An Analysis of the Cases Filed under Section 46 of the Information Technology Ac

t, 2000 for Adjudication in the State of Maharashtra

This is a brief review of some of the cases related to privacy filed under secti
on 46 of the Information Technology Act, 2000 ("the Act") seeking adjudication f
or alleged contraventions of the Act in the State of Maharashtra.
Background
Section 46 of the Act grants the Central Government the power to appoint an adju
dicating officer to hold an enquiry to adjudge, upon complaints being filed befo
re that adjudicating officer, contraventions of the Act. The adjudicating office
r may be of the Central Government or of the State Government [see section 46(1)
of the Act], must have field experience with information technology and law [se
e section 46(3) of the Act] and exercises jurisdiction over claims for damages u
p to `5,00,00,000 [see section 46(1A) of the Act]. For the purpose of adjudicati
on, the officer is vested with certain powers of a civil court [see section 46(5
) of the Act] and must follow basic principles of natural justice while conducti
ng adjudications [see section 46(2) of the Act]. Hence, the adjudicating officer
appointed under section 46 is a quasi-judicial authority.
In addition, the quasi-judicial adjudicating officer may impose penalties, there
by vesting him with some of the powers of a criminal court [see section 46(2) of
the Act], and award compensation, the quantum of which is to be determined afte
r taking into account factors including unfair advantage, loss and repeat offenc
es [see section 47 of the Act]. The adjudicating officer may impose penalties fo
r any of the offences described in section 43, section 44 and section 45 of the
Act; and, further, may award compensation for losses suffered as a result of con
traventions of section 43 and section 43A. The text of these sections is reprodu
ced in the Schedule below. Further law as to the appointment of the adjudicating
officer and the procedure attendant on all adjudications was made by Informatio
n Technology (Qualification and Experience of Adjudicating Officers and the Mann
er of Holding Enquiry) Rules, 2003.[1]
It is clear that the adjudicating officer is vested with significant judicial po
wers, including the power to enforce certain criminal penalties, and is an impor
tant quasi-judicial authority.
Excursus
At the outset, it is important to understand the distinction between compensatio
n and damages. Compensation is a sum of money awarded by a civil court, before o
r along with the primary decree, to indemnify a person for injury or loss. It is
usually awarded to a person who has a suffered a monetary loss as a result of t
he acts or omissions of another party. Its quantification is usually guided by p
rinciples of equity. [See Shantilal Mangaldas AIR 1969 SC 634 and Ranbir Kumar A
rora AIR 1983 P&H 431]. On the hand, damages are punitive and, in addition to re
storing an indemnitee to wholeness, may be imposed to deter an offender, punish
exemplary offences, and recover consequential losses, amongst other objectives.
Damages that are punitive, while not judicially popular in India, are usually im
posed by a criminal court in common law jurisdictions. They are distinct from ci
vil and equitable actions. [See the seminal case of The Owners of the Steamship
Mediana [1900] AC 113 (HL)].
Unfortunately, section 46 of the Act uses the terms damage , injury and compensation
terchangeably without regard for the long and rich jurisprudence that finds them
to be different concepts.
The Cases related to Privacy
In the State of Maharashtra, there have been a total of 47 cases filed under sec
tion 46 of the Act. Of these, 33 cases have been disposed of by the Adjudicating
Officer and 14 are currently pending disposal. [2] At least three of these case
s before the Adjudicating Officer deal with issues related to privacy of communi
cations and personal data. They are:
Case Title
Forum Date
Vinod Kaushik v. Madhvika Joshi Shri Rajesh Aggarwal
Adjudicating Officer, ex-officio Secretary, IT
Government of Maharashtra
10.10.2011
Amit D. Patwardhan v. Rud India Chains Shri Rajesh Aggarwal

