Introduction:
The Internet network has enormously expanded too far geographical distances, providing rapid communication to the farthest of areas on the Planet. While human activities in this boundless new universe are expanding relentlessly, the requirement for laws to govern this new hemisphere is understood by various global entities. To keep up with this constant flux, the Indian Parliament passed the Information Technology (IT) Act 2000. The United Nations Commission on International Trade Law (UNCITRAL) Model Law set forth the ideation and formation of the IT Act.
Cyber Appellate Tribunal (CAT) was established under the IT Act 2000. CAT derived its power to exercise appellate jurisdiction over matters contesting the decisions or orders passed by the Controller of Certifying Authorities or the Adjudicating Officer from Section 48(1) of the IT Act 2000. Such authority was absolute in nature. As each tribunal was established with a notice in the official gazette, the CAT used to fall within the ambit of the Central Government. The matters and places in relation to which the CAT would exercise jurisdiction were too, decided by the Central Government. Although the CAT was established in 2000, for almost seven years it remained suspended as no Presiding Officer was appointed. It has been resurrected by merging it with the Telecom Disputes Settlement Appellate Tribunal (TDSAT) by the Finance Act 2017. Since the merger, all functions and jurisdiction of powers have been transferred to TDSAT.
Prior to the 2008 amendment, the tribunal consisted of only the Presiding Officer who was appointed by the Central Government by way of notification by the Central Government. The amendment renamed the Presiding Officer to Chairperson and gave the authority to the government to add two or three additional members to assist the Chairperson. However, the Finance Act 2017 repealed Section 49 as a result of which the composition is now prescribed by the Telecom Regulatory Authority of India Act 1997.
The appointment of the Controller of Certifying Authorities, Deputy and Assistant Controllers and members of the TDSAT are appointed by the Central Government. The Central Government also prescribes the qualifications, experience and terms and conditions of service of the mentioned posts.
Establishment of the Appellate Tribunal
The CAT was established under Section 48(1) of the Information Technology Act 2000[1]. This section authorised the Central Government to establish one or more CAT by notification in the official gazette. Since the implementation of the Finance Act 2017, the CAT merged with the TDSAT, which is established under Section 14 of the Telecom Regulatory Authority of India Act 1997.
Sub-section 2 empowers the Central Government to decide the matters and places upon which the TDSAT shall exercise jurisdiction. The provision results in limiting the jurisdiction of the TDSAT.
Composition of the Appellate Tribunal
The composition of the TDSAT consists of a Chairperson and not more than two members to be appointed by the Central Government, in consultation with the Chief Justice of India.[2] A judge or former judge of the Supreme Court or the Chief Justice of the High Court qualifies to become the Chairperson, and a Member can be anyone who has held the post of Secretary to the Government of India, or any equivalent post in the Central Government or the State Government for a minimum of two years, or a person who is an expert in the field of technology, telecommunication, industry, commerce or administration.[3]
Term of Office
The tenure of the Chairperson and other members is not more than three years from the date on which they enter upon their office or until the chairperson attains the age of seventy years, and for other members to attain sixty-five years of age, whichever is earlier.[4] In exceptional cases this tenure of the Chairperson can be extended by the Supreme Court.[5]
Powers of the Chairperson
The Chairperson shall have the same powers of general superintendence and directions as mentioned in the repealed section 52A of the IT Act 2000. In addition to heading the tribunal, exercising and discharging such powers and functions of the tribunal and shall discharge such other powers and functions as may be prescribed. The Chairperson can transfer cases to other benches upon with or without the application of any party to do so.[6] The Chairperson has the power to deliver the final decision in case of a dispute between a two member bench, by re-constituting a larger bench including the members who heard the case first.[7] However, the final decision depends upon the majority vote of the larger bench so constituted for the case.[8]
Powers and Functions of the Appellate Tribunal Under IT Act 2000
Since the merger of CAT and TDSAT, TDSAT(hereinafter referred to as Appellate Tribunal) exercises appellate jurisdiction in Cyber Matters mentioned in the IT Act 2000[9]. It is bound by the procedures and powers mentioned in the IT Act 2000 for matters pertaining to decisions or orders passed by the Controller of Certifying Authorities or the Adjudicating Officers.[10]
The IT Act 2000 provides immunity to any person appointed by the Central Government to the Appellate Tribunal from judicial review of such appointment.[11] Furthermore, any act or proceeding before an Appellate Tribunal cannot be questioned in any manner on the grounds of any defect in the constitution of the Appellate Tribunal. It may seem to be violating the established principles of law, namely judicial review. But such a provision preemptively protects the proceedings of an Appellate Tribunal from being terminated or slowed down on the grounds of questioning the competence of the court.
