THE INFORMATION TECHNOLOGY ACT,
2000
ACT NO. 21 OF 2000
[9th June, 2000.]
An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.
WHEREAS the General Assembly of the United Nations by resolution A/RES/51/162, dated the 30th January, 1997 has adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law;
AND WHEREAS the said resolution recommends inter alia, that all States give favourable consideration to the said Model Law when they enact or revise their laws, in view of the need for uniformity of the law applicable to alternatives to paper-based methods of communication and storage of information;
AND WHEREAS it is considered necessary to give effect to the said resolution and to promote efficient delivery of Government services by means of reliable electronic records.
BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:—
CHAPTER 1
PRELIMINARY
1. Short title, extent, commencement and application.—(1) This Act may be called the Information Technology Act, 2000.
(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person.
(3) It shall come into force on such date1 as the Central Government may, by notification, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the commencement of that provision.
(4) Nothing in this Act shall apply to documents or transactions specified in the First Schedule:
Provided that the Central Government may, by notification in the Official Gazette, amend the First Schedule by way of addition or deletion of entries thereto.
(5) Every notification issued under sub-section (4) shall be laid before each House of Parliament.
2. Definitions.—(1) In this Act, unless the context otherwise requires,—
(a) "access with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network;
(b) "addressee" means a person who is intended by the originator to receive the electronic record but does not include any intermediary;
(c) "adjudicating officer" means an adjudicating officer appointed under sub-section (1) of section 46;
(d) "affixing electronic signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of electronic signature;
(da) "Appellate Tribunal" means the Appellate Tribunal referred to in sub-section (1) of section 48;
(e) "appropriate Government" means as respects any matter,–
(i) enumerated in List II of the Seventh Schedule to the Constitution;
(ii) relating to any State law enacted under List III of the Seventh Schedule to the Constitution,
the State Government and in any other case, the Central Government;
(f) "asymmetric crypto system" means a system of a secure key pair consisting of a private key for creating a electronic signature and a public key to verify the electronic signature;
(g) "Certifying Authority" means a person who has been granted a licence to issue a electronic signature Certificate under section 24;
(h) "certification practice statement" means a statement issued by a Certifying Authority to specify the practices that the Certifying Authority employs in issuing electronic signature Certificates;
(ha) "communication device" means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image;
(i) "computer" means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network;
(j) "computer network" means the inter-connection of one or more computers or computer systems or communication device through–
(i) the use of satellite, microwave, terrestrial line, wire, wireless or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers or communication device whether or not the inter-connection is continuously maintained;
(k) "computer resource" means computer, computer system, computer network, data, computer data base or software;
(l) "computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions;
(m) "Controller" means the Controller of Certifying Authorities appointed under sub-section (1) of section 17;
(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 members of the public;
(nb) "cyber security" means protecting information, equipment, devices, computer, computer resource, communication device and information stored therein from unauthorised access, use, disclosure, disruption, modification or destruction;
(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;
(p) "electronic signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3;
(q) "electronic signature Certificate" means a electronic signature Certificate issued under sub-section (4) of section 35;
(r) "electronic form" with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;
(s) "Electronic Gazette" means the Official Gazette published in the electronic form;
(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
(ta) "electronic signature" means authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes electronic signature;
(tb) "Electronic Signature Certificate" means an Electronic Signature Certificate issued under section 35 and includes electronic signature Certificate;
(u) "function", in relation to a computer, includes logic, control, arithmetical process, deletion, storage and retrieval and communication or telecommunication from or within a computer;
(ua) Indian Computer Emergency Response Team" means an agency established under subsection (1) of Section 70B;
(v) "information" includes data, message, text, images, sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche;
(w) "intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;
(x) "key pair", in an asymmetric crypto system, means a private key and its mathematically related public key, which are so related that the public key can verify a electronic signature created by the private key;
(y) "law" includes any Act of Parliament or of a State Legislature, Ordinances promulgated by the President or a Governor, as the case may be, Regulations made by the President under article 240, Bills enacted as President's Act under sub-clause (a) of clause (1) of article 357 of the Constitution and includes rules, regulations, bye-laws and orders issued or made thereunder;
(z) "licence" means a licence granted to a Certifying Authority under section 24;
(za) "originator" means a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary;
(zb) "prescribed" means prescribed by rules made under this Act;
(zc) "private key" means the key of a key pair used to create a electronic signature;
(zd) "public key" means the key of a key pair used to verify a electronic signature and listed in the electronic signature Certificate;
(ze) "secure system" means
computer hardware, software, and procedure that–
(a) are reasonably secure from unauthorised access and misuse;
(b) provide a reasonable level of reliability and correct operation;
(c) are reasonably suited to performing the intended functions; and
(d) adhere to generally accepted security procedures;
(zf) "security procedure" means the security procedure prescribed under section
16 by the Central Government;
(zg) "subscriber" means a person in whose name the electronic signature
Certificate is issued;
(zh) "verify", in relation to a electronic signature, electronic record or public
key, with its grammatical variations and cognate expressions, means to determine
whether–
(a) the initial electronic record was affixed with the electronic signature by the
use of private key corresponding to the public key of the subscriber;
(b) the initial electronic record is retained intact or has been altered since
such electronic record was so affixed with the electronic signature.
(2) Any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
CHAPTER II
[electronic signature AND ELECTRONIC SIGNATURE
3. Authentication of electronic records.–(1) Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his electronic signature.
(2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record.
Explanation.–For the purposes of this sub-section, "hash function" means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known as "hash result" such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record as its input making it computationally infeasible–
(a) to derive or reconstruct the original electronic record from the hash result produced by the algorithm;
(b) that two electronic records
can produce the same hash result using the algorithm.
(3) Any person by the use of a public key of the subscriber can verify the
electronic record.
(4) The private key and the public key are unique to the subscriber and
constitute a functioning key pair.
3A. Electronic signature.—(1) Notwithstanding anything contained in section 3, but subject to the provisions of sub-section (2), a subscriber may authenticate any electronic record by such electronic signature or electronic authentication technique which—
(a) is considered reliable; and
(b) may be specified in the Second Schedule.
(2) For the purposes of this
section any electronic signature or electronic authentication technique shall be
considered reliable if—
(a) the signature creation data or the authentication data are, within the
context in which they are used, linked to the signatory or, as the case may be,
the authenticator and to no other person;
(b) the signature creation data or the authentication data were, at the time of
signing, under the control of the signatory or, as the case may be, the
authenticator and of no other person;
(c) any alteration to the electronic signature made after affixing such
signature is detectable;
(d) any alteration to the information made after its authentication by
electronic signature is detectable; and
(e) it fulfils such other conditions which may be prescribed.
(3) The Central Government may prescribe the procedure for the purpose of
ascertaining whether
electronic signature is that of the person by whom it is purported to have been
affixed or authenticated.
(4) The Central Government may, by notification in the Official Gazette, add to
or omit any electronic signature or electronic authentication technique and the
procedure for affixing such signature from the Second Schedule:
Provided that no electronic signature or authentication technique shall be
specified in the Second Schedule unless such signature or technique is reliable.
(5) Every notification issued under sub-section (4) shall be laid before each
House of Parliament.
CHAPTER III
ELECTRONIC GOVERNANCE
4. Legal recognition of
electronic records.—Where any law provides that
information or any other matter shall be in writing or in the typewritten or
printed form, then, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied if such information or matter
is-
(a) rendered or made available in an electronic form; and
(b) accessible so as to be usable for a subsequent reference.
5. Legal recognition of electronic signatures.—Where any law provides
that information or any other matter shall be authenticated by affixing the
signature or any document shall be signed or bear the signature of any person,
then, notwithstanding anything contained in such law, such requirement shall be
deemed to have been satisfied, if such information or matter is authenticated by
means of 1[electronic signature] affixed in such manner as may be prescribed by
the Central Government.
Explanation.-For the purposes of this section, "signed", with its
grammatical variations and cognate expressions, shall, with reference to a
person, mean affixing of his hand written signature or any mark on any document
and the expression "signature" shall be construed accordingly.
6. Use of electronic records and electronic signatures in Government and its
agencies.-(1) Where any law provides for—
(a) the filing of any form, application or any other document with any office,
authority, body or agency owned or controlled by the appropriate Government in a
particular manner;
(b) the issue or grant of any licence, permit, sanction or approval by whatever
name called in a particular manner;
(c) the receipt or payment of money in a particular manner,
then, notwithstanding anything contained in any other law for the time being in
force, such requirement shall be deemed to have been satisfied if such filing,
issue, grant, receipt or payment, as the case may be, is effected by means of
such electronic form as may be prescribed by the appropriate Government.
(2) The appropriate Government may, for the purposes of sub-section (1), by
rules, prescribe—
(a) the manner and format in which such electronic records shall be filed,
created or issued;
(b) the manner or method of payment of any fee or charges for filing, creation
or issue any electronic record under clause (a).
6A. Delivery of services
by service provider.—(1) The appropriate Government
may, for the purposes of this Chapter and for efficient delivery of services to
the public through electronic means authorise, by order, any service provider to
set up, maintain and upgrade the computerised facilities and perform such other
services as it may specify, by notification in the Official Gazette.
Explanation.—For the purposes of this section, service provider so
authorised includes any individual, private agency, private company, partnership
firm, sole proprietor firm or any such other body or agency which has been
granted permission by the appropriate Government to offer services through
electronic means in accordance with the policy governing such service sector.
(2) The appropriate Government may also authorise any service provider
authorised under sub-section (1) to collect, retain and appropriate such service
charges, as may be prescribed by the appropriate Government for the purpose of
providing such services, from the person availing such service.
