Module 05: Indian IT Act

Cyber Crime and Criminal Justice: Penalties

Adjudication and Appeals Under the IT Act, 2000:

JUSTICE SYSTEM FOR CYBER CRIMES UNDER INFORMATION TECHNOLOGY ACT
Information Technology Act, 2000 provides for justice system for cyber crimes, through
Controller of Certifying Authority (CCA), Adjudicating officers and Appellate Tribunal (AT).
Appeal against the order of AT can be made in High Court. I. RESOLUTION OF CONFLICT
BY CONTROLLER OF CERTIFYING AUTHORITY CCA is appointed by the Central
Government. It resolves conflict between Certifying Authority and Subscribers. It ensures that
none of the provisions of the Act are violated. II. ADJUDICATION ON CONTRAVENTIONS
BY ADJUDCATING OFFICER Sec. 46 provides that if it becomes necessary to find out
whether any person has committed a contravention of any of the provisions of this Act, or of any
rule or regulation, direction or order made thereunder which renders him liable to pay penalty or
compensation, the Central Government shall appoint an officer to be known as Adjudicating
Officer (AO) for holding an enquiry in the manner prescribed by the Government. The provision
of adjudicating officer has been made for speedy trial. Qualification and Jurisdiction of
Adjudicating Officer Such officer shall not be below the rank of a Director to the Government of
India or he shall be an equivalent officer of a State Government [Sec. 46(1)]. In addition to this
he must possess prescribed experience in the field of Information Technology and legal or
judicial experience. The Adjudicating Officer appointed under Sec. 46(1) shall exercise
jurisdiction adjudicate matters in which the claim for injury or damage does not exceed ₹ 5 crore.
But the jurisdiction for claims exceeding ₹ 5 crore shall vest with the competent court [Sec.
46(IA), Inserted by Information Technology (Amendment) Act, 2008]. Where more than one
adjudicating officers are appointed, the Central Government shall specify by order the matters
and places with respect to which such officers shall exercise their jurisdiction [Sec. 46(4)].
Powers of Adjudicating Officer Sec. 46(5) provides that every adjudicating officer shall have the
powers of a civil court such as to summon witnesses, enforce their attendance and examine them
on oath and (a) all proceedings before it shall be deemed to be judicial proceedings within the
meaning of Secs. 193 and 228 of the Indian Penal Code; (b) shall exercise the powers of a civil
court for the purposes of Secs. 345 and 346 of the Code of Criminal Procedure; (c) shall exercise
the powers of a civil court for purposes of order XXI of the Civil Procedure Code, 1908. Factors
to be Taken into Account by the Adjudicating Officer Sec. 47 provides that while declaring the
quantum of compensation, the adjudicating officer shall take into account the following factors:
(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
(b) the amount of loss caused to any person as a result of the default; (c) the repetitive nature of
the default. The adjudication officer shall give to the accused person a reasonable opportunity for
making representation in the matter. If he is satisfied that the person has committed the
contravention, he may impose such penalty or award such compensation as he thinks fit in
accordance with the provisions of that section [Sec. 46(2)]. The first adjudication obtained under
this provision was in Chennai, in a case involving ICICI Bank. III. THE APPELLATE
TRIBUNAL (AT) Secs. 48 to 64 of Chapter X of IT Act contain the various provisions relating
to appellate tribunal. It is significant to note that Cyber Appellate Tribunal, the body which
existed earlier under the Information Technology Act, 2000 has been merged with the Appellate
Tribunal that is the Telecom Dispute Settlement and Appellate Tribunal (TDSAT) under the
Telecom Regulatory Authority of India Act, 1997 by Finance Act, 2017. Sections 49, 50, 51, 52,
52A, 52B, 52C, 53, 54 and 56 of Chapter X of Information Technology Act have been omitted
by Finance Act, 2017. Provisions relating to Appellate Tribunal are explained below: (i) The
Appellate Tribunal Sec. 48(1) The Telecom Disputes Settlement and Appellate Tribunal
established under Sec. 14 of the Telecom Regulatory Authority of India Act, 1997, as per Part
XIV of Chapter VI of the Finance Act, 2017, w.e.f. 26/05/2017, be the Appellate Tribunal for the
purposes of this Act and the said Appellate Tribunal shall excercise the jurisdiction, powers and
