chapter [10] created by manish mathur. history.... 1999 – information technology bill was...

Created By Manish Mathur

Chapter [10]

Information Technology

(Amended) Act 2008

History. . . .

• 1999 – Information Technology Bill was prepared.• May 2000 – This bill was passed by both the houses

of parliament.• August 2000 – This was passed by President of India

and was came to be known as “Information Technology Act -2000”.

• 2006 – The act was amended and presented to parliament.

• December 2008 – The act was passed by the parliament & renamed to “Information Technology (Amendment) Act – 2008”.

Reasons for ITAA 2006• To support the growth of electronic based transaction.• To support the extended IT enabled services such as e-

governance, e-commerce, e-transactions, protection of information and security procedures.

• To prevent computer and internet related crime such as sexual publication, leakage of data etc.

• To harmonize the IT act with the UNCITRAL (United Nations Commission on International TRAde Law.

• To authorise, service providers to setup, maintain and upgrade computerised facilities to provide services to public.

Objectives . . .• To grant legal recognition to transaction carried out

by electronic means.• To grant legal recognition to Digital Signature for

authentication of information.• To facilitate e-filing of documents with Govt. • To facilitate e-storage of data by business.• To facilitate and give legal recognition to EFT.• To give legal recognition for keeping books of

accounts by bankers.• To amend IPC, Indian Evidence Act, Banker Books

Evidence Act, RBI Act.

ITAA 2008 composition

4 Schedules 13 Chapters 90 Sections and Sub-sections


Chapter 1 : PRELIMINARY

Section 1 : Short title, Extent, Commencement and Application

Section 2 : Definitions


Section 1 : Short title, Extent, Commencement and Application• Originally it was called Information Technology Act,

2000. After amendment it was renamed to Information Technology (Amendment) Act 2008. In short title it referred to as ITAA 2008.

• It shall extent to the while of India, unless otherwise provided in the Act.

• It shall came into force on such date as appointed by central Govt. Different dates may be appointed for different provisions of the Act.


• Nothing in this Act apply to documents specified in the First schedule of this act.

• Entries in the first schedule can be inserted and deleted by notification with prior approval from each house of parliament.


Section 2 : Definitions

(a) “Access” – with it grammatical variations and cognate expression means,

gaining entry into, introducing and communicating with

arithmetical, logical or memory function of computer, computer system or computer network.

(b) “Addressee” – A person who is intended by the originator/sender to receive the electronic record.


(d) “Affixing Electronic signature” – Adopting any procedure, by a person, to authenticate any electronic record, by means of electronic signature.

(f) Asymmetric Crypto system – a system of key pair consisting of private key to create electronic signature and public key to verify electronic signature.

(i) “Computer” – any electronic, magnetic, optical or high speed data processing device …… which performs arithmetical, logical or memory function ….. by manipulation of electronic, magnetic or optical signals ….. and includes input, output, storage, processing and comm. Facilities ….. and related to any computer, system or network.


(j) “Computer network” – means interconnection of one or more computer/system/comm. device through –

(i) the use of satellite, microwave, terrestrial line, wire or wireless or other communication media.(ii) Terminals or a complex consisting of two or more interconnected computer; whether or not interconnection is continuously maintained.

(l) “Computer System” – means device or collection of devices, including I/O support devices and excluding calculators which are not programmable and capable of using external files and capable to perform logic, arithmetic, storage, retrieval and communication and other functions.


(na) “Cyber cafe” – means any facility from where access to the internet is offered by any person in the ordinary course of business to the general public.

(nb) “Cyber Security” – means protecting information, equipment, devices, computer, resources from unauthorised access, use, disclosure, disruption, modification or destruction.

(w) “Intermediary” – means a person who on behalf of another person receives, stores or transmits electronic message or provides any service with respect to that electronic record….. and include telecom service provider, NSP, ISP, WSP, search engine, online payment sites, auction sites, market places and cyber cafes.


(x) “Key pair” –means a private key and its mathematically related public key, which are so related that public key can verify a digital signature created by the private key.

(za) “Originator” – means a person who sends, generates, stores or transmit any electronic record or causes any electronic record to be sent, generated, stored or transmitted to other person & does not include intermediary.


(ze) “Secure system” – means computer h/w, s/w that-(i) Are reasonably secure from unauthorised access and misuse.(ii) Provide a reasonably level of reliability of operation.(iii) Are reasonably suited to perform intended functions.(iv) adhere to generally accepted security procedures.

(zh) “Verify” – means to determine whether –(i) The initial electronic record was affixed with the digital signature.(ii) The initial electronic record is retained intact or has been altered.


Chapter – II

Digital Signature and

Electronic signature

Covers Section 3 only


The digital signature is created in two steps –Step 1 ~

Electronic record is converted into a message digest by using a mathematical function known as “Hash function”.

