is e qd . CHAPTER 10 Cyber Appellate Tribunal The iosmeeti Dean as Ge Act) provides for establishment of Cyber Appellate Tribunal (CAT) to decide appeals against the orders passed by the Controller and Adjudicating Officer. The IT Act, like other many pedal legislations,” provides a specialized adjudicatory machinery to decide tre issues which are likely to arise. This specialized machinery, as the experience suggests, is bound to enhance decision-making quality in many respects. It will make speedy decisions possible because the Adjudicating Officer or Cyber Regulations Appellate Tribunal will deal only with the jssues arising under the IT Act. Only the persons with expertise in the field ‘will be appointed as Adjudicating Officers to deal with the peculiar issues generated by the use of the electronic medium. Thus, lay adjudication is ruled out. This will also help in maintaining uniformity. Even though the Central Government is likely to establish more than one appellate Tribunal, the level of uniformity in interpretation and decisions both within a and across Tribunal will be high. All these features are bound to raise public confidence as the people lose faith in the adjudicating system because of delay and uncertainty. Establishment ‘and Composition of Cyber Appellate Tribunal ‘The Central Government shall, by notification, establish one or more appellate Tribunals to be known as the Cyber Appellate Tribunal. The matters and places in relation to which the Cyber Appellate Tribunal may exercise jurisdiction shall also be notified by the Central Government. The IT Act envisages a need to have more than one Appellate Tribunals because of the increase in work-load in future and infeasibility of one central appellate Tribunal for those who are residing at far off places. The territorial limits of these appellate Tribunals, when more than one appellate Tribunal is established, shall be defined by the Central Government to avoid any possible confusion with regard to area of operation of these appellate Tribunals? ‘ The Cyber Appellate Tribunal shall consist of a Chairperson and such number of other Members,-as the Central Government may, by notification in the official Gazette, appoint. The original IT Act had provided the Provision for one Member Commission only. The Amendment Act, 2008 now 1. for instance, Consumer Protection Act, 1986 and MRTP Act, 1969. 2 See Indira Carr, India Joins the Cyber-race : Information Technology Act, 2000, (2000) Int. TLR. p. 130. 3. See Section 48 of the IT Act. 4. Section 49. F20 (279 )Dm ton ee - Chairperson of the Cyber Appellate tribunal who shall her “= 28D Cyber Law in tnctia 9 ° . Fe P Inte . provides not only multimember commission but also g compre, Met) lection procedure. sensi sel Ihe Belcctlon of Chairperson and Members of the on ve Tribunal shall be made by the Central Government in consultation Chief Justice of India. The jurisdiction, Powers and authority c? oF Appellate Tribunal may be exercised by the Benches thereat ot the CY ber be constituted by the Chairperson of the Cyber Appellate Teint Benay 2 or two Members of such Tribunal as the Chairperson may Geo” I With ot Benches are constituted, the Chairperson of the Cyber Appetane Wher may, by order, distribute the business of that tribunal amongst the Bicunal and ‘also the matter to be dealt with by each. Bench.* If the mes, s Bench consisting of two Members differ in opinion ers ofS : j hich they differ, and make, they « state the point or points on which they differ, and make a Teference 4, tall to the points himself and such point or points shall be decided sar,{%° Point * opinion of the majority of the Members who have heard the sore "E 0 the those who first heard it.© hiding The Benches of the Cyber Appellate Tribunal shall sit and at such other places as the Central Government may, with the Chairperson of the Cyber Appellate Tribunal, by Notification in official Gazette, specify. The area in relation to-which each a" ee Cyber Appellate Tribunal may exercise its jurisdiction shall be specified t® the Gentral Government in the official Gazette. y The Chairperson has a power to transfer a Member of such tri from one Bench to another Bench. He has also power to transfor rata one Bench to another Bench. He may exercise this Power suo motu or on ‘the application of any of the parties. Where he receives the applicaine from any party, he has to give notice to the parties and after hearing them, he may transfer any case pending before one Bench for disposal to any ethan Bench, The notice need not to be given where the Chairperson decides to transfer the case from one’Bench to another suo motu.” If at any stage of the hearing of any case or matter Chairperson or a Member of the Cyber Appellate Tribunal thet the cv or ‘Pp vwityate at New Dep. ig oon SUltation to such Bench as the Chairperson may deem fit.