IT ACT J20

INFORMATION TECHNOLOGY ACT, 2000

INTRODUCTION
The term ‘information technology’ (IT) is not having a precise meaning. It is generally applied to
broad area of activities and technologies associated with the use of computers and communication. We
can explain IT as an application of computers to create, store, process and use of information
particularly in the field of commerce. Basically, IT enables the corporate management to have access
to timely, accurate and relevant data, with the use of computers, communication, telephone, Internet,
etc., which helps in informed decision making, minimizes the response time and enables better
coordination in the organization resulting in reduced costs or increased profits.
Cyber law is the law relating to communications and automatic control systems. Thus, cyber law
covers: (i) Information Technology Law, which regulates transactions relating to computers and the
internet, (ii) Communications Law, which regulates telecommunications and broadcasting, including
radio, television telephony and cable. It is covered by (i) the Indian Telegraph Act, 1885, (ii) the
Wireless Telegraph Act, 1933, and (iii) the Cable Television Networks Regulation Act, 1995.

Digital Signature
The Law of Information Technology recognises the digital signature so that the Internet contract is
authenticated and becomes binding on the parties. These are the electronic equivalent of the
handwritten signatures. In an electronic message or transaction affixing handwritten signature is not
possible. Authentication of the record has to be achieved by some electronic or digital method.
“Affixing digital signature” has been defined in Section (1)(d) of the Act to mean adoption of any
methodology or procedure by a person for the purpose of authenticating an electronic record by means
of “digital signature”.
The expression “Digital Signature” has been defined in Section (1)(p) of the Act to mean
authentication of any electronic record by a subscriber, i.e., a person in whose name the “Digital
Signature Certificate” is issued, by means of an electronic method or procedure in accordance with the
provisions of Section 3.

Electronic Governance
The term Electronic Governance refers to the application of information technology to the processes of
Government functioning in order to bring about Simple, Moral, Accountable, Responsive and
Transparent (SMART) governance, it involves electronic filing of documents with the government
agencies and creating a network of e-services and e-administration. Electronic Governance (e-
governance) is fast catching up and more and more government processes are going online resulting in
less bureaucracy, more transparency and openness. It may be mentioned that electronic filing, using
digital signatures, has been made mandatory for companies from 16 September, 2006. The companies
will now be able to file any form, application or any other document in the electronic form online and
make payment of fee by using credit card and Internet banking.

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With a view to facilitating electronic governance, IT Act, 2000 accords legal recognition to electronic
records, digital signatures and electronic form of dealing with Government offices and its agencies.
The retention of information in electronic format has also been accorded legal recognition provided the
information remains accessible and usable in future. The Act contains the following provisions to
facilitate e-governance:
1. Legal Recognition of Electronic Records (Sec.4)- Where any law provides that information
or any other matter shall be in writing or in the typewritten or printed form, then,
notwithstanding anything contained is such law, such requirement shall be deemed to have
been satisfied if such information or matter is:
a) Rendered or made available in an electronic form; and
b) Accessible so as to be usable for a subsequent reference.
2. Legal Recognition of Digital Signatures (Sec.S)- Where any law provides that information or
any other matter shall be authenticated by affixing the signature or any document shall be
signed bear the signature of any person then, notwithstanding anything contained in such law,
such requirement shall be deemed to have been satisfied, if such information or matter is
authenticated by means of digital signature affixed in such manner as may be prescribed by the
Central Government.
Explanation- For the purposes of this Section, “signed”, with its grammatical variations and
cognate expressions, shall, with reference to a person, mean affixing of his handwritten
signature or any mark on any document and the expression “signature” shall be construed
accordingly.
3. Use of Electronic Records and Digital Signatures in Government and its Agencies (Sec.6)-
Where any law provides for:
a) The filing of any form, application or any other document with any office, authority, body or
agency owned or controlled by the appropriate Government in a particular manner;
b) The issue or grant of any licence, permit, sanction or approval by whatever name called in a
particular manner;
c) The receipt or payment of money in a particular manner, then, notwithstanding anything
contained in any other law for the time being in force, such requirement shall be deemed to
have been satisfied in such filing, issue of grant, receipt or payment, as the cas may be, is
effected by means of such electronic form as may be prescribed by the appropriate
Government.

The appropriate Government may, by rules, prescribe:

a) The manner and format in which such electronic records shall be filed, created or issued;
b) The manner or method of payment of any fee or charged for filing, creation or issue of any
electronic record under clause (a) stated above.
It may be observed that this Section lays down the foundation of electronic governance.

