This article has been written by Arundhati Roy.
The Information Technology Act, 2000 was enacted by the Indian parliament to facilitate transactions carried out through the means of electronic data interchange, facilitate international trade, and as an alternative to paper-based methods of communication and storage of information. The Act primarily provides legal acknowledgment to “electronic commerce” or “e-commerce” and provides a redressal mechanism even to the owner of a single computer, computer system, or computer network located in India that has been violated by a person belonging to any nationality. As the cyber-crimes are progressing at an incredible speed with the advancement in technology, this Act ensures protection to the victims of cyber-crime. The Information Technology Act, 2000 extends to the whole of India and applies to any offense or contravention thereunder outside India by any person.
Chapter IX of the Information Technology Act, 2000, herein referred to as the “IT Act,” deals with penalties and adjudication. This Chapter has been incorporated to specifically tackle the problem of “cyber contraventions” through unauthorized access to the computer, computer system, or computer network. The term ‘Contravention’ is more of a violation of law or rule of procedure, unlike ‘cyber offense,’ which denotes specific criminal violation resulting from the unauthorized access to a computer, computer system or computer network, or computer resource that has to be taken into account. Further, the Chapter focuses not just on punitive action for damages to computers, computer systems, or computer networks but also on the process of adjudication.
Sections 43-45 of the IT Act, 2000 deals with various forms of cyber contraventions and imposes penalties on the offenders. Section 43 is of utmost importance among these sections as it specifies ten different causes of causing damage to the computer, computer system, or computer network. The offenders falling under Section 43 or 43A are imposed with the liability to pay damages by way of compensation to the person who has suffered due to such violation. In order to seek damages by way of compensation, the affected person has to approach the appropriate forum, which is the adjudicating officer appointed under Section 46 of the IT Act, 2000. The adjudicating officer has the pecuniary jurisdiction of up to five crore rupees, and any affected person seeking to claim compensation beyond this amount has to approach the competent Court for proper redressal. In this article, we shall go through the various provisions of the adjudicating officer under Section 46 of the Information Technology Act, 2000 and shall study the effectiveness of the working of this redressal mechanism as ensured by the legislators while formulating this Act.
Adjudicating officer under the IT Act, 2000
One of the salient features of the Information Technology Act, 2000 is the appointment of an adjudicating officer who should not be less than the rank of a Director to the Government of India or an equivalent officer of a state government as an adjudicating officer who shall adjudicate whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order and shall hold an inquiry in the manner prescribed by the central government. Further, the adjudicating officer is vested with the power of a civil court to adjudicate any matter before it. Under Section 46 of the IT Act, the power to adjudicate has been specifically enshrined for the purpose of adjudging under this Chapter.
Moreover, the central government has notified “Scope and Manner of Holding Inquiry” as per the gazette notification for Information technology Rules, 2003 under the short title “Qualification and Experience of Adjudicating Officer and Manner of Holding Enquiry” dated 17th March 2003.
As per IT Act Notification No. 240 issued by the Ministry of Communications and Information Technology, it has been declared that the Secretary of the Department of Information technology of each of the states or union territories are not normally below the rank of Director and also possess the required qualification as mandated by the central government; therefore, the Secretary of Department of Information Technology of each of the states or of union territory shall serve as an adjudicating officer.
Power to adjudicate under Section 46 of IT Act, 2000
Section 46(1) of the IT Act, 2000 states that the central government shall subject to the provisions of sub-section (3):
- Appoint an adjudicating officer for the purpose of adjudging under Chapter IX whether any person has violated any of the provisions of this Act, rendering him liable to pay penalty or compensation.
- The adjudicating officer shall have the power to hold an inquiry to adjudge upon the complaints being filed.
Section 46(1A) prescribes that the pecuniary jurisdiction to adjudicate matters wherein the claim for injury or damage does not exceed Rs 5 crores. In case the claim for compensation goes beyond the Rs 5 crores, the jurisdiction shall vest with a competent or higher court.
Further, Section 46(2) states that the adjudicating officer shall give a reasonable opportunity to make representation to the person who has violated any of the provisions of this Act or any rule, regulation, direction, or order made thereunder. And if satisfied after conducting an inquiry that the person so accused has committed the contravention, penalty or award of compensation may be imposed by him as deemed fit in accordance with the provisions of that section.
The essential requisites which are required to be fulfilled so as to be appointed as an adjudicating officer have been laid down under Section 46(3) of the IT Act, which states that in order to be eligible for this post, one must possess qualifications like experience in the field of information technology and legal or judicial experience as may be prescribed by the central government.
Appointment of more than one adjudicating officer has been provided under sub-section (4) of Section 46. It states that where more than one adjudicating officer is appointed, it is for the central government to specify by order the matters and places with respect to which such officers shall exercise jurisdiction.
Lastly, Section 46(5) vests the powers of a civil court on every adjudicating officers which are conferred on the Cyber Appellate Tribunal under sub-section (2) of Section 58 and includes the power to order attachment and sale of property, arrest, and detention of the person who has committed the contravention and appointment of the receiver which increases the enforceability and efficacy of its orders and working.