® ‘The Chairperson has powers of general superintendence and directions in the conduct of the affairs of that Tribunal and he shall, in addition to presiding over the meetings of the Tribunal, exercise and discharge such Powers and functions of the Tribunal as may be prescribed ? Qualifications of Chairperson and Members _The IT Amendment Act, 2008 has provided qualifications for Chairperson and Members. A person shall not be qualified for appointment . Section 52-5. . Section §2- D. . Section 52-C, perso281 y er the Cyber Appellate Tribunal unless he is, or has bee 7 el ¢ is, or has been, a ieron of judge of a High Court. Tho Cyber Appeliate Tribunal aay cosied 9 Pint ne wll a8 non judicial members 2 fotlinow Me embers of the Cyber Appellate ‘Trib is nove soaicial tral Government from amongst Sant ote oer hes ive Z Cent s i Pgh, py the OF the Indian Legal Service and has held the post of late int, obo iod of not Ic inte? ml for a perio jot less than one ye: ] tho - a gorot Neiot of not les than five ong year, or ‘Grnde:t Port . Sal 5 nay iigertic ‘al Members shall be appointed by the Central Government one Fue ie jul persons having special knowledge of, and professional ore no? est PEMormation technology, telecommunication, industry, in, gnsumer affairs. nal : acl on co} fi ea ia nent OF etal be appointed as a Member, unless he is or has been, f 9tNo persitog the Central Government or a State Government, and has at nacre OF tMfaitional Secretary to the Government of India or any . ip Myo post i, the Central Government or State government for a period a pel lont Poe one years OF Joint Secretary to the Government of India or e, ot jess Ost in the ‘Central Government or a State Government for a : let Tess than five years. i vod of ty the present amendments, there was a single member i een or qualified to be judge of a High Court or i prot “oo was oF has been ot : nits? tne Indian legal service holding or has held Grade-I of that gente as highly unsatisfactory position. The present author while rice Oe gn this legal position in the earlier editions of this work rm deol derstood that « presiding officer (now Chairperson) of the Cyber is tue Tribunal may have to resolve highly complex and technical Appe t modern technology that is continuously evolving. Quite o qualifications prescribed for the appointment of a issues of most surprisingly _ th ; ae ; f | Mtg officer do not require ory expertise in the field of information \ Priology- Instead, qualifications as, are required for other tribunals ‘eehting legal issues of common understanding, have been prescribed ‘ding officer also. It is quite possible that in a given case for the presi Pr ading officer may not be able to comprehend the technicalities Primed. This difficulty has been well taken in the appointment of Iijudicating officer. No person can be appointed as an adjudicating jieiennless he possesses such experience in the field of Information f Technology. At present, given legal education in India, it may not be sibisuble fo have expertise in information technology as an additional qualification for a presiding officer. Because a blend of law and Iiformation technology with a vast experience as is required for a High Court judge may be rare. The solution lies in @ multi- member body, ‘comprising of three members with one member possessing expertise in the information technology." nae of Office, Salary, Allowances and other Terms and ‘one tions of Service of Chairperson and Members alice Chairperson or Member of the Cyber Appellate Tribunal shall hold for a term of five years from the date on which he enters his office oroo’ Cyber Law in india te W on , 282 . tn ars whichever is earlier. 10 yy, atil bee atta ie pa eect ie Member of the Cyber Appel ersen hay be appointed finnneial or other intorost as ig likely to prejudiciany: Tibet Saco H jon or lember, vey i Matety iicle, before appointing any person ap the Chairperson ee hag it satisty ee not have any financial or other interest as ig likely ¢,’Mber, aan ne ai hie function as euéh’Chaliperear or Member. oftes® fe preju a Government or State Government on selection as the Chain the Contra ber of the Cyber Appellate Tribunal, as the case may be, shapetton to retire from service before joining as such Chairperson or Memil! have ciney ahdlallowancss payable to, and other terms and conditions gf sere including pension, gratuity and other re’ irement benefits of . Ghairperson or a Member of the Cyber Appellate Tribunal shall he ate rescribed.!! ee Ths Cyber Regulations Appellate Tribunal (Salary, Allowances 9, other Terms and Conditions of Service of Presiding Officer) Rule, id safeguard the interest of Presiding Officers of CRAT by expressly pe provisions for salary and other incidental matters. These Provisions are sf ows : / ‘ fol Salary and allowances.—The Chairpérson shall be Paid such Salary and allowances, as admissible to a Secretary to the Govern st of Inge? including all the benefits that a Secretary is entitled to. The Chaimpec shall be deemed to be public servant as per Section a2 i> Informatie? Technology Act, 2000 (21 of 2000) : Bae ided that in the case of appointment of a person as Chai e who iesteceees as a Judge of a High Court or who has retired from ent in rece fy or has received, or has become entitled to receive any retirement benefit Y may of pension, gratuity, employer's contribution to the brnwn sraiiher forms of retirement benefits, the pay of such Chair Teduced by the gross amount of pension or employer's nat pe giant Fund or any other form of retirement benefit, if ane drawn or to be drawn by him : Provided further that appointed as Chairperson, the terms and a Chairperson shall be in accordance with th Tribunals and in consultation with that Ministry. Leave.—A Person, on appointment as a Chairperson in a Cyber Appellate Tribunal shall be entitled te leave as applicable to the Secretary to the Government of India in respect of Earned Leave, Half Pay Leave, Extraordinary Leave, Commutation of Leave, Casual Leave, etc.'3 Leave sanctioning authority.