Section 63 of the I.T Act - is it misplaced?
By Sanjay Bhatia

 

A careful examination of Section 63 of the Information Technology Act, 2000, goes to reflect the casual approach of our lawmakers in inserting an absolutely redundant provision in the Act. Section 63 provides for "compounding of contraventions".

The compounding of a contravention basically means to condone the contravention for a consideration, which is usually monetary in nature. Generally speaking, offences that are punishable by imprisonment are capable of being compounded. Compounding of an offence enables an accused to escape prosecution proceedings and a possible conviction. One has to examine Section 63 of the I.T. Act with this background.

Section 63(1) reads as follows:

"(1) Any contravention under this Chapter 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 the Controller or such other officer or the adjudicating officer may specify"

Section 63 falls under Chapter X of the Information Technology Act. The said Section permits compounding of contraventions under Chapter X of the Act. For Section 63 to be given effect to, one must first of all contravene any of the provisions of the Act falling under Chapter X. Chapter X of the Act deals with "The Cyber Regulations Appellate Tribunal". Sections 48 to 64 fall under Chapter X of the Act. Briefly, the said sections deal with the following:

Section 48: - Establishment of Cyber Appellate Tribunal;
Section 49: - Composition of Cyber Appellate Tribunal;
Section 50: Qualifications for appointment as Presiding Officer of the Cyber Appellate Tribunal
Section 51: - Term of office (of the Presiding Officer)
Section 52: - Salary, allowances and other terms and conditions of service of presiding officer:
Section 53: Filling up of vacancies;
Section 54; Resignation and removal;
Section 55: Orders constituting Appellate Tribunal to be final and not to invalidate its proceedings;
Section 56: Staff of the Cyber Appellate Tribunal;
Section 57; Appeal to the Cyber Regulations Appellate Tribunal;
Section 58: Procedure and powers of the Cyber Appellate Tribunal;
Section 59: Right top legal representation;
Section 60: Limitation
Section 61: Civil Court not to have jurisdiction;
Section 62: Appeal to the High Court;
Section 63: Compounding of contraventions; and
Section 64: Recovery of penalty.
 

As already mentioned, only offences or contraventions which could result in punishment by way of imprisonment or fine are capable of being compounded. All the provisions of Chapter X are either regulatory or procedural in nature and there is no provision which can be contravened/compounded under Chapter X of the Act. Such being the case, it is difficult to fathom the purpose behind enacting Section 63. A strict interpretation of it would mean that Section 63 cannot be made applicable to any provision of the Act.

Chapter XI of the Act provides for "Offences". Arguably, only the penal provisions falling under Chapter XI of the Act are capable of being compounded. It was perhaps the intention of the legislature to permit compounding of contraventions under Chapter XI of the Act. It would therefore have been appropriate for the legislature to have inserted Sections 63 at the end of Chapter XI of the Act in order to render it effective.

India is one of the few countries, which has passed Information Technology laws. As the laws are going to have trans border effect, this is one piece of legislation, which is going to come under scrutiny not only by Indians but also by non-Indians who are going to be subjected to the Act. It is therefore imperative that the above loophole be plugged immediately by passing necessary amendments to the Information Technology Act and thereby making Section 63 applicable to contraventions under Chapter XI of the Act.

*The author is an Advocate practicing in Bangalore, India.

Published at http://law.indiainfo.com/viewpoint/cyber-tribunal.html