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4. Retention of Electronic Records (Sec.7)- Where any law provides that documents, records or
information shall be retained for any specific period, then, that requirement shall be deemed to
have been satisfied if such documents, records or information are retained in the electronic
form, if:
a) The information contained therein remains accessible so as to usable for a subsequent
reference;
b) The electronic record is retained in the format in which it was originally generated, sent or
received or in a format which can be demonstrated, to represent accurately the information
originally generated, sent or received;
c) The details which will facilitate the identification of the origin, destination, date and time of
dispatch or receipt of such electronic record are available in the electronic record.

However, the above rule does not apply to any information which is automatically generated solely for
the purpose of enabling an electronic record to be despatched or received. Further, the Section shall not
apply to any law that expressly provides for the retention of documents, record or information in the
form of electronic records.
Legal requirements for retaining record is generally laid down for accounting and tax purposes.

5. Publication of Rules, Regulations, etc., In Electronic Gazette (Sec.8)- Where any law
provides that any rule, regulation, order, bye-law, notification or any other matter shall be
publish in the Official Gazette, then, such requirement shall be deemed to have been satisfied if
such rule, regulation, order, bye-law, notification or any other matter is published in the
Official ‘Gazette or electronic Gazette.
Provided that where any rule, regulation, order, bye-law, notification or any other matter is
published in the Official gazette or Electronic Gazette, the date of publication shall be deemed
to be the date of the Gazette which was first published in any form.
6. No Right to insist that the document should be accepted in Electronic Form (Sec.9)-
Sections 6, 7 and 8 shall not confer a right upon any person to insist that any Ministry or
Department of the Central Government or the State Government or any authority or body
established by or under any law or controlled or funded by the Central or State Government
should accept, issue, create, retain and preserve any document in the form of electronic records
or effect any monetary transaction in the electronic form.
7. Central Government empowered to make Rules in respect of Digital Signature (Sec10)-
The central Government is empowered to make rules in respect to digital signature prescribing:
a) The type of digital signature;
b) The manner and format in which the digital signature shall be affixed;
c) The manner or procedure which facilitates identification of the person affixing the digital
signature;
d) Control processes and procedures to ensure adequate integrity, security and confidentiality of

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electronic records or payment; and

e) Any other matter which is necessary to give legal effect to digital signatures.

The Central Government has notified the “Information technology (Certifying Authorities) Rules,
2000. Rule 3 of these Rules provides the manner in which the information is to be authenticated by
means of digital signature. Rule 4 provides the manner of creation of digital signature, and Rule S
provides the manner of verification of digital signature.

The IT Act, 2000 has defined the various expressions used above as follows:
Information [Sec.2(1)(v)]: It includes data, text, images, sound voice, codes, computer programmes,
software and database or micro film or computer generated micro fiche.
Electronic form [Sec. 2(1)(r)]: “Electronic form”, with reference to information, means any
information generated, sent, received or stored in media, magnetic, optical, computer memory,
microfilm, computer generated micro fiche or similar device.
Accessibility or Access [Sec. 2(1)(a)]: It means gaining entry into, instructing or communicating with
the logical, arithmetical or memory function resources of a computer, computer generated function
resources of a computer, computer system or computer network.
The various expressions used in the above definitions have been defined in the act as follows:
Computer [Sec.2(1) (i)]: It means any electronic, magnetic, optical or other high-speed data processing
device or system which performs logical, arithmetic, and memory functions by manipulations of
electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer
software, or communication system or computer network.
Computer network [Sec. 2(1)(i)): It means the interconnection of one or more computers through:
a) The use of satellite, microwave, terrestrial line or other communication media; and
b) Terminals or a complex consisting of two or more interconnected computers whether or not the
interconnection is continuously maintained.
Computer resource [Sec. 2(1)(k)]: It means computer, computer system, computer network, data,
computer database or software.

Computer system [Sec. 2(1) (1) (i)]: It means a device or collection of devices, including input and
output support devices and excluding calculators which are not programmable and capable of being
used in conjunction with external files, which contain computer programmes, electronic instructions,
input data, and output data, that performs logic, arithmetic, data storage and retrieval, communication
control and other functions.

Data [Sec. 2(1)(o)]: It means a representation of information, knowledge, facts, concepts or

instructions which are being prepared or have been prepared in a formalized manner, and is intended to
be processed, is being processed or has been processed in a computer system or computer network, and
may be in any form (including computer printouts, magnetic or optical storage media, punched cards,

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punched tapes) or stored internally in the memory of the computer.

Function [Sec. 2(1)(u)]: In relation to a computer, it includes logic, control, arithmetical process,
deletion, storage and retrieval and communication or telecommunication from or within a computer.

