Section 85 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 85 of the Information Technology Act, 2000 deals with a contravention by a company. Sub-section (1) makes the company and every person in charge of, and responsible to, the company for the conduct of its business guilty, with a proviso for want of knowledge or due diligence. Sub-section (2) separately makes a director, manager, secretary or other officer liable where the contravention is with consent or connivance or attributable to neglect. This article follows the consolidated text consulted (the Act as amended by the Information Technology (Amendment) Act, 2008); later amendments and the current position should be checked.
If the person committing a contravention is a company, the company and every person who, at the time, was in charge of and responsible to the company for the conduct of its business is guilty and liable to be proceeded against and punished accordingly. The person escapes under the proviso if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent it. Under sub-section (2), a director, manager, secretary or other officer is also deemed guilty where the contravention took place with his consent or connivance, or is attributable to his neglect.
Sub-section (1): the company and the person in charge
The copy prints: "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:"
| Element | What the words say |
|---|---|
| Trigger | A person committing a contravention of any provision of the Act, or of any rule, direction or order made under it, is a company |
| Who is guilty | Every person who, at the time of the contravention, was in charge of, and responsible to, the company for the conduct of its business, as well as the company |
| Consequence | Guilty of the contravention; liable to be proceeded against and punished accordingly |
Two points follow from the words. First, the section speaks of a "contravention", a word used both for civil contraventions such as those in section 43 and, in the Act, for offences. Second, a person is within sub-section (1) only if two things are true: in charge of the business and responsible to the company for its conduct.
The proviso reads: "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."
| Defence in the proviso | What the person has to do |
|---|---|
| Without his knowledge | Prove that the contravention took place without his knowledge |
| Due diligence | Prove that he exercised all due diligence to prevent the contravention |
The word is "proves". The proviso puts the matter on the person, and the Act does not say to what standard of proof; this article adds none.
If you are a director, partner or manager of a business that holds data, runs a platform or issues electronic signature certificates, early legal due diligence on who is in charge of what, and what is documented to prevent contraventions, is the most practical way to be ready to use the proviso.
Sub-section (2): consent, connivance or neglect
Sub-section (2) reads: "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."
| Element | What the words say |
|---|---|
| Starting point | A contravention has been committed by a company |
| Proof needed | It is proved that the contravention took place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer |
| Consequence | That person shall also be deemed to be guilty and liable to be proceeded against and punished accordingly |
The sub-section begins "Notwithstanding anything contained in sub-section (1)". It therefore reaches an officer who may not be "in charge of" the business under sub-section (1), if the proof the sub-section requires is made. Here the word is "proved" again, but this time the proof is of consent, connivance or neglect.
The Explanation
The Explanation reads: "For the purposes of this section, - (i) 'company' means any body corporate and includes a firm or other association of individuals; and (ii) 'director', in relation to a firm, means a partner in the firm."
| Term | Meaning for section 85 |
|---|---|
| Company | Any body corporate, and includes a firm or other association of individuals |
| Director, in relation to a firm | A partner in the firm |
So the section reaches a partnership firm, an association of individuals and a body corporate, and "director" in a firm is a partner. For the Companies Act, 2013 provisions on offences by companies and punishment for fraud, see our post on penalty provisions in the Companies Act; the definitions in section 85 are for the IT Act only.
Where section 85 meets the offence sections
Section 85 sits in Chapter XIII. It applies to any contravention of the Act, rules, directions or orders, and so it applies with the offence sections, for example sections 66 to 67B and 72, and with the penalty provisions. Our articles on section 66 and on sections 66B to 66D refer to it. For compounding and bail, see section 77A and 77B, which are explained in our article on sections 77A and 77B; section 77B is quoted there exactly and no offence is classified beyond its words.
Where the Jan Vishwas (Amendment of Provisions) Act, 2023 replaces imprisonment with a penalty, the words of section 85 ("shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly") remain as printed. This article infers nothing more. Commencement of that Act is by notification and no date is in the sources; check whether each amendment has been brought into force.
A worked example
Lakshmi Digital Private Limited, an invented company, runs a payment app. A contravention of the Act is committed by the company. Sunil Bhatt (invented) is the director who looks after technology, and Ritu Anand (invented) is a company secretary. Under sub-section (1), Sunil, if he was in charge of and responsible to the company for the conduct of its business, is guilty along with the company, but he can use the proviso if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent it. Under sub-section (2), Ritu is also deemed guilty if it is proved that the contravention took place with her consent or connivance or is attributable to her neglect. The record of what each did, and when, is the evidence on which both would rely.
Need help with director and officer liability?
If your company faces a contravention under the Act, or you want to document due diligence so that the proviso to section 85(1) is available, our team can help. Start with a legal due diligence review.
Key takeaways
- Section 85(1): where the contravention is by a company, the company and every person in charge of and responsible to it for the conduct of its business are guilty and liable to be proceeded against and punished accordingly.
- The proviso: no liability if the person proves the contravention took place without his knowledge or that he exercised all due diligence to prevent it.
- Section 85(2): a director, manager, secretary or other officer is also deemed guilty if it is proved that the contravention took place with his consent or connivance or is attributable to his neglect.
- "Company" includes a firm or other association of individuals; "director" in a firm means a partner.
Read next
- Section 66 of the Information Technology Act, 2000: computer related offences
- Sections 82 to 84C of the Information Technology Act, 2000: good faith, abetment and attempt
- Sections 77A and 77B of the Information Technology Act, 2000: compounding of offences and bailable offences
- Penalty Provisions Under Companies Act: complete compilation
Disclaimer: Based on a consolidated copy of the Information Technology Act, 2000 as amended by the Information Technology (Amendment) Act, 2008, on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as originally notified on 25 February 2021 and on the CERT-In Directions of 28 April 2022, read with the amendments made to the Act by the Jan Vishwas (Amendment of Provisions) Act, 2023 and by section 44 of the Digital Personal Data Protection Act, 2023, as consulted on 2 October 2026. Commencement notifications, other amendments, rules, directions and the current position of each provision are not covered and should be checked. This article is general information, not legal advice; check the official text before acting.