authority conferred on it by or under this Act. The Central Government shall specify, by
notification, the matters and places in relation to which the Appellate Tribunal may excercise
jurisdiction. (ii) The Appellate Tribunal (Qualifications, Experience and other Conditions of
Service of Members) shall be as per the Appellate Tribunal (Qualifications, Experience and other
Conditions of Service of Members) Rules, 2017 (w.e.f. 1/6/17). Appeal to Appellate Tribunal
(AT) (Sec. 57) (a) What is appeal? An appeal is a request made by the aggrieved party to modify
or reverse an order. Appeals function both as a process for error correction and a process of
clarifying and interpreting law. (b) Who can make appeal? Any person aggrieved by an order
made by controller or adjudicating officer under this Act may prefer an appeal to AT [Sec. 57(1)]
It needs to be noted that, if any person is aggrieved by an order passed by CCA, while using the
powers vested with him under the Act, and/or the order passed by the Adjudicating Officer in the
complaint made to him under Secs. 43 and 43A of the Act, can file an appeal to AT. (c) No right
to appeal A person will have no right to appeal where the order has been made with the consent
of the parties [Sec. 57(2)]. (d) Period allowed for appeal Every appeal shall be filed within a
period of 45 days from the date of receipt of order made by the controller or adjudicating officer
along with the prescribed fees. However, the Appellate Tribunal may entertain an appeal after the
expiry of the stated period of 45 days if it is satisfied that there was sufficient cause for delay in
filing an appeal [Sec. 57(3)]. (e) Order by AT On receipt of an appeal under Section 57(1), the
Appellate Tribunal may, after giving an opportunity of being heard to the parties to the appeal,
pass such orders thereon as it thinks fit. It may confirm, modify or set aside the order against
which an appeal has been made [Sec. 57(4)). (f) Copy of the order The Appellate Authority shall
send a copy of every order made by it to: (i) the parties to appeal, and (ii) the concerned
controller or adjudicating officer [Sec. 57(5)]. (g) Time period for disposal of appeal The appeal
shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose
of the appeal finally within 6 months from the date of receipt of the appeal [Sec. 57(6)].
Procedure of AT [Sec. 58(1)] The Appellate Tribunal shall not be bound by the procedure laid
down by the Code of Civil Procedure, 1908. However, it shall be guided by the principles of
natural Justice and, subject to the other provisions of this Act and of any rules, the Appellate
Tribunal shall have powers to regulate its own procedure including the place at which it shall
have its sittings. Powers of AT [Sec. 58(2)] The Appellate Tribunal shall have, for the purposes
of discharging its functions under this Act, the same powers as are vested in a Civil Court under
the Code of Civil Procedure, 1908. These are as follows: (a) summoning and enforcing the
attendance of any person and examining him on oath; (b) requiring the discovery and production
of documents or other electronic records; (c) receiving evidence on affidavits; (d) issuing
commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f)
dismissing an application for default or deciding it ex parte"; (g) any other matter which may be
prescribed. Right to make Legal Representation (Sec. 59) The appellant may either appear in
person or authorize one or more legal practitioners or any of its officers to present his or its case
before the Appellate Tribunal. Civil Court not to Have Jurisdiction (Sec. 61) No Civil Court shall
have jurisdiction to entertain any suit or proceeding in respect of any matter which an
adjudicating officer or the Appellate Tribunal is empowered to determine under this Act. No
court shall grant injunction in respect of any action taken or to be taken in pursuance of any
power conferred by or under this Act. IV. APPEAL TO HIGH COURT (SEC.62) Any person
aggrieved by any decision or order of Appellate Tribunal may file an appeal to the High Court
within 60 days from the date of communication of such decision or order. An appeal may be on
any question of fact or law arising out of such order. The High Court may allow it to be filed
within a further period of 60 days, if it is satisfied that sufficient cause prevented him from filing
the appeal within the prescribed period.

