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The Role of Adjudicators in ITA 2008

One of the strengths of ITA 2000 was the introduction of a system of adjudication where a victim of
a Cyber Crime could seek compensation by wayof damages through a system outside the usual civil
court system. This could help the system in three specific ways.
Firstly, the adjudicator could be a person who could be better informed on technology
issues than the traditional civil judge and hence could respond better to the
complications of technology.
Secondly, the system could be made quicker than the traditional system by adopting a
more consumer friendly process than the strict adherence of the Civil Procedure Code.
Thirdly, the cost of litigation could be reduced from the current levels.
These objectives were sought to be achieved by ITA 2000 and the related notification which came
on 25th March 2003.
Accordingly, the system of adjudication before the current amendments became effective was
a) An adjudicator had the powers to adjudicate on any contraventions under the ITA
2000 and provide compensation to a person who has suffered a loss.
b) The powers of the adjudicator was the same as a "Civil Judge" but he was not bound
by the Civil Procedure Code.
c) The procedure was simple and the complainant could make an application with a fee
which was roughly around 2.5% of the amount of compensation claimed.
d) The complaint could be made even when the complainant was perhaps not fully
aware of the details of the accused and the adjudicator could ask the Police to
investigate and report to him if required.
e) The adjudication proceedings were expected to be normally completed in 4 months
or an extended period of another 2 months.
f) Compounding could be permitted any time during the process
g) Appeal was permitted to the Cyber Regulations Appellate Tribunal.
h) Powers of the adjudicator was "Exclusive" in the sense that no other "Civil Court"
had jurisdiction on the matter which an adjudicator was entitled to hear.
i) Adjudicator had the powers to enforce payment of penalty imposed like a "Revenue
Recovery".
As a result of the above provisions, the "Adjudicator" was an important part of the implementation of
the ITA 2000 and its effectiveness to provide remedy to the victims of Cyber Crimes in India.
Though ITA 2000 became effective from 17th October 2000, no adjudicator was appointed until
25th March 2003 when the Government of India notified that "IT Secretary of a State or Union
Territory" would be the "Adjudicator of that state or Union Territory". Since then the IT secretaries
who have been administering the IT development programmes in a State also became the key judicial
authority for the State.
Even after the adjudicators were appointed it took several years for complaints to be formally made
to the adjudicators and adjudicators also took it up seriously.

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Under ITA 2000, the maximum compensation that could be claimed under Section 43 which was the
main cause of action for the adjudicator was Rs 1 crore. Now under ITA 2008, this limit has been
removed and hence the compensation upto any amount can be claimed if the complainant can justify
the claim.
However, ITA 2008 now limits the powers of the adjudicator to Rs 5 Crores and leaves higher
claims to go to the Civil Judiciary system.
Further since Section 43 has been strengthened further with the addition ofsub sections (i) and (j)
which bring in "deletion of information", "diminishing the value or utility of information" etc within the
section.
The powers of the adjudicator has therefore widened under ITA 2008. Virtually any offence with the
use of a Computer or a Mobile which cancause wrongful harm or loss to any person can be subject
to adjudication either on the basis of a complaint or Suo-moto.
Additionally, the section 43A, which is a "Data Protection" measure where a"Body Corporate"
failing to maintain "Reasonable Security Practices" toprotect "sensitive personal information" also
comes under "Adjudication".
In view of the above there is a need for State Governments to effectivelytrain the IT Secretaries and
provide them with suitable support staff so that they can discharge this additional responsibility
effectively.
If necessary, the Central Government may also consider if it is time to appoint an exclusive
"Adjudicator" for each state and not burden the IT Secretary with this responsibility which may try to
take more and more of the time of the IT secretary away from his developmental functions.
With the expansion of the powers of the adjudicators, it is also necessary for adjudicators being
ready to face the challenges to their powers conferred by the Act for the benefit of the society.
Adjudicators should not in their anxiety to avoid the responsibilities cast on them from the Act avoid
taking up adjudication on one pretext or the other. Such an attitude if it develops will seriously hurt
the law and order in the Digital Society and undermine the potential of the State to attract investments
from IT sector.
Some of the points that an adjudicator may be forced to consider during any adjudication is a
challenge to his jurisdiction. As is the practice in most litigation, the strategy of some defense counsel
is always to challenge the jurisdiction of the authority so that the dispute is pushed into the traditional
Courts where the inherent delays can give a relief to the accused.
Hence every effort has to be made to strengthen the conviction of the Adjudicators so that they can
effectively ward off a high profile advocate challenging the jurisdiction of the adjudicator on some
technical grounds.
The challenges to the Jurisdiction can be mounted on many grounds and inparticular on the following
grounds.
a) Types of incidents
b) Vis-à-Vis the Consumer Forum
c) Vis-à-Vis arbitration clauses in agreements.
Some thoughts on these points are provided below
Types of Incidents
When ITA 2000 was originally notified the powers of the adjudicator under Section 46 could be
interpreted as restricted to contraventions under the Chapter IX. However, under ITA 2008, with
the introduction of subsection (i) to the Section 43, which can be invoked if any person without the
permission of the owner of a computer system "destroys, deletes or alters any information residing in
a computer resource or diminishes its value or utility or affects it injuriously by any means", virtually
any kind of adverse effect on a computer or information residing inside a computer or the
functionality of either a computer or a software or the device itself, come within the jurisdiction of the
adjudicator.
Further, under 43(g) any person providing "assistance" to another person to commit any
contravention will also be liable under Section 43.

