Part VI: Machinery
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Part VI: Machinery

Adjudication (Section 46)

The role of adjudicating at the first instance whether the accused had contravened any of the IT Act or its related rules/regulations/provisions lies with the Adjudicating Officer ("AO"). The AO shall be appointed by the Central Government. Each AO:
  1. Must have sufficient experience in Information Technology and the legal or judicial field as notified by the Central Government;
  1. Shall be on officer not below the rank of Director to the Central Government or an equivalent officer of the State Government.
  1. If multiple AOs appointed – Central Government shall specify how and where each AO shall exercise jurisdiction. Each AO shall have the powers of a civil court.
The following considerations shall be taken into account by AOs when determining amount of compensation during adjudication:
  1. Amount of unfair gain (if quantifiable)
  1. Amount of loss caused by default
  1. Whether default was repetitive.
The AO shall have jurisdiction over cases where claim is up to 5 Crore Rupees. In case the claim for compensation goes beyond the Rs 5 crores, the jurisdiction shall vest with a competent or Higher court.
Within 45 days of obtaining the AO's order, a party can file an appeal with the TDSAT. However, if the adjudication order was made with the parties' permission, the parties do not have the right to appeal.

Appeal (Sections 49-64)

The Telecom Disputes Settlement and Appellate Tribunal (TDSAT), established under Section 14 of the Telecom Regulatory Authority of India Act, 1997, serves as the Appellate Tribunal under the Information Technology Act, 2000, following the enactment of the Finance Act, 2017.

Jurisdiction and Constitution

  1. Jurisdiction of TDSAT under the IT Act shall be as notified by the Central Government, which may specify the subject-matter and territorial jurisdiction of the Tribunal from time to time.
  1. The Appellate Tribunal hears appeals against decisions of the Adjudicating Officer or the Controller under the IT Act.
  1. An appeal must be filed within 45 days from receipt of the order being challenged. The Tribunal may, however, accept delayed appeals if it is satisfied that there was sufficient cause for the delay.
  1. No appeal shall lie against an order passed with the consent of both parties.

Procedure and Decision-Making

  1. The Tribunal is not bound by the Code of Civil Procedure and follows principles of natural justice. It has powers to:
      2. a. Summon witnesses and enforce attendance;
      b. Require discovery and production of documents;
      c. Receive evidence on affidavits;
      d. Issue commissions for examination;
      e. Review its own decisions;
      f. Dismiss appeals for default or decide them ex parte;
      g. Exercise other powers as may be prescribed.
 
  1. All proceedings before the Tribunal are judicial proceedings under Sections 193 and 228 of the Indian Penal Code, and for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973, the Tribunal is deemed to be a civil court.
  1. In case of a disagreement between two Members of a Bench, the matter shall be referred to the Chairperson. The decision of the majority of Members who have heard the matter, including the Chairperson, shall prevail.

Representation and Appeal

  1. A party may appear before the Tribunal in person or through a legal practitioner, or by an authorised officer.
  1. Appeals from the Appellate Tribunal may be filed with the High Court within 60 days of receiving the Tribunal's order, on questions of law or fact. The High Court may extend this timeline by a maximum of 60 days, if sufficient cause is shown.

Validity and Immunity of Tribunal Proceedings

  1. Orders of the Central Government constituting the Appellate Tribunal, or appointing its Chairperson or Members, cannot be questioned in any manner.
  1. No proceedings before the Tribunal shall be invalidated merely on account of defects in its constitution.

Bar on Civil Court Jurisdiction

Section 61 bars civil courts from exercising jurisdiction over any matter within the powers of an Adjudicating Officer or the Appellate Tribunal. No injunction shall be granted by any court in respect of actions taken or to be taken under the IT Act.

Compounding and Recovery

  1. Contraventions under the Act may be compounded (i.e., paying a monetary penalty instead of facing imprisonment) either before or after adjudication by the Controller or Adjudicating Officer. However, a person who repeats the same or similar contravention within 3 years cannot seek compounding.
  1. Once compounded, no further proceedings shall be initiated for the same contravention.
  1. Any penalty or compensation awarded under the Act, if unpaid, may be recovered as arrears of land revenue, and the digital signature certificate or licence may be suspended until payment is made.