Attribution, acknowledgement and dispatch of electronic records

Under this heading, the IT Act, 2000 contains provisions regarding:
(a) When the transmission of an electronic record shall be attributed to the originator?; (b) would
the addressee/receiver be bound to acknowledge the receipt of that electronic record?; and (c)
how to determine the time and place of dispatch and receipt of electronic record?

Attribution of Electronic Records (Sec.11)

An electronic record shall be attributed to the originator, if it was sent:
a) By the originator himself;
b) By a person who has the authority to act on behalf of the originator in respect of that electronic
record; or
c) By an information system programmed by or on behalf of the originator to operate
automatically.

Originator [Sec.2 (1) (za)]: It means a person who sends, generates, stores or transmits any electronic
message or causes any electronic message to be sent, generated, stored or transmitted to any other
person but does not include an intermediary.
Intermediary [Sec. 2(1)(w)]: Intermediary, with respect to any particular electronic message, means
any person who on behalf of another person receives, stores or transmits the message or provides any
service with respect to that message.
Addressee [Sec.2(1)(b)]: It means a person who is intended by the originator to receive the electronic
record but does not include any intermediary.

Acknowledgement of Receipt (Sec.12)

No agreement- Where the originator has not agreed with the addressee that the acknowledgement of
receipt of electronic record be given in a particular form or by a particular method, an
acknowledgement may be given by:
a) Any communication by the addressee, automated or otherwise; or
b) Any conduct of the addressee, sufficient to indicate to the originator that the electronic record
has been received (Sec. 12(1)].

Stipulation by the originator- Where the originator has stipulated that the electronic record shall be
binding only on receipt of an acknowledgment of such electronic record by him, then unless
acknowledgment has been so received, the electronic record shall be deemed to have never sent by the

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originator [Sec. 12(2)].

No stipulation by the originator- Where the originator has not stipulated that the electronic record shall
be binding only on receipt of such acknowledgement, and the acknowledgment has not been received
by the originator within the time specified or agreed or, if no time has been specified or agreed to
within a reasonable time, then the originator may give notice to the addressee stating that no
acknowledgment has been received by him and specifying a reasonable time by which the
acknowledgement must be received by him and if no acknowledgement is received within the
aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it
has never been sent [Sec 12(3)].
Time and Place of Dispatch and receipt of Electronic Record (Sec. 13)
Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic
record occurs when it enters a computer resource outside the control of the originator [Sec. 13(1)].
Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic
record shall be determined as follows, namely:
a) If the addressee has designated a computer resource for the purpose of receiving electronic
records:
• Receipt occurs at the time when the electronic record enters the designated computer resource;
or
• If the electronic record is sent to a computer resource of the addressee that is not the designated
computer resource, receipt occurs at the time when the electronic record is retrieved by the
addressee;
b) If the addresses has not designated a computer resource along with specified timings, if any,
receipt occurs when the electronic record enters the computer resource of the addressee
[Sec.13(2)].

Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to
be dispatched at the place where the originator has his place of business, and is deemed to be received
at the place where the addressee has his place of business [Sec. 13(3)].

The provisions of sub-section (2) shall apply notwithstanding that the place where the computer
resource is located may be different from the place where the electronic record is deemed to have been
received under sub-section (3) [Sec. 13(4)].

For the purposes of this Section:

• If the originator or the addressee had more than one place of business, the principal place of
business, shall be the place of business;
• If the originator or the addressee does not have a place of business, his usual place of residence
shall be deemed to be the place of business;
• “usual place of residence”, in relation to a body corporate, means the place when it is registered

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[Sec. 13(5)].

c) Created in a manner or using a means under the exclusive control of the subscriber and is
linked to the electronic record to which it related in such a manner that if the electronic record
was altered the digital would be invalidated,

Then such digital signature shall be deemed to be a secure digital signature.

Security Procedure (Sec.16)

The Central Government shall for the purposes of this Act prescribed the security procedure having
regard to commercial circumstances prevailing at the time when the procedure was used, including:
a) The nature of the transaction;
b) The level of sophistication of the parties with reference to their technological capacity;
c) The volume of similar transactions engaged in by other parties;
d) The availability of alternatives offered to but rejected by any party;
e) The cost of alternative procedures; and
f) The procedures in general use for similar types of transactions or communications.
The Central Government has prescribed the “Information Technology Security Guidelines” in
Schedule II of the “Information Technology (certifying Authorities) rules, 2000.

Regulation of certifying authorities

With a view to creating regulations for certification, the IT Act, 2000 provides for the appointment,
functions, powers and duties of “Controller of Certifying Authorities” and other officers. The
procedure for issuing a licence to a “Certifying Authority”, as well as the procedure for suspension or
revocation or renewal of the licence has also been laid down. The Act also provides for the functions
and duties of Certifying Authorities.