It will digitally freeze the electronic record thus ensuring integrity of the electronic record.

Step 2 ~ The identity of the person affixing the DS is

authenticated through the use of a private key. It can be verified by anybody who has the

corresponding public key.


Section 3 : Authentication of Electronic Record

1. Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his digital signature.

2. The authentication can be done by the use of Asymmetric Crypto System and hash function.

3. Any person by the use of public key can verify the electronic record.

4. Private key and Public key are unique to the subscriber.


Section 3 A : Electronic Signature1. A subscriber may authenticate any electronic record

by electronic technique which –– Is considered reliable and– May be specified in the second schedule

2. Electronic authentication technique shall be considered reliable if –– The signature creation data are within the context in which

they are issued.– The signature creation data at the time of signing, under

the control of signatory.– Any alteration to the ES, after affixing is detectable.– Any alteration to the info. , after affixing is detectable.– It fulfills such other conditions which may be prescribed.


3. The central Govt. may prescribe the procedure of ascertaining whether electronic signature is that of the person by whom it have been affixed.

4. The central govt. may omit by notification any electronic signature technique from the II schedule.

5. Every notification shall be laid before each house of parliament.


Chapter – III

Electronic Governance

Covers 7 Sections : from 4 to 10


Section 4 : Legal recognition of Electronic record

Where any law requires that information should be in typewritten or printed form then such requirement shall be deemed to be satisfied if it is –

Made available in an electronic form. Accessible so as to be usable subsequently


Section 5: Legal recognition of Electronic signature

Where any law requires that information should be authenticated by affixing signature of any person then such requirement shall be satisfied if it is authenticated by means of electronic signature.


Section 6: Use of electronic record and E.S. in Govt.

1. Where any law provides for –• The filing of any Form, Application or other Docs. to

any Govt. department, body, agency office.• The issue or grant of any license, Permit, Sanction

or approval etc.• The receipt or payment in government offices

Then all these may be done through electronic means.

2. The appropriate Govt. may prescribe –manner and format of electronic recordmanner and format of payment


Section 6A: Delivery of Service by Service Provider

1. The appropriate govt. may authorise any service provider to setup, maintain and upgrade the computerised

facilities to provide prescribed services to the public.

to collect, retain and appropriate service charges from the person availing the service.

To collect, retain and appropriate service charges for any services not covered by the act.

2. The appropriate govt. may specify the scale of services charges to be collected by service provider.


Section 7 : Retention of electronic record

1. Where any law provides that document, record or information retained for any specified period, shall be deemed to have been retained in electronic form provided the following conditions are satisfied –– The information therein remain accessible so as to

be usable.– The information is retained in the original format.– The information is retained with the details that

facilitate the origin, destination, date and time of dispatch and receipt


2. However, this section does not apply to any information which is automatically generated in the process of enabling electronic record.

3. This section does not supersede any law that expressly provide for retention of document in the form of electronic record.

Section 7 A: Audit of document in E-form

Where any law has the provision for audit of documents, that provision shall also be applicable for audit of documents maintained in electronic form.


Section 8 : Publication of rules, regulation etc. in Electronic Gazette

• Where any law requires the publication of any rule, regulation, order, by-laws, notification in the official gazette then such requirement shall be deemed to be satisfied if it is published in electronic form.

• If official gazette is published in both the form than the date of publication shall be the date of publication of that form of O.G. which was first published.


Section 9 : Electronic form is not to be the right

The provisions stipulated in section 6, 7 and 8 shall not confer any right to insist the document be accepted, issued, created and retained in electronic form.


Section 10 : Power of Central Govt. to make rules

In respect of DS, the central govt. may prescribe – The type of digital signature. The manner and format in which DS shall be affixed. The procedure to identify the person affixing the DS. Controls to ensure integrity, security and

confidentiality of electronic record. Any other matter to give legal effect to DS.

Section 10A : Validity of E-contract

Where in contract formation, communication, acceptance or revocation of proposal are expressed in electronic form, such contract shall not deemed to be un-forceable solely on the ground that such electronic form was used for that purpose


Chapter – IV

Attribution, Receipt and Dispatch of

Electronic Records



Section 11 : Attribution of Electronic record

An electronic record shall be attributed to the originator, if it sent –• By the originator• By a person authorised by the originator• By an IS programmed to operate automatically.

Section 12 : Acknowledgement of Receipt


1. Where the originator has not stipulated that the acknowledge be given in a particular form then the same can be given by –• Any communication by the addressee.• Any conduct of the addressee sufficient to indicate that

electronic record has been received.


2. Where originator has stipulated that the record shall be binding only on receipt of an ACK then unless ACK has been so received, the electronic record deemed to have been never sent.

3. Where originator has not asked for ACK and the ACK has not been received by the originator, then the originator may give notice to the addressee specifying a reasonable time by which the ACK must be received by him.