in

Adjudicating Officer, ex-officio

Secretary, IT
Government of Maharashtra
15.04.2013
Nirmalkumar Bagherwal v. Minal Bagherwal
Shri Rajesh Aggarwal
Adjudicating Officer, ex-officio Secretary, IT
Government of Maharashtra
26.08.2013
In all three cases the Adjudicating Officer was called upon to determine and pen
alise unauthorised access to personal data of the complainants. In the Vinod Kau
shik case, the complainants emails and chat sessions were accessed, copied and ma
de available to the police for legal proceedings without the permission of the c
omplainants. In the Amit Patwardhan and Nirmalkumar Bagherwal cases, the complai
nants financial information in the form of bank account statements were obtained
from their respective banks without their consent and used against them in legal
proceedings.
The Vinod Kaushik complaint was filed in 2010 for privacy violations committed b
etween 2008 and 2009. The complaint was made against the complainant s daughter-in
-law the respondent, who was estranged from her husband, the complainant s son. Th
e respondent had, independent of the proceedings before the Adjudicating Officer
, instituted criminal proceedings alleging cruelty and dowry-related harassment
against her estranged husband and the complainant. To support some of the claims
made in the criminal proceedings, the respondent accessed the email accounts of
her estranged husband and the complainant and printed copies of certain communi
cations, both emails and chat transcripts. The complaint to the Adjudicating Off
icer was made in relation to these emails and chat transcripts that were obtaine
d without the consent and knowledge of the complainant and his son. On 09.08.201
0, the then Adjudicating Officer dismissed the complaint after finding that, owi
ng to the marriage between the respondent and the complainant s son, there was a r
elation of mutual trust between them that resulted in the complainant and his so
n consensually sharing their email account passwords with the respondent. This r
uling was appealed to the Cyber Appellate Tribunal ("CyAT") which, in a decision
of 29.06.2011, found irregularities in the complainant s son s privity to the proce
edings and remanded the complaint to the Adjudicating Officer for re-adjudicatio
n. The re-adjudication, which was conducted by Shri Rajesh Aggarwal as Adjudicat
ing Officer, resulted in a final order of 10.10.2011 ("the final order") that is
the subject of this analysis. The final order found that the respondent had vio
lated the privacy of the complainant and his son by her unauthorised access of t
heir email accounts and sharing of their private communications. However, the Ad
judicating Officer found that the intent of the unauthorised access
to obtain ev
idence to support a criminal proceeding was mitigatory and hence ordered the res
pondent to pay only a small token amount in compensation, not to the complainant
s but instead to the State Treasury. The Delhi High Court, which was moved in ap
peal because the CyAT was non-functional, upheld the final order in its decision
of 27.01.2012.
The Amit Patwardhan complaint was filed against the complainant s ex-employer
the
respondent, for illegally obtaining copies of the complainant s bank account state
ment. The complainant had left the employ of the respondent to work with a compe
ting business company but not before colluding with the competing business compa
ny and diverting the respondent s customers to them. For redress, the respondent f
iled suit for a decree of compensation and lead the complainant s bank statements
in evidence to prove unlawful gratification. Since the bank statements were obta
ined electronically by the respondent without the complainant s consent, the juris
diction of the Adjudicating Officer was invoked. In his order of 15.04.2013, Shr
i Rajesh Aggarwal, the Adjudicating Officer, found that the respondent had, by u
nlawfully obtaining the complainant s bank account statements which constitute sen
sitive personal data, violated the complainant s privacy. The Adjudicating Officer
astutely applied the equitable doctrine of clean hands to deny compensation to
the complainant; however, because the complainant s bank was not a party to the co
mplaint, the Adjudicating Officer was unable to make a ruling on the lack of act
ion by the bank to protect the sensitive personal data of its depositors.
The Nirmalkumar Bagherwal complaint bears a few similarities to the preceding tw

o cases. Like the Vinod Kaushik matter, the issue concerned the manner in which
a wife, estranged but still legally married, accessed electronic records of pers
onal data of the complainants; and, like the Amit Patwardhan matter, the object
of the privacy violation was the bank account statements of the complainants tha
t constitute sensitive personal data. The respondent was the estranged wife of o
ne of the complainants who, along with his complainant father, managed the third
complainant company. To support her claim for maintenance from the complainant
and his family in an independent legal proceeding, the respondent obtained certa
in bank account statements of the complainants without their consent and, possib
ly, with the collusion of the respondent bank. After reviewing relevant law from
the European Union and the United States, and observant of relevant sectoral re
gulations applicable in India including the relevant Master Circular of the Rese
rve Bank of India, and further noting preceding consumer case law on the subject
, the Adjudicating Officer issued an order on 26.08.2013. The order found that t
he complainant s right to privacy was violated by both the respondents but, while
determining the quantum of compensation, distinguished between the respondents i
n respect of the degree of liability; the respondent wife was ordered to pay a t
oken compensation amount while the respondent bank was ordered to pay higher com
pensation to each of the three complainants individually.
The high quality of each of the three orders bears specific mention. Despite the
superb quality of the judgments of the Indian higher judiciary in the decades a
fter independence, the overall quality of judgment-writing appears to have decli
ned. [3] In the last decade, several Indian judges have called for higher standa
rds of judgment writing from their fellow judges. [4] In this background, it is
notable that Shri Rajesh Aggarwal, despite not being a member of the judiciary,
has delivered well-reasoned, articulate and clear orders that are cognisant of l
egal issues and also easily understandable to a non-legal reader.
In each of these cases, the Adjudicating Officer has successfully navigated arou
nd the fact that none of the primary parties were interacting and transacting at
arm s length. In the Vinod Kaushik and Nirmalkumar Bagherwal matters, the primary
parties were estranged but still legally married partners and in the Amit Patwa
rdhan matter the parties were in an employer-employee relationship. The first Ad
judicating Officer in the Vinod Kaushik matter failed, in his order of 09.08.201
0, to appreciate that the individual communications of individual persons were p
rivileged by an expectation of privacy, regardless of their relationship. Hence,
despite acknowledging that the marital partners in that matter were in conflict
with each other, and despite being told by one party that the other party s acces
s to those private communications was made without consent, the Adjudicating Off
icer allowed his non-judicial opinion of marriage to influence his order. This m
istake was corrected when the matter was remanded for re-adjudication. In the re
-adjudication, the new Adjudicating Officer correctly noted that the respondent
wife could have chosen to approach the police or a court to follow the proper in
vestigative procedure for accessing emails and other private communications of a
nother person and that her unauthorised use of the complainant s passwords amounte
d to a violation of their privacy.
Popular conceptions of different types of relationships may affect the (quasi) j
udicial imagination of privacy. In comparison to the Vinod Kaushik matter, the N
irmalkumar Bagherwal and Amit Patwardhan matters both dealt with unauthorised ac
cess to bank account statements, by a wife and by an ex-employer respectively. I
n any event, the same Adjudicating Officer presided over all three matters and c
orrectly found that the facts in all three matters admitted to contraventions of
the privacy of the complainants. The conjecture as to whether the first Adjudic
ating Officer in the Vinod Kaushik matter would have applied the same standard o
f family unity to unauthorised access of bank account statements by an estranged
wife who was seeking maintenance remains untested. However, the reliance placed
on the decision of the Delhi State Consumer Protection Commission in the matter
of Rupa Mahajan Pahwa, [5] where the Commission found that unauthorised access
to a bank pass book by an estranged husband violated the privacy of the wife, wo
uld suggest that judges clothe financial information with a standard of privacy
higher than that given to emails.