—The Secretary, Department of Information Technology, Government of India, shall be the authority 12. Rules 3-12, 18. Rules 3-12,203 ‘appellate Tibunel oper . jetent to sanction leave to the Presiding Officer." 0 i igh or Provident Fund.—G) In caso a serving Judge of a Hi eh rerhgecr gi ie Grint tte person, the service rendered in the: Gaye eo polaing the B hall Ghaiffer pension, to be drawn in acterdr ee ear the rules ofthe servic ago pant belongs, and he shall oie ke governed by the provisions sich nt Fund (Gentral Services) nates, era : Pre an “all ottior clade, the Chairperson shall be governed by the (0G the Provitent Bina (India) Rules, 1962.15 wvrravelling allowances.-The Chet Gaon Aeleeyrs expiry of his term with the Cyber Appellate Meifaal t0 proceed to his home town) chante Cet to the travelling Pca delly allawoncas, transportation of personal effects and othe. sitar iaatiers ut the oamd scales Seal ne ke same rates as are applicable Bins Socretary W tho Govginanect or (eg : 1S eave, Tove Concession—The Chairperson shall be entitled to il leave’ travel. concession ah aerate the Secretary to the at of India.” r Appellate on payment of license from time to time, Tnment accommodation id permissible period, he shall be liable to Pay additional license fee or et reat, as ‘the case may be, and he shall be liable to e entitled to 48 provided in the Central Services (Medical Attendance) Rules, 1944. Residuary Provisions... '—Matters relating to the conditions of service of the Chairperson with Tespect to which no express Provision has been 14. Rules saz, 15. Rules 3-12, 18. Rules 3-12. 17, Rules 3-12. 18. Rules 3-12, 19. Rules 3-12.284 OR eH ta mado in those rules shall be as per the rules applicable to Group ig Central Government. ; , o of the | ¢ ae Cyber Appellate Tribunal an independent for, cen, deliver decisions without fear or favour, it is Provided ¢j at Which, © lary and allowances nor the other terms and conditions of * either a Chairperson shall be varied to his disadvantage after appointmenice of the Resignation, Removal and Filling up of Vacancies The Chairperson may relinquish his office at any tine by os notice in writing under his hand that should be addressed t the’Wving Government. However, he shall continue to hold his offies 4°, "te Cart three months from the date of resignation notice except where - oor allowed by the Central Government to demit his office before the att is time, or (b) a person duly appointed as his successor enters up’, PiPulated or (c) his term of office expires, whichever is the earliest, is Office, The interest of the Chairperson has been fully safeguarded, z be removed from the office except on the ground of proved misher® Cano incapacity. The inquiry has to be conducted by a judge of the cae or Court. Although it has not been made clear, from the language “Preme provision, it appears that only a sitting judge of the Supreme Court e conduct inquiry against the Chairperson. He has to inform the Geowt fan about the charges against him, and he should be given’ a reageTson opportunity of being heard in respect of these charges. nable The procedure to regulate the investigation of misbeh, incapacity of the Chairperson has been prescribed by ge Government by making rules. The final decision of the removal <" a Presiding Officer shall be taken by the Central Government on the basis of the inquiry report of the Supreme Court judge?! o The Cyber Regulations Appellate Tribunal (Procedure for Investigatio, of Misbehaviour or Incapacity of Chairperson or Member) Rules 2003, prescribe the procedure for investigation of misbehaviour or incapacity of the Presiding Officer of CRAT which is as follows : Committee for investigation of complaints.—(1 complaint, alleging any definite charges of misbehaviour perform the functions of the offices in. respect of a Chairper by the Central Government, it shall make a preliminary complaint. ss (2) If on preliminary scrutiny, the Central Government considers it iocossary to investigate into the allegation, it shall place the complaint together with supporting material as may be available, before a Committee consisting of the following officers to investigate the charges of allegations made in the complaint :— (@ Secretary (Co-ordination and Public Grievances) Cabinet Secretariat —Chairman; Gi) Secretary, Department of Information Technology —Member; ‘aviour or © Cent ) If a written or incapacity to ron, is received scrutiny of such 20. See Section 62. 21. See Section 54 of the IT Act.= sieve Titre mas (ii) Secretary, Department of Legal Affairs, Ministry of Law and Justice —Member. (3) The Committee shall devise its own procedure and method of investigation, which may include recording of evidence of the complainant and collection of material rel, ‘evant to the inquiry which may be conducted by a Judge of the Supreme Court under these rules. dnage to conduct inquiry.