Appointment of Controller and other Officers (Sec. 17)

1. The Central Government may, by notification in the Official Gazette, appoint a Controller of
Certifying Authorities for the purposes of this Act and may also by the same or subsequent
notification appoint such number of Deputy Controllers and Assistant Controllers as it deems
fit.
2. The Controller shall discharge his functions under this Act subject to the general control and
directions of the Central Government.
3. The deputy Controllers and Assistant Controllers shall perform the functions assigned to them
by the Controller under the general superintendence and control of the Controller.
4. The qualifications, experience and terms and conditions of service of Controller, Deputy
Controllers and Assistant Controllers shall be such as may be prescribed by the Central
Government.

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5. The Head Office and Branch Office of the office of the Controller shall be at such places as the
Central Government may specify, and these may be established at such places as the Central
Government may think fit.
6. There shall be a seal of the Office of the Controller.

Functions of Controller (Sec. 18)

The Controller may, perform all or any of the following functions, namely:
1. Exercising supervision over the activities of the Certifying Authorities;
2. Certifying public keys of the Certifying Authorities;
3. Laying down the standards to be maintained by the Certifying Authorities;
4. Specifying the qualifications and experience which employees of the Certifying authorities
should possess;
5. Specifying the conditions subject to which the Certifying Authorities shall conduct their
business;
6. specifying the contents of written, printed or visual materials and advertisements that may be
distributed or used in respect of a Digital Signature Certificate and the public key;
7. Specifying the form and content of a Digital Signature Certificate and the key;
8. Specifying the form and manner in which accounts shall be maintained by the Certifying
Authorities;
9. Specifying the terms and conditions subject to which auditors may be appointed and the
remuneration to be paid to them;
10. Facilitating the establishment of any electronic system by a Certifying Authority either solely
or jointly with other Certifying Authorities and regulation of such systems;
11. Specifying the manner in which the certifying Authorities shall conduct their dealings with the
subscribers;
12. Resolving any conflict of interests between the Certifying Authorities and the subscribers;
13. Laying down the duties of the Certifying Authorities.
14. Maintaining a database containing the disclosure record of every Certifying Authority
containing such particulars as may be specified by regulations which shall be accessible to
public.

Recognition of Foreign Certifying authorities (Sec. 19)

Subject to such conditions and restrictions as may be specified by regulations, the Controller may with
previous approval of the Central Government, and by notification in the Official Gazette, recognise
any foreign certifying Authority as a Certifying authority for the purposes for this Act [Sec.19 (1)].
Where any Certifying Authority is recognised under sub-section (1), the Digital Signature Certificate
issued by such Certifying Authority shall be valid for the purposes of the Act [Sec. 19(2)].
Revocation of recognition- The Controller may if he is satisfied that any Certifying Authority has
contravened any of the conditions and restrictions subject to which it was granted recognition under

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sub-section (1) he may, for reasons to be recorded in writing, by notification in the Official Gazette,
revoke such recognition [Sec. 19(3)].

Controller to Act as Repository (Sec.20)

A ‘repository’ is an online database of Digital Signature Certificates and other related information
useful for those who conduct their business operations through the medium of computer internet or e-
commerce.
The controller shall be the repository of all Digital Signature Certificates issued under this Act [Sec.
20(1)]
To ensure that the secrecy and security of the digital signatures are assured the Controller shall:
a) Make use of hardware, software and procedures that are secure from intrusion and misuse;
b) Observe such other standards as may be prescribed by the Central Government [Sec. 20(2)].
The Controller shall maintain a computerized database of all public keys in such a manner that stir
database and the public keys are available to any member of the public [Sec. 20(3)].
Penalties and Adjudication
Inspite of security measures adopted by an owner of the computer, computer system and computer
network, there are theft and intrusion. Legal protection has therefore been provided against the
wrongdoers. Under the Act penalty is imposed by way of damages to be paid as compensation to the
affected party for damage caused to any computer, computer network etc. by introduction of computer
virus, unauthorized access and other types of mischief.

Penalty for Damage to Computer, Computer System, etc. (Sec. 43)

If any person indulge in any of the following acts, without permission of the owner or any other person
who is incharge of a computer, computer system or computer network, he shall be liable to pay
damages by way of compensation not exceeding one crore rupees to the person so affected:
a) Accesses or secures access to such computer, computer system or computer network;
b) Downloads, copies or extracts any data, computer database or information from such computer,
computer system or computer network including information or data held or stored in any
removable storage medium;
c) Introduces or causes to be introduced any computer contaminant or computer virus into any
computer, computer system or computer network.
d) Damages or causes to be damaged any computer, computer system or computer network, data,
computer database or any other programmes residing in such computer, computer system or
computer network;
e) Disrupts or causes disruption of any computer, computer system or computer network;
f) Denies or causes the denial of access to any person authorised to access any computer,
computer system or computer network by any means;
g) Provides any assistance to any person to facilitate access to a computer, computer system or
computer network in contravention of the provisions of this Act, rules or regulations made

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thereunder;
h) Charges the services availed of by a person to the account of another person by tampering with
or manipulating any computer, computer system, or computer network.