If no ACK is received after this notice then the electronic record can be treated as never been sent.



1. When otherwise not have been decided by originator and addressee, the dispatch of an electronic record occurs when it enters a computer outside the control of the originator.

2. When otherwise not have been decided by originator and addressee, time of receipt of an electronic record is determined as –

(a) if the addressee has designated a computer for receiving electronic record –(i) receipt occurs at the time when the record enters the designated computer.

Section 13 : Time and Place of dispatch and receipt of electronic record


(ii) if the record is sent to the computer that is not the designated computer, receipt occurs at the time when record is retrieved by the addressee.(b) if the addressee has not designated a computer

resource, then receipt occurs when record enters the computer of the addressee.

3. When otherwise not have been decided by the originator and addressee the electronic record is deemed to be “dispatched from the place where the originator has his place of business and received at the place where addressee has his place of business.


Chapter – V

Secure Electronic Record and Secure Digital Signature




When any security procedure has been applied to an electronic record then it shall be deemed to be secured electronic record from such point of time to the time of verification.

Section 14 : Secure Electronic Record

Section 15 : Secure Electronic Signature

An ES shall deemed to be a secure ES, if-• The signature creation data, at the time of affixing

signature, was under control of signatory.• The signature creation data was stored and affixed

in prescribed manner.



The central Govt. may prescribe the security procedure for secure electronic record and secure electronic signature. In doing so CG can take in to account following factors –– Nature of transaction– Technological capacity of both the parties– Availability and cost of alternative procedures– Volume of similar transactions entered into by

other parties.

Section 16: Security procedure and practice


Chapter – VI

Regulation of Certifying Authorities



1. The central govt. may appointment Controller, AC, DC, and other employees to regulate functioning of CA.

2. The controller shall discharge his functions under general control and directions of CG.

3. AC and DC shall perform functions assigned to them by the controller.

4. CG may prescribe the qualification, experience, T&C of service of controller, AC, DC and employees.

5. CG may establish head office and branch office at different places.

6. There shall be a seal of office of the controller.

Section 17: Appointment of Controller and other officers


Exercising supervision over the activities of CA. Certifying public keys of the certifying authorities. Laying down the standards to be maintain by CA. specifying qualification and experience which

employee of CA should possess. Specifying the conditions subject to which CA shall

conduct their business. Specifying the content of written, printed, visual

material and advertisement. Specifying the form and content of DSC.

Section 18 : Functions of Controllers


Specifying the form and manner in which account shall be maintained by CA.

Specifying T&C for appointment of auditors. Facilitating the establishment of any electronic

system solely or jointly by CAs. Specifying code of conduct for CA in their dealing

with subscribers. Resolving any conflict between CA and subscriber. Laying down duties of CA. Maintaining database containing the disclosure

record of every CA.


Subject to the conditions and restrictions imposed by the regulation, with previous approval of the Govt. and by notification in the OG, Controller may grant recognition to any foreign CA.

If FCA has contravened any of the conditions and restrictions of recognition then the controller may revoke such recognition by notification in OG.

Section 19 : Recognition of foreign CAs

Section 20 : Omitted


• Any person may make an application for license to the controller.

• No license shall be granted unless the applicant fulfills requirements with respect to qualification, experience, manpower, financial resources and infrastructure.

• A license granted under this section – Shall be valid for the prescribed period of time. Shall not be transferable or heritable. Shall be subject to prescribed terms and condition.

Section 21: License to issue ESC


Every application for license shall be in the prescribed form and accompanied by –• A certification practice statement• A statement of identification of applicant• A fee not exceeding Rs. 25,000/-• Such other documents prescribed by Govt.

Section 22: Application for license

Section 23: Renewal of a licenseAn application for renewal shall be –• In prescribed form• Accompanied by fees not exceeding Rs. 5000/-• Made not less then 45 days before the expiry of license.


After considering the documents accompanying the application, the controller may grant or reject the application.

No application shall be rejected unless applicant has been given opportunity of being heard.

Section 24:Procedure for grant or rejection of license

Section 25: Suspension or revocation of License1. Controller may suspend or revoke license if CA has –• Made a statement in the application which is false or

incorrect.• Failed to comply with terms and conditions of license.• Failed to maintain the prescribed standards.• Contravened any provisions of the act, rules.


2. No license shall be suspended or revoked unless CA has been given a reasonably opportunity of showing cause.

3. If the controller believe that there are reasonable cause, then he may suspend the license and order an enquiry against the CA.

4. The license of CA will be suspended till the completion of enquiry. However no license shall be suspended for a period exceeding 10 days.

5. No CA, whose license has been suspended shall issue any ESC during such period.


1. The controller shall publish a notice of suspension or revocation of license in the database maintained by him and all other repositories.