—(1) If the Prosident is of the opinion there are reasonable grounds for making an inquiry into the truth of any imputation of misbehaviour or incapacity of Chairperson, he shall make a reference to the Chief Justice of India requesting him to nominate a Judge of the Supreme Court to conduct the inquiry, {?) ‘The President shall, by order, appoint the Judge of the Supreme Court nominated by the Chief Justice’ of indie (hereinafter referred to as Judge) for the purpose of conducting the inquiry. (9) Notice of appointment of a Judge under sub-rule (2) shall be given to the Chairperson. of presenting a written statement of defen: specified in this behalf by the . the purpose by the Presi shall submit himself to sue st al xan in this behalf bythe Judge. & The Medical Bo;= ss on Cyber Law In India Naw on Inter, A eh idering the written sta may, after consi Statema, (20) Tho Juaee Medical Report, jf any, amend the chargea rare °" the Chairperson and 1 je (4), and in sucl case the Chairperson shail par’ to in clause epportunity of presenting a fresh written statement of eeiven a reasonabl ment shall appoint an om fence tral Govern > icer a ay phe Cent dvocate to present the case against the Chairperso, that Govern! = : 1 Government has appointed an (12), Where, the Oss judge, tbe Obairperson conesnan shayecate ty case vehis case by an advocate chosen by him.” also be Prion of the Departmental Inquiries ©nforceme, topples Sroduction of Documents) Act, 1972 to inquiries ue gof Yrose rules-—The provisions of the Departmental Inquiries (Bnfores,u=der these rules Production of Documents) Act, 1972 (18 of 1972), encre A caguirics made under these rules as they apply to dep; e inquiries.* ; dge—The Judge shall not be bound by the pro eases She Gene of Civil Procedure, 1908 (5 of 1908) but shall we ided by the principles of natural justice and shall have power to real, te Eis own procedure including the fixing of places and times of hic inquest Suspension of Chairperson.—Notwithstanding anything contained in rule 4 and without any prejudice to any action being taken in aceon git! with the said rule, the President, keeping in view the gravity of charges may suspend the Chairperson of the Tribunal against whom a comping’! under investigation or inquiry.” : ' Subsistence allowance.—The payment of subsistence allowance toa Chairperson under suspension shall be regulated in accordance with the rules and orders forthe time being applicable to a Secretary te tt° Government of India belonging to the Indian Administrative Service Inquiry report.—After the conclusion of the investigation, the Judge shall submit his report to the President stating therein hie findings and the reasons therefor on each of the articles of charges separately with sce observations on the whole case as he thinks fit.2 Any vacancy created in the office of the Chairperson due to resignation, removal or completion of term of the Chairperson shall ke aica up in accordance with the provisions of the IT Act and the proceedings mer be continued before the Cyber Appellate Tribunal from the stage at whiny, the vacancy is filled up. The proceedings are not required to be re-condurtel merely because there has been discontinuity in the office of the Chairperson of the Tribunal. The proceeding will start only from the stage where ther were stopped because of the vacancy.” There is no provision for filling up + yacancy caused due to temporary absence. Since Cyber Appellate Tribunal is a single member body, it is quite possible that the Tribunal may at times present its allowed to 1 a artmental 29. Rules 3.9,287 ppotcl® Tbunal jthout the Chairperson even when he is on Tong leave due to tatement f } re of ait rerwise. 8 Toone sees oF Ore up of the vacancy of the Chairperson has not been mado ent of ae Even Me" qhe Se gives a free hand to the Central Government to fill up the Micor cetence, aoe bomtnout any time Tit, hal Q rn Pairpersog, tt eno the Cyber Appellate Tribunal shal eate graft OFT oporting staff of officers and employees, for smooth and efficient Iso He ‘The SUPPOHe Cyber Appellate Tribunal, shall be provided by the poncton ne ornment. ‘These officers and employees shall discharge their superintendence of the Chairperson. The terms and cement i ral Grndor general ities unaot Gefyjons under °° ieers and employees shall be determined by the und, ti ose ranrement of ee omment ‘Similarly, their salaries and allowances will be epartnne ie | ant -g by the Central Government. { e aiction of Cyber Appellate Tribunal af oneedtre JurisdcC sper Appellate Tribunal does not have original jurisdiction. A to real be The Cnnot lie directly before the Cyber Appellate Tribunal, Tt has Ingezlate complaint Tate Jurisdiction against the orders of the Controller and dy aay gibt Oficer. The powers and functions of the Controller have ecordanet Aready been discussed. The appointment, functions and powers of the f charges Aifadieating Officer are discussed hereunder. aint ig ‘Adjudicating officer ma | ve Central Government has a power to appoint one or more vith toa | adjudicating officers. The Adjudicating officer (s) so appointed shall not be pated | AMiudicne rank of a Director to the Government of India or an equivalent ar the | bee of a state Government, He shall possess such experience in the field ‘i omtaformation Technology and legal or judicial experience as may be ° Judge Joa by the Central Government. Where more than one adjudicating and the presers are appointed, the Central Government shall specify by order the h such || Sitters and places with respect to which such officer shall exercise their jurisdiction. © ue to j Jer \The adjudicating . officer appointed shall exercise jurisdiction to filled adjudicate matters in which the claim for injury or damage does not exceed Ena, |< fipees five crore. The jurisdiction in respect of the claim for injury or which . Jumage exceeding rupees five crore shall vest with the competent Court. acted The adjudicating officer has to determine as to whether any person has mee committed contravention of any of the provisions of the IT Act or of any ae ule, regulation, direction