Information Technology ACT-2000 [PART II]

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 and Assistant Controllers 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 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 and Assistant Controller shall be such as may be prescribed by the Central Government.

(5) The Head Office and Branch Officer of the officer 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 function, namely:- (a) exercising supervision over the activities of Certifying Authorities;

(b) certifying public keys of the Certifying Authorities;

(c) laying down the standards to be maintained by Certifying Authorities;

(d) specifying the qualifications and experience which employees of the Certifying Authorities should possess;

(e) specifying the conditions subject to which the Certifying Authority 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 Digital Signature Certificate and the public key;

(g) specifying the form and content of a Digital Signature Certificate and the key;

(h) specifying the form the 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 system;

(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 ever 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 Certifying Authority as a Certifying Authority for the purposes of this Act.

(2) Where any Certifying Authority is recognised under sub-section (1), the Digital 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. – (1) The Controller shall be the repository of all Digital Signature Certificates issued under this Act.

(2) The Counter shall- (a) make use of hardware, software and procedures that are secure from intrusion and misuse;

(b) observe such other standards as may be prescribed by the Central Government.

To ensure that the secrecy and security of the digital signatures are assured.

(3) The Controller shall maintain a computerised data-base of all public keys in such a manner that such database and the public keys are available to any member of the public.

 

21. Licence tissue Digital 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 Digital Signature Certificates.

(2) No licence shall be issued under sub-section (1), unless the applicant fulfills such requirements with respect to qualification, expertise, manpower, financial resources and other infrastructure facilities, which are necessary to issue Digital 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 factor, 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 standards specified under clause

(b) of sub-section (2) of section 20;

 

(d) contravened any provisions of this Act, rule, regulations or order made 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 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:

 

26. Notice of suspension 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 database maintained by him.

(2) Where one or more repositories are specified, the Controller shall publish notices of such repositories:

Provided that the database 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 database in such electronic or other media, as the may consider appropriate.

27. Power to delegate – The Controller may, in writing, authorise the Deputy Controller, Assistant Controller or any officer to Controller may, in writing, authorise the Deputy Controller, Assistant Controller or any officer to exercise any of the provisions of this Act, rules or regulations made thereunder.

 

28. Power to investigate contraventions. – (1) The Controller or any officer authrised 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 68, the Controller or any person authorised by him shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made thereunder their 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 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 incharge 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 the 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 digital signatures are assured; and

(d) observe such other standards as may be specified by regulations.

 

 

 

 

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 offences and shall be punished with imprisonment which may extend upto six months or a fire which may extend upto ten thousand rupees or with both

 

34. Disclosure. – (1) Every Certifying Authority shall disclose in the manner specified by regulations.- (a) Its Digital Signature Certificate which contains the public key corresponding to the private key used by that Certifying Authority to digitally sign another Digital Signature Certificate;

(b) and 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 Digital 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 Digital 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.

Information Technology Act, 2000 [PART IV]

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 any police officer, not below the rank of a Deputy Superintendent of Police or any other officer of the Central Government or a State Government auithorised by the Central Government in this behalf may enter any public place and search and 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 sent the person arrest 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 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 consistent therewith contained in any other law for the time being in force.

82. Controller, Deputy Controller and Assistant Controllers to be public servants. – The Presiding Officer and other officer and employees of a Cyber appellate Tribunal, 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, the Presiding Officer , adjudicating officers and the staff of the Cyber Appellate Tribunal 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

 

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- (a) “company” means and body corporate and includes a firm or other association of individuals; and

(b) “directors”, 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;

Provide 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 matter, namely:- (a) the manner in which any information or matter may be authenticated by means of digital 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;

(d) the matters relating to the type of digital signature, manner and format in which it may be affixed under section 10;

(e) the security procedure for the purpose of creating secure electronic record and secure digital signature under section 16;

(f) the qualifications, experience and terms and conditions of service of controller, Deputy Controllers and Assistant Controller under section 17;

(g) other standards to be observed by the Controller under clause (b) of sub-section (2) of section 20;

(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 22;

(k) the amount of fees payable under clause (c)of sub-section (2)o 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;

(n) the amount of late fee payable under the proviso to section 23;

(o) the form in which application for issue of a Digital Signature Certificate my be made under sub-section (1) of section35;

(p) the fee to be paid to the Certifying Authority for issue of a Digital Signature Certificate under sub-section (2) of section 35;

(q) the manner in which the adjudicating officer shall hold inquiry under sub-section (1) of section 46;

(r) the qualification and experience which the adjudicating officer shall possess under sub-section (2) of section 46;

(s) the salary, allowances and the other terms and conditions of service of the Presiding Officer under section 52;

(t) the procedure for investigation of misbehaviour or incapacity of the Presiding Officer under sub-section (3) of section 54;

(u) the salary and allowances and other conditions of service of other officers and employees under sub-section (3) of section 56;

(v) the form in which appeal may be filed and the fee thereof under sub-section (3) of section 57;

(w) any other power of a civil court required to be prescribed under clause (g) of sub-section (2) of section 58; and

(x) any other matter which is required to be, or may be, prescribed.