(3) Subject to the provisions of sub-section (2), the appropriate Government may
authorise the service providers to collect, retain and appropriate service
charges under this section notwithstanding the fact that there is no express
provision under the Act, rule, regulation or notification under which the
service is provided to collect, retain and appropriate e-service charges by the
service providers.
(4) The appropriate Government shall, by notification in the Official Gazette,
specify the scale of service charges which may be charged and collected by the
service providers under this section:
Provided that the appropriate Government may specify different scale of service
charges for different types of services.
7. Retention of electronic records.—(1) Where any law provides that
documents, records or information shall be retained for any specific period,
then, that requirement shall be deemed to have been satisfied if such documents,
records or information are retained in the electronic form, if—
(a) the information contained therein remains accessible so as to be usable for
a subsequent reference;
(b) the electronic record is retained in the format in which it was originally
generated, sent or received or in a format which can be demonstrated to
represent accurately the information originally generated, sent or received;
(c) the details which will facilitate the identification of the origin,
destination, date and time of despatch or receipt of such electronic record are
available in the electronic record:
Provided that this clause does not apply to any information which is
automatically generated solely for the purpose of enabling an electronic record
to be despatched or received.
(2) Nothing in this section shall apply to any law that expressly provides for
the retention of documents, records or information in the form of electronic
records.
7A. Audit of documents, etc., maintained in electronic form.—Where in any
law for the time being in force, there is a provision for audit of documents,
records or information, that provision shall also be applicable for audit of
documents, records or information processed and maintained in the electronic
form.
8. Publication of rule, regulation, etc., in Electronic Gazette.—Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette:
Provided that where any rule, regulation, order, by-law, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.
9. Sections 6, 7 and 8
not to confer right to insist document should be accepted in electronic form.—Nothing
contained in sections 6, 7 and 8 shall confer a right upon any person to insist
that any Ministry or Department of the Central Government or the State
Government or any authority or body established by or under any law or
controlled or funded by the Central or State Government should accept, issue,
create, retain and preserve any document in the form of electronic records or
effect any monetary transaction in the electronic form.
10. Power to make rules by Central Government in respect of electronic
signature.—The Central Government may, for the purposes of this Act, by
rules, prescribe—
(a) the type of electronic signature;
(b) the manner and format in which the electronic signature shall be affixed;
(c) the manner or procedure which facilitates identification of the person
affixing the electronic signature;
(d) control processes and procedures to ensure adequate integrity, security and
confidentiality of electronic records or payments; and
(e) any other matter which is necessary to give legal effect to electronic
signatures.
10A. Validity of contracts formed through electronic means.—Where in a
contract formation, the communication of proposals, the acceptance of proposals,
the revocation of proposals and acceptances, as the case may be, are expressed
in electronic form or by means of an electronic records, such contract shall not
be deemed to be unenforceable solely on the ground that such electronic form or
means was used for that purpose.
CHAPTER IV
ATTRIBUTION, ACKNOWLEDGMENT AND DESPATCH OF ELECTRONIC RECORDS
11. Attribution of
electronic records.—An electronic record shall be
attributed to the originator—
(a) if it was sent by the originator himself;
(b) by a person who had the authority to act on behalf of the originator in
respect of that electronic record; or
(c) by an information system programmed by or on behalf of the originator to
operate automatically.
12. Acknowledgment of
receipt.—(1) Where the originator has not
3[stipulated] that the acknowledgment of receipt of electronic record be given
in a particular form or by a particular method, an acknowledgment may be given
by—
(a) any communication by the addressee, automated or otherwise; or
(b) any conduct of the addressee, sufficient to indicate to the originator that
the electronic record has been received.
(2) Where the originator has stipulated that the electronic record shall be
binding only on receipt of an acknowledgment of such electronic record by him,
then unless acknowledgment has been so received, the electronic record shall he
deemed to have been never sent by the originator.
(3) Where the originator has not stipulated that the electronic record shall be
binding only on receipt of such acknowledgment, and the acknowledgment has not
been received by the originator within the time specified or agreed or, if no
time has been specified or agreed to within a reasonable time, then the
originator may give notice to the addressee stating that no acknowledgment has
been received by him and specifying a reasonable time by which the
acknowledgment must be received by him and if no acknowledgment is received
within the aforesaid time limit he may after giving notice to the addressee,
treat the electronic record as though it has never been sent.
13. Time and place of despatch and receipt of electronic record.—(1) Save
as otherwise agreed to between the originator and the addressee, the despatch of
an electronic record occurs when it enters a computer resource outside the
control of the originator.
(2) Save as otherwise agreed between the originator and the addressee, the time
of receipt of an electronic record shall be determined as follows, namely:—
(a) if the addressee has designated a computer resource for the purpose of
receiving electronic records,—
(i) receipt occurs at the time when the electronic record enters the designated
computer resource; or
(ii) if the electronic record is sent to a computer resource of the addressee
that is not the designated computer resource, receipt occurs at the time when
the electronic record is retrieved by the addressee;
(b) if the addressee has not designated a computer resource along with specified
timings, if any, receipt occurs when the electronic record enters the computer
resource of the addressee.
(3) Save as otherwise agreed to between the originator and the addressee, an
electronic record is deemed to be despatched at the place where the originator
has his place of business, and is deemed to be received at the place where the
addressee has his place of business.
(4) The provisions of sub-section (2) shall apply notwithstanding that the place
where the computer resource is located may be different from the place where the
electronic record is deemed to have been received under sub-section (3).
(5) For the purposes of this section,-
(a) if the originator or the addressee has more than one place of business, the
principal place of business, shall be the place of business;
(b) if the originator or the addressee does not have a place of business, his
usual place of residence shall be deemed to be the place of business;
(c) "usual place of residence", in relation to a body corporate, means the place
where it is registered.
CHAPTER V
SECURE ELECTRONIC RECORDS AND SECURE ELECTRONIC SIGNATURE
14. Secure electronic
record.—Where any security procedure has been applied
to an electronic record at a specific point of time, then such record shall he
deemed to be a secure electronic record from such point of time to the time of
verification.
15. Secure electronic signature.—An electronic signature shall be deemed
to be a secure electronic signature if—
(i) the signature creation data, at the time of affixing signature, was under
the exclusive control of signatory and no other person; and
(ii) the signature creation data was stored and affixed in such exclusive manner
as may be prescribed.
Explanation.-In case of electronic signature, the "signature creation data" means the private key of the subscriber.
16. Security procedures and practices.—The Central Government may, for the purposes of sections 14 and 15, prescribe the security procedures and practices:
Provided that in prescribing such security procedures and practices, the Central Government shall have regard to the commercial circumstances, nature of transactions and such other related factors as it may consider appropriate.
CHAPTER VI
REGULATION OF CERTIFYING AUTHORITIES
17. Appointment of
Controller and other officers.—(1) The Central
Government may, by notification in the Official Gazette, appoint a Controller of
Certifying Authorities for the purposes of this Act and may also by the same or
subsequent notification appoint such number of Deputy Controllers 3[, Assistant
Controllers, other officers and employees] as it deems fit.
(2) The Controller shall discharge his functions under this Act subject to the
general control and directions of the Central Government.
(3) The Deputy Controllers and Assistant Controllers shall perform the functions
assigned to them by the Controller under the general superintendence and control
of the Controller.
(4) The qualifications, experience and terms and conditions of service of
Controller, Deputy Controllers 1[,Assistant Controllers, other officers and
employees] shall be such as may be prescribed by the Central Government.
(5) The Head Office and Branch Office of the office of the Controller shall be
at such places as the Central Government may specify, and these may be
established at such places as the Central Government may think fit.
(6) There shall be a seal of the Office of the Controller.
18. Functions of
Controller.—The Controller may perform all or any of
the following functions, namely:-
(a) exercising supervision over the activities of the Certifying Authorities;
(b) certifying public keys of the Certifying Authorities;
(c) laying down the standards to be maintained by the Certifying Authorities;
(d) specifying the qualifications and experience which employees of the
Certifying Authority should possess;
(e) specifying the conditions subject to which the Certifying Authorities shall
conduct their business;
(f) specifying the contents of written, printed or visual materials and
advertisements that may be distributed or used in respect of a electronic
signature Certificate and the public key;
(g) specifying the form and content of a electronic signature Certificate and
the key;
(h) specifying the form and manner in which accounts shall be maintained by the
Certifying Authorities;
(i) specifying the terms and conditions subject to which auditors may be
appointed and the remuneration to be paid to them;
(j) facilitating the establishment of any electronic system by a Certifying
Authority either solely or jointly with other Certifying Authorities and
regulation of such systems;
(k) specifying the manner in which the Certifying Authorities shall conduct
their dealings with the subscribers;
(l) resolving any conflict of interests between the Certifying Authorities and
the subscribers;
(m) laying down the duties of the Certifying Authorities;
(n) maintaining a data base containing the disclosure record of every Certifying
Authority containing such particulars as may be specified by regulations, which
shall be accessible to public.
19. Recognition of
foreign Certifying Authorities.—(1) Subject to such
conditions and restrictions as may be specified by regulations, the Controller
may with the previous approval of the Central Government, and by notification in
the Official Gazette, recognise any foreign Certifying Authority as a Certifying
Authority for the purposes of this Act.
(2) Where any Certifying Authority is recognised under sub-section (1), the
electronic signature Certificate issued by such Certifying Authority shall be
valid for the purposes of this Act.
(3) The Controller may, if he is satisfied that any Certifying Authority has
contravened any of the conditions and restrictions subject to which it was
granted recognition under sub-section (1) he may, for reasons to be recorded in
writing, by notification in the Official Gazette, revoke such recognition.
20. Controller to act as
repository. Omitted by the Information Technology
(Amendment) Act, 2008 (10 of 2009), s. 13 (w.e.f. 27-10-2009).