2. The database containing such notice shall be made available through web site round the clock.

3. The controller, if he considers necessary, publicize the database in electronic and other media.

Section 26:Notice of suspension/revocation of license

Section 27: Controller’s power to delegate1. Controller may in writing authorize AC/DC to exercise

any of his power under this chapter.2. Controller and any person authorized by him shall

have access to any computer, if he has reasonable cause to suspect.


1. The controller or any other person authorised by him shall take up, for any investigation, any contravention of the provision of the act.

2. The controller or any other person authorised by him shall exercise the same power which are conferred on income tax authorities under Income Tax act 1961.

Section 28: Power to investigate contraventions

Section 29: Access to computers and data

1. Controller or any authorize person, if has reasonable cause to suspect, shall have access to any computer system for the purpose of searching or obtaining any information available to such system.


2. For the purpose of sub-section 1, controller or any authorised person, by order, direct any person concerned with the system to provide him technical other assistance.

Section 30: Duties of Certifying Authorities Make use of H/w, S/w and procedure that are secure

from intrusion. Provide reasonable level of reliability in its service. Reasonable suited to perform intended functions. Adhere to security procedures. Be the repository of all ESC issued by him. Publish information regarding practice, ESC and current

status of ESC. Observe such other standard prescribed by the law.


Every CA shall ensure that every person employed by him complies with the provisions of the Act, rule, order.

Section 31: CA compliance of Act

Section 32: Display of license

Every CA must display its license at a conspicuous place in the premises of business.

Section 33: Surrender of license

1. Every CA whose license has been suspended or revoked must immediately surrender the license to Controller.

2. If fails, shall be punished for imprisonment up to 6 months or a fine up to 10,000/- or both.


Section 34: Disclosure

1. Every CA must disclose –• Its ESC• Any certification practice statement• Notice of revocation or suspension of its license• Any other fact that adversely affect the reliability of ESC

issued by him or his ability to perform services.2. When any such event occurs which adversely affect

the integrity of its computer system, the CA shall –• Use reasonable efforts to notify any person who is likely

to be affected.• Act in accordance with the procedure specified in its

certification practice statement.


Chapter – VII

Electronic Signature Certificate



Section 35: Application for ESC

1. No ESC shall be granted unless the CA is satisfied that-• The applicant holds the private key corresponding to the

public key listed in ESC.• Applicant holds the Pvt. key capable of creating digi. sign.• Public key listed in the certi. is capable to verify digi. sign.

2. Any person may make an application for ESC in the form prescribed by the central govt.

3. Application shall be accompanied by fee not exceeding Rs. 25000/-. However different fees may be prescribed by different persons.

4. Application shall be accompanied by certificate practice statement.

…


5. On receipt of an application the CA, after making enquiries, may grant the certificate or reject the application. However no application shall be rejected unless the applicant has been given opportunity of ….

Section 36: Declaration of CA on issuance of ESC

The CA while issuing ESC shall certify that –• It has complied with provisions of the Act.• It has published the ESC and subscriber has accepted it.• The subscriber holds the pvt. key and pub. key, listed in ESC.• Private key is capable of creating digital signature.• Public key is capable of verifying the digital signature.• The information contained in ESC are accurate.• It has no knowledge of any material fact adversely affect the

reliability of its compliance of the Act.


Section 37: Suspension of DSC

The CA may suspend any DSC issued by him –• On request of subscriber or any person authorised on

his behalf• If it is of opinion that it is necessary in the public

interest. A DSC shall not be suspended for more then 15 days. Such suspension shall be communicated to subscriber.

Section 38: Revocation of DSC1. The CA may revoke a DSC issued by it in the condition–• Where subscriber or any person authorised by him

makes a request. …


• Upon death of the subscriber.• Upon dissolution of the firm or company where

subscriber is a company.• When material fact presented in DSC are false or

has been concealed.• A requirement for issuance of DSC was not satisfied.• The CA’s private key or security system has been

compromised.2. No DSC shall be revoked unless subscriber has been

given an opportunity of being heard.3. Such revocation of DSC shall be communicated to

subscriber.


Section 39: Notice of Suspension or Revocation

The CA shall publish notice of suspension or revocation of DSC in all such repositories specified in DSC.


Chapter – VIII

DUTIES OF SUBSCRIBERCovers 3 Sections : from 40 to 42


Section 40: Generating Key pair

The subscriber shall generate the key pair by applying the security procedure after DSC has been accepted by him.

Section 41: Acceptance of DSC

1. A subscriber shall be deemed to have been accepted if he publishes or authorised to publish a DSC –• To one or more persons• In repository or otherwise demonstrate his approval

2. By acceptance of DSC the subscriber certifies that –• He holds the private and public key listed in DSC• All representation made by him to the CA are true.• All information in the DSC are true.


Section 42: Control of Private key

1. Every subscriber shall exercise reasonable care to retain control of the his private key to prevent its disclosure.

2. If the private key has been compromised, subscriber shall communicate this immediately to the CA in the manner prescribed in the regulation.