Explanation- For the purposes of this Section:

i. “computer contaminant” means any set of computer instructions that are designed:
• To modify, destroy, record, transmit data or programme residing within a computer, computer
system or computer network; or
• By any means to usurp the normal operation of the computer, computer system, or computer
network;
ii. “computer database” means a representation of information knowledge, facts, concepts or
instruction in text, image, audio, video that are being prepared or have been prepared in a
formalized manner or have been produced by a computer, computer system or computer
network and are intended for use in a computer, computer system or computer network;
iii. “computer virus” means any computer instruction, information, data or programme that
destroys, damages, degrades or adversely affects the performance of a computer resource or
attaches itself to another computer resource and operates when a programme, data or
instruction is executed or some other event takes place in that computer resource;
iv. “damage” means to destroy, alter, delete, add, modify or rearrange any computer resource by
any means.

Penalty for Failure to Furnish Information, Return, etc. (Sec. 44)

If any person who is required under this Act or any rules or regulations made thereunder to:
a) Furnish any document, return or report to the Controller or the Certifying Authority fails to
furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand
rupees for each such failure;
b) File any return or furnish any information, books or other documents within the time specified
therefore in the regulations fails to file return or furnish the same within the time specified
therefore in the regulations, he shall be liable to a penalty not exceeding five thousand rupees
for every day during which such failure continues;
c) Maintain books of account of records fails to maintain the same, he shall be liable to a penalty
not exceeding ten thousand rupees for every day during which the failure continues.

Penalty where no Specific Penalty is provided Elsewhere in the Act (Sec. 45)
Whoever contravenes any rules or regulations made under this act, for the contravention of which no
penalty has been separately provided, shall be liable to pay a compensation not exceeding twenty-five
thousand rupees to the person affected by such contravention or a penalty not exceeding twenty five
thousand rupees.

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Adjudication-Appointment of Adjudicating Officer (Sec. 46)

For the purpose of adjudging whether any person has committed a contravention of any of the
provisions of this Act or of any rule, regulation, direction or order made thereunder the Central
Government shall appoint any officer not below the rank of a Director to the Government of India or
an equivalent officer of a State Government to be an Adjudicating Officer for holding an inquiry in the
manner prescribed by the Central Government. However, no person shall be appointed as an
Adjudicating officer unless he possesses such experience in the field of Information Technology and
legal or judicial experience as may be prescribed by the Central Government.
The Adjudicating Officer shall, after giving the person referred to above, give a reasonable opportunity
for making representation in the matter and if, on such inquiry, 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.
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.
Powers - Every Adjudicating Officer shall have the powers of a civil court which are conferred on the
Cyber Appellate Tribunal under sub-section (2) of Section 58, and:
• All proceedings before it shall be deemed to be judicial proceedings within the meaning of
Sections 193 and 228 of the Indian Penal code, 1860;
• Shall be deemed to be civil court for the purposes of Sections 345 and 346 of the Code of
Criminal Procedure, 1973.

Factors to be taken into account by the Adjudicating Officer (Sec. 47)

While adjudging the quantum of compensation, the Adjudicating Officer shall have due regard to the
following factors, namely:
a) The amount of again 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 cyber regulations appellate tribunal

Here the IT Act, 2000 deals with the establishment of one or more Appellate Tribunals to be known as
Cyber Regulations Appellate Tribunal or Cyber Appellate Tribunal to exercise jurisdiction, powers and
authority as conferred under the Act.

Establishment of Cyber Appellate Tribunal (Sec. 48)

The Central Government shall, by notification, establish one or more appellate tribunals to be known
as the Cyber Regulations Appellate Tribunal. It shall also specify, in the notification the matters and
places in relation to which the Cyber Appellate may exercise jurisdiction.
Composition of Cyber Appellate Tribunal (Sec. 49) - A Cyber Appellate Tribunal shall consist of one
person only (hereinafter referred to as the Presiding Officer of the Cyber Appellate Tribunal) to be

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appointed, by notification, by the Central Government.