or order made thereunder which renders him ea liable to pay penalty or compensation, a ‘The qualifications of Adjudicating Officers and manner of holding an enquiry have been proscribed by the Central Government under the | Information Technology (Qualification and Experience of Adjudicating | Officers and Manner of Holding Enquiry) Rules, 2003. The relevant | provisions are discussed hereunder : } Eligibility for Adjudicating Officer—Whereas the purpose and | ‘30. Section 66 of the IT Act.Cyber Law In Indio 288 NeW on iy Me ome ; IT Act is that the Adjudicati, intent of Section eS as experienced to take decisions ro 7 be a person £9 dation technology aspects as well as inith a relation to informarithts keeping in view the legal or judicig, P°S! ine the complaints kee] ficiay Pe determine “iplo of compensation of damages of IT Act, ANN; on CA eae shall not be qualified for appointment as Adjudicating ok unless the person fatal Meey iniversity Graduate Bachelor Degree (a) possesses, 4 the Central GovernmentiState Govern c&¥alen, purpose of recruitment to Grade I Service in a eet Department through Union/State Public Service Camet"Timert (b) possesses information technology expericnce in th, a relevance to public interface with Central/State overs functioning and experience obtained through the?’ ame training imparting competence to operate computer sya rVice send and receive e-mails or other information tnccte™ t computer network, exposure and awareness about the methog®® carrying information, data, sound, images or other electronet records through the medium of network including Interng¢ Ric egal or judicial experience to discharge tespenet a eneectan oukh the role (of! Central/State Government’ ‘in ellities of making decisions or orders in relation to administration het as a District Magistrate, .or Additional District Magistrate “® SubDivisional Magistrate or an Executive Magistrate or st administrative or quasi-judicial capacity for a cumulative Period of 5 years; a Sa is working and holding a post in rade I in q © Deparment olther in’ State Government/Union ‘Tesco’ perform functional duty and discharg field of information technology; (@) is an in-service officer not below the rank of Director to the Government of India or an equivalent officer of State Government. Scope and manner of holding inquiry.(a) The Adjudicating Officers ‘shall exercise jurisdiction in respect of the contravention t= . relation to Chapter IX of the IT Act, 2000 and the matter ) { or matters or Places or area or areas in a State or Union Territory of the posting ef te Person. (b) The complaint shall be’ made to the Adjudicating Officer of the State or Union Territory on the basis of location of Computer System, Computer Network as defined in sub-section (2) of Section 75 of IT det ot a plain paper on the proforma attached to these rules together with the fee vernment | ; erritories tp fe job responsibility in th? (©) The Adjudicating Officer shall issue.a notice together with all the documents to all the necessary p; arties to the proceedings, fixing a date and fime for further proceedings. The notice shall contain such particulars as far as may be as to the time and place of the alleged contravention, and the person (if any) against whom, or the thing (if any) in respect of which, iti 209 ote Tuna! a. ; rar the date 60 fixed, the Adjudicating Officer shalt ‘explain to such fo (a) On tha dato 99 ned, the Adjudleating Ofte “contravention alleged or persommitted in relation to any of the provisions of the Act oe vr ie eee tion or ander made there : gay 7 pe person in respect of whom notice is issued pleads guilty, the (© Officer shall record the plea, and may impose penalty or seta dicating per Law In Inia Rw on yyy, e Adjudicating Ofteg, ke decisions ‘with well nt 8 Adiudicating Om, ion as he thinks fit in accordance with the provisions of the A pe ret ee, oeer of diresions maede Urea cor Desree oF eauiyay ch Oy regulations, State Government juleat, Beh jervice in a Gown the ively on the date fixed, the person or persons against (0 Alternat fled may show cause hy on enquiry should not be held nor meed contravention or that why the report alleging the E ion should be dismissed. wn Adjudicating Officer on the basis of the report of the matter, Lo don report (if dng), other dacantente'aad og tee basis ot submission javerform an opinion that there is sufficient cause for holding on enquiry or spall report into the matter should be dismlesed ant oo gion ‘basis shall ot ins, order dismiss the report of the matter, or shall determine to hear cithe the matter. ; es erson or persons fails, neglects or refuses to appear, st Himself as required by sub-rae (ares tag Adjudicating Officer, Be Adjudicating Officer shall proceed with the inguiry in the absence of « Sich person or persons after recording the reenene fee doing so. ow () At any time or on receipt of a report of contravention from an aggrieved person, oF by a Government agency or suo moto, the Adjudicating Officer, may got the matter or the report investigated from an officer in the pice, of Controller. or CERTIND or from. the concerned Deputy Superintendent of Police, to ascertain more facts and whether prima lato there is a case for adjudicating on the matter or not, i G) he Adjudicating Officer shall x a date and time for production of documents or evidence and for thi ete of through the jn.qament te compute «inser formation through ra ss about the methogt®® es or other ‘elec’ ° acluding Internes, ie charge responsib; ities fovernment in administration or pet istrict Magistrate "® egistrate or intone @ cumulative permet I in Governme; non neeaermnent "sponsibility in tno of Director to the officer of State The Adjudicating ‘ontraventions in « er or matters or {k) ‘As far as possible, every application shall be heard and decided in he posting of the four months and the whole matier fe wee months. Adjudicating Officer, when convinced that the scope of the case cutends to the Offence(s) (under Chapter XI of IT Act) instead ut contravention, needing appropriate punishment i g Officer of the mputer System, 75 of IT Act on instead of mere financial or with the 3 Frnalty, should transfer the ease to the Magistrate having juriedistics te try capes the case, through the Presiding Officer, or with all toe Order of the Adjudicating Officer—{(a) If, upon consideration of ing a date aoe the evidence produced before the Adjudicating Offey end ote records and Beuisen st fubmissions, the Adjudicating Officer is satisfied’ thet eh become liable to pay the person has damages by way of compensation or to Under any of tho provisions of the Act or rules, Pay penalty orders, the Adjudicating Officer may, by order in, Tegulations, directions or writing, order payment of290 Sree Plain, impose such penalt ay of compensation or alty, ag damegvs an aajadsins the quantum of compensation on Med Fp Adjudication Officer shall have duo rogard to the foot Penal namely :— : faite : f jount of gain of unfair advant ‘ABC, wherey, ® eae as a result of the default; a ™ANtifay, d to any person as a , ii) the amount of loss cause Fesult of a the repetitive nature of the default. a Copy of the order.—Adjudicating Officers shall deliver of the order to the complainant and respondent cortifeg “PY Service of notices and orders.—A notice or an or these rules shall be served on the person in any of the 2 that is to say ot 4 (a) by delivering or tendering it to that person o a authorized -agent in an electronic form provides that Feng sufficient evidence of actual delivery of the elects where ig the concerned person; or cord ty b) by | sending it to the person by registered : acknowledgment due to the address of his slace Com; uter network, data, computer database ™PUtey Seem Tallies ae GOREN deans MP or computer network. Damage means to destroy, alte? modify or rearrange any computer resource by any meang. Dee means a representation of information, knowledge, face cones or instructions which are being prepared or have been pares in a formalized manner, and is intended to be processnq has processed or has been Processed in a computer te a computer network, and may be in any form (including comput Printout) magnetic or optical storage media, Punched car’ punched tapes) or stored internally in the memory of 2 computer; ae disrupts or causes disruption of any or computer network; denies or causes the denial of access to any person authorised tp access any computer, computer system or computer network by any means; Provides any assistance to computer, computer system of the provisions of the thereunder; charges the services availed of by a another person by tam Somputer system, or computer network: deletes or alters any information residing in a computer resource or diminishes its val ue or utility or affects it injuriously by any means; 5 steals, conceals, d lestroys or alters or conceal, destroy, ‘or alter any source fection 43 of the IT Act, IT Act, computer, computer systen, any person to facilit or computer network IT Act, rules or ate access to a in contravention regulations made Person to the account of pering with or manipulating any computer causes any person to steal, code used for a computer $e. See Explanation (1) of Section 43 of the IT Act. 41. See Explanation (IV) of Sectioy 4s. mn 43 of the IT Act, 42. See Section 2(0) of the IT Act. See Section 43 of the IT Act.ws epee in ix ion damage. fr tris Low on ty ail resource with an in intention to cause Ee. ilure to Protect Data a jon for Failure . ain Snce ty spensation been cast on the body corporate. The body corporate manner oy RE COPK duty hee ining or handling sensitive pers em OF comp ing, mal i tices in plac o . OF compu? psttteggonadle ee eee as been negligent in implementing and ter ontain be" nore such body corperty practices and procedures in a computer uter "ayatem ant ining reasonable $6 ‘ates, and thereby causes wrongful soy comune? intain ich it owns, controls or opers body corporate shall be liable to PU os wi in to any person, su 1p fae, rer wrongfl gain fo Srpensation to the person £0 affected: Puter reaget pay damages EY Tsdy Corporate” means any company and includes a firm, on is execute? The term pip oF other association of individuals engaged in ores ole PrOPrieal activities.*° : Compute, ee commercial enn security practices and procedures" has been tee 2 any. The tervans security practices and procedures designed to Drotect such iter, Pat ed, Tt mim unauthorized access, damage, use, modification, disc] ooure ang a ete, informant, as may be specified in an agreement between the parties. 