3. Otherwise the subscriber shall be liable for all the communication, till he has informed the CA about such compromise.


Chapter – IX

PENALTIES AND

ADJUDICATION



Section 43: Penalty and Compensation

If any person, without permission of the owner or in-charge of computer commits any of the following act, he shall be liable to pay damages by way of compensation to the person so affected-• Securing access to the computer• Downloading any data, database or information from such

computer or storage medium.• Introducing any computer contaminant or virus into the

computer• Damaging any computer, network, data, database or program• Disrupting any computer, system or network• Denying access to any person authorised to access any

computer, system or network


• Providing assistance to any person to access any computer in contravention of provisions of the act.

• Charging the service avail by a person to the account of another person by tempering with any computer.

• Destroy, delete, alter any info. or diminishing its value.• Steal, conceal, destroy, alter or causes any person to

S.C.D.A. any computer source code.

Compensation for failure to protect dataWhere any body corporate stores or processes any sensitive personal information in a computer which it owns, controls or operates, is negligent in implementing security and thereby cause wrongful loss or gain to any person, such body corporate shall be liable to pay damages by way of compensation to the affected person.


Section 44: penalty for failure to furnish INFO.

If any person who is required to – Furnish any document, return or report to controller

or CA, fail to furnish, he shall be liable to a penalty not exceeding Rs. 1,50,000/- for each failure.

File any document, report, book etc within the time specified, fails to do the same, he shall be liable to a penalty not exceeding Rs. 5000/- per day till failure continues.

Maintain book of a/c or record, files to maintain, he shall be liable to a penalty not more then Rs. 10,000/- per day till failure continues.


Section 45: Residual Penalty

Whoever contravenes any rule or regulation of the act for which no penalty has been separately provided, shall be liable to pay compensation not exceeding Rs. 25,000/- to the affected person.

Section 46: Power to Adjudicate

1. For the purpose of adjudging, the CG shall appoint any officer not below the rank of a Director to central or state govt. to be an adjudicating officer for holding inquiry.


1A The AO shall exercise jurisdiction to adjudicate matters in which the claim for damage does not exceed Rs. 5 Cr. Damage exceeding Rs. 5 Cr shall vest with the competent court.

2. The AO shall hold the inquiry in the prescribed manner after giving opportunity of being heard to the person who have committed the contravention and the AO may impose penalty.

3. The person appointed as AO shall possess such experience in the field of IT and such judicial experience as may be prescribed.

4. Where more then one AO are appointed, the CG shall specify the matter and places of jurisdiction.


5. Every AO shall have the power of Civil court which are conferred by the CAT.

Section 47: Factor to be considered by the AO

While deciding the amount of compensation, the AO shall consider the following factors –• The amount of gain made as a result of default.• The amount of loss caused to any person.• The repetitive nature of the default.


Chapter – X

THE CYBER APPELLATE

TRIBUNAL



Section 48: Establishment of C.A.T.

• The central govt. shall, by notification, establish one or more CAT.

• The CG shall also specify the matter and places as jurisdiction of CAT.

Section 49: Composition of C.A.T.

• The CAT shall consist of Chairperson and number of judicial and non-judicial members as the CG, by notification, may appoint.

• The selection of chairperson and members is made by CG in consultation of CJ of India.


• Subject to provisions of the Act – The jurisdiction, power and authority of CAT may be

exercised by benches. A bench may be constituted by chairperson, with 1

or more members. Every bench will be presided over by chairperson or judicial member.

The benches shall sit at New Delhi and at such other places as CG shall, after consulting CP, appoint.

The CG shall specify the area in relation to which each bench of CAT may exercise jurisdiction.

• The CP may transfer members from 1 bench to other.


• At any stage of hearing, the CP may transfer the case to the bench with more number of members.

Section 50: Qualification for CP & members of CAT

• Judge of the high court or equally qualified person may be appointed as CP of the CAT.

• Non-judicial member shall be amongst the person having knowledge and experience of IT, Telecomm, industry, mgmt & consumer affairs. In addition – the person must be in service as additional secretary to the govt. with 2yrs experience OR Joint Secretary with 5yrs experience.


• Judicial members shall be the person who is or has been member of ILS and in the post of additional secretary with 1 yrs exp. Or in the grade I post with 5 yrs. Experience.

Section 51: term of office and condition of service

• The CP and members of CAT shall hold office for a term of 5 yrs from the date of joining or until he attain age of 65 yrs, which ever is earlier.

• Before appointing any person as CP or member, CG shall satisfy that the person does not have any financial or other interest.

• The person has to retire from his present service.


Section 52: Salary, allowance and other T&C

Prescribed by the Govt.

Section 52A: power of superintendence, direction

CP has the power of superintendence & direction in the affairs of CAT and presiding over the meetings.