21. Licence to issue electronic signature Certificates.—(1) Subject to
the provisions of sub-section (2), any person may make an application, to the
Controller, for a licence to issue electronic signature Certificates.
(2) No licence shall be issued under sub-section (1), unless the applicant
fulfils such requirements with respect to qualification, expertise, manpower,
financial resources and other infrastructure facilities, which are necessary to
issue electronic signature Certificates as may be prescribed by the Central
Government.
(3) A licence granted under this section shall—
(a) be valid for such period as may be prescribed by the Central Government;
(b) not be transferable or heritable;
(c) be subject to such terms and conditions as may be specified by the
regulations.
22. Application for
licence.—(1) Every application for issue of a licence
shall be in such form as may be prescribed by the Central Government.
(2) Every application for issue of a licence shall be accompanied by—
(a) a certification practice statement;
(b) a statement including the procedures with respect to identification of the
applicant;
(c) payment of such fees, not exceeding twenty-five thousand rupees as may be
prescribed by the Central Government;
(d) such other documents, as may be prescribed by the Central Government.
23. Renewal of licence.—An
application for renewal of a licence shall be—
(a) in such form;
(b) accompanied by such fees, not exceeding five thousand rupees, as may be
prescribed by the Central Government and shall be made not less than forty-five
days before the date of expiry of the period of validity of the licence.
24. Procedure for grant or rejection of licence.—The Controller may, on
receipt of an application under sub-section (1) of section 21, after considering
the documents accompanying the application and such other factors, as he deems
fit, grant the licence or reject the application:
Provided that no application shall be rejected under this section unless the
applicant has been given a reasonable opportunity of presenting his case.
25. Suspension of licence.—(1) The Controller may, if he is satisfied
after making such inquiry, as he may think fit, that a Certifying Authority has—
(a) made a statement in, or in relation to, the application for the issue or
renewal of the licence, which is incorrect or false in material particulars;
(b) failed to comply with the terms and conditions subject to which the licence
was granted;
(c) failed to maintain the procedures and standards specified in section 30;
(d) contravened any provisions of this Act, rule, regulation or order made
thereunder, revoke the licence:
Provided that no licence shall be revoked unless the Certifying Authority has
been given a reasonable opportunity of showing cause against the proposed
revocation.
(2) The Controller may, if he has reasonable cause to believe that there is any ground for revoking a licence under sub-section (1), by order suspend such licence pending the completion of any enquiry ordered by him:
Provided that no licence shall be
suspended for a period exceeding ten days unless the Certifying Authority has
been given a reasonable opportunity of showing cause against the proposed
suspension.
(3) No Certifying Authority whose licence has been suspended shall issue any
electronic signature Certificate during such suspension.
26. Notice of suspension
or revocation of licence.—(1) Where the licence of the
Certifying Authority is suspended or revoked, the Controller shall publish
notice of such suspension or revocation, as the case may be, in the data base
maintained by him.
(2) Where one or more repositories are specified, the Controller shall publish
notices of such suspension or revocation, as the case may be, in all such
repositories:
Provided that the data base containing the notice of such suspension or
revocation, as the case may be, shall be made available through a web site which
shall be accessible round the clock:
Provided further that the Controller may, if he considers necessary, publicise
the contents of data base in such electronic or other media, as he may consider
appropriate.
27. Power to delegate.—The Controller may, in writing, authorise the
Deputy Controller, Assistant Controller or any officer to exercise any of the
powers of the Controller under this Chapter.
28. Power to investigate contraventions.—(1) The Controller or any
officer authorised by him in this behalf shall take up for investigation any
contravention of the provisions of this Act, rules or regulations made
thereunder.
(2) The Controller or any officer authorised by him in this behalf shall
exercise the like powers which are conferred on Income-tax authorities under
Chapter XIII of the Income-tax Act, 1961 (43 of 1961), and shall exercise such
powers, subject to such limitations laid down under that Act.
29. Access to computers and data.—(1) Without prejudice to the provisions
of sub-section (1) of section 69, the Controller or any person authorised by him
shall, if he has reasonable cause to suspect that any contravention of the
provisions of this Chapter has been committed, have access to any computer
system, any apparatus, data or any other material connected with such system,
for the purpose of searching or causing a search to be made for obtaining any
information or data contained in or available to such computer system.
(2) For the purposes of sub-section (1), the Controller or any person authorised
by him may, by order, direct any person in charge of, or otherwise concerned
with the operation of, the computer system, data apparatus or material, to
provide him with such reasonable technical and other assistance as he may
consider necessary.
30. Certifying Authority
to follow certain procedures.—Every Certifying
Authority shall,—
(a) make use of hardware, software and procedures that are secure from intrusion
and misuse;
(b) provide a reasonable level of reliability in its services which are
reasonably suited to the performance of intended functions;
(c) adhere to security procedures to ensure that the secrecy and privacy of the
electronic signatures are assured;
(ca) be the repository of all electronic signature Certificates issued under
this Act;
(cb) publish information regarding its practices, electronic signature
Certificates and current status of such certificates; and
(d) observe such other standards as may be specified by regulations.
31. Certifying Authority
to ensure compliance of the Act, etc.—Every Certifying
Authority shall ensure that every person employed or otherwise engaged by it
complies, in the course of his employment or engagement, with the provisions of
this Act, rules, regulations and orders made thereunder.
32. Display of licence.—Every Certifying Authority shall display its
licence at a conspicuous place of the premises in which it carries on its
business.
33. Surrender of licence.—(1) Every Certifying Authority whose licence is
suspended or revoked shall immediately after such suspension or revocation,
surrender the licence to the Controller.
(2) Where any Certifying Authority fails to surrender a licence under
sub-section (1), the person in whose favour a licence is issued, shall be guilty
of an offence and shall be punished with imprisonment which may extend up to six
months or a fine which may extend up to ten thousand rupees or with both.
34. Disclosure.-(1)
Every Certifying Authority shall disclose in the manner specified by
regulations—
(a) its electronic signature Certificate
(b) any certification practice statement relevant thereto;
(c) notice of the revocation or suspension of its Certifying Authority
certificate, if any; and
(d) any other fact that materially and adversely affects either the reliability
of a electronic signature Certificate, which that Authority has issued, or the
Authority's ability to perform its services.
(2) Where in the opinion of the Certifying Authority any event has occurred or
any situation has arisen which may materially and adversely affect the integrity
of its computer system or the conditions subject to which a electronic signature
Certificate was granted, then, the Certifying Authority shall-
(a) use reasonable efforts to notify any person who is likely to be affected by
that occurrence; or
(b) act in accordance with the procedure specified in its certification practice
statement to deal with such event or situation.
CHAPTERVII
ELECTRONIC SIGNATURE CERTIFICATES
35. Certifying authority
to issue electronic signature Certificate.—(1) Any
person may make an application to the Certifying Authority for the issue of a
1[electronic signature] Certificate in such form as may be prescribed by the
Central Government.
(2) Every such application shall be accompanied by such fee not exceeding
twenty-five thousand rupees as may be prescribed by the Central Government, to
be paid to the Certifying Authority:
Provided that while prescribing fees under sub-section (2) different fees may be
prescribed for different classes of applicants.
(3) Every such application shall be accompanied by a certification practice
statement or where there is no such statement, a statement containing such
particulars, as may be specified by regulations.
(4) On receipt of an application under sub-section (1), the Certifying Authority
may, after consideration of the certification practice statement or the other
statement under sub-section (3) and after making such enquiries as it may deem
fit, grant the 1[electronic signature] Certificate or for reasons to be recorded
in writing, reject the application:
Provided that no application shall be rejected unless the applicant has been
given a reasonable opportunity of showing cause against the proposed rejection.
36. Representations upon
issuance of electronic signature Certificate.—A
Certifying Authority while issuing a electronic signature Certificate shall certify
that—
(a) it has complied with the provisions of this Act and the rules and
regulations made thereunder;
(b) it has published the electronic signature Certificate or otherwise made it
available to such person relying on it and the subscriber has accepted it;
(c) the subscriber holds the private key corresponding to the public key, listed
in the electronic signature Certificate;
(ca) the subscriber holds a private key which is capable of creating a
electronic signature;
(cb) the public key to be listed in the certificate can be used to verify a
electronic signature affixed by the private key held by the subscriber;
(d) the subscriber's public key and private key constitute a functioning key
pair;
(e) the information contained in the electronic signature Certificate is accurate;
and
(f) it has no knowledge of any material fact, which if it had been included in
the electronic signature Certificate would adversely affect the reliability of the
representations in clauses (a) to (d).
37. Suspension of electronic signature Certificate.-(1) Subject to the
provisions of sub-section (2), the Certifying Authority which has issued a
electronic signature Certificate may suspend such electronic signature Certificate,-
(a) on receipt of a request to that effect from-
(i) the subscriber listed in the electronic signature Certificate; or
(ii) any person duly authorised to act on behalf of that subscriber;
(b) if it is of opinion that the electronic signature Certificate should be
suspended in public interest.
(2) A electronic signature Certificate shall not be suspended for a period
exceeding fifteen days unless the subscriber has been given an opportunity of
being heard in the matter.
(3) On suspension of a electronic signature Certificate under this section, the
Certifying Authority shall communicate the same to the subscriber.
38. Revocation of
electronic signature Certificate.-(1) A Certifying
Authority may revoke a electronic signature Certificate issued by it-
(a) where the subscriber or any other person authorised by him makes a request
to that effect; or
(b) upon the death of the subscriber; or
(c) upon the dissolution of the firm or winding up of the company where the
subscriber is a firm or a company.