5 conacats or impairmer ch agreement, it. means then that security practices and D prepetts there is 2s may be specified in any law for the time being in force. In the ia bere pn mn meena ar any tee, # wend men -wth reencrable , rocedres e Ystem of absrity practices and procedures, as may be prescribed by the Central qebuter xrernment in consultation with such professional bodies or associations as d cards Gover ft , it may deem fit. of the i Powers of the Adjudicating Officer to Impose Penalty An Adjudicating - Officer has, in addition to power to award compensation, power to impose penalty to any person who has contravened any provision of the IT Act, rules or regulation or has not complied with any order passed thereunder. The quantum of fine varies and depends upon the nature of contravention or violation. If any person was required under the IT Act, thereunder, to furnish any document, return or report to the Controller or the Certifying Authority but failed to.furnish the same, he shall be liable to f penalty not exceeding one lakh and fifty thousand rupees for each such , Tule or regulation tion to Section 43-A. See Section 44 of the IT Act,296 Cyber Law, 19 India Adjudienting Officer to award compensation no} exceed ee ‘ing ; it es to the person who is affected by fy z La and Teejations made under the IT Act for Which omtraveg Wnty r aa tn a “eatehy at eer To gevettion fy rovided. This is a "catcl Provision. T¢ \°. Parge. Of pve has becmtions for which separate and express Provision Tl cover'® Pen been provided. ona a ns Saline person on whom penalty has been imposeg ae hag we failed to pay, it shall be recovered as an arrears of larg ret the rp 4 or the Digital Signature Certificate, as the case may be” MreTe. The hy till the penalty is paid. sua — i Le Compounding of Contravention a Any contravention of the provisions of the IT Act th jurisdiction of the Controller or Adjudicating Officer may falls Within “Cither before or after the institution proceedings before may be the compe, i * f th, Und, jounding of the contravention may be subject (7, °f thesen° wee be prescribed by the Controller or such officer aaiaes Condition authorised by him in this behalf or by the Adjudicating Officer, Seca? may be. However, the total amount which a Person may be requis, the casy, after compounding contraventions shall not in any “cTe ured to maximum amount of the penalty which may be imposed unaey mred ey the contravention so compounded. After compounding Sontraventions\ except order op Service of Notice of Application on the Respondents The Registrar shall serve a notice of application on each of the fespendents. The notice shall ordinarily be served in the paper bool. Ir site be served by hand delivery (dasti) through the applicant or through a | Process server or through registered post with acknowledgment, Where the | Bumber of applicants is more, the Registrar may, after taking inte account all the circumstances, direct that the notice of application may be sewn Upon the respondents in any manner of substituted service or in any athe manner as it appears just and convenient to him. (a) Government is respondent; (®) the Tribunal is satisfied that the interest of the respondents on whom notice of the application has not been served are G5. See Rule 26, Ibid. 66. See Rule 27, Ibid.301 we to. Tb : : ‘ and sufficiently represented by the respondents to / oP geavet®l¥ oof the application has been served. e | {nom nelle, an application cannot be heard unless notice of the poth 620 csorved. And no application shall be heard unless notice yn both 45 been SFT TY served on the authority that passed the order "i ieation has been filed. "i PP. fee for the execution. of process or service. However, aot ne shell Pe ‘respondents exceeds five, the applicant shall have to Licey number & ey) for each respondent. Where the Registrar directs et? '50 (rupe’ ubstituted service or by any other manner deemed just and or cee DY SUPEall be made, the applicant shall be required to pay a Bat 8 by Dit “tye actual charges incurred in effecting the service as venle"exceed the Registrar. e ed by it the fee for the service or execution of be icant shall remit the execution of process ty Pg applicant © otsed Demand Draft drawn on a scheduled Bank in i wee of 2 ctrar and payable at the station where the Registrar's 5 in BE of the Beghe feo can also be remitted through crossed Indian Postal face stung your of the Registrar and payable in General Post Office d 0 the Tribunal is located. opdet Oo tion where u es th ¢ Reply and Other Documents by the Respondent i wing of ROP et shall file reply to the application before the Registrar. The TesPOMeS"E ied within one month of the date of service of the notice se 109 Ta vm to the respondent. The Tribunal may, on application by | eof the app} ‘dent, allow filing of the reply after the expiry of the period of one | the respondents ©) be six complete sets of reply along with the documents ere shall P) sont. There * form. The respondent shall also serve a copy of the reply | ina paPOY Gopies: of documents to the applicant or his advocate and file | slong of such ervice With the Registrar. proo : ‘ he parties the dat ‘punal shall notify to the parties the date and the place of ‘the Tribuna) © tion.” The Tribunal shall ordinarily hold its sittings at pearing of the app! ai te cational. ra bearing ty. However, if the Presiding Officer is satisfied, at any time, that New Dejwen circumstances it is necessary to have sittings of the Tribunal dee % Since other than New Delhi, then the sittings of the Tribunal shall at alafat the place deemed appropriate by the Presiding Officer.” Hearing on Application The applicant has to be present (in person, through his agent or counsel) on the date of hearing or on any other date to which such hearing may be adjourned. But if the applicant fails