unit 5 CSCL
unit 5 CSCL
UNIT- 5 Syllabus
Penalties,
Compensation and
Adjunction of violations of provisions
of IT Act 2000 and judicial review.
The Indian law concerning Cyberspace and Internet is covered under
the IT Act, it provides for basically penalties for violation of the
provisions of IT Act.
Civil liability of damages or compensation.
Criminal liability as punishment for the commission of offences in the
form of either imprisonment or fine or both for the commission of
offences by the offenders.
Penalty and Compensation for Damage to Computer or Computer
System:
Under Section 43 of the IT Act, it has been provided that if any person
without permission of the owner or any other person who is in
charge of a computer or computer system or computer network:
(a)accesses such computer, computer system or computer network or
computer resource.
(b)(b) downloads, copies or extracts any data, computer database or
information from such computer or computer system, or computer
network, information or data held or stored in any removable storage
medium.
(c) introduces or causes to be introduced any computer contaminant or
computer virus.
(d) damages or causes to be damaged any computer or computer
system or network, data, computer database or any other computer
program.
(e) disrupts or causes disruption of any computer system or computer
network.
(f) denies or causes the denial of access any person authorized to
access.
(g) provides any assistance to any person to facilitate access to a
computer system or computer network in contravention of the
provisions of this Act.
(h) charges the services availed of by a person to the account of
another person by tampering or manipulating any computer, system
or network
(i) destroys, deletes or alters any information residing in a computer
resource or diminishes its value or utility or affects it injuriously
by any means;
(j) steal, conceals, destroys or alters or causes any person to steal,
conceal, destroys or alter any computer source code used for a
computer resource with an intention to cause damage, that person
shall be liable to pay damages by way of compensation not
exceeding one crore rupees to the person so affected.
Section 43 thus provides for the explanation to the above Section
which defines:
(i) computer contaminant
(ii) computer database
(iii) computer virus
(iv) computer damage
(v) computer source code.
Compensation for Failure to Protect Data:
Where a body corporate, possessing, dealing or handling any sensitive
personal data or information in a computer resource which it owns,
controls and operates is negligent in implementing and maintaining
reasonable security practices and procedures and thereby causes
wrongful loss or wrongful gain to any person such body corporate
shall be liable to pay damages by the way compensation to the
person so affected.
In Explanation to Section 43A of the IT Act provides for the
definitions.
(i) body corporate.
(ii) reasonable security practices and procedures.
(iii) sensitive personal data or information.
Penalty for Failure to Furnish Information, Return or any Other
Penalty: If any person who is required under this Act or any rules
or regulations made there under to:
(a)furnish any document, return or report to the Controller or the
Certifying Authority fails to furnish the same, he shall be liable to a
penalty not exceeding one lakh and fifty thousand rupees for each
such failure.
(b) file any return or furnish any information, books or other
documents with in the time specified there for in the regulations
fails to file return or furnish the same within the time specified
there for in the regulations, he shall be liable to a penalty not
exceeding five thousand rupees for everyday during which such
failure continues.
(c) maintain books of account or records, fails to maintain the same,
he shall be liable to a penalty not exceeding then ten thousand
rupees for every day during which the failure continues.
Adjudication(justice) of Disputes under the IT Act:
The adjudication has been provided for
(1)whether any person has committed a contravention of any of the
provisions of this Act or of any rule, regulation, direction or order
made there under which renders him liable to pay penalty or
compensation the Central Government shall subject to provisions of
sub-section 3),appoint any officer not below the rank of a Director
to the Government of India or equivalent officer of a State
Government to be an adjudicating officer for holding an enquiry in
the manner prescribed by the Central Government.
(1A)The adjudicating officer appointed under sub-section (1) shall
exercise jurisdiction to adjudicate matters in which the claim for
injury or damage does not exceed rupees five crore.
Every adjudicating officer shall have the powers of a civil court which
are conferred on the Appellate Tribunal under the Sub-Section (2)
of Section 58 ofthe IT Act.
a) all proceeding before the adjudicating officer shall be deemed to
be judicial proceedings within the meaning of Sections 193 and
228 of the Indian Penal Code.
(b) and deemed to be a civil court for the purposes of Sections 345 and
346 of the Code of Criminal Procedure 1973.
(c) and shall also be deemed to be a civil court for the purposes of
Order XXI of the Civil Procedure Code.
The adjudicating officer adjudging quantum of compensation under
Chapter IX of this Act shall have due regard to-
(a) the amount of gain of unfair advantage, wherever quantifiable
made as a result of the default.
(b) the amount of loss caused to any person as a result of the default.
(c) the repetitive nature of the default.
The Appellate Tribunal (AT):
Sections. 48 to 64 of Chapter X of IT Act contain the various
provisions relating to appellate tribunal.
It is significant to note that Cyber Appellate Tribunal the body which
existed earlier under the Information Technology Act, 2000 has
been merged with the Appellate Tribunal that is the Telecom
Dispute Settlement and Appellate Tribunal (TDSAT) under the
Telecom Regulatory Authority of India Act, 1997 by Finance Act
2017.