(2) Subject to the provisions of sub-section (3) and without prejudice to the
provisions of sub-section (1), a Certifying Authority may revoke a electronic
signature Certificate which has been issued by it at any time, if it is of
opinion that-
(a) a material fact represented in the electronic signature Certificate is false or
has been concealed;
(b) a requirement for issuance of the electronic signature Certificate was not
satisfied;
(c) the Certifying Authority's private key or security system was compromised in
a manner materially affecting the electronic signature Certificate's reliability;
(d) the subscriber has been declared insolvent or dead or where a subscriber is
a firm or a company, which has been dissolved, wound-up or otherwise ceased to
exist.
(3) A electronic signature Certificate shall not be revoked unless the subscriber
has been given an opportunity of being heard in the matter.
(4) On revocation of a electronic signature Certificate under this section, the
Certifying Authority shall communicate the same to the subscriber.
39. Notice of suspension
or revocation.-(1) Where a electronic signature
Certificate is suspended or revoked under section 37 or section 38, the
Certifying Authority shall publish a notice of such suspension or revocation, as
the case may be, in the repository specified in the electronic signature
Certificate for publication of such notice.
(2) Where one or more repositories are specified, the Certifying Authority shall
publish notices of such suspension or revocation, as the case may be, in all
such repositories.
CHAPTER VIII
DUTIES OF SUBSCRIBERS
40. Generating key
pair.-Where any electronic signature Certificate the
public key of which corresponds to the private key of that subscriber which is
to be listed in the electronic signature Certificate has been accepted by a
subscriber, the subscriber shall generate that key pair by applying the
security procedure.
40A. Duties of subscriber of Electronic Signature Certificate.-In respect
of Electronic Signature Certificate the subscriber shall perform such duties as
may be prescribed.
41. Acceptance of electronic signature Certificate.-(1) A subscriber shall
be deemed to have accepted a electronic signature Certificate if he publishes or
authorises the publication of a electronic signature Certificate-
(a) to one or more persons;
(b) in a repository; or
otherwise demonstrates his approval of the electronic signature Certificate in any
manner.
(2) By accepting a electronic signature Certificate the subscriber certifies to all
who reasonably rely on the information contained in the electronic signature
Certificate that-
(a) the subscriber holds the private key corresponding to the public key listed
in the electronic signature Certificate and is entitled to hold the same;
(b) all representations made by the subscriber to the Certifying Authority and
all material relevant to the information contained in the electronic signature
Certificate are true;
(c) all information in the electronic signature Certificate that is within the
knowledge of the subscriber is true.
42. Control of private key.-(1) Every subscriber shall exercise
reasonable care to retain control of the private key corresponding to the public
key listed in his electronic signature Certificate and take all steps to prevent
its disclosure
(2) If the private key corresponding to the public key listed in the electronic
signature Certificate has been compromised, then, the subscriber shall
communicate the same without any delay to the Certifying Authority in such
manner as may be specified by the regulations.
Explanation.-For the removal of doubts, it is hereby declared that the
subscriber shall be liable till he has informed the Certifying Authority that
the private key has been compromised.
CHAPTER IX
PENALTIES, COMPENSATION AND ADJUDICATION
43. Penalty and
compensation for damage to computer, computer system, etc.-If
any person without permission of the owner or any other person who is in charge
of a computer, computer system or computer network,-
(a) accesses or secures access to such computer, computer system or computer
network or computer resource;
(b) downloads, copies or extracts any data, computer data base or information
from such computer, computer system or computer network including information or
data held or stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer
virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer
network, data, computer data base or any other programmes residing in such
computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer
network;
(f) denies or causes the denial of access to any person authorised to access any
computer, computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer,
computer system or computer network in contravention of the provisions of this
Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person
by tampering with or manipulating any computer, computer system, or computer
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, conceal, destroys or alters or causes any person to steal, conceal,
destroy or alter any computer source code used for a computer resource with an
intention to cause damage;
he shall be liable to pay damages by way of compensation to the person so
affected.
Explanation.-For the purposes of this section,-
(i) "computer contaminant" means any set of computer instructions that are
designed-
(a) to modify, destroy, record, transmit data or programme residing within a
computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system,
or computer network;
(ii) "computer data-base" means a representation of information, knowledge,
facts, concepts or instructions in text, image, audio, video that are being
prepared or have been prepared in a formalised manner or have been produced by a
computer, computer system or computer network and are intended for use in a
computer, computer system or computer network;
(iii) "computer virus" means any computer instruction, information, data or
programme that destroys, damages, degrades or adversely affects the performance
of a computer resource or attaches itself to another computer resource and
operates when a programme, data or instruction is executed or some other event
takes place in that computer resource;
(iv) "damage" means to destroy, alter, delete, add, modify or rearrange any
computer resource by
any means.
(v) "computer source code" means the listing of programme, computer commands,
design and layout and programme analysis of computer resource in any form.
43A. 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 or 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 way of compensation to the person so affected.
Explanation.-For the purposes of this section,-
(i) "body corporate" means any company and includes a firm, sole proprietorship
or other association of individuals engaged in commercial or professional
activities;
(ii) "reasonable security practices and procedures" means security practices and
procedures designed to protect such information from unauthorised access,
damage, use, modification, disclosure or impairment, as may be specified in an
agreement between the parties or as may be specified in any law for the time
being in force and in the absence of such agreement or any law, such reasonable
security practices and procedures, as may be prescribed by the Central
Government in consultation with such professional bodies or associations as it
may deem fit;
(iii) "sensitive personal data or information" means such personal information
as may be prescribed by the Central Government in consultation with such
professional bodies or associations as it may deem fit.
44. Penalty for failure
to furnish information, return, etc.-If any person who
is required under this Act or any rules or regulations made thereunder 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 within
the time specified therefor in the regulations fails to file return or furnish
the same within the time specified therefor in the regulations, he shall be
liable to a penalty not exceeding five thousand rupees for every day 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 ten thousand rupees for every day during
which the failure continues.
45. Residuary penalty.-Whoever
contravenes any rules or regulations made under this Act, for the contravention
of which no penalty has been separately provided, shall be liable to pay a
compensation not exceeding twenty-five thousand rupees to the person affected by
such contravention or a penalty not exceeding twenty-five thousand rupees.
46. Power to adjudicate.-(1) For the purpose of adjudging under this Chapter
whether any person has committed a contravention of any of the provisions of
this Act or of any rule, regulation, direction or order made thereunder which
renders him liable to pay penalty or compensation, the Central Government shall,
subject to the provisions of sub-section (3), appoint any officer not below the
rank of a Director to the Government of India or an equivalent officer of a
State Government to be an adjudicating officer for holding an inquiry 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:
Provided that the jurisdiction in respect of the claim for injury or damage
exceeding rupees five crores shall vest with the competent court.
(2) The adjudicating officer shall, after giving the person referred to in
sub-section (1) a reasonable opportunity for making representation in the matter
and if, on such inquiry, he is satisfied that the person has committed the
contravention, he may impose such penalty or award such compensation as he
thinks fit in accordance with the provisions of that section.
(3) No person shall be appointed as an adjudicating officer unless he possesses
such experience in the field of Information Technology and legal or judicial
experience as may be prescribed by the Central Government.
(4) Where more than one adjudicating officers are appointed, the Central
Government shall specify by order the matters and places with respect to which
such officers shall exercise their jurisdiction.
(5) Every adjudicating officer shall have the powers of a civil court which are
conferred on the "Appellate Tribunal" under sub-section (2) of section 58, and-
(a) all proceedings before it shall be deemed to be judicial proceedings within
the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860);
(b) shall be deemed to be a civil court for the purposes of sections 345 and 346
of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) shall be deemed to be a civil court for purposes of Order XXI of the Civil
Procedure Code, 1908 (5 of 1908).
47. Factors to be taken
into account by the adjudicating officer.-While
adjudging the quantum of compensation under this Chapter, the adjudicating
officer shall have due regard to the following factors, namely:-
(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.
CHAPTER X
THE APPELLATE TRIBUNAL
48. Appellate Tribunal.-(1)
The Telecom Disputes Settlement and Appellate Tribunal established under section
14 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), shall,
on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017
(7 of 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.
(2) The Central Government shall specify, by notification the matters and places
in relation to which the Appellate Tribunal may exercise jurisdiction.
49. Composition of Cyber Appellate Tribunal. Omitted by the Finance
Act, 2017 (7 of 2017), s. 169 (w.e.f. 26-5-2017).
50. [Qualifications for appointment as Chairperson and Members of Cyber
Appellate Tribunal.] Omitted by s. 169, ibid. (w.e.f. 26-5-2017).
51. [Term of office, conditions of service, etc., of Chairperson and
Members.] Omitted by s. 169, ibid. (w.e.f. 26-5-2017).
52. [Salary, allowances and other terms and conditions of service of
Chairperson and Members.] Omitted by s. 169, ibid. (w.e.f. 26-5-2017).
52A. [Powers of superintendence, direction, etc.] Omitted by s. 169,
ibid. (w.e.f. 26-5-2017).
52B. [Distribution of business among Benches.] Omitted by s. 169,
ibid. (w.e.f. 26-5-2017).
52C. [Power of Chairperson to transfer cases.]
Omitted by s. 169, ibid. (w.e.f. 26-5-2017).
52D. Decision by majority.-If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson of the Appellate Tribunal who shall hear the point or points himself and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.
53. [Filling up of
vacancies.] Omitted by the Finance Act, 2017 (7 of
2017), s. 169 (w.e.f. 26-5-2017).
54. [Resignation and removal.] Omitted by s. 169, ibid. (w.e.f.
26-5-2017).
55. Orders constituting Appellate Tribunal to be final and not to invalidate its
proceedings.-No order of the Central Government appointing any person as the
Chairperson or the Member of a Appellate Tribunal shall be called in question in
any manner and no act or proceeding before a Appellate Tribunal shall be called
in question in any manner on the ground merely of any defect in the constitution
of a Appellate Tribunal.