Orders constituting Appellate Tribunal to be final and not to invalidate its proceedings (Sec. 55) - No
order of the Central Government appointing any person as the Presiding Officer of a Cyber Appellate
Tribunal shall be called in question in any manner and no act or proceeding before a Cyber Appellate
Tribunal shall be called in question in any manner on the ground merely of any defect in the
constitution of a Cyber Appellate Tribunal.
Staff of the Cyber Appellate Tribunal (Sec. 56)- The Central Government shall provide the Cyber
Appellate Tribunal with such officers and employees as that Government may think fit. The officers
and employees of the Cyber Appellate Tribunal shall discharge their functions under general
superintendence of the Presiding Officer. The salaries and allowances and other conditions of service
of the officers and employees of the Cyber Appellate Tribunal shall be such as may be prescribed by
the Central Government.
Qualifications for appointment as Presiding Officer of the Cyber Appellate Tribunal (Sec. SO) — A
person shall not be qualified for appointment as the Presiding Officer of a Cyber Appellate Tribunal
unless je:
• Is, or has been, or is qualified to be, a Judge of a High Court; or
• Is, or has been a member of the Indian Legal Service and is holding, or has held a post in Grade
I of the Service for at least three years.

Term of office (Sec. 51)- The Presiding officer of a Cyber Appellate Tribunal shall hold office for a
term of five years from the date on which he enters upon his office or until he attains the age of sixty-
five years, whichever is earlier.

Salary, allowances and other terms and conditions of service of Presiding Officer (Sec. 52) - The salary
and allowances payable to, and the other terms and conditions of service including pension to, and the
other terms and conditions of service including pension, gratuity and other retirement benefits of, the
Presiding Officer of a Cyber Appellate Tribunal shall be such as may be prescribed, further, the salary
and allowances and the other terms and conditions of service of the Presiding Officer shall not be
varied to his disadvantage after appointment.

Filling up of vacancies (Sec. 53) - If, for reason other than temporary absence, any vacancy occurs in
the office of the Presiding Officer of a Cyber Appellate Tribunal, then the Central Government shall
appoint another person in accordance with the provisions of this Act to fill the vacancy and the
proceedings may be continued before the Cyber Appellate Tribunal form the stage at which the
vacancy is filled.

Resignation [Sec. 54(1)] - The Presiding Officer of Cyber Appellate Tribunal may, be notice in writing
under his hand addressed to the Central Government, resign his office. However, he shall, unless he is
permitted by the Central Government to relinquish his office sooner, continue to hold office until the

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expiry of three months from the date of receipt of such notice or until a person duly appointed as his
successor enters upon his office or until the expiry of his term of office, whichever is the earliest.

Removal [Sec. 54(2)(3)] - The Presiding officer of a Cyber Appellate Tribunal shall not be removed
from his office except by an order by the Central Government on the ground of proved misbehavior or
incapacity after an inquiry made by a Judge of the Supreme Court in which the Presiding Officer
concerned has been informed of the charges against him and given a reasonable opportunity of being
heard in respect of these charges. The Central Government may, by rules, regulate the procedure for
the investigation of misbehavior or incapacity of the aforesaid Presiding Officer.

Appeal to Cyber Regulations Appellate Tribunal (Sec. 57)

Any person aggrieved by an order made by Controller or an Adjudicating Officer under this Act may
prefer an appeal to a Cyber Appellate Tribunal having jurisdiction in the matter. However, no appeal
shall lie form an order made by an Adjudicating officer with the consent of the parties.

Period allowed for appeal - Every appeal shall be filed within a period of forty-five 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.
However, the Cyber Appellate Tribunal may entertain an appeal after the expiry of the said period of
forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

Order by Cyber Appellate Tribunal — On receipt of an appeal, the Cyber Appellate Tribunal may,
after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it
thinks fit, confirming, modifying or setting aside the order appealed against. The appeal shall be dealt
with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal
finally within six months from the date of receipt of the appeal. The Cyber Appellate Tribunal shall
send a copy of every order made by it to the parties to the appeal and to the concerned Controller or
Adjudicating Officer.

The appellant may either in person or authorise one or more legal practitioners or any of its officers to
present his or its case before the Cyber Appellate Tribunal (Sec. 59).

Powers of the Cyber Appellate Tribunal (Sec. 58)

The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the Code of CMI
Procedure, 1908. It shall, however, be guided by the principles of natural justice, provisions of the Act
and rules made thereunder. Natural justice means to act in good faith, fairly, justly and impartially and
never arbitrarily. It shall have powers to regulate its own procedure including the place at which it shall
have its sittings.

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The Cyber 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, while trying a
suit, in respect of the following matters, namely:
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.

Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial proceeding
within the meaning of Section 193 and 228, and for the purposes of Section 196 of the Indian Penal
Code and the Cyber Appellate Tribunal shall be deemed to be a civil court for the purposes of Section
195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
The Central Government has notified the “Cyber Regulations Appellate Tribunal (Procedure) Rules,
2000”.