Scope and manner of holding an inquiry
- The adjudicating officer shall exercise jurisdiction in respect of the contraventions in relation to Chapter IX of the IT Act.
- To receive a complaint from the complainant on the basis of the location of computer system, computer network as defined in sub-section (2) of Section 75 of IT on a plain paper on a plain paper on the proforma attached to these Rules along with the fee payable which is computed on the basis of damages claimed by way of compensation.
- To issue notices together with all the documents to all the necessary parties to the proceedings, fixing a date and time for further proceedings.
- On the date so fixed, the person to whom the notice has been issued about the contravention alleged to have been committed shall be explained by the adjudicating officer about the contravention alleged to have been committed in relation to any of the provisions of this Act.
- Suppose the person who is alleged to have committed the contravention, pleads guilty. In that case, it shall be recorded by the adjudicating officer, and penalty might be imposed upon him or award such compensation as deemed fit in accordance with the provisions of this Act, rules, regulations, order, or directions made thereunder.
- Alternatively, on the date fixed, the person who has committed the alleged contravention may show cause as to why an enquiry should not be held in the alleged contraventions or why the report alleging contraventions against him should be dismissed.
- On the basis of the submissions made, the adjudicating officer shall form an opinion that there is sufficient cause to hold an enquiry or dismiss the matter or may get the matter investigated.
- If any person or persons fails, neglects, or refuses to appear, or present himself before the adjudicating officer, he shall proceed with the inquiry in the absence of such person or persons after recording the reasons for doing so.
- The adjudicating officer shall fix a date and time for the production of documents (including electronic records) or evidence.
- To hear and decide every application, as far as possible, in four months and the whole matter in six months.
- And if in a case, the adjudicating officer is convinced that the scope of the case extends to the offences under Chapter XI of IT Act (the Cyber Appellate Tribunal) instead of contravention, needing appropriate punishment instead of mere financial penalty, should transfer the case to the magistrate having jurisdiction to try the case, through presiding officer.
Quantum of compensation
While adjudging the quantum of compensation or penalty, the following factors shall be considered by the adjudicating officer:
- The amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
- The amount of loss caused to any person as a result of the default; and
- The repetitive nature of the default.
Adjudicating officer vested with powers of a civil court
Sub-section (5) of Section 46 states that the Adjudicating Officer has been vested with the same powers as are vested in a civil court under the Code of Civil procedure, 1908 while trying a suit, in respect of the following matters, namely: –
- Summoning and enforcing the attendance of any person and examining him on oath;
- Requiring the discovery and production of documents or other electronic records;
- Receiving evidence on affidavits;
- Issuing commissions for the examination of witnesses or documents;
- Reviewing its decisions;
- Dismissing an application for default or deciding it ex parte; and
- Any other matter, which may be prescribed.
The adjudicating officer shall deliver a certified copy of the order to the complainant & the respondent.
For appeals, the IT Act has established the Cyber Appellate Tribunal having the appellate jurisdiction. Section 48 of the IT Act provides that the central government shall by notification establish one or more appellate tribunals to be known as Cyber Appellate Tribunal. However, many cyber law practitioners have pointed out that the Cyber Appellate Tribunal was not functioning as it is required in some places in India.
As a result, the Telecom Dispute Settlement and Appellate Tribunal (TDSAT), established under Section 14 of the Telecom Regulatory Authority of India Act, 1997, has substituted CAT and since 2017 has been working as appellate tribunal for the purposes of the IT Act. The TDSAT exercises the jurisdiction, powers, and authority bestowed upon it by or under IT Act.
As per Section 57 of the IT Act, a person who is aggrieved by the order passed by the controller or an adjudicating officer under this Act may file an appeal before the appellate tribunal having jurisdiction in the matter. It is to be noted that no appeal shall lie to the appellate tribunal from an order passed by the adjudicating officer when it is arrived at with the consent of the parties. The limitation period for filing an appeal from the order of the adjudicating officer is 45 days from the date on which a copy of the order made by the controller or the adjudicating officer is received by the person aggrieved, and it shall be in such form and be accompanied by such fee as may be prescribed. The limitation period of appeal is provided under Section 57(1) of the IT Act,2000. In case the appeal is filed after the expiry of the limitation period, the appellate tribunal may entertain an appeal if it is satisfied that there was sufficient cause.
In the Indian National Congress (I) v. Institute of Social Welfare, it was held by the Supreme Court “… where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi-judicial authority.”
It can be inferred from this observation of the SC that the adjudicating officer under the Act is a quasi-judicial authority as holding an enquiry is required by him before making a decision. The quasi-judicial authority of the adjudicating officer is restricted to the determination of contraventions and impositions of penalties only for Sections 43–45 of the IT Act only. Further, the scope of quasi-judicial authority of the adjudicating officer if extended beyond the determination of contraventions as provided under Sections 43 to 45 would be conflicting with the legislative intent behind the Act. His quasi-judicial authority covers not only the entire range of computer-related contraventions, but also adjudicating body corporates vis-à-vis any failure to protect data, including sensitive personal data.