56. [Staff of the Cyber Appellate Tribunal.] Omitted by the Finance
Act, 2017 (7 of 2017), s. 169 (w.e.f. 26-5-2017).
57. Appeal to Appellate Tribunal.-(1) Save as provided in sub-section
(2), any person aggrieved by an order made by controller or an adjudicating
officer under this Act may prefer an appeal to a Appellate Tribunal having
jurisdiction in the matter.
(2) No appeal shall lie to the Appellate Tribunal] from an order made by an
adjudicating officer with the consent of the parties.
(3) Every appeal under sub-section (1) shall be filed within a period of
forty-five days from the date on which a copy of the order made by the
Controller or the adjudicating officer is received by the person aggrieved and
it shall be in such form and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of
the said period of forty-five days if it is satisfied that there was sufficient
cause for not filing it within that period.
(4) On receipt of an appeal under sub-section (1), the Appellate Tribunal may,
after giving the parties to the appeal, an opportunity of being heard, pass such
orders thereon as it thinks fit, confirming, modifying or setting aside the
order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the
parties to the appeal and to the concerned Controller or adjudicating officer.
(6) The appeal filed before the Appellate Tribunal under sub-section (1) shall
be dealt with by it as expeditiously as possible and endeavour shall be made by
it to dispose of the appeal finally within six months from the date of receipt
of the appeal.
58. Procedure and powers
of the Appellate Tribunal.-(1) The Appellate Tribunal
shall not be bound by the procedure laid down by the Code of Civil Procedure,
1908 (5 of 1908) but 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.
(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 (5 of 1908), while trying a suit, in respect
of the following matters, namely:-
(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.
(3) Every proceeding before the Appellate Tribunal shall be deemed to be a
judicial proceeding within the meaning of sections 193 and 228, and for the
purposes of section 196 of the Indian Penal Code (45 of 1860) and the Appellate
Tribunal shall be deemed to be a civil court for the purposes of section 195 and
Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
59. Right to legal representation.-The appellant may either appear in person or authorise one or more legal practitioners or any of its officers to present his or its case before the Appellate Tribunal.
60. Limitation.-The provisions of the Limitation Act, 1963 (36 of 1963), shall, as far as may be, apply to an appeal made to the Appellate Tribunal.
61. Civil court not to have jurisdiction.-No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
62. Appeal to High Court.-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 that 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.
63. Compounding of
contraventions.-(1) Any contravention under this Act
may, either before or after the institution of adjudication proceedings, be
compounded by the Controller or such other officer as may be specially
authorised by him in this behalf or by the adjudicating officer, as the case may
be, subject to such conditions 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.
(2) Nothing in sub-section (1) shall 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.
Explanation.-For the purposes of this sub-section, 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.
(3) Where any contravention has been compounded under sub-section (1), no
proceeding or further proceeding, as the case may be, shall be taken against the
person guilty of such contravention in respect of the contravention so
compounded.
64. Recovery of penalty or compensation.-A penalty imposed or compensation awarded under this Act, if it is not paid, shall he recovered as an arrear of land revenue and the licence or the electronic signature Certificate, as the case may be, shall be suspended till the penalty is paid.
CHAPTER XI
OFFENCES
65. Tampering with computer
source documents.-Whoever knowingly or intentionally conceals, destroys or
alters or intentionally or knowingly causes another to conceal, destroy, or
alter any computer source code used for a computer, computer programme, computer
system or computer network, when the computer source code is required to be kept
or maintained by law for the time being in force, shall be punishable with
imprisonment up to three years, or with fine which may extend up to two lakh
rupees, or with both.
Explanation.-For the purposes of this section, "computer source code"
means the listing of programmes, computer commands, design and layout and
programme analysis of computer resource in any form.
66. Computer related offences.-If any person, dishonestly or
fraudulently, does any act referred to in section 43, he shall be punishable
with imprisonment for a term which may extend to three years or with fine which
may extend to five lakh rupees or with both.
Explanation.-For the purposes of this section,-
(a) the word "dishonestly" shall have the meaning assigned to it in section 24
of the Indian Penal Code (45 of 1860);
(b) the word "fraudulently" shall have the meaning assigned to it in section 25
of the Indian Penal Code (45 of 1860).
66A. Punishment for
sending offensive messages through communication service, etc.-Any
person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device;
(c) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or
recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years
and with fine.
Explanation.-For the purposes of this section, terms "electronic mail"
and "electronic mail message" means a message or information created or
transmitted or received on a computer, computer system, computer resource or
communication device including attachments in text, image, audio, video and any
other electronic record, which may be transmitted with the message.
66B. Punishment for dishonestly receiving stolen computer resource or
communication device.-Whoever dishonestly receive or retains any stolen
computer resource or communication device knowing or having reason to believe
the same to be stolen computer resource or communication device, shall be
punished with imprisonment of either description for a term which may extend to
three years or with fine which may extend to rupees one lakh or with both.
66C. Punishment for identity theft.-Whoever, fraudulently or dishonestly
make use of the electronic signature, password or any other unique
identification feature of any other person, shall be punished with imprisonment
of either description for a term which may extend to three years and shall also
be liable to fine which may extend to rupees one lakh.
66D. Punishment for cheating by personation by using computer resource.-Whoever,
by means of any communication device or computer resource cheats by personation,
shall be punished with imprisonment of either description for a term which may
extend to three years and shall also be liable to fine which may extend to one
lakh rupees.
66E. Punishment for violation of privacy.-Whoever, intentionally or
knowingly captures, publishes or transmits the image of a private area of any
person without his or her consent, under circumstances violating the privacy of
that person, shall be punished with imprisonment which may extend to three years
or with fine not exceeding two lakh rupees, or with both.
Explanation.-For the purposes of this section-
(a) "transmit" means to electronically send a visual image with the intent that
it be viewed by a person or persons;
(b) "capture", with respect to an image, means to videotape, photograph, film or
record by any means;
(c) "private area" means the naked or undergarment clad genitals, public area,
buttocks or female breast:
(d) "publishes" means reproduction in the printed or electronic form and making
it available for public;
(e) "under circumstances violating privacy" means circumstances in which a
person can have a reasonable expectation that-
(i) he or she could disrobe in privacy, without being concerned that an image of
his private area was being captured; or
(ii) any part of his or her private area would not be visible to the public,
regardless of whether that person is in a public or private place.
66F. Punishment for
cyber terrorism.-(1) Whoever,-
(A) with intent to threaten the unity, integrity, security or sovereignty of
India or to strike terror in the people or any section of the people by-
(i) denying or cause the denial of access to any person authorised to access
computer resource; or
(ii) attempting to penetrate or access a computer resource without authorisation
or exceeding authorised access; or
(iii) introducing or causing to introduce any computer contaminant,
and by means of such conduct causes or is likely to cause death or injuries to
persons or damage to or destruction of property or disrupts or knowing that it
is likely to cause damage or disruption of supplies or services essential to the
life of the community or adversely affect the critical information
infrastructure specified under section 70; or
(B) knowingly or intentionally penetrates or accesses a computer resource
without authorisation or exceeding authorised access, and by means of such
conduct obtains access to information, data or computer data base that is
restricted for reasons of the security of the State or foreign relations; or any
restricted information, data or computer data base, with reasons to believe that
such information, data or computer data base so obtained may be used to cause or
likely to cause injury to the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court, defamation or
incitement to an offence, or to the advantage of any foreign nation, group of
individuals or otherwise,commits the offence of cyber terrorism.
(2) Whoever commits or conspires
to commit cyber terrorism shall be punishable with imprisonment which may extend
to imprisonment for life.
67. Punishment for publishing or transmitting obscene material in electronic
form.-Whoever publishes or transmits or causes to be published or
transmitted in the electronic form, any material which is lascivious or appeals
to the prurient interest or if its effect is such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it, shall be punished on
first conviction with imprisonment of either description for a term which may
extend to three years and with fine which may extend to five lakh rupees and in
the event of second or subsequent conviction with imprisonment of either
description for a term which may extend to five years and also with fine which
may extend to ten lakh rupees.
67A. Punishment for publishing or transmitting of material containing sexually
explicit act, etc., in electronic form.-Whoever publishes or transmits or
causes to be published or transmitted in the electronic form any material which
contains sexually explicit act or conduct shall be punished on first conviction
with imprisonment of either description for a term which may extend to five
years and with fine which may extend to ten lakh rupees and in the event of
second or subsequent conviction with imprisonment of either description for a
term which may extend to seven years and also with fine which may extend to ten
lakh rupees.
67B. Punishment for
publishing or transmitting of material depicting children in sexually explicit
act, etc., in electronic form.-Whoever,-
(a) publishes or transmits or causes to be published or transmitted material in
any electronic form which depicts children engaged in sexually explicit act or
conduct; or
(b) creates text or digital images, collects, seeks, browses, downloads,
advertises, promotes, exchanges or distributes material in any electronic form
depicting children in obscene or indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online relationship with one or
more children for and on sexually explicit act or in a manner that may offend a
reasonable adult on the computer resource; or
(d) facilitates abusing children online, or
(e) records in any electronic form own abuse or that of others pertaining to
sexually explicit act with children, shall be punished on first conviction with
imprisonment of either description for a term which may extend to five years and
with fine which may extend to ten lakh rupees and in the event of second or
subsequent conviction with imprisonment of either description for a term which
may extend to seven years and also with fine which may extend to ten lakh
rupees:
Provided that provisions of section 67, section 67A and this section does not
extend to any book, pamphlet, paper, writing, drawing, painting representation
or figure in electronic form-
(i) the publication of which is proved to be justified as being for the public
good on the ground that such book, pamphlet, paper, writing, drawing, painting
representation or figure is the interest of science, literature, art or learning
or other objects of general concern; or
(ii) which is kept or used for bona fide heritage or religious purposes.
