Scope of Powers of the A.O under I.T Act.
By Sanjay Bhatia

 

The Information Technology Act provides for "Penalties and Adjudication" under Chapter IX and for "Offences" under Chapter XI of the Act. The Act also contemplates the appointment of an Adjudicating Officer for inquiring into and adjudicating contraventions under the Act. There have been differences of opinion as to what exactly are the powers and jurisdiction of the Adjudicating Officer appointed under the provisions of the Information Technology Act, 2000. There is a general opinion that the Adjudicating officer would be competent to entertain and adjudicate all disputes, contraventions and offences relating to the Information Technology Act. However, a careful reading of the relevant provisions of the Act make it clear that the powers and jurisdiction of the Adjudicating Officer is in fact very limited.

Chapter IX of the Information Technology Act provides for penalties and adjudication. This chapter consists only of five sections, i.e. Sections 43 to 47 of the Act. Section 43 is titled "Penalty for damage to computer, computer system etc.". This Section goes on to elaborate that if any person unauthorisedly accesses, downloads, copies, induces viruses etc. into any computer or computer network, he shall be liable to pay damages by way of compensation not exceeding Rs. One Crore to the person so affected.

It can be argued that the maximum liability that can be imposed is qua the person so affected. In other words, if ten persons are aggrieved, each of them could be entitled to Rs. One Crore for damages. Therefore, a person contravening Section 43 can be made liable to pay an amount greater than Rs. One Crore, in case more than one person is affected by his actions. However, what is more significant is that although the heading of Section 43 provides for "Penalty for damage to computer, computer system etc.", nowhere in the text of the Section is the word "penalty" found. A contravention of Section 43 can result only in "damages by way of compensation payable to the person so affected". This is significant because, by contravening Section 43, a person is made liable only to the aggrieved person and not to the State. Moreover, a mere contravention of Section 43 would not result in damages being imposed. For a person claiming damages, he/she would first have to establish the following:

  1. That there was a contravention of Section 43;
  2. That the contravention resulted in an unfair gain or advantage to the person contravening Section 43; and
  3. That the contravention resulted in loss to the claimant;

The claimant would then have to quantify the loss in monetary terms to establish his claim before the Adjudicating Officer. It is only on the basis of the claim so established, that the Adjudicating Officer can pass an order directing the person, who has contravened Section 43, to pay damages.

Section 44 provides for penalty for failure to furnish information as required under the Act, rules or regulations and Section 45 provides for "residuary penalty". Unlike Section 43, a contravention of Sections 44 and 45 would result in a person being made liable to pay "penalty" which would accrue to the State.

Section 46(1) of the Act provides for the appointment of an Adjudicating Officer for the purpose of adjudicating under Chapter IX whether any person has contravened any provisions of the Act. Although Section 46(1) is slightly confusing, a careful scrutiny of it would reveal that the Adjudicating Officer is empowered only to determine contraventions under Sections 43, 44 and 45 of the Act and nothing else. Chapter XI of the Act deals with "offences" and provides for punishment of fine and/or imprisonment for committing offences like tampering with computer source documents, hacking and other offences prescribed therein. The trial of these offences would not fall within the Adjudicating Officer's jurisdiction. This is all the more clear when one considers the fact that the Adjudicating Officer has been conferred with the powers of a Civil Court under Section 46(5) of the Act. The trial of offences committed under Chapter XI of the Information Technology Act would therefore still be before the Jurisdictional Magistrate under the provisions of the Code of Criminal Procedure.

To sum up, the jurisdiction of an Adjudicating Officer appointed under the provisions of the Information Technology Act would extend only to:

  1. Determining the extent of damages payable by a person contravening Section 43, to the person so affected;
  2. Determining the amount of penalty payable by a person for his failure to furnish information, returns, etc. as required under the Act or its Rules; and
  3. Determining the amount of penalty/damages payable by a person for contravening the provisions of the Act, Rules or Regulations for which no separate penalty is provided.

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

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