(3) Every notification made by the Central Government under clause (f) of sub-section (4) of section 1 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 session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or the rule or both Houses agree that the notification or the rule should not be made, the notification or 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 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 principal 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.

(4) There shall be paid to the non-official members of such Committee such traveling 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 (m) of section 18;

(b) the conditions and restrictions subject to which the Controller may recoginse 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 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 communicate the compromise of private key to the Certifying Authority under sub-section (2) of section 42.

(3) Every regulations 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;

(c) any other matter which is required to be provided by rules by the State Government.

(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.-

The Indian Penal Code shall be amended in the manner specified in the First Schedule to this Act

92. Amendment of Act 1 of 1872. – The Indian Evidence Act, 1872 shall be amended in the manner specified in the Second Schedule to this Act.

93. Amendment of Act 18 of 1891.- The Bankers’ Books Evidence Act, 1891 shall be amended in the manner specified in the Third Schedule to this Act.

94. Amendment of Act 2 of 1934.- The Reserve Bank of India Act, 1934 shall be amended in the manner specified in the Fourth Schedule to this Act.

 CHAPTER XII .

 Network service providers not to be liable in certain cases

79. Network service providers not to be liable in certain cases. – For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence for contravention.

Explanation-For the purposes of this section,- (a) “network service provider” means an intermediary;

(b) “third party information” means any information dealt with by a network service provider in his capacity as an intermediary.

 

 

 

 

Information Technology Act, 2000 [SCHEDULES]

THE FIRST SCHEDULE

AMENDMENTS TO THE INDIAN PENAL CODE

1. After section 29, the following section shall be inserted, namely:- “29 A. Electronic record.- The words “electronic record” shall have the meaning assigned to them in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000″.

2. In section 167, for the words “such public servant, charged with the preparation or translation of any document, frames or translates that document”, the words “such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record” shall be substituted.

 

3. In section 172, for the words “produce a document in a Court of Justice”, the words “produce a document or an electronic record in a court of Justice” shall be substituted.

4. In section 173, for the words “to produce a document in a Court of Justice” , the words “to produce a document or electronic record in Court of Justice” shall be substituted.

5. In section 175, for the word “document” at both the places where it occurs, the words “document or electronic record” shall be substituted.

6. In section 192, for the words “makes any false entry in any book or record, or makes any document containing a false statement”, the words “makes any false entry in any book or record, or electronic record or makes any document or electronic recording containing a false statement ” shall be substituted.

7. In section 204, for the word “document” at both the places where it occurs, the words “document or electronic record” shall be substituted.

8. In section 463, for the words “Whoever makes any false documents or part of a document with intent to cause damage or injury”, the words “Whoever makes any false documents or false electronic record or party of a document or electronic record, with intent to cause damage or injury” shall be substituted.

9. In section 464,- (a) for the portion beginning with the words “A person is said to make a false document” and ending with the words “by reason of deception practised upon him, he does not know the contents of the documents or the nature of the alteration”, the following shall be substituted, namely:-

(a) makes, sign, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any digital signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority or a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

Secondly-who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

Thirdly:- Who dishonestly or fraudulently causes any person, sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration”.

(b) after Explanation 2, the following Explanation shall be inserted at the end, namely:-

‘Explantion 3.- For the purposes of this section, the expression “affixing digital signature’ shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information Technology Act, 2000.

10. In section 466,- (a) for the words “Whoever forges a document”, the words “Whoever forges a document or an electronic record” shall be substituted.

(b) the following Explanation shall be inserted at the end, namely:-

Explanation-For the purposes of this section, “register” includes any list, data or record of nay entries maintained in the electronic for as defined in clause ( r) of sub-section (1) of section2 of the Information Technology Act, 2000.

11. In section 468, for the words “document forged” , the words “document or electronic record forged” shall be substituted.

12. In section 469, for the words “intending that the document forged”, the words “intending that the document or electronic record forge” shall be substituted.

13. In section 470, for the word “document” in both the places where it occurs, the words “document or electronic record” shall be substituted.

14. In section 471, for the word “document” whenever it occurs, the words “document or electronic record” shall be substituted

15. In section 474, for the portion beginning with the words “Whoever has in his possession any document” and ending with the words ” if the document is one of the description mentioned in section 466 of this Code” the following shall be substitute, namely:-

“Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as a genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code.”

16. In section 476, for the words ” any document”, the words “any document or electronic record” shall be substituted.

17. In section 477a, for the words “book, paper, writing” at both the places where they occur, the words “book, electronic record, paper, writing ” shall be substituted.

THE SECOND SCHEDULE

AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872

 

1. In section 3,-

(a) in the definition of “Evidence’, for the words “all document produced for the inspection of the Court”, the words “all documents including electronic records produced for the inspection of the Court” shall be substituted ;

(b) after the definition of “India, the following shall be inserted, namely:-

‘the expressions “Certifying Authority”, digital signature”, “Digital Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber’ shall have the meanings respectively assigned to them in the Information Technology Act, 2000.