Civil Court not to have Jurisdiction (Sec. 61)

The Adjudicating Officer and the Cyber Appellate Tribunal have exclusive jurisdiction to decide
specific issues for which they have been empowered. Section 61 provides that:
a) No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter
which an Adjudicating Officer appointed under this Act or the Cyber Appellate Tribunal
constituted under this Act is empowered by or under this Act to determine; and
b) No injunction shall be granted by any court or other authority in respect of any action taken or
to be taken in pursuance of any power conferred by or under this Injunction is a specific order
of the court directing the defendant to refrain from doing certain act.

Appeal to High Court (Sec. 62)

Any person aggrieved by any decision or order of the Cyber Appellate Tribunal may file an appeal to
the High Court within sixty days from the date of communication of the decision or order of the Cyber
Appellate Tribunal to him on any question of fact or law arising out of such order. However, the High
Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal
within the said period, allow it to be filed within a further period not exceeding sixty days.

Compounding of Contraventions (Sec. 63)

Any contravention under this Act may, either before or after the institution of adjudication
proceedings, be compounded by the Controller or such other officer as may be specially authorised by
him in this behalf or by the Adjudicating Officer, as the case may be, subject to such conditions as he

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may impose. However, the compounded sum shall not, in any case, exceed the maximum amount of
the penalty which may be imposed under this Act for the contravention so compounded.

The above provision shall not apply to a person who commits the same or similar contravention within
a period of three years from the dat4e on which the first contravention committed by him, was
compounded.

Explanation - For the purpose of this Section, any second or subsequent contravention committed after
the expiry of a period of three years from the date on which the contravention was previously
compounded shall be deemed to be a first contravention.

Where any contravention has been compounded, no proceeding or further proceeding, as the case may
be, shall be taken against the person guilty of such contravention in respect of the contravention so
compounded.

Recovery of Penalty (Sec. 64)

A penalty imposed under this Act, if it is not paid, shall be recovered as an arrear of land revenue and
the licence or the Digital Signature Certificate, as the case may be, shall be suspended till the penalty is
paid.

Offences
The Information Technology Act provides civil and criminal penalties for the violation of its
provisions. Section 43 to 47 dealing with civil penalty have already been discussed under the heading
“Penalties and Adjudication”. Sections 65 to 76 dealing with criminal penalty are discussed here under.
In all cases severe penalty is provided which is criminal in nature, i.e., either imprisonment for the
offence or imprisonment of fine or both.
Tampering with Computer Source Documents (Sec. 65)
If any person knowingly or intentionally conceals, destroys or alerts or intentionally or knowingly
causes another to conceal, destroy or alter any computer source code used for a computer, computer
programmer, computer system or computer network, when the computer source code is required to be
kept or maintained by law for the three years, or with fine up to two lakh rupees, or with both.

Explanation — For the purposes of this Section, “computer source code” means the listing of
programmes, computer commands, design and layout and programme analysis of computer resource in
any form.

Hacking with Computer System (Sec. 66)

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 a computer resource or

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diminishes its value or utility or affects it injuriously by any means, commits hacking. Whoever
commits hacking shall be punished with imprisonment up to three years, or with fine upto two lakh
rupees, or with both.

Publishing of Information which is Obscene in Electronic Form (Sec. 67)

Whoever publishes or transmits or causes to be published in the electronic form, any material is
lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt
persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter
‘contained or embodied in it, shall be punished. On first conviction he shall be punishable with
imprisonment up to five years and with fine up to one lakh rupees. In the event of a second or
subsequent conviction he shall be punishable with imprisonment up to ten years and also with fine up
to two lakh rupees.
It may be noted that it is only the publishing or transmitting of obscenity which is an offence, and not
its possession.

Securing Unauthorised Access to Protected System (Sec. 70)

The Government may by notification in the Official Gazette declare that any computer, computer
system or computer network to be a protected system. It may also, by order in writing, authorise
persons to have access to it. Any person who secures or attempts to secure unauthorized access to a
protected system shall be punished with imprisonment which may extend to ten years and shall also be
liable to fine.

Penalty for Misrepresentation (Sec. 71)

Whoever makes any misrepresentation to, or suppresses any material fact from, the Controller or the
Certifying Authority for obtaining any licence or Digital Signature Certificate, as the case may be,
shall be punished with imprisonment for a term which may extend to two years, or with fine which
may extend to one lakh rupees, or with both.

