The Controller's Powers of Investigation

In one line

The Controller can investigate any contravention of the Act with the powers of an income-tax authority, can walk into a computer system on reasonable suspicion, and can order a Certifying Authority to do or stop doing anything the Act requires.

In the wording a student can write in an exam: section 28 of the Information Technology Act, 2000 requires the Controller or an officer authorised by him to take up for investigation any contravention of the Act, rules or regulations and confers on him the powers of income-tax authorities under Chapter XIII of the Income-tax Act, 1961 subject to the limitations of that Act; section 29 gives the Controller or a person authorised by him access to any computer system, apparatus, data or connected material on reasonable cause to suspect a contravention of Chapter VI, and empowers him to direct the person in charge to provide reasonable technical and other assistance; and section 68 empowers the Controller to direct a Certifying Authority or its employee to take measures or cease activities specified in an order, non-compliance being an offence.

Why these powers exist

Because a licence is worth nothing if nobody looks. Chapter 430 works the grant of a licence and chapter 450 the duties that attach to it. Every one of those duties is a statement about how the Authority operates internally, and none of them can be verified from outside.

And because the Controller's supervisory function under section 18(a) needs teeth. A power to supervise without a power to investigate is an exhortation.

Section 28: the power to investigate

Section 28(1): "The Controller or any officer authorised by him in this behalf shall take up for investigation any contravention of the provisions of this Act, rules or regulations made thereunder."

Note "shall", not "may". The section is drafted as a duty to investigate a contravention, not a discretion.

And note the width. Any contravention of the provisions of this Act, not merely of Chapter VI. On its face section 28 is not confined to Certifying Authorities at all, and would reach a contravention of section 43 or section 67. In practice it is exercised in relation to the matters the Controller supervises, but the words are wide and worth noticing.

Section 28(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, and shall exercise such powers, subject to such limitations laid down under that Act."

This is legislation by reference and it is worth unpacking. Chapter XIII of the Income-tax Act, 1961 confers on income-tax authorities powers of discovery and inspection, of enforcing the attendance of any person and examining him on oath, of compelling the production of books of account and other documents, of issuing commissions, of survey, of calling for information, and, in the specified authorities, of search and seizure.