THE SECOND SCHEDULE  

(See section 91)

AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872

(1 OF 1872)

When oral admission as to contents of electronic records ale relevant

1. In section 3,—

(a) in the definition of "Evidence", for the words "all documents 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, 1999;

2. In section 17, for the words "oral or documentary,", the words "oral or documentary or contained in electronic format shall be substituted.

3. After section 22, the following section shall be inserted, namely:—

"22A. Oral admissions as to the 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.

Admissibility of electronic records.

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

What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.

6. For section 39, the following section shall be substituted, namely:—

"39. When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, 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

 _INFORMATION TECHONOLOGY ACT 2000    THE INFORMATION TECHNOLOGY ACT, 2000 ARRANGEMENT OF CLAUSES CHAPTER I

PRELIMINARY CLAUSES 1. Short title, extent, commencement and application. 2. Definitions CHAPTER II DIGITAL SIGNATURE 3. Authentication of electronic records. CHAPTER III ELECTRONIC GOVERNANCE 4. Legal recognition of electronic records. 5. Legal recognition of digital signatures. 6. Use of electronic records and digital signatures in the Government and its agencies. 7. Retention of electronic records. 8. Publication of rules, regulation, etc., in Electronic Gazette. 9. Sections 6, 7 and 8 not to confer right to insist document should be accepted in electronic form. 10. Power to make rules by Central Government in respect of digital signature. CHAPTER IV ATTRIBUTION, ACKNOWLEDGMENT AND DISPATCH OF ELECTRONIC RECORDS 11. Attribution of electronic records. 12. Acknowledgment of receipt. 13. Time and place of dispatch and receipt of electronic record. CHAPTER V SECURE ELECTRONIC RECORDS AND SECURE DIGITAL SIGNATURES 14. Secure electronic record. 15. Secure digital signature. 16. Security procedure. CHAPTER VI REGULATION OF CERTIFYING AUTHORITIES 17. Appointment of Controller and other officers. 18. Functions of Controller. 19. Recognition of foreign Certifying Authorities. 20. Controller to act as repository. 21. Licence to issue Digital Signature Certificates; 22. Application for licence. 23. Renewal of licence. CLAUSES 24. Procedure for grant or rejection of licence. 25. Suspension of licence. 26. Notice of suspension or revocation of licence. 27. Power to delegate. 28. Power to investigate contraventions. 29. Access to computers and data. 30. Certifying Authority to follow certain procedures. 31. Certifying Authority to ensure compliance of the Act, etc. 32. Display of licence. 33. Surrender of licence. 34. Disclosure. CHAPTER VII DIGITAL SIGNATURE CERTIFICATES 35. Certifying Authority to issue Digital Signature Certificate. 36. Representations upon issuance of Digital Signature Certificate. 37. Suspension of Digital Signature Certificate. 38. Revocation of Digital Signature Certificate. 39. Notice of suspension or revocation. CHAPTER VIII

DUTIES OF SUBSCRIBERS 40. Generating key pair. 41. Acceptance of Digital Signature Certificate. 42. Control of private key. CHAPTER IX PENALTIES AND ADJUDICATION 43. Penalty for damage to computer and computer system, etc.

44. Penalty for failure to furnish information, return, etc. 45. Residuary penalty. 46. Power to adjudicate. 47. Factors to be taken into account by the adjudicating officer. CHAPTER X CYBER REGULATIONS APPELLATE TRIBUNAL 48. Establishment of Cyber Appellate Tribunal. 49. Composition of Cyber Appellate Tribunal. 50. Qualifications for appointment as Presiding Officer of the Cyber Appellate Tribunal. 51. Term of office. 52. Salary, allowances and other terms and conditions of service of Presiding Officer. 53. Filling up of vacancies. 54. Resignation and removal. 55. Orders constituting Appellate Tribunal to be final and not to invalidate its proceedings. 56. Staff of the Cyber Appellate Tribunal. 57. Appeal to Cyber Regulations Appellate Tribunal. CLAUSES 58. Procedure and powe 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 stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the 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 human 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, if duly supplied to that computer, shall be taken to be supplied to it in the course of 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;

Proof as to digital signature

10.After section 67, the following section shall be inserted, namely:—

"67A. Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged o have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.".

Proof as to verification of digital signatures

11. After section 73, the following section shall be inserted, namely:—

"73A. 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 (/) of section 17 of the Information Technology Act, 1999.

Presumption as to Gazettes in electronic form

12. After section 81, the following section shall be inserted, namely:—

"81A. 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 any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.".

Presumption as to Gazettes in electronic agreements

13. After section 85, the following sections shall be inserted, namely:—

"85A. 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.

Presumption as to electronic records and digital signatures

85B. (1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving 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.

Presumption as to electronic messages

85C. 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."

4. After section 88, the following section shall be inserted, namely:—

Presumption as to electronic messages

'88A. The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee 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 expressions "addressee" and "originator" shall have the same meanings respectively assigned to them in clauses (b) and (z) of sub-section (/) of section 2 of the Information Technology Act, 1999.

Presumption as to electronic records five year old

15. After section 90, the following section shall be inserted, namely:—

"90A. 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 AQ him in 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 an origin probable.

This Explanation applies also to section 81A.".

Production of documents or electronic records which another person having posession, could refuse to produce

16. For section 131, the following section shall be substituted, namely:—

"131. 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 were in his possession or control, unless such last- mentioned 50 person consents to their production.".