Section 52B: Distribution of business

CP may, distribute business among the benches.

Section 52C: Transfer of Case

On application of any party and after notice to the parties, CP may transfer any case from one bench to other.


Section 53: Filling up of vacancies

If any vacancy occurs in CAT, CG may appoint another person.

Section 54: Resignation and removal

• CP or member may by notification in writing addressed to CG, resign his office. However – the person can not leave his office unless –

Term of 5 years is over 3 months period is passed after notice Age of 65 yrs is attained Permitted by CG Any other person enter office to take charge


CP and members shall be removed from office only by notice by CG on the ground of misbehavior or incapacity; after an inquiry made by the judge of supreme court; and giving reasonable opportunity of being heard.

Section 55: Order constituting CAT to be final

No order appointing CP and members shall be called in question merely on the ground of any defect in the constitution of CAT.

Section 56: Staff of the CAT

The CG may appoint other officers of the CAT and frame rules, terms, conditions, salary allowance etc.


Section 57: Appeal to CAT

An appeal may be made by an aggrieved person against the order of AO.

Appeal must be made within 45 days after order is received and in prescribed form and fees.

CAT may accept an appeal after 45 days if it satisfied that it was not possible to appeal within 45 days.

No appeal shall be accepted if the original order was passed by the consent of both the parties.

On receipt, CAT may, after giving parties opportunity of being heard, confirm, modify or set aside the order appealed against.


• CAT shall send a copy of order made by it to the parties, controller or AO.

Section 58: Power of CAT• The CAT shall not be bound by Code of Civil procedure

1908 and have power to regulate it own procedure.• The CAT shall have powers of the Civil court. Some of

the powers are – Summoning and enforcing the attendance of any person and

examining him on oath. Requiring production of electronic records. Receiving evidence on affidavits. Issuing commission for examination of witness. Dismissing an application for default. Any other matter which may be prescribed.


Section 59: Right to legal representation

The appellant may be represented by legal practitioner to present the case.

Section 60: Term of admission of appeal

Within 45 days after the original order is received

Section 61: Civil court not to have jurisdiction

• No court shall have jurisdiction to entertain any suit which an AO or CAT has jurisdiction.

• Court may exercise jurisdiction in cases where the claim is more then 5 Cr.


Section 62: Appeal to high court

Within 60 days from the date on which CAT’s order is communicated.

Section 63: Compounding of contravention

• Any contravention may be compounded by AO. However – such sum shall not exceed the maximum penalty which may be imposed by the act.

• This provision shall not apply to a person who commits the same or similar contravention again within 3 years from the date of first contravention.

Section 64: Recovery of Penalty

As an arrears of land revenue and suspension of DSC


Chapter – XI

OFFENCES



Section 65: Tampering with source document

Imprisonment up to 3 years OR fine up to 2 lakhs OR both.

Section 66: Computer related Offences

If any person does act referred in section 43, imprisonment upto 2 years OR fine upto 5 lakhs OR both.

Section 66A: Sending offensive messages Any person who sends –• Any information of offensive or menacing character.• Any information known as false but sent for the

purpose of insult, annoyance, enmity, ill will etc.


• Any e-mail for the purpose of causing annoyance, to deceive, mislead etc.

Imprisonment up to 3yrs AND fine.

Section 66B: Receiving stolen resources

Whoever dishonestly retains any stolen computer resource… imprisonment up to 3yrs OR fine up to 1 lakh OR both.

Section 66C: Identity theft

Whoever fraudulently make use of the E.Sign, password, UID etc…. Imprisonment up to 3yrs AND fine up to 1 lakh.


Section 66D: Cheating by personating

Imprisonment up to 3yrs AND fine up to 1 lakh.

Section 66E: Violation of PrivacyWhoever knowingly captures, publishes or transmits the images of private area of any person without his/her consent…Imprison. upto 3yrs or fine upto 2lakh or both.

Section 66F: Cyber terrorismWhoever, with the intent to threaten the integrity, security or sovereignty of India or strike terror in public by –• Denying or cause denial of access to any person

authorised to access a computer resources.


• Attempting to penetrate a computer resource without authorization.

• Introducing any computer contaminant causing death or injury to person.

• Damage or destruct property causing disruption of services essential to the life of community.

• Adversely affect Critical Information Infrastructure.• Whoever, knowingly penetrates a computer resource,

database that is restricted for reason of sovereignty, integrity of india, friendly relations with foreign states … … commits cyber terrorism.

• Imprisonment for LIFE.


Section 67 : publishing obscene material in E-form• Whoever publishes or transmits in e-form any

material which is lascivious shall be punished –• First conviction – 3 yrs AND 5 lakh• Subsequent conviction – 5 yrs AND 10 lakh

Section 67A : publishing sexually explicit material• First conviction – 5 yrs AND 10 lakh• Subsequent conviction – 7 yrs AND 10 lakh• Exception –• Published in the interest of science, literature,

art, learning or which is used for religious purpose.