Sections 49, 50, 51, 52, 52A, 52B, 52C,53, 54 and 56 of Chapter X of
Information Technology Act have been omitted by Finance Act
2017.
Provisions relating to Appellate Tribunal are explained below:
The Appellate Tribunal Sec. 48(1):
The Telecom Disputes Settlement and Appellate Tribunal
established under Sec.14 of the Telecom Regulatory Authority
of India Act, 1997,
as per Part XIVof Chapter VI of the Finance Act, 2017, w.e.f.
26/05/2017, be the Appellate Tribunal for the purposes of this
Act and the said Appellate Tribunal shall exercise the
jurisdiction, powers and authority conferred on it by or under
this Act.
The Central Government shall specify, by notification, the
matters and places in relation to which the Appellate Tribunal
may exercise jurisdiction.
(ii) The Appellate Tribunal (Qualifications, Experience and other
Conditions of Service of Members) shall be as per the
Appellate Tribunal Rules, 2017 (w.e.f.1/6/17).
Appeal to Appellate Tribunal (AT) (Sec. 57):
An appeal is a request made by the aggrieved party to modify or
reverse an order, Appeals function both as a process for error
correction and a process of clarifying and interpreting law. Any
person aggrieved by an order made by controller or adjudicating
officer under this Act may prefer an appeal to AT [Sec. 57(1)].
On receipt of an appeal under Section 57(1), the Appellate Tribunal
may after giving an opportunity of being heard to the parties to the
appeal pass such orders there on as it thinks fit.
It may confirm, modify or set aside the order against which an appeal
has been made [Sec. 57(4)). The Appellate Authority shall send a
copy of every order made by it to:
(i) the parties to appeal, and (ii)the concerned controller or
adjudicating officer [Sec. 57(5)]. The appeal shall be dealt with by
it as expeditiously as possible and endeavor shall be made by it to
dispose of the appeal finally within 6 months from the date of
receipt of theappeal [Sec. 57(6)].
Procedure of AT [Sec. 58(1)]:
The Appellate Tribunal shall not be bound by the procedure laid down
by the Code of Civil Procedure, 1908. However, it shall be guided
by the principles of natural Justice and subject to the other
provisions of this Act and of any rules the Appellate Tribunal shall
have powers to regulate its own procedure including the place at
which it shall have its sittings.
Powers of AT [Sec. 58(2)]:
The Appellate Tribunal shall have for the purposes of discharging its
functions under this Act, the same powers as are vested in a Civil
Court under the Code of Civil Procedure, 1908.
These are as follows:
(a)summoning and enforcing the attendance of any person and examining
him on oath.
(b) requiring the discovery and production of documents or other
electronic records.
(c) receiving evidence on affidavits.
(d) issuing commissions for the examination of witnesses or
documents.
(e) reviewing its decisions.
(f) dismissing an application for default or deciding it ex-parte.
(g) any other matter which may be prescribed.
Right to Make Legal Representation (Sec. 59):
The appellant may either appear in person or authorize one or more
legal practitioners or any of its officers to present his or its case
before the Appellate Tribunal.
Civil Court not to Have Jurisdiction (Sec. 61):
No Civil Court shall have jurisdiction to entertain any suit or
proceeding in respect of any matter which an adjudicating officer or
the Appellate Tribunal is empowered to determine under this Act.
No court shall grant injunction in respect of any action taken or to
be taken in pursuance of any power conferred by or under this Act.
Appeal to High Court (Sec. 62):
Any person aggrieved by any decision or order of Appellate Tribunal
may file an appeal to the High Court within 60 days from the date
of communication of such decision or order.
An appeal may be on any question of fact or law arising out of such
order. The High Court may allow it to be filed within a further
period of 60 days if it is satisfied that sufficient cause prevented
him from filing the appeal with in the prescribed period.
Compounding of Contraventions and Recovery of Penalty or
Compensation:
Any contravention under this Act either before or after the institution
of Adjudication proceedings may be compounded by the Controller
or any other officer who is specifically authorized by him or by the
Adjudicating officer subject to such condition as the Controller or
such other officer or the Adjudicating officer may specify: Provided
that such sum shall not in any case, exceed the maximum amount of
the penalty which may be imposed under this Act for
the contravention so compounded. However, the above proviso shall
not apply to a person who commits the same or similar
contravention within a period of three years from the date on
which the first contravention, committed by him was
Compounded.
Any second or subsequent contravention committed after the expiry
of a period of three years from the date on which the
contravention was Previously compounded shall be deemed to be
a first contravention. Moreover , no proceeding or further
proceeding shall be taken against the person guilty of such
contravention in respect of the contravention so compounded.
The word 'compound' used in this section means agreeing for
considerations not to prosecute a person. Compounding an offence
means abstaining from prosecuting the person of any offence or
crime in question29. Moreover, according to the proviso of this
section, the maximum amount of penalty or compensation which
can be compoundable under this Act is Rupees one crore.