Emails are a form of electronic communication. The PUCL case (Supreme Court of I
ndia, 1996)[6] while it did not explicitly deal with the standard of protection
accorded to emails, held that personal communications were protected by an indiv
idual right to privacy that emanated from the protection of personal liberty gua
ranteed under Article 21 of the Constitution of India. Following the Maneka Gand
hi case (Supreme Court of India, 1978)[7]
it is settled that persons may be deprived of their personal liberty only by a j
ust, fair and reasonable procedure established by law. As a result, interception
s of private communications that are protected by Article 21 may only be conduct
ed in pursuance of such a procedure. This procedure exists in the form of the In
formation Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009 that came into effect on 27 October 2009
("the Interception Rules"). The Interception Rules set out a regime for accessin
g private emails in certain conditions. The powers and procedure of Section 91 o
f the Code of Criminal Procedure ("CrPC") may also apply to obtain data at rest,
such as emails stored in an inbox or sent-mail folder.
Finally, the orders of the Adjudicating Officer reveal a well-reasoned and progr
essive understanding of the law and principles relating to the quantification of
compensation. By choosing to impose larger amounts of compensation on the bank
that violated the privacy of the complainant in the Nirmalkumar Bagherwal matter
, the Adjudicating Officer has indicated that the institutions that hold sensiti
ve personal data, such as financial information, are subject to a higher duty of
care in relation of it. But, most importantly, the act of imposing monetary com
pensation of privacy violations is a step forward because, for the first time in
India, it recognises that privacy violations are civil wrongs or injuries that
demand compensation.
________________________________________
[1]. These Rules were issued vide GSR 220(E), dated 17 March 2003 and published
in the Gazette of India, Extraordinary, Part II, Section 3(i). These Rules can b
http://it.maharashtra.gov.in/PDF/Qual_ExpAdjudicatingOfficer_Man
e accessed here
ner_of_Holding_Enquiry_Rules.PDF (visited on 30 September 2013).
[2]. These cases and statistics may be viewed here http://it.maharashtra.gov.in/
1089/IT-Act-Judgements (visited on 30 September 2013).
[3]. See generally, Upendra Baxi "The Fair Name of Justice": The Memorable Voyage
of Chief Justice Chandrachud in A Chandrachud Reader (Justice V. S. Deshpande ed
., Delhi: Documentation Centre etc., 1985) and, Rajeev Dhavan, "Judging the Judg
es" in Judges and the Judicial Power: Essays in Honour of Justice V. R. Krishna
Iyer (Rajeev Dhavan and Salman Khurshid eds., London: Sweet & Maxwell, 1985).
[4]. See generally, Justice B.G .Harindranath, Art of Writing Judgments (Bangalo
re: Karnataka Judicial Academy, 2004); Justice T .S. Sivagnanam, The Salient Fea
tures of the Art of Writing Orders and Judgments (Chennai: Tamil Nadu State Judi
cial Academy, 2010); and, Justice Sunil Ambwani, Writing Judgments: Comparative M
odels Presentation at the National Judicial Academy, Bhopal (2006) available here
http://districtcourtallahabad.up.nic.in/articles/writing%20judgment.pdf (visite
d on 29 Sep 2013).
[5]. Appeal No. FA-2008/659 of the Delhi State Consumer Protection Commission, d
ecided on 16 October 2008.
[6]. (1997) 1 SCC 301.
[7]. (1978) 1 SCC 248.