Section 67B : publishing material depicting children in sexually explicit act in E-form

Section 67A : Retention of infor. by intermediaries• Intermediaries shall retain such info., for such

duration, in such format as prescribed by CG.• If fail –

Up to 3 yrs ANDup to 2 lakh.

• First conviction – 5 yrs AND 10 lakh• Subsequent conviction – 7 yrs AND 10 lakh• Exception –

Published in related to science, literature, art, learning or which is used for religious purpose.


Section 68 : Power of controller• The controller may direct CA or his Emp. to take

such measure or cease carrying out any activity, to ensure compliance with the provisions of Act.

• If any fails – 2 yrs OR 1 lakh OR Both

Section 69 :Power to intercept/monitor/decrypt

Where CG, SG or any of its officer, is of opinion that it is necessary for the integrity, sovereignty, security of India, may intercept or monitor or decrypt any information transmitted through any computer resources.

Procedure/safeguard for I/M/D shall be prescribed.


Any person in-charge of the computer resource shall extend all facilities and technical assistance.

If fail – 7 yrs AND fine.

Section 69B :Power to authorize to monitor/collect

• To enhance cyber security, prevent intrusion or spread computer contaminant, CG may autho. any agency of Govt. to monitor and collect traffic data from any computer resource.

• Procedure/safeguard for blocking shall be prescribed.

• The person in-charge shall provide technical assistance and extend all facilities.

• If fails to comply with the direction– 3 yrs AND fine.


Section 70 : Protected System The appropriate Govt. by official gazette may declare

any computer resource which affects C.I.I., as protected system.

CII means the computer resource, destruction of which may weaken the national security, economy, public health etc.

Appropriate Govt. may authorize the persons to access protected system.

Any other person who secure access or attempt to access protected system – 10 yrs AND fine.

CG shall prescribe the information Security practice and procedure for such protected system.


Section 70 A: National Nodal Agency CG, by official gazette, may designate any govt. org.

as the national nodal agency in respect to CII. The agency shall be responsible for all measures

including R&D in protection of CII.

Section 70 B: I. C. E. R. T. for incident response

• CG, by official gazette, may appoint an govt. agency to be called Indian Computer Emergency Response Team.

• ICERT is headed by Director General and have such other officers and employee as prescribed.

…..


• Functions of ICERT – Collection, analysis and dissemination of

information on cyber incident. Forecast and alerts of cyber security incidents. Emergency measures for handling C.S. incidents. Coordination of C.S. incident response activities. Issue guidelines, advisories relating to

information security practice, procedure, prevention, reporting and response of cyber incidents.

Such other functions relating to cyber security as may be prescribed.

….


• For carrying out the functions agency may call for info. and give directions to service provider, intermediaries, body corporate and any person.

• Any of these party fail to provide information and comply with the directions – up to 1 yr OR up to 1 lakh OR both.

Section 71 : Penalty for Misrepresentation

Whoever make any misrepresentation or hide any fact to Controller or CA, to obtain License or DSC shall be punished – upto 2 yrs OR upto 1 lakh OR both.


Section 72 : Breach of confidentiality and privacy• Any person who has secured access to electronic

record without the consent of person concerned, discloses such information to other person –

• Upto 2 yrs OR upto 1 lakh OR both

Section 72 A : Breach of lawful contract

• Any person including intermediary, under the term of contract, has secured access to personal info. of other person and with the intent of cause wrongful loss or gain, without consent of the person concerned, provide such info. to other person –

• Upto 3yrs OR 5 lakh OR both


Section 73 : publishing false DSC • Person who publishes a DSC with the knowledge –

The CA listed in the certificate has not issued it. The subscriber listed in the certificate has not

accepted it. The certificate has been suspended or revoked.

• Upto 2 yrs OR 1 lakh OR both.

Section 74 : publishing for fraudulent purpose• Whoever knowingly creates, publishes or otherwise

makes available ESC for any fraudulent purpose ---• Upto 2 yrs OR upto 1 lakh OR both


Section 75 : Act to apply for offence outside India• The Act is applied to any offence where –

Perpetrator is Indian or Victim is Indian or Server is Indian

Section 76 : Confiscation• Any computer, system, floppy, CD, tape or any other

accessories has been or is being involved in contravention of provision of the act shall be liable to confiscate.

• However -


• If the court is satisfied that the person in-charge of these computer resources are, is not guilty, the court may, instead of order of confiscation, make such other order against the person contravening the provision of the act, as it may think fit.

Section 77 : penalties not to interfere with other punishment.

No compensation awarded, penalties imposed or confiscation made under this act shall prevent the punishment awarded under any other law for the time being in force.


