 2000’ talks about
offences by companies. The provision 1 of this Section prescribes an exception which if met
would not render any liability upon the person. However, the provision is highly inconsistent. It
uses a gender specific term three times in the exception rule. The interpretation suggests that
only a ‘male’ can take the defence of this exception rule and absolve liability. If the person is
anyone, other than a male, this exception rule would fail to apply to that person.

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SECTION MARGINAL NOTES GENDER NEUTRAL STATUS

(YES/NO)
65 Tampering with computer source YES
documents
66 Computer related offences YES
66A Punishment for sending offensive messages YES
through communication service, etc.
66B Punishment for dishonestly receiving stolen YES
computer resource or communication
device
66C Punishment for identity theft YES
66D Punishment for cheating by personation by YES
using computer resource
66E Punishment for violation of privacy NO
66F Punishment for cyber terrorism YES
67 Punishment for publishing or transmitting YES
obscene material in electronic form
67A Punishment for publishing or transmitting YES
of material containing sexually explicit act,
etc., in electronic form
67B Punishment for publishing or transmitting YES
of material depicting children in sexually
explicit act, etc., in electronic form
67C Preservation and retention of information YES
by intermediaries
68 Power of Controller to give directions YES
69 Power to issue directions for interception or YES
monitoring or decryption of any
information through any computer resource
69A Power to issue directions for blocking for YES
public access of any information through
any computer resource
69B Power to authorise to monitor and collect YES
traffic data or information through any
computer resource for cyber security
70 Protected system YES
70A National nodal agency YES
70B Indian Computer Emergency Response YES
Team to serve as national agency for
incident response
71 Penalty for misrepresentation YES
72 Penalty for Breach of confidentiality and YES
privacy
72A Punishment for disclosure of information in NO

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breach of lawful contract

73 Penalty for publishing electronic signature YES
Certificate false in certain particulars
74 Publication for fraudulent purpose YES
75 Act to apply for offence or contravention YES
committed outside India
76 Confiscation YES
77 Compensation, penalties or confiscation not YES
to interfere with other punishment
77A Compounding of offences NO
77B Offences with three years imprisonment to YES
be bailable
78 Power to investigate offences YES
79 Exemption from liability of intermediary in NO
certain cases
79A Central Government to notify Examiner of YES
Electronic Evidence
80 Power of police officer and other officers to YES
enter, search, etc.
81 Act to have overriding effect YES
81A Application of the Act to electronic cheque YES
and truncated cheque
82 Controller, Deputy Controller and Assistant YES
Controller to be public servants
83 Power to give directions YES
84 Protection of action taken in good faith YES
84A Modes or methods for encryption YES
84B Punishment for abetment of offences YES
84C Punishment for attempt to commit offences YES
85 Offences by companies NO
86 Removal of difficulties YES
87 Power of Central Government to make YES
rules
88 Constitution of Advisory Committee YES
89 Power of Controller to make regulations YES
90 Power of State Government to make rules YES

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