An Appellate Tribunal, although a civil court, is not bound by the Code of Civil Procedure 1908.[12] Instead, it follows the principle of natural justice.[13] The principle is based on the premise that each party must get an equal opportunity to be heard, produce relevant evidence and cross-examine the evidence of the opposition. An Appellate Tribunal has the authority to modulate its procedure including the place at which it shall have its sittings. Further, the Code of Civil Procedure shall only be followed in instances where no procedure has been laid down.
The functions propounded to an Appellate Tribunal under Section 58(2) of the IT Act 2000 establish the nature of quasi-judicial authority inherited by the tribunal. The Apex Court, in the case of State of Maharashtra V. Marwanjee P. Desai,[14] held that;
“Power of authority to summon witnesses, enforce their attendance, examine them on oath or require discovery and production of documents show the quasi-judicial nature of the proceedings before the authority.”
Further, clause (g) of sub-section 2 allows the Central Government to make rules regarding any other power of a civil court.
Section 58(3) brings an Appellate Tribunal within the ambit of section 193 and section 228 for the purposes of section 196 of the Indian Penal Code, 1860. The significance of this provision is that it brings an Appellate Tribunal to an equal stance with a civil court, thus giving the same judicial authority given to a civil court in deciding cases. Section 193 of the Indian Penal Code 1860 criminalises the act of intentionally giving false evidence during judicial proceedings, or in other words, commits perjury. Section 228 criminalises the act of insulting or causing interruption to any public servant during judicial proceedings. Acts, for example, impolite and abusive conduct, obstinacy, perverseness, deceitfulness, or refusal to address any lawful inquiry, breach of peace or any obstinate aggravation whatever, will amount to contempt of Court.[15] Section 196 criminalises the act of intentionally using such fabricated evidence or attempting to use, to be punished in the same manner as in Section 193 Indian Penal Code 1860.
The IT Act 2000 gives exclusive jurisdiction to the Appellate Tribunal over the matters mentioned within the Act. Section 61 does not affect the functioning or powers of an Appellate Tribunal but limits the powers of a Civil Court. This provision bars the civil courts from accepting cases on the matters mentioned in the IT Act 2000, thus providing exclusive jurisdiction to Appellate Tribunals over such matters.
It was held by the Supreme Court in Dhruv Green Field Ltd. v. Hukam Singh,[16] that;
“The jurisdiction of the courts to try all suits of civil nature is very expensive as is evident from the plain language of section 9, Civil Procedure Code, 1908. This is because of the principle ubi jus ibi remedium. It is only where cognizance of a specified type of suit is barred by a statute either expressly or impliedly that the jurisdiction of the civil court would be ousted to entertain such a suit. The general principle is that a statute excluding the jurisdiction of civil courts should be construed strictly”.
The legislative intent behind this provision is to solve the problem of overlapping jurisdiction of an Appellate Tribunal and a Civil Court on such matters. Appellate Tribunal having the same powers as vested in a Civil Court under the Code of Civil Procedure 1908 gives it proper judicial authority in deciding such matters and no other court at the same judicial level can have the same jurisdiction.
The IT Act 2000 upholds the principle of fair trial and the values constituted under Article 21 of the Indian Constitution by providing empowering a person by giving them a choice between either to appear in person or authorise one or more legal representatives before the Appellate Tribunal.[17]
Appeal
The IT Act provides that only matters in which any party is aggrieved by a decision or an order made by the Controller or Adjudicating Officer, may appeal before an Appellate Tribunal having jurisdiction in the matter[18]. Appeal refers to the transference of a case from an inferior to a higher court or tribunal, opposing a decision or order of a lower court.[19] The existence of a lower court and a higher court in direct relation to one another is essential for an appeal and the case should transfer from the lower to the higher court.[20]
The provision expands the scope right to appeal by providing for an unconditional right to appeal as “any” aggrieved can file a case. The term “any” includes the parties who were not the ‘original’ contesting parties. By reading it with the procedure laid down under Telecom Regulatory Authority of India Act 1997 and Rules made thereunder, the provisions allow for joint appeals against same or similar orders, by parties who are an “aggrieved party”. An appeal before an Appellate Tribunal is bound by the provision of the Limitations Act 1963 as was its predecessor (CAT).[21]
The Supreme Court opined in the case of Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba Suryavanshi[22] that;
“The established rule of limitation is that the law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the Statute…… the Limitation Act does not extinguish a defence, but only bars the remedy”.
An appeal can be filed within forty-five days from the date of receipt of the order from the Controller or Adjudicating Officer. In case the forty-five days has been violated, the court upon hearing the reasons, shall allow the appeal to go through provided that there is “sufficient cause”,[23] as stated under Section 5 of the Limitations Act 1963, for the delay. Following the principles of natural justice, each party gets an opportunity to state their points, upon hearing which the Appellate Tribunal shall pass an order retaining, amending or repealing the original order based on its judgement. A six month has been set by the IT Act as a benchmark for cases to be disposed but it is not enforceable.