IT Act. 2008 and its Amendments:

Tuesday, October 27, 2009, Press Information Bureau , Government of India

The Information Technology (Amendment) Act, 2008 has come into force today. The Rules
pertaining to section 52 (Salary, Allowances and Other Terms and Conditions of Service of
Chairperson and Members), section 54 (Procedure for Investigation of Misbehavior or Incapacity
of Chairperson and Members), section 69 (Procedure and Safeguards for Interception,
Monitoring and Decryption of Information) , section 69A (Procedure and Safeguards for
Blocking for Access of Information by Public), section 69B (Procedure and safeguard for
Monitoring and Collecting Traffic Data or Information) and notification under section 70B for
appointment of the Indian Computer Emergency Response Team have also been notified.
The Information Technology Act was enacted in the year 2000 with a view to give a fillip to the
growth of electronic based transactions, to provide legal recognition for e-commerce and
e-transactions, to facilitate e-governance, to prevent computer based crimes and ensure security
practices and procedures in the context of widest possible use of information technology
worldwide.
With proliferation of information technology enabled services such as e-governance,
e-commerce and e-transactions; data security, data privacy and implementation of security
practices and procedures relating to these applications of electronic communications have
assumed greater importance and they required harmonization with the provisions of the
Information Technology Act. Further, protection of Critical Information Infrastructure is pivotal
to national security, economy, public health and safety, thus it had become necessary to declare
such infrastructure as protected system, so as to restrict unauthorised access.
Further, a rapid increase in the use of computer and Internet has given rise to new forms of
crimes like, sending offensive emails and multimedia messages, child pornography, cyber
terrorism, publishing sexually explicit materials in electronic form, video voyeurism, breach of
confidentiality and leakage of data by intermediary, e-commerce frauds like cheating by
personation - commonly known as phishing, identity theft, frauds on online auction sites, etc. So,
penal provisions were required to be included in the Information Technology Act, 2000. Also,
the Act needed to be technology-neutral to provide for alternative technology of electronic
signature for bringing harmonization with Model Law on Electronic Signatures adopted by
United Nations Commission on International Trade Law (UNCITRAL).
Keeping in view the above, Government had introduced the Information Technology
(Amendment) Bill, 2006 in the Lok Sabha on 15th December 2006. Both Houses of Parliament
passed the Bill on 23rd December 2008. Subsequently the Information Technology
(Amendment) Act, 2008 received the assent of President on 5th February 2009 and was notified
in the Gazette of India.
● Section 69A and the Blocking Rules: Allowing the Government to block content under
certain circumstances
Section 69A of the IT (Amendment) Act, 2008, allows the Central Government to block
content where it believes that this content threatens the security of the State; the
sovereignty, integrity or defence of India; friendly relations with foreign States; public
order; or to prevent incitement for the commission of a cognisable offence relating to any
of the above. A set of procedures and safeguards to which the Government has to adhere
when doing so have been laid down in what have become known as the Blocking Rules.
● Section 79 and the IT Rules: Privatising censorship in India
Section 79 of the Information Technology (Amendment) Act, 2008 regulates the liability
of a wide range of intermediaries in India. The section came in the limelight mostly
because of the infamous Intermediary Guidelines Rules, or IT Rules, which were made
under it. The IT Rules constitute an important and worrying move towards the
privatisation of censorship in India.
● Sections 67 and 67A: No nudity, please
The large amounts of ‘obscene’ material that circulate on the Internet have long attracted
comment in India. Not surprisingly, then, in the same way as obscenity is prohibited
offline in the country, so it is online as well. The most important tools to curtail it are
 sections 67 and 67A of the IT Act, prohibiting obscene and sexually explicit material
respectively.
● Section 66A: Do not send offensive messages
Section 66A of the Information Technology (Amendment) Act, 2008 prohibits the
sending of offensive messages though a communication device (i.e. through an online
medium). The types of information this covers are offensive messages of a menacing
character, or a message that the sender knows to be false but is sent for the purpose of
‘causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred, or ill will.’ If you’re booked under Section 66A, you could
face up to 3 years of imprisonment along with a fine.
Related Issues
● Freedom of Expression
To balance freedom of expression with other human rights is, at times, a difficult and
delicate task. From hate speech to intermediary liability, we tease out and shed greater
light on the various challenges that make this task particularly complicated, proposing
ways forward that can further strengthen and promote the right to freedom of expression,
in India and beyond, as well.
● Cyber security and human rights
With the advent of new technology, new security threats have emerged for people,
businesses and states. Oftentimes, responses to such threats, including states’ exercise of
their unprecedented power to survive their populations, have been criticised for their
negative impact on human rights. Can security and human rights no longer be reconciled
in the Internet age?