Penalty for Breach or Confidentially and Privacy (Sec. 72)

If any person who, in pursuance of any of the powers conferred under this Act, rules or regulations
made thereunder, has secured access to any electronic record, book, register, correspondence,
information, document or other material without the consent of the person concerned discloses such
electronic record, book, register, correspondence, information, document or other material to any other
person, he shall be punished with imprisonment for a term which may extend to two years, or with fine
which may extend to one lakh rupees, or with both. Thus, Section 72 prohibits unauthorized disclosure
of the contents of electronic record.

Penalty for Publishing Digital Signature Certificate False in Certain Particulars (Sec. 73)
No person shall publish a Digital Signature Certificate or otherwise make it available to any other

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person with the knowledge that:

• It has not been issued by the Certifying Authority; or
• It has not been accepted by the subscriber; or
• The certificate has been revoked or suspended.

However, if the publication is for the purpose of verifying a digital signature created prior to such
suspension or revocation, this rule will not apply.
Any person, who contravenes the above provisions, shall be punished with imprisonment for a term
which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Publication for Fraudulent Purpose (Sec. 74)

Whoever knowingly creates, published or otherwise makes available a Digital Signature Certificate for
any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend
to two years, or with fine which may extend to one lakh rupees, or with both.

Act to Apply for Offence or Contravention Committed Outside India (Sec. 75)
The provisions of this Act shall apply also to any offence or contravention committed outside India by
any person irrespective of his nationally, if the act or conduct constituting the offence or contravention
involves a computer; computer system or computer network located in India.

Confiscation (Sec. 76)

Section 76 provides for confiscation of any computer, computer system, floppies, compact disks, tape
drives or any other accessories related thereto, in respect of which there is contravention of any
provision of this act.

However, where it is established to the satisfaction of the court adjudicating the confiscation what the
person who is in possession, power or control of these articles is not responsible for the contravention,
the court may, instead of making an order for confiscation, make such other order as it may think fit.

Penalties and Confiscation not to Interfere with other Punishments (Sec. 77)
Any penalty imposed or confiscation made under this act shall not interfere with other punishments
provided under any other law for the time being in force.

Power to Investigate Offences (Sec. 78)

A police officer not below the rank of Deputy Superintendent of Police is empowered to investigate
any offence under the Act.

Network Service Providers not to be Liable in Certain Cases (Sec. 79)

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For the removal of doubts, it is hereby declared that no person providing any service as a network
service provider shall be liable under this act, rules or regulations made thereunder for any third party
information or data made available by him if he proves that the offence or contravention was
committed without his knowledge or that he had exercised all due diligence to prevent the commission
of such offence or contravention.

Explanation - For the purposes of this Section:

• “network service provider” means an intermediary;
• “third party information” means any information dealt with by a network service provider in his
capacity as an intermediary.

Offences by Companies (Sec. 85)

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, unless he proves that the contravention took place
without his knowledge or that he exercised all due diligence to prevent such contravention. If 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
person 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 anybody corporate and includes a firm or other association of individuals; and
ii) “director” in relation to a firm, means a partner in the firm.

Constitution of Advisory Committee (Sec. 88)

The Central Government shall, as soon as may be after the commencement of this Act, constitute a
Committee called the Cyber Regulations Advisory Committee. It shall consist of a Chairperson and
such number of other official and non-official members representing the interests principally affected
or having special knowledge of the subject-matter as the Central Government may deem fit. There
shall be paid to the non-official members of such Committee such travelling and other allowances as
the Central Government may fix.

The cyber Regulations Advisory Committee shall advise:

i. The Central Government either generally as regard any rules or for any other purpose connected with
the Act;
ii. The controller in framing the regulations under this Act.

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The Central Government has notified the constitution of “Cyber Regulations Advisory Committee”
consisting of 21 members including the Chairperson vide Notification No. GSR 790 C, dated 17
October, 2000.

Power of Controller to make Regulations (Sec. 89)

The Controller may, after consultation with the Cyber Regulations Advisory Committee and with the
previous approval of the Central Government, by notification in the Official Gazette, make regulations
consistent with the Act and the rules made thereunder to carry out the purposes of the Act. In particular
such regulations may provide for all or any of the following matters, namely:

a) The particulars relating to maintenance of database containing the disclosure record of every
Certifying Authority under Section 18(n);
b) The conditions and restrictions subject to which the Controller may recognise any foreign
Certifying Authority under Section 19(1);
c) The terms and conditions subject to which a licence may be granted under Section 21(3)(c);
d) Other standards to be observed by a Certifying Authority under Section 30(d);
e) The manner in which the Certifying Authority shall disclose the matters specified in Section 34
(1);
f) The particulars of statement which shall accompany an application under Section 35 (3);
g) The manner by which the subscriber communicates the compromise of private key to the
Certifying Authority under Section 42 (2).

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