Appeal to the High Court under the IT Act, and Judicial Review
under the Constitution of India:
(i) Under the IT Act, any person aggrieved by any decision or order of
the Appellate Tribunal may file an appeal to the High Court within
sixty days from the date of communication of the decision or order
of the Appellate Tribunal to him on any question of fact or law
arising out of such order: Provided the High Court may, if it is
satisfied that the appellant was prevented by sufficient cause from
filing the appeal within the said period allow it to be filed within a
further period not exceeding sixty days. This means that the High
Court has been given the authority of second appeal as against the
orders of the first appeal before the Appellate Tribunal under the IT
Act. In the above provision of the IT Act, the expression 'sufficient‘
within the meaning of Section 5 of the Limitation Act, 1963 or
Order 22, Rule9 of the CPC or any other similar provision should
receive a liberal construction so as to advance substantial justice
when no negligence or want of bona fides is imputable to a party.
(ii) Under Article 226 of the Constitution of India every High Court
shall have powers throughout the territories in relation to which it
exercises jurisdiction to issue to any person or authority, including
in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of
mandamus, prohibition and certiorari in respect of any orders
against the Controller or the Adjudicating officer or the Appellate
Tribunal under this Act for the enforcement of any of the rights
conferred by Part III and for any other purposes.
The power conferred on a High Court by Article 226 of the
Constitution shall not be in derogation of the power conferred on
the Supreme Court by clause(2) of Article 32 of the Constitution
33 The powers conferred upon the High Court under Article 226 of
the Constitution are discretionary in nature which can be invoked
for the enforcement of any fundamental right or legal right but not
for more contractual rights arising out of an agreement particularly
in view of the existence of efficacious alternative remedy.
The Constitutional Court should insist upon the party to avail the same
instead of invoking the extraordinary writ jurisdiction of the High
Court.
It is emphasized by the Court that there is need to avoid arbitrariness by
administrative authority in spheres where the relevant statute does not
lay down any quasi judicial obligation. It has been held by the Court
that the grounds for issuing writs of certiorari and prohibition are as
under follows:
• Where there is a defect of jurisdiction it attracts certiorari. But certiorari
would not lie because the decision of a tribunal on a subject matter
within a jurisdiction is considered to be wrong.
• The principles of natural justice are not inflexible and may differ in
different circumstances.
A writ of certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or tribunals. A writ can be issued wherein
exercise of jurisdiction conferred on it the court or tribunal acts illegally
or improperly.
• The writ of certiorari will be issued if there is an error of law apparent
on the face of the record or if tribunal acts without sufficient evidence
or misdirects itself in considering the evidence.
• A writ petition cannot succeed if its factual basis is not established. In
a Calcutta case the petitioner sought inspection of his answer scripts at
a particular examination on the ground that he had reason to believe
that his answer scripts were missing. However, existence of the answer
scripts was proved from the order of the Controller of Examinations. It
was held that writ could not be issued.
(iii) Under Article 227 of the Constitution of India, every High Court shall
have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction. Without prejudice
to the generality of the foregoing provisions, the High Court may:
• call for returns from such courts;
• make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts; and
• prescribe forms in which books, entries and accounts shall be kept by the
officers of any such courts
(iv) Under Article 32 of the Constitution of India the right to move the
Supreme Court by appropriate proceedings for the enforcement of
the remedies under this Article is guaranteed.
The Supreme Court shall have the power to issue directions or orders
or writs including writs in the nature of mandamus, prohibition and
certiorari whichever may be appropriate for the enforcement of any
of the right conferred by this Part.
A writ of certiorari may be issued by the Supreme Court where the
law under which the decision was given is void. And a writ of
certiorari may also be issued where a decision itself violates a
fundamental right or the decision violates the law or is without
jurisdiction. Moreover, a writ of certiorari can be issued by the
Supreme Court where the decision is against natural justice, mala
fide, perverse or based on non-applicability of a venue.
(v) Under Article 136 of the Constitution of India the Supreme Court
may in its discretion, grant special leave to appeal from any
Judgment, decree, determination, sentence or order in any case or
matter passed or made by any court or tribunal in the territory of India.
Under this Article apart from above remedies discussed there can also
be a special leave to appeal against the order or Judgment of the
Appellate Tribunal under the Constitution of India.
under Article 136 may be exercised against an order passed by any
tribunal. This jurisdiction is not subject to any condition that the
party who seeks special leave of the Supreme Court to appeal from
such order is to exhaust all his remedies including petition under
Article 226.
The Supreme Court would not allow a new point (which was not taken
or not pressed before the High Court) to be raised before it or
which was sought to be introduced by filing additional grounds.
Where the point could have been urged before the High Court
under Articles 226 or 227, the Supreme Court would not permit the
appellant to raise it for the first time before it not to assail an
undertaking given by him in the High Court.
It has been held by the Supreme Court that where the judgment is
tainted with serious legal infirmities or is founded on a legal
construction which is wrong, the special leave may be granted.
Also it has been held by the Supreme Court that a petition for
special leave would be granted where approach of the court whose
judgment is under appeal is wrong in law.
THE END