An appellant is bound to follow the application format provided in the Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000 while filing an appeal before an Appellate Tribunal.
Further, persons aggrieved by the decisions or orders of an Appellate Tribunal may file an appeal in the High Court within sixty days from date of communication of such decision or order to the respective party.[24]
Compounding of Contraventions
Compounding of Contraventions refers to the admission of guilt towards a contravention or an offence. Under the IT Act, it refers to the admission of guilt by the Controller or other officers authorised by the Controller, for monetary compensation.[25] Chapter IX of the IT Act 2000 provides for the Penalties and Adjudications. To avoid confusion, this section is read with the aforementioned chapter(Section 43-45) as Chapter X itself is silent on the compoundable offences. The condition put for the legitimacy of its application is that the amount of the compensation cannot exceed the amount of the penalties mentioned under Chapter XI.
Repetition of the offence or committing an offence of similar nature is beyond the scope of Section 63(1) provided that the second occurrence occurred within three years from the date on which the first contravention, committed by the offender, was compounded.[26] The application of Section 63(1) is admissible in court only after three years, If, within those three years, another offence is committed, not of the same nature, the Act remains silent in such a scenario.
No proceedings or further proceedings can be taken against the person once the contravention is compounded.[27] The significance of this provision is that the aggrieved party has received some gratification, subjective to the case, which may result in an acquittal if such aggrieved party abstains from the prosecution.
Compensation and/or penalty can be recovered in the form of an arrear of land revenue or the electronic signature certificate.[28] Compensation is restriction to arrears in land revenue in case the convicted person is neither a Certifying Authority nor a subscriber of the Electronic Signature Certificate, which is subject to the State in which it is issued as it is a part of List II in the Seventh Schedule of the Constitution.
Conclusion
What used to be Cyber Appellate Tribunal under the Information Technology Act 2000, is now a prominent part of the Telecom Disputes Settlement & Appellate Tribunal under the Telecom Regulatory Authority Act of India 1997. The administration, functionality, powers, rules and procedures remain intact despite the transfer. However, the Telecom Disputes Settlement & Appellate Tribunal has the statutory authority to determine the correctness, lawfulness or propriety, yet it is bound by the IT Act 2000 to exercise appellate jurisdiction over matters mentioned in the IT Act 2000.
References:
[1] Sec. 48, Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[2] Sec. 14B, The Telecom Regulatory Authority of India, 1997, No. 24, Acts of Parliament, 1997
[3] Sec. 14C, The Telecom Regulatory Authority of India, 1997, No. 24, Acts of Parliament, 1997
[4] Sec. 5, The Telecom Regulatory Authority of India, 1997, No. 24, Acts of Parliament, 1997
[5] Supreme Court extends tenure of TDSAT chairperson, The Hindu, (July 17, 2020, 17:34 IST), https://www.thehindu.com/news/national/supreme-court-extends-tenure-of-tdsat-chairperson/article32114856.ece#
[6] Sec. 14J, The Telecom Regulatory Authority of India, 1997, No. 24, Acts of Parliament, 1997
[7] Sec 14K, The Telecom Regulatory Authority of India, 1997, No. 24, Acts of Parliament, 1997
[8] Sec 52D, Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[9] https://tdsat.gov.in/admin/introduction/uploads/TDSAT%20INTRO.pdf
[10] Sec. 58, Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[11] Sec. 55, Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[12] Sec. 58, Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[13] Union Of India Vs. T.R. Verma, AlR 1957 SC 882: 1958 42. Cellular Operators Association SCJ 142 1958 SCR 499
[14] (2002) 2 SCC 318: AlR 2002 SC 456: 2001 AIR SCW 5076.
[15] Ratanlal & Dhirajlal, The Indian Penal Code, 28th Edn., 2002, p 292
[16] (2002) 6 SCC 416: AIR 2002 SC 2841 : 2002 AIR SCW 3227.
[17] Sec 59, Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[18] Sec. 57(1), Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[19] The ‘New Oxford Dictionary of English, Oxford University Press, Indian Edition, 2000.
[20] Chappan V. Moidin Kutti (1899) ILR 22 Mad 68:8 Mad LJ 231 (FB).
[21] Sec. 60,Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[22] AIR 2002 SC 960 : 2002 AIR SCW 659 : (2002) 3 SCC 676
[23] Vedabai Vs. Shantaram Baburao Patil (2001) 9 SCC 106: AlR 2001 SC 2582: 2001 AIR SCW 2809.
[24] Sec. 62, Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[25] Sec. 63(1), Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[26] Sec. 63(2), Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[27] Sec. 63(3), Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
[28] Sec. 64, Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)
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