Is the working of the adjudicating authority really effective: Present scenario
The Department of Information Technology of each and every state is required to create a website for the citizens to have direct access to the various redressal mechanisms as provided by the Information Technology Act, 2000 and spread awareness about the working of these mechanisms. It is pertinent to note that as per IT Act Notification No. 240 issued by the Ministry of Communications and Information Technology, the Department of Information Technology of each of the states or of union territories shall provide the infrastructure and maintain the records of the matters handled by the adjudicating officer Functioning in the states/union territories. However, when a person tries to have access to the websites of the information technology of the states, the websites are either found to be not in a working condition or lacks the information which is quintessential for a layman to understand the system of the redressal mechanism set up under the Information Technology Act, 2000.
Now, pertaining to the IT Act Notification No. 240, which makes it mandatory to set up infrastructure by the Department of Information Technology, becomes a questionable fact when these IT department websites are inaccessible or prove to be deficient. For example, the State of Maharashtra’s website http://it.maharashtra.gov.in/1130/Filing-Complaints-under-IT-Act, has been inaccessible for the last 2 years.
The Government of Maharashtra has created this website to file complaints before the adjudicating officer under Section 46 of the IT Act, 2000. As the website is inaccessible, any aggrieved person will not be able to have access to the redressal mechanism so provided, which manifests that there is no compliance of order passed by the Ministry of Information Technology vide IT Act Notification No. 240. Not only the State of Maharashtra, other States in India, such as Madhya Pradesh, Gujarat, Rajasthan, Bihar, to name a few, also do not have websites for filing a complaint through online mode before the Adjudicating Officer under the IT Act.
Even the Consumer Protection Act, which the Ministry of Consumer affairs handles, provides for e-filing of complaints through their “Consumer Commission Online-Application Portal,” and their website is https://www.edaakhil.nic.in/edaakhil/. The website is well-formed, including the instructions for e-filing, and consists of video tutorials for the step-by-step procedure of e-filing. Besides this, any person can have access to the judgments passed by the consumer protection forums, which makes the working of the entire mechanism exceptionally transparent.
Not to forget, the Supreme Court of India when it opted for the digital way in the year 2017 with the launch of the e-filing system. The Integrated Case Management Information System (ICMIS) launch has made it possible to file a case online along with the feature of tracking its progress. The new system was launched to serve as a digital repository for case-related information that can be accessed at www.sci.gov.in and provides various functions such as filing cases, checking listing dates, case status, online service of notice/summons, etc.
Furthermore, the high courts of all the states are not left behind; each of them has its own portals to provide online services such as e-filing, case status, daily cause list, etc. All these attributes of the online services raise the efficiency of these redressal mechanisms. In a landmark initiative, the Gujarat High Court became the first to do a YouTube live streaming of judicial proceedings. When we look at these initiatives, the situation with the information technology websites are entirely dilatory and hence fail to deliver the efficacy which is expected from it.
Moreover, it is to be noted that the adjudicating officers belonging to the State of Karnataka, Tamil Nadu, Kerala, and Delhi have been the most judicially active in adjudicating the matters before them compared to their counterparts in other States of India, who are struggling. The reason as to why the other states are lagging lies in the very fact that there is a death of cases filed before the adjudicating officers of these States, which is again because the general public isn’t aware of the existence of any such mechanism for seeking compensation under the IT Act, 2000.
This is like a vicious circle that goes on and on. There has been no such initiative taken by the government of the states to create awareness among the general public regarding the statutory powers of an adjudicating officer under the IT Act. It is further pointed out that most of the judgments passed by the adjudicating officers are out of reach from the public domain. Suppose any person wants to have access to the copies of the judgment. In that case, it is unavailable, as there’s no such public domain set up for accessing previous judgments passed by the Adjudicating Officers under the IT Act.
To conclude, it can be said that, despite setting up of redressal mechanism such as the adjudicating officer and vesting it with powers of a civil court to adjudicate the matters concerning the cyber contraventions under the Information Technology Act, 2000, the role played by them has not been deployed to the fullest by the persons affected due to cyber contraventions.
Further, another point of consideration is e-governance, which signifies the application of information technology and communication by the government for the purposes of facilitating government services as well as to achieve the objectives of governance and has been taken up by the Indian government in 2006 by the launch of National e-Governance Plan (NGP). An initiative under this plan was the launch of the Digital India Campaign in the year 2015 to empower the country digitally. Apparently, from the launch of the Digital India Campaign and the lack of development of websites by the Department of Information Technology that we see today, it is explicit that there is a contradiction in what was promised by the government and what is being provided.
Also, there is no mechanism to keep track of whether the state governments in India are taking necessary efforts to improve their technological infrastructure in order to comply with the order of the central government, which makes it mandatory to develop the much-needed infrastructure for the proper implementation of the Information technology Act as per the changing needs. In view of the current scenario in nexus with the Information Technology Act, it can be said that the mechanism of adjudicating officers can prove to be truly effective if the government can create IT websites, stating step by step procedure of its operation, options for filing online complaints as well as by clearly specifying the procedure regarding how complaints can be filed before the adjudicating authority or their appellate authority along with the format and the basic fee-structure so that even a layman would be able to file a complaint without the help of any legal practitioner.
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