The role of an Adjudicating Officer under the Information Technology Act - Ambiguities remain
By Sanjay Bhatia
The Information Technology Act, which has been passed by both the Houses of Parliament, has finally come into effect from Aug15, 2000. The draft Rules have also been framed and are presently being hosted on the official website of the Ministry of Information Technology (http://web.archive.org/web/20010426180420/http://www.mit.gov.in/) for the purpose of inviting comments and suggestions from the general public.
Rule 3 of the draft Information Technology (Procedure for holding inquiry and imposing penalties by adjudicating officer) Rules, 2000, provides for the Central Government to appoint an adjudicating officer. However, such officer can be appointed only when the Central Government is of the opinion that there are grounds for adjudicating under Chapter IX of the Act. Neither the Act nor the Rules specify as to who is entitled to file a complaint/claim/petition under Chapter IX of the Act. Further, neither the Act nor the Rules prescribe for an authority before which a claim/complaint/petition can be filed under Chapter IX of the Act. Therefore, the right to have one's grievance redressed under Chapter IX of the Act is still not a statutory right. It remains the subjective discretion of the Central Government to decide whether a contravention under Chapter IX has been committed and only when it is satisfied in this regard, it would appoint an adjudicating officer to inquire into the alleged contravention. It is still not clear as to who is to take the decision that a contravention deserves to be inquired into by the adjudicating officer. It is also not clear whether an adjudicating officer can be appointed suo motu by the government or only on a representation made.
Rule 5 of the same draft Rules prescribes that while adjudging the quantum of penalty under Section 43, 44 or 45, the adjudicating officer shall have due regard to the following factors namely :-
- the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
- the amount of loss caused to any person as a result of the default;
- the repetitive nature of the default.
As has already been pointed out in an earlier article, a contravention of Section 43 can result only in "damages by way of compensation payable to the person so affected" . No penalty can be imposed under this Section. When the Act itself does not provide for the payment of penalty under Section 43, there can be no question of the Rules empowering the AO to adjudge the quantum of penalty for a contravention under of Section 43 of the Act.
Another issue of concern is the enforceability of an order passed under Section 43 by the Adjudicating Officer. Neither the Act nor the Rules specifically provide for the execution of the AO's order, in the event of any compensation by way of damages being awarded by him. Since the order of the AO cannot be treated as a "decree", it is not capable of being executed by the Civil Courts. Therefore, any order passed by the AO under Section 43 would be a "toothless" order, incapable of being enforced. Assuming that the order of the AO becomes final, the only way of recovering dues under such an order would be to institute a Civil Suit (based on the AO's order), obtain a decree and execute the same. The very purpose of barring the jurisdiction of the Civil Court under Section 61 of the IT Act is therefore defeated.
The need of the hour is therefore to specify as to who is entitled to invoke chapter IX of the Act, prescribe the manner in which a complaint is to be filed under Chapter IX and also to specify the authority which is to decide whether an adjudicating officer is to be appointed or not.
It is also necessary for the lawmakers to immediately amend Section 43 of the Act and clearly spell out that a contravention of that provision could result not only in damages but in penalty as well. The Act also needs to be appropriately amended to specify the manner in which an order for payment of compensation by way of damages is to be enforced.
Published at http://law.indiainfo.com/viewpoint/cyber-tribunal.html