Section 77 A : Compounding of offense

• A court may compound offences other then offences – Where punishment for life or term exceeding

3 yrs has been provided. Where the accused is, by reason of his

previous conviction, liable to enhanced punishment.

Where such offences affects the socio-economic condition of India.

Where offence is committed against a child below the age of 18yrs or women.


Section 77B : Cognizable offense

The offence punishable with imprisonment of 3 yrs or more shall be cognizable and shall be bailable.

Section 78 : Power to investigate

Not with standing any thing contained in the Code of Criminal Procedure 1973, a police officer not below the rank of Inspector shall investigate the offence.


Chapter – XII

INTERMEDIARIES NOT TO BE LIABLE IN

CERTAIN CASES

Covers only Section 79


Section 79 : Exemption from liabilityAn intermediary shall not be liable for any third party communication if –• Their function is limited to provide access to a

communication system• The intermediary does not –• Initiated the communication• Select the receiver• Select or modify the information contained in

the communication• The intermediary observe de diligence and

observes such guidelines in discharging duties.


An intermediary shall not be exempted from liability if–• It conspired, aided or induced the unlawful act

by the threats or otherwise.• Upon receiving actual knowledge that the

information connected to the computer resources controlled by intermediary is being used to commit unlawful act, fail to expeditiously remove or disable access to the material.


Chapter – XII-A

Covers section 79 A

EXAMINER OF ELECTRONIC EVIDENCE


Section 79 A: CG to notify Examiner of E. Evidence

The CG, for the purpose of providing expert opinion on evidence in electronic form before any court, may specify any department, agency, body of the Govt. as examiner of E. E.


Chapter – XIII

MISCELLANEOUS

Covers 11 sections : from 80 to 90


Section 80 : Power of police officer or other officer

• Any police officer not below the rank of Inspector or other officer of the govt. may enter any public place and search and arrest any person who is reasonably suspect of having committed contravention under this act.

• Where any person is arrested by the other then police officer, such officer shall immediately send the arrested person to the magistrate or the officer-in-charge of the police station.


Section 81 : Act not to have overriding effect

The provisions of this act shall not have inconsistent effect with any other law for the time being in force.

Section 81-A : E-cheque and truncated cheque

• Act shall apply to, E-cheques and truncated cheques subject to such modification as may be necessary for carrying out purposes of negotiable instrument act, in consultation with RBI.

• Every notification shall be laid before each house of the parliament for a total period of 30 days, in one or multiple sessions.


Section 82 : officers to be public servants

Chairman, Members, Controller, AC/DC and other officers deemed to be public servant within the meaning of IPC section 21.

Section 83 : CG’s power to give directionThe CG may give directions to any SG, on the provisions of the Act.

Section 84 : Protection of action taken in good faithNo suit, prosecution or other legal proceeding lie against CG/SG/C/AC/DC or any other person acting on behalf, for anything done in good faith or done in pursuance of this act.


Section 84-A : Mode or method of encryprion

CG may, for the promotion of e-commerce or e-governance, prescribe the mode or method of encryption.

Section 84-B : Punishment for AbetmentWhoever provoke any offence shall be punished with the punishment provided for the offence under the Act.

Section 84-C : Punishment for attempt to commitOne half of the longest term of imprisonment provided for that offence or such fine as is provided for the offence or both.


Section 85 : Offences by Companies• Where a person committing a contravention is a

company, every person who was in charge of or was responsible of conduct of business shall be guilty and liable to be punished.

• However, if he proves that such contravention took place without his knowledge and he exercised all due diligence then he shall not be liable for punishment.

Section 86 : Removal of DifficultiesIf any difficulty arises in giving effect to the provision of the Act, CG make such provision not inconsistent with the provision of the act, for removing the difficulty.


• However, no order shall be made after the expiry of 2 years from the commencement of the act.

• Order shall be laid before each house of parliament.

Section 87 : Power of CG to make rules

• The CG shall constitute a committee called Cyber Regulation Advisory Committee.

• CRAC shall have Chairperson and official and non-official members representing the interest affectd or having special knowledge of the subject matter.

• The CRAC shall advise CG and Controller in framing regulation of the act.

Section 88 : Constitution of Advisory Committee


Section 89 : Power of Controller The controller, after consultation with CRAC and previous approval of CG, by notification in official gazette make regulation in the following matters –• Particulars relating to maintenance of database.• Conditions & restriction of recognizing foreign CA• T&C of granting license• Standard to be observed by CA.• Manner in which CA shall disclose the matter.• Statement which shall accompany an application.• The manner in which subscriber communicates

the compromise of private key.


Section 90 : Power of state Govt. The SG may, by notification in official gazette, make

rules on the following matters –• The electronic form in which filing, issue/grant of

receipt, payment shall be effected.• For matters specified in section 6.

Every rule made by SG shall be laid before the house(s) of state legislature.

chapter [10] created by manish mathur. history.... 1999 – information technology bill was...

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