Explanation-For the purposes of this section, "children" means a person who has
not completed the age of 18 years.
67C. Preservation and retention of information by intermediaries.-(1)
Intermediary shall preserve and retain such information as may be specified for
such duration and in such manner and format as the Central Government may
prescribe.
(2) any intermediary who intentionally or knowingly contravenes the provisions
of sub-section (1) shall be punished with an imprisonment for a term which may
extend to three years and also be liable to fine.
68. Power of Controller to give directions.-(1) The Controller may, by
order, direct a Certifying Authority or any employee of such Authority to take
such measures or cease carrying on such activities as specified in the order if
those are necessary to ensure compliance with the provisions of this Act, rules
or any regulations made thereunder.
(2) Any person who intentionally or knowingly fails to comply with any order
under sub-section (1) shall be guilty of an offence and shall be liable on
conviction to imprisonment for a term not exceeding two years or a fine not
exceeding one lakh rupees or with both.
69. Power to issue directions for interception or monitoring or decryption of
any information through any computer resource.-(1) Where the Central
Government or a State Government or any of its officers specially authorised by
the Central Government or the State Government, as the case may be, in this
behalf may, if satisfied that it is necessary or expedient so to do, in the
interest of the sovereignty or integrity of India, defence of India, security of
the State, friendly relations with foreign States or public order or for
preventing incitement to the commission of any cognizable offence relating to
above or for investigation of any offence, it may subject to the provisions of
sub-section (2), for reasons to be recorded in writing, by order, direct any
agency of the appropriate Government to intercept, monitor or decrypt or cause
to be intercepted or monitored or decrypted any information generated,
transmitted, received or stored in any computer resource.
(2) The procedure and safeguards subject to which such interception or
monitoring or decryption may be carried out, shall be such as may be prescribed.
(3) The subscriber or intermediary or any person in-charge of the computer
resource shall, when called upon by any agency referred to in sub-section (1),
extend all facilities and technical assistance to-
(a) provide access to or secure access to the computer resource generating,
transmitting, receiving or storing such information; or
(b) intercept, monitor, or decrypt the information, as the case may be; or
(c) provide information stored in computer resource.
(4) The subscriber or intermediary or any person who fails to assist the agency
referred to in sub-section (3) shall be punished with imprisonment for a term
which may extend to seven years and shall also be liable to fine.
69A. Power to issue
directions for blocking for public access of any information through any
computer resource.-(1) Where the Central Government or
any of its officers specially authorised by it in this behalf is satisfied that
it is necessary or expedient so to do, in the interest of sovereignty and
integrity of India, defence of India, security of the State, friendly relations
with foreign States or public order or for preventing incitement to the
commission of any cognizable offence relating to above, it may subject to the
provisions of sub-section (2), for reasons to be recorded in writing, by order,
direct any agency of the Government or intermediary to block for access by the
public or cause to be blocked for access by the public any information
generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by
the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under
sub-section (1) shall be punished with an imprisonment for a term which may
extend to seven years and also be liable to fine.
69B. Power to authorise
to monitor and collect traffic data or information through any computer resource
for cyber security.-(1) The Central Government may, to
enhance cyber security and for identification, analysis and prevention of
intrusion or spread of computer contaminant in the country, by notification in
the Official Gazette, authorise any agency of the Government to monitor and
collect traffic data or information generated, transmitted, received or stored
in any computer resource.
(2) The intermediary or any person in-charge or the computer resource shall,
when called upon by the agency which has been authorised under sub-section (1),
provide technical assistance and extend all facilities to such agency to enable
online access or to secure and provide online access to the computer resource
generating, transmitting, receiving or storing such traffic data or information.
(3) The procedure and safeguards for monitoring and collecting traffic data or
information, shall be such as may be prescribed.
(4) Any intermediary who intentionally or knowingly contravenes the provisions
of sub-section (2) shall be punished with an imprisonment for a term which any
extend to three years and shall also be liable to fine.
Explanation.-For the purposes of this section,-
(i) "computer contaminant" shall have the meaning assigned to it in section 43;
(ii) "traffic data" means any data identifying or purporting to identify any
person, computer system or computer network or location to or from which the
communication is or may be transmitted and includes communications origin,
destination, route, time, data, size, duration or type of underlying service and
any other information.
70. Protected system.-(1) The appropriate Government may, by notification
in the Official Gazette, declare any computer resource which directly or
indirectly affects the facility of Critical Information Infrastructure, to be a
protected system.
Explanation.-For the purposes of this section, "Critical Information
Infrastructure" means the computer resource, the incapacitation or destruction
of which, shall have debilitating impact on national security, economy, public
health or safety.
(2) The appropriate Government may, by order in writing, authorise the persons
who are authorised to access protected systems notified under sub-section (1).
(3) Any person who secures access or attempts to secure access to a protected
system in contravention of the provisions of this section shall be punished with
imprisonment of either description for a term which may extend to ten years and
shall also be liable to fine.
(4) The Central Government shall prescribe the information security practices
and procedures for such protected system.
70A. National nodal agency.-(1) The Central Government may, by
notification published in the Official Gazette, designate any organisation of
the Government as the national nodal agency in respect of Critical Information
Infrastructure Protection.
(2) The national nodal agency designated under sub-section (1) shall be
responsible for all measures including Research and Development relating to
protection of Critical Information Infrastructure.
(3) The manner of performing functions and duties of the agency referred to in
sub-section (1) shall be such as may be prescribed.
70B. Indian Computer
Emergency Response Team to serve as national agency for incident response.-(1)
The Central Government shall, by notification in the Official Gazette, appoint
an agency of the Government to be called the Indian Computer Emergency Response
Team.
(2) The Central Government shall provide the agency referred to in sub-section
(1) with a Director General and such other officers and employees as may be
prescribed.
(3) The salary and allowances and terms and conditions of the Director-General
and other officers and employees shall be such as may be prescribed.
(4) The Indian Computer Emergency Response Team shall serve as the national
agency for performing the following functions in the area of cyber security,-
(a) collection, analysis and dissemination of information on cyber incidents;
(b) forecast and alerts of cyber security incidents;
(c) emergency measures for handling cyber security incidents;
(d) coordination of cyber incidents response activities;
(e) issue guidelines, advisories, vulnerability notes and white papers relating
to information security practices, procedures, preventation, response and
reporting of cyber incidents;
(f) such other functions relating to cyber security as may be prescribed.
(5) The manner of performing functions and duties of the agency referred to in
sub-section (1) shall be such as may be prescribed.
(6) For carrying out the provisions of sub-section (4), the agency referred to
in sub-section (1) may call for information and give direction to the service
providers, intermediaries, data centres, body corporate and any other person.
(7) Any service provider, intermediaries, data centres, body corporate or person
who fails to provide the information called for or comply with the direction
under sub-section (6), shall be punishable with imprisonment for a term which
may extend to one year or with fine which may extend to one lakh rupees or with
both.
(8) No court shall take cognizance of any offence under this section, except on
a complaint made by an officer authorised in this behalf by the agency referred
to in sub-section (1).
71. Penalty for misrepresentation.-Whoever makes any misrepresentation
to, or suppresses any material fact from the Controller or the Certifying
Authority for obtaining any licence or electronic signature Certificate, as the
case may be, shall be punished with imprisonment for a term which may extend to
two years, or with fine which may extend to one lakh rupees, or with both.
72. Penalty for Breach of confidentiality and privacy.-Save as otherwise
provided in this Act or any other law for the time being in force, if any person
who, in pursuance of any of the powers conferred under this Act, rules or
regulations made thereunder, has secured access to any electronic record, book,
register, correspondence, information, document or other material without the
consent of the person concerned discloses such electronic record, book,
register, correspondence, information, document or other material to any other
person shall be punished with imprisonment for a term which may extend to two
years, or with fine which may extend to one lakh rupees, or with both.
72A. Punishment for disclosure of information in breach of lawful contract.-Save
as otherwise provided in this Act or any other law for the time being in force,
any person including an intermediary who, while providing services under the
terms of lawful contract, has secured access to any material containing personal
information about another person, with the intent to cause or knowing that he is
likely to cause wrongful loss or wrongful gain discloses, without the consent of
the person concerned, or in breach of a lawful contract, such material to any
other person, shall be punished with imprisonment for a term which may extend to
three years, or with fine which may extend to five lakh rupees, or with both.
73. Penalty for
publishing electronic signature Certificate false in certain particulars.-(1)
No person shall publish a 1[electronic signature] Certificate or otherwise make
it available to any other person with the knowledge that-
(a) the Certifying Authority listed in the certificate has not issued it; or
(b) the subscriber listed in the certificate has not accepted it; or
(c) the certificate has been revoked or suspended,
unless such publication is for the purpose of verifying a electronic signature
created prior to such suspension or revocation.
(2) Any person who contravenes the provisions of sub-section (1) shall be
punished with imprisonment for a term which may extend to two years, or with
fine which may extend to one lakh rupees, or with both.
74. Publication for fraudulent purpose.-Whoever knowingly creates,
publishes or otherwise makes available a electronic signature Certificate for
any fraudulent or unlawful purpose shall be punished with imprisonment for a
term which may extend to two years, or with fine which may extend to one lakh
rupees, or with both.
75. Act to apply for offence or contravention committed outside India.-(1)
Subject to the provisions of sub-section (2), the provisions of this Act shall
apply also to any offence or contravention committed outside India by any person
irrespective of his nationality.
