November 24, 2020

Role of Adjudicating Officer under IT Act 2000

Introduction

Chapter-IX of the IT Act contains penalties and adjudication for various offences. The Act also addresses appointment of any officers which should not be less than the rank of a Director to the Government of India or an equivalent officer of state government as an Adjudicating Officer who shall predominantly adjudicate whether any person has made a contravention of any of the provisions of the IT Act or rules framed there under it with giving authority and power to he or she of a Civil Court. Within this chapter there is a specific provision of section 46 regarding authority of the Adjudicating officer.

Section 46 of IT Act 2000

Section 46 of the IT Act 2000 grants the Central Government the following power:

– To Appoint an Adjudicating Officer

– To hold an Enquiry to Adjudge, upon the complaints being filed.

Also , the adjudicating officer may be of the Central Government or of the State Government, must have field Experience with IT and Law and exercises Jurisdiction over claims for damages up to Rs 5 Crores and is also vested with certain powers of a civil court as per section 46(5) of the Act. The adjudicating officer is vested with significant judicial powers, including the power to enforce certain criminal penalties following the principles of basic natural justice and equity while adjudication.

This position of Adjudicating officer is termed as “Quasi-Judicial body” as it has powers and procedures resembling that of a Court of Law or Judge, and bears an obligation to determine facts and draw valid conclusions so as to provide the basis of an official action with justice. Such actions result in providing redressals or remedies by imposing legal penalties or duties on specific parties. A Quasi Judicial Body has also been defined as “an organ of Government other than a Court or Legislature, which affects the rights of private parties either through adjudication or rulemaking”.[1]

The Role of Adjudicating officers under the IT Amendment Act, 2008

Section 46 (1A) : The scope of power in hands of the Adjudicating officer under the amended Act in Section 46 (1A) is limited as claims for injury or damage not exceeding 5 crores are under their jurisdiction. Beyond Rs. 5 crore the jurisdiction shall now vest with a competent or higher court.

Section 46(2): As per this subsection the quantum of compensation that may be awarded is left to the discretion of Adjudicating officers which suggests huge subjectivity on what should be the penalty keeping in view the factors of unfair advantage gained by the amount of loss caused to a person by the offender. The Information Technology (qualification and experience of adjudicating officers and manner of holding enquiry) Rules,2003 lay down the scope and manner of holding inquiry including reliance on documentary and other evidence gathered in investigations.[2]

Section 46(5): In this section, authority of the Adjudicating officers have been stretched conferred by including order of attachment and sale of property, arrest and detention of the accused and appointment of the receiver which leads to better enforceability and effectiveness of its orders and working.

Adjudging the quantum of penalty/Damages

The adjudicating officer may impose penalties for any of the offences described in Section 43, 44 and 45 of the Act but there are “Factors” to be Taken into Account by the Adjudicating Officer while adjudging the quantum of compensation are:

– 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.[3]

Jurisdiction of an Adjudicating Officer

There are always a number of limitations listed under the provision of various Acts. One of them is the jurisdiction of an Adjudicating Officer appointed under the provisions of the IT Act which would extend only to:

“First, Determining the extent of damages payable, secondly in determining the amount of penalty payable by a person for his failure to furnish

information, returns, etc., and lastly determining the amount of penalty/damages payable by a person for contravening the provisions of the Act, Rules or Regulations for which no separate penalty is provided.”

References

[1] Arsh Singh, on “Quasi Judicial Bodies: An Explanation”, LexQuest Jan 9, 2018.

[2] IT Act 2000 vs 2008- Implementation, Challenges, and the Role of Adjudicating Officers, available at: https://www.karnikaseth.com/it-act-2000-vs-2008-implementation-challenges-the-role-of-adjudicating-officers.html (last visited ‘July 5,2020’).


[3] Section 47 of IT Act 2000: Factors to be taken into account by the adjudicating officer.


Author Details: Shubhangi Gehlot (Maharaja Sayajirao University of Baroda)

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