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The words used in the section to describe the jurisdiction of the adjudicator are:
For the purpose of adjudging under this Chapter 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 which renders him liable to pay penalty or compensation,
Hence, the powers of the Adjudicator goes beyond Section 43 or 43A and into any contravention
under the Act and there is every ground to believe that the scope of adjudication extends to all
offences under Chapter XI also in case it results in a loss to any person.
Consumer Forum
In many cases of Cyber Crimes, there will be a "Service Provider" involvedin the facilitation of the
Crime. Under ITA 2000/8, the service provider comes under the definition of an "Intermediary" and
hence he would need to satisfy certain "Due Diligence" requirements failing which he will be liable for
the offence. By operation of Section 85, some of these liabilities may get transferred also to the
executives.
However some times a doubt arises as to whether the dispute between the customer and the service
provider needs to be taken to the Consumer forum instead of the Adjudicator.
Here it becomes necessary to interpret Section 61 of ITA 2000/8 which states as under:
Sec 61:
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
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 Act.
Provided that the court may exercise jurisdiction in cases where the claim for injury or
damage suffered by any person exceeds the maximum amount which can be awarded
under this Chapter.
It is clear from this section that the Adjudicator is given a prime of place against all Civil Courts when
the claim is related to a contravention of ITA 2000.
Also, the Consumer Protection Act provides that remedies under that act isnot in derogation of any
other Act. Also ITA 2000 is an act which was subsequent to Consumer Protection Act. Hence
remedies under Consumer Protection Act are not interfering with the jurisdiction of the Adjudicator.
Also since Cyber Crimes are high tech crimes, Consumer Forumsmay not be keen to take Cyber
Crime related complaints under its forum.
It is also appropriate to consider that the jurisdiction of the Consumer Forum arises out of
"Deficiency" of service. Hence claims arisingout of a "Crime" are not within the jurisdiction of the
consumer forum.
For all these reasons, Adjudicator's jurisdiction scores over Consumer Forum even when there
appears to be a dual jurisdiction. Hence in cases such as Phishing or Credit Card frauds, Adjudicator
is the correct forum in preference to the Consumer Forum.
Arbitration
There have been a few instances where a service provider has invoked an "Arbitration" clause to say
that a dispute with his customer cannot come in the jurisdiction of an Adjudicator. This is also a
wrong contention since "Arbitration" in a service contract can be applied only to service related
disputes where there is a overlapping jurisdiction with the Consumer forum.
But in cases where there is a prima-facie indication about a fraud or an offence which may come
under ITA 2000/8, then the correct jurisdiction is with the Adjudicator and not the arbitration forum.
In one of the recent cases, a dispute arose between an online broking firm and his customer. The
allegation was that an employee of the share broking firm had engaged in parallel trading in the name
of the customer and caused a loss. The customer was kept in the dark since the firm's manager had
created a false e-mail ID for the customer and registered it with the account so that all contract notes
are dumped in this e-mail account and not be available to the customer. According to the customer
this was a Cyber Crime since the correct e-mail address was tampered with and changed without

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 authority. Such cases come under the jurisdiction of the Adjudicator.
In view of the importance of "Adjudication" to the community, it is necessary for all State
Governments to take steps to equip their IT Secretaries with at least one Deputy Secretary with the
sole responsibility of attending to Adjudication and create a secretariat to support the activity. IT
Secretary should also devote one specific day every week to attend to Adjudications so that his
other work does not cause delay in the proceedings.
Naavi
March 26, 2009
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