(2) For the purposes of sub-section (1), this Act shall apply to an offence or
contravention committed outside India by any person if the act or conduct
constituting the offence or contravention involves a computer, computer system
or computer network located in India.
76. Confiscation.-Any computer, computer system, floppies, compact disks,
tape drives or any other accessories related thereto, in respect of which any
provision of this Act, rules, orders or regulations made thereunder has been or
is being contravened, shall be liable to confiscation:
Provided that where it is established to the satisfaction of the court
adjudicating the confiscation that the person in whose possession, power or
control of any such computer, computer system, floppies, compact disks, tape
drives or any other accessories relating thereto is found is not responsible for
the contravention of the provisions of this Act, rules, orders or regulations
made thereunder, the court may, instead of making an order for confiscation of
such computer, computer system, floppies, compact disks, tape drives or any
other accessories related thereto, make such other order authorised by this Act
against the person contravening of the provisions of this Act, rules, orders or
regulations made thereunder as it may think fit.
77. Compensation, penalties or confiscation not to interfere with other
punishment.-No compensation awarded, penalty imposed or confiscation made
under this Act shall prevent the award of compensation or imposition of any
other penalty or punishment under any other law for the time being in force.
77A. Compounding of
offences.-A court of competent jurisdiction may
compound offences, other than offences for which the punishment for life or
imprisonment for a term exceeding three years has been provided, under this Act:
Provided that the court shall not compound such offence where the accused is, by
reason of his previous conviction, liable to either enhanced punishment or to a
punishment of a different kind:
Provided further that the court shall not compound any offence where such
offence affects the socio economic conditions of the country or has been
committed against a child below the age of 18 years or a woman.
(2) The person accused of an offence under this Act may file an application for
compounding in the court in which offence is pending for trial and the
provisions of sections 265B and 265C of the Code of Criminal Procedure, 1973 (2
of 1974) shall apply.
77B. Offences with three
years imprisonment to be bailable.-Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the
offence punishable with imprisonment of three years and above shall be
cognizable and the offence punishable with imprisonment of three years shall be
bailable.
78. Power to investigate offences.-Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974), a police officer not below the
rank of 1[Inspector] shall investigate any offence under this Act.
CHAPTER XII
INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES
79. Exemption from
liability of intermediary in certain cases.-(1)
Notwithstanding anything contained in any law for the time being in force but
subject to the provisions of sub-sections (2) and (3), an intermediary shall not
be liable for any third party information, data, or communication link made
available or hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a
communication system over which information made available by third parties is
transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under
this Act and also observes such other guidelines as the Central Government may
prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by
threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate
Government or its agency that any information, data or communication link
residing in or connected to a computer resource controlled by the intermediary
is being used to commit the unlawful act, the intermediary fails to
expeditiously remove or disable access to that material on that resource without
vitiating the evidence in any manner.
Explanation.-For the purposes of this section, the expression "third
party information" means any information dealt with by an intermediary in his
capacity as an intermediary.
CHAPTER XIIA
EXAMINER OF ELECTRONIC EVIDENCE
79A. Central Government
to notify Examiner of Electronic Evidence.-The Central
Government may, for the purposes of providing expert opinion on electronic form
evidence before any court or other authority specify, by notification in the
Official Gazette, any Department, body or agency of the Central Government or a
State Government as an Examiner of Electronic Evidence.
Explanation.-For the purposes of this section, "electronic form evidence"
means any information of probative value that is either stored or transmitted in
electronic form and includes computer evidence, digital audio, digital video,
cell phones, digital fax machines.
CHAPTER XIII
MISCELLANEOUS
80. Power of police
officer and other officers to enter, search, etc.-(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), any police officer, not below the rank of a Inspector, or any other
officer of the Central Government or a State Government authorised by the
Central Government in this behalf may enter any public place and search and
arrest without warrant any person found therein who is reasonably suspected of
having committed or of committing or of being about to commit any offence under
this Act.
Explanation.-For the purposes of this sub-section, the expression "public
place" includes any public conveyance, any hotel, any shop or any other place
intended for use by, or accessible to the public.
(2) Where any person is arrested under sub-section (1) by an officer other than
a police officer, such officer shall, without unnecessary delay, take or send
the person arrested before a magistrate having jurisdiction in the case or
before the officer-in-charge of a police station.
(3) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall,
subject to the provisions of this section, apply, so far as may be, in relation
to any entry, search or arrest, made under this section.
81. Act to have overriding effect.-The provisions of this Act shall have
effect notwithstanding anything inconsistent therewith contained in any other
law for the time being in force.
Provided that nothing contained in this Act shall restrict any person from
exercising any right conferred under the Copyright Act, 1957 (14 of 1957) or the
Patents Act, 1970 (39 of 1970).
81A. Application of the Act to electronic cheque and truncated cheque.-(1)
The provisions of this Act, for the time being in force, shall apply to, or in
relation to, electronic cheques and the truncated cheques subject to such
modifications and amendments as may be necessary for carrying out the purposes
of the Negotiable Instruments Act, 1881 (26 of 1881) by the Central Government,
in consultation with the Reserve Bank of India, by notification in the Official
Gazette.
(2) Every notification made by the Central Government under sub-section (1)
shall be laid, as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days which may
be comprised in one session or in two or more successive sessions, and if,
before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in
the notification or both Houses agree that the notification should not be made,
the notification shall thereafter have effect only in such modified form or be
of no effect, as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done
under that notification.
Explanation.-For the purposes of this Act, the expressions "electronic
cheque" and "truncated cheque" shall have the same meaning as assigned to them
in section 6 of the Negotiable Instruments Act, 1881 (26 of 1881).]
82. Controller, Deputy Controller and Assistant Controller to be public
servants.-The Controller, the Deputy Controller and the Assistant
Controllers shall be deemed to be public servants within the meaning of section
21 of the Indian Penal Code (45 of 1860).]
83. Power to give
directions.-The Central Government may give directions
to any State Government as to the carrying into execution in the State of any of
the provisions of this Act or of any rule, regulation or order made thereunder.
84. Protection of action taken in good faith.-No suit, prosecution or
other legal proceeding shall lie against the Central Government, the State
Government, the Controller or any person acting on behalf of him, and
adjudicating officers for anything which is in good faith done or intended to be
done in pursuance of this Act or any rule, regulation or order made thereunder.
84A. Modes or methods
for encryption.-The Central Government may, for secure
use of the electronic medium and for promotion of e-governance and e-commerce,
prescribe the modes or methods for encryption.
84B. Punishment for abetment of offences.-Whoever abets any offence
shall, if the act abetted is committed in consequence of the abetment, and no
express provision is made by this Act for the punishment of such abetment, be
punished with the punishment provided for the offence under this Act.
Explanation.-An act or offence is said to be committed in consequence of
abetment, when it is committed in consequence of the instigation, or in
pursuance of the conspiracy, or with the aid which constitutes the abetment.
84C. Punishment for attempt to commit offences.-Whoever attempts to
commit an offence punishable by this Act or causes such an offence to be
committed, and in such an attempt does any act towards the commission of the
offence, shall, where no express provision is made for the punishment of such
attempt, be punished with imprisonment of any description provided for the
offence, for a term which may extend to one-half of the longest term of
imprisonment provided for that offence, or with such fine as is provided for the
offence, or with both.
85. Offences by companies.-(1) Where a person committing a contravention
of any of the provisions of this Act or of any rule, direction or order made
thereunder is a company, every person who, at the time the contravention was
committed, was in charge of, and was responsible to, the company for the conduct
of business of the company as well as the company, shall be guilty of the
contravention and shall be liable to be proceeded against and punished
accordingly:
Provided that nothing contained in this sub-section shall render any such person
liable to punishment if he proves that the contravention took place without his
knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1), where a contravention
of any of the provisions of this Act or of any rule, direction or order made
thereunder has been committed by a company and it is proved that the
contravention has taken place with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary or
other officer of the company, such director, manager, secretary or other officer
shall also be deemed to be guilty of the contravention and shall be liable to be
proceeded against and punished accordingly.
Explanation.-For the purposes of this section,-
(i) "company" means any body corporate and includes a firm or other association
of individuals; and
(ii) "director", in relation to a firm, means a partner in the firm.
86. Removal of difficulties.-(1) If any difficulty arises in giving
effect to the provisions of this Act, the Central Government may, by order
published in the Official Gazette, make such provisions not inconsistent with
the provisions of this Act as appear to it to be necessary or expedient for
removing the difficulty:
Provided that no order shall be made under this section after the expiry of a
period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after
it is made, before each House of Parliament.