to appear when the application is called for hearing, the Tribunal may, in its discretion, either dismiss the application for default or hear and decide it on merit. The applicant may show sufficient cause to the Tribunal for his non-appearance when the application was called on for hearing and then dismissed for default. If the Tribunal is satisfied, it shall make an order setting aside the order “See Rule 10, Tod. | fsmee . See Rule ; | see Rule 13, foi | > _ j302 Cyber Law in India 1, d restore th mn oY ng ismissi lication and restore the same. dismissing the app! Batis the applicant appears, but the respondent Where PI Tribes f r fail | the application is called for hearing, the st * © an, oes May, in ;°PPear adjourn or hear and decide the application ex parte. Thi? iD ite a Wi iS ex j i if the respondent or th de by the Tribunal if the or thee cre pe et aebe, show to the satisfaction of the Tribunal thay mdents, a,” | Guly served or that he or they were prevented by a i he suffici appearing when the application was called on for hearing Mt caugy Pot | © Apr . ; from 1 may be set aside by the Tribunal upon. such terms as it thin. pm | coat appoint a day for proceeding with the application ks fit ae irregularity in the service of notice shall not be a gro . ad und fe tm, an ex parte order where the Tribunal is satisfied that ths respetting aige notice of the date of hearing and had sufficient time to npr ondent nae the applicant's claim. angyitd Whore the ex parte hearing of the application is of such nay cannot be set aside as against one respondent only, it may be sot | tat it against-all or any other respondents also.”* aside at Orders and Directions of the Tribunal noche, Tribunal, may make such orders or give such directions g necessary or expedient to give effect to its orders or to presen abuse’ be Process or to secure the ends of justice.”® The Tribunal may confirm, 9°! its | or set aside the order appealed against, Arm, modify | Every order of the Tribunal shall be in writing and shall bese | dated by the Chairperson." very order passed on an applica! sneat |" communicated to the applicant and to the respondent otf in person or ° | Tefistered post free of cost.” Such of the orders of the Teneo notty deemed fit for publication in any report-or the prows may be released fe such publication on such terms and conditions as the Tribunal may lay down.” In order to prevent any unauthorised person to lay hands on the important information assets that may be easily accessible in tl 9 . | } j . | Registration of Legal Practitioner's Clerks 73. Rule 22, Ibid. aN ES 74. Rule 18, Ibid. 75: See Rule 20, Ibid. 76. See Rule 19, Ibid.303 jesue of an identity card to the clerk after ho is SW aicact pall be non-transferable and shall bo produced gf gall Aseity eOTd "yan officer or any other employee of the «frre een TOME Shall be issued under the signature of the ‘ det dent” CT'qhe legal practitioner employing a registered fete Mane, erriboMe tear immediately once the clerk censes his fiat of tr the Tete notice shall be accompanied with the identity wo 30 jnformara' on receipt of such letter the name of the said i ei nis fi nk ‘struck off from the register.” ye" sha! his clot jvil Court Barred te jon, of BE a iiietion of the civil courts to ontertain any suit or jotiOX, bars JPtoy matter which an Adjudicating Officer appointed am Nespect of “Gyber Appellate Tribunal constituted under the IT it act OF 6 comine. No injunction shall be granted by any court ae the Tyored 12 fespect of any action taken or to be taken in pursuance BS cP ority 39 TE or under the IT Act."® This provision is definitely conferr*' sorities to move their decisions without an undue ie n that the parties, just to delay the proceedings we fe Ithas Pe id approach the civil courts for stay to stall ipunal, “Tribunal. This provision to bar jurisdiction of the cfore tr to enhance performance of the Cyber Appellate is = ok & = Gg igh Court . peal t0 Hist coved by the decision or order of the Cyber Appellate any person SEF"'"ppeal to the High Court. The appeal may be filed unsl 89 Bom the date of communication of the decision or order of iin sist 4007 te Tribunal to him. The appeal shall lie on any question fe Get APPe ng out of the order of the Cyber Appellate Tribunal. of fact OF eal may be filed after sixty days from the date of An SPP‘ the decision ‘or order of the Cyber Appellate Tribunal ni Hfigh Court is satisfied that the appellant was prevented by amitel “Cause from filing the appeal within the prescribed time. The sce. in time for filing an appeal shall not exceed a further period of sirty days.” Constitution of Advisory Committee ‘The Central Government has a power to constitute a Committee called tte Cyber Regulation Advisory Committee (CRAC). The committee shall snsist of a Chairperson and such number of other official and non-official Rmlet: representing the interests principally affected or having special ledge of the subject-matter as the Central Government may deem. fit. a Cyber Regulations Advisory Committee shall advise : (a) fie Central Government either generally as regards any rules or fr any other purpose connected with the IT Act, Rule 23, Ibid. ees ea 61 of the IT Act. tion 62 of the IT Act. >a Cyber Low in tines flow on 304 is (b) the Controller in forming the regulations under this Act. an rae Advisory Committee shall be Pai Ae non-official mem! ing and other allowances as the Central Government may id such travelling YY fix QQ