2. IN section 17, for the words “oral or documentary,” words “oral or documentary or contained in electronic form’ shall be substituted.

3. After section 22, the following section shall be inserted, namely:- “22A”. When oral admission as to contents of electronic records are relevant.-

Oral admission as to contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question”.

4. In section 34, for the words “Entries in the books of account”, the words “Entries in the books of account, including those maintained in an electronic form” shall be substituted.

5. In section 35, for the word “record”, in both the places where it occurs, the words “record or an electronic record” shall be substituted.

6. For section 39, the following section shall be substituted, namely:- “39. What evidence to be given when statement forms part of a conversation, documents, electronic record, book or series of letters or papers.-When any statement of which evidence is given forms part of longer statement, or of a conversation or part of an isolated documents, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.”

7. After section 47, the following section shall be inserted, namely:- “47A. Opinion as to digital signature when relevant.- When the court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the digital signature Certificate is a relevant fact”

8. In section 59, for the words “contents of documents “the words” contents of documents or electronic records” shall be substituted.

9. After section 65, the following shall be inserted, namely:- “65A. Special provisions as to evidence relating to electronic record.-the contents of electronic records may be proved in accordance with the provisions of section 65B.

65B. Admissibility of electronic records.-(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copies in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not; then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents;

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that the period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or

(b) by different computer operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting single computer, and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say- (a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter sufficient for a matter to be stated to the best of knowledge and belief of the person stating it.

(5) For the purposes of this section,- (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, in duly supplied to that computer shall be taken to be supplied to it those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process;

10. After section 67, the following section shall be inserted , namely:- “67. Proof as to digital signature.- Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.’

11. After section 73, the following section shall be inserted, namely:- “73A. Proof as to verification of digital signature.-In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct-

(a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;

(b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.”

Explanation .-For the purposes of this section, “Controller” means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000.”

12. After section 81, the following section shall be inserted, namely:- “81A. Presumption as to Gazettes in electronic forms.-The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.”

13. After section 85, the following sections shall be inserted, namely:- “85A. Presumption as to electronic agreements.- The court shall presume that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties.

“85B. Presumption as to electronic records and digital signatures.-(1) IN any proceedings involving a secure digital signature, the Court shall presume unless the contrary is proved that-

(a) the secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure digital signature, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any digital signature.

85C. Presumption as to Digital Signature Certificates.-The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber .”

14. After section 88, the following section shall be inserted, namely:- “88A. Presumption as to electronic messages.- The Court may presume that b electronic message forwarded by the originator through an electronic mail server to the addresses to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.”

Explanation.-for the purposes of this section, the expression “addressee’ and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the information Technology Act, 2000.”

15. After section 90, the following section shall be inserted, namely:- “90 A. . Presumption as to electronic records five years old.-where any electronic record, purporting or proved to be five years old, is produced from any custody which the court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him this behalf.

Explanation.-Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such and origin probable.

16. For section 131 the following section shall be substituted, namely:- 131. Production of documents or electronic records which another person, having possession, could refuse to produce.- No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they wer in his possessions or control, unless such last-mentioned person consents to their production.”

 

THE THIRD SCHEDULE

AMENDMENTS TO THE BANKERS’ BOOKS EVIDENCE ACT,1891

1. In section2,- (a) for clause (3), the following clause shall be substituted, namely:- (3) “bankers” books “include ledgers, day-books, accounts-books and all other books used in the ordinary business of a bank whether kept in the written form or as printouts of date stored in floppy, disc, tape or any other form of electro-magnetic data storage device:

(b) for clause (8), the following clause shall be substituted, namely:- (8) “certified copy” means when the books of a bank,-

(a) are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscriber by the principal accountant or manger of the bank with his name and official title; and

(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2A;

2. After section 2, the following section shall be inserted, namely:- “2A”.Conditions in the printout.-A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely:-

(a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and

(b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of-

(A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised person;

(B) the safeguards adopted to prevent and detect unauthorised change of data;

(C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons;

(D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices;

(E) the mode of verification in order to ensure that data has been accurately transferred to such removable media;

(F) the mode of identification of such data storage devices;

(G) the arrangements for the storage and custody of such storage devices;

(H) the safeguards to prevent and detect any tampering with the system; and

(I) any other factor which will vouch for the integrity and accuracy of the system.

(c) a further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.”

THE FOURTH SCHEDULE

AMENDMENT TO THE RESERVE BANK OF INDIA ACT, 1934

 

In the Reserve Bank of India Act, 1934 in section 58, in sub-section (2), after clause (p), the following clause shall be inserted, namely:- “(pp) the regulation of fund transfer through electronic means between the banks or between the banks and other financial institution referred to in clause (c) of section 45-I, including the laying down of the conditions subject to which banks and other financial institutions shall participate in such fund transfers, the manner of such fund transfers and the rights and obligations of the participants in such fund transfers