87. Power of Central
Government to make rules.-(1) The Central Government
may, by notification in the Official Gazette and in the Electronic Gazette, make
rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the following matters, namely:-
(a) the conditions for considering reliability of electronic signature or
electronic authentication technique under sub-section (2) of section 3A;
(aa) the procedure for ascertaining electronic signature or authentication under
sub-section (3) of section 3A;
(ab) the manner in which any information or matter may be authenticated by means
of electronic signature under section 5;
(b) the electronic form in which filing, issue, grant or payment shall be
effected under sub-section (1) of section 6;
(c) the manner and format in which electronic records shall be filed, or issued
and the method of payment under sub-section (2) of section 6;
(ca) the manner in which the authorised service provider may collect, retain and
appropriate service charges under sub-section (2) of section 6A;
(d) the matters relating to the type of electronic signature, manner and format
in which it may be affixed under section 10;
(e) the manner of storing and affixing electronic signature creation data under
section 15;
(ea) the security procedures and practices under section 16;
(f) the qualifications, experience and terms and conditions of service of
Controller, Deputy Controllers , Assistant Controllers, other officers and
employees under section 17;
(h) the requirements which an applicant must fulfil under sub-section (2) of
section 21;
(i) the period of validity of licence granted under clause (a) of sub-section
(3) of section 21;
(j) the form in which an application for licence may be made under sub-section
(1) of section 22;
(k) the amount of fees payable under clause (c) of sub-section (2) of section
22;
(l) such other documents which shall accompany an application for licence under
clause (d) of sub-section (2) of section 22;
(m) the form and the fee for renewal of a licence and the fee payable thereof
under section 23;
(ma) the form of application and fee for issue of Electronic Signature
Certificate under section 35;
(n) the form in which application for issue of a electronic signature
Certificate may be made under sub-section (1) of section 35;
(o) the fee to be paid to the Certifying Authority for issue of a electronic
signature Certificate under sub-section (2) of section 35;
(oa) the duties of subscribers under section 40A;
(ob) the reasonable security practices and procedures and sensitive personal
data or information under section 43A;
(p) the manner in which the adjudicating officer shall hold inquiry under
sub-section (1) of section 46;
(q) the qualification and experience which the adjudicating officer shall
possess under sub-section (3) of section 46;
(u) the form in which appeal may be filed and the fee thereof under sub-section
(3) of section 57;
(v) any other power of a civil court required to be prescribed under clause (g)
of sub-section (2) of section 58; and
(w) the powers and functions of the Chairperson of the Appellate Tribunal under
section 52A;
(x) the information, duration, manner and form of such information to be
retained and preserved under section 67C;
(y) the procedures and safeguards for interception, monitoring or decryption
under sub-section (2) of section 69;
(z) the procedures and safeguards for blocking for access by the public under
sub-section (3) of section 69 A;
(za) the procedure and safeguards for monitoring and collecting traffic data or
information under sub-section (3) of section 69B;
(zb) the information security practices and procedures for protected system
under section 70;
(zc) manner of performing functions and duties of the agency under sub-section
(3) of section 70A;
(zd) the officers and employees under sub-section (2) of section 70B;
(ze) salaries and allowances and terms and conditions of service of the Director
General and other officers and employees under sub-section (3) of section 70B;
(zf) the manner in which the functions and duties of agency shall be performed
under sub-section (5) of section 70B;
(zg) the guidelines to be observed by the intermediaries under sub-section (2)
of section 79;
(zh) the modes or methods for encryption under section 84A.
(3) Every notification made by the Central Government under sub-section (1) of section 70A and every rule made by it] shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule.
88. Constitution of
Advisory Committee.-(1) The Central Government shall,
as soon as may be after the commencement of this Act, constitute a Committee
called the Cyber Regulations Advisory Committee.
(2) The Cyber Regulations Advisory Committee shall consist of a Chairperson and
such number of other official and non-official members representing the
interests principally affected or having special knowledge of the subject-matter
as the Central Government may deem fit.
(3) The Cyber Regulations Advisory Committee shall advise-
(a) the Central Government either generally as regards any rules or for any
other purpose connected with this Act;
(b) the Controller in framing the regulations under this Act.
(4) There shall be paid to the non-official members of such Committee such
travelling and other allowances as the Central Government may fix.
89. Power of Controller
to make regulations.-(1) The Controller may, after
consultation with the Cyber Regulations Advisory Committee and with the previous
approval of the Central Government, by notification in the Official Gazette,
make regulations consistent with this Act and the rules made thereunder to carry
out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing
power, such regulations may provide for all or any of the following matters,
namely:-
(a) the particulars relating to maintenance of data base containing the
disclosure record of every Certifying Authority under clause (n) of section 18;
(b) the conditions and restrictions subject to which the Controller may
recognise any foreign Certifying Authority under sub-section (1) of section 19;
(c) the terms and conditions subject to which a licence may be granted under
clause (c) of sub-section (3) of section 21;
(d) other standards to be observed by a Certifying Authority under clause (d) of
section 30;
(e) the manner in which the Certifying Authority shall disclose the matters
specified in sub-section (1) of section 34;
(f) the particulars of statement which shall accompany an application under
sub-section (3) of section 35.
(g) the manner by which the subscriber shall communicate the compromise of
private key to the Certifying Authority under sub-section (2) of section 42.
(3) Every regulation made under this Act shall be laid, as soon as may be after
it is made, before each House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the regulation or both Houses agree that the
regulation should not be made, the regulation shall thereafter have effect only
in such modified form or be of no effect, as the case may be; so, however, that
any such modification or annulment shall be without prejudice to the validity of
anything previously done under that regulation.
90. Power of State
Government to make rules.-(1) The State Government
may, by notification in the Official Gazette, make rules to carry out the
provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the following matters, namely:-
(a) the electronic form in which filing, issue, grant, receipt or payment shall
be effected under sub-section (1) of section 6;
(b) for matters specified in sub-section (2) of section 6;
(3) Every rule made by the State Government under this section shall be laid, as
soon as may be after it is made, before each House of the State Legislature
where it consists of two Houses, or where such Legislature consists of one
House, before that House.
91. [Amendment of Act 45 of 1860.] Omitted by the Information Technology
(Amendment) Act, 2008 (10 of 2009), s. 48 (w.e.f. 27-10-2009).
92. [Amendment of Act 1 of 1872.] Omitted by s. 48, ibid. (w.e.f.
27-10-2009).
93. [Amendment of Act 18 of 1891.] Omitted by s. 48, ibid. (w.e.f.
27-10-2009).
94. [Amendment of Act 2 of 1934.] Omitted by s. 48,
ibid. (w.e.f. 27-10-2009).
THE FIRST SCHEDULE
[See sub-section (4) of section 1]
DOCUMENTS OR TRANSACTIONS TO WHICH THE ACT SHALL NOT APPLY
|
SI. No. |
Description of documents or transactions |
|
1. |
A negotiable instrument (other than a cheque) as defined in section 13 of the Negotiable Instruments Act, 1881 (26 of 1881). |
| 2. | A power-of-attorney as defined in section 1A of the Powers-of-Attorney Act, 1882 (7 of 1882). |
| 3. | A trust as defined in section 3 of the Indian Trust Act, 1882 (2 of 1882) |
| 4. | A will as defined in clause (h) of section 2 of the Indian Succession Act, 1925 (39 of 1925), including any other testamentary disposition by whatever name called. |
| 5. | Any contract for the sale or conveyance of immovable property or any interest in such property. |
THE SECOND SCHEDULE
[See sub-section (1) of section 3A]
ELECTRONIC SIGNATURE OR ELECTRONIC AUTHENTICATION TECHNIQUE AND PROCEDURE
|
SI. No. |
Description |
Procedure |
|
(1) |
(2) |
(3) |
|
[1. |
e-authentication technique using Aadhaar [or other] e-KYC services |
Authentication of an electronic record by e-authentication Technique which shall be done by- (a) the applicable use of e-authentication, hash, and asymmetric crypto system techniques, leading to issuance of electronic signature Certificate by Certifying Authority (b) a trusted third party service by subscriber's key pair-generation, storing of key pairs 4 [* * *] and creation of electronic signature provided that the trusted third party shall be offered by the certifying authority. The trusted third party shall send application form and certificate signing request to the Certifying Authority for issuing a electronic signature Certificate to the subscriber. (c) Issuance of electronic signature Certificate by Certifying Authority shall be based on e-authentication, particulars specified in Form C of Schedule IV of the Information Technology (Certifying Authorities) Rules, 2000, digitally signed verified information from Aadhaar 5 [or other] e-KYC services and electronic consent of electronic signature Certificate applicant. (d) The manner and requirements for e-authentication shall be as issued by the Controller from time to time. (e) The security procedure for creating the subscriber’s key pair 6 [and other e-KYC services] shall be in accordance with the e-authentication guidelines issued by the Controller. (f) The standards referred to in Rule 6 of the Information Technology (Certifying Authorities) Rules, 2000 shall be complied with, in so far as they relate to the certification function of public key of electronic signature Certificate applicant. [(g) The manner in which the information is authenticated by means of electronic signature shall comply with the manner and standards specified in Rules 3 to 12 of the electronic signature (End entity) Rules, 2015 in so far as they relate to the creation, storage, and verification of electronic signature] |
|
[2. |
e-authentication technique and procedure for creating and accessing subscriber’s signature key facilitated by trusted third party |
Authentication of an electronic record by e-authentication technique which shall be done by— (a) the applicable use of e-authentication, hash and asymmetric crypto system techniques leading to issuance of electronic signature Certificate by Certifying Authority, provided that Certifying Authority shall ensure the subscriber identity verification, secure storage of the keys by trusted third party and subscriber’s sole authentication control to the signature key. (b) Identity verification of electronic signature Certificate applicant shall be in accordance with the Identity Verification Guidelines issued by Controller from time-to-time. (c) The requirement to operate as trusted third party shall be specified under e-authentication guidelines issued by the Controller. (d) a trusted third party shall
(e) The manner and requirements for authentication and storage of keys shall be as issued by the Controller from time to time under e-authentication guidelines (g) The security procedure for creating the subscriber's key pair shall be in accordance with the e-authentication guidelines issued by the Controller. (h) The standards referred to in Rule 6 of the Information Technology (Certifying Authorities) Rules, 2000 shall be complied with, in so far as they relate to the certification function of public key of electronic signature Certificate applicant. (i) The manner in which information is authenticated by means of electronic signature shall comply with the manner and standards specified in Rule 3 to 12 of electronic signature (End entity) Rules, 2015 in so far as they relate to the creation, storage and verification of electronic signature.] |
[THE THIRD SCHEDULE.] Omitted by the Information Technology (Amendment) Act,
2008 (10 of 2009), s. 50 (w.e.f. 27-10-2009).
[THE FOURTH SCHEDULE.] Omitted by s. 50, ibid. (w.e.f. 27-10-2009).