Cyber Justice is
denied to Citizens in Karnataka
AN OPEN LETTER
To
Sri D.V.Sadananda
Gowda
The Honourable Chief Minsiter of Karnataka
Bangalore
Dear Sir
Karnataka is one
state in India which has been in the forefront of IT
development. Bangalore as a city does not escape the attention
of Mr Obama whenever he thinks of winning an election in US. In
the light of the US attention on Bangalore, a suggestion was
made in a conference in Bangalore in 2009 organized by the IT
Cell of BJP, that we need to take special efforts to make
Karnataka the "Cyber Security Capital" in the world. (See :Bengaluru
as Information Security City). In this direction, some
efforts were taken in the last two years and several more are in
the pipeline.
In the month of June
2012, a committee of Human Rights from UN will be in India for a
"Universal Periodic Review" of Human Rights Status in India. One
of the aspects that UN has identified is the role of Internet as
"Human Right". It has been recognized that "Denying Cyber
Judicial Process" is one of the deficiencies in Human Rights
implementation.
I would like to bring
to your notice that when such a reivew is taken, Karnataka will
be having the dubious distinction in India as one State where
Cyber Judicial System is nealy absent. If we take an index,
Tamil Nadu will come at the top followed by Gujarat, Maharashtra
and may be all other States. Karnataka will come at the bottom
with a negative score even below all states which may score a
Zero. This is completely contrary to the image which we wanted
to build for Karnataka and hence it is necessary to bring this
to your notice.
The responsibility
for remedying this situation lies with three ministries in
Karnataka namely the IT Ministry, The Home Ministry and the Law
Ministry.
Through this open
letter, I bring to your notice the voice of the Citizens in
Karnataka who have been facing a serious problem as regards
Cyber Crime complaints.
The problems
regarding Police officers refusing to register Cyber Crime
complaints is well known. It is widely prevalent everywhere in
India and also in Karnataka. Remedy for this starts with a
statewide training of police officers that is long overdue. At
present the responsibility for this has been left to the Cyber
Lab in Bangalore which does not have adequate capacity. It is
necessary for the Police training school in Mysore to be made
the nodal office for building the capacity of the Karnataka
Police system to handle not only Cyber Crimes under Information
Technology Act 2000 (ITA 2000) amended in 2008 (ITA 2008) but
also use digital evidence properly in other cases.
Additionally
statewide education of prosecutors is required to be undertaken
along with a coordinated plan with the Chief Justice of
Karnataka for training of the Judiciary.
More importantly, I
would like to point out that the woes of the woes of the
citizens of Karnataka has been significantly escalated because
they have been shut off from civil remedies as envisaged in
Information Technology act 2000.
The reason for this
can be directly traced to the functioning of the IT ministry in
the State which is under your direct control. As you are aware,
the Civil Cyber Judiciary in the State is predominantly
controlled by the IT Secretary who is also the "Adjudicator" of
the State. All civil complaints seeking remedy upto Rs 5 crores
are within the exclusive jurisdiction of the Adjudicator. No
Civil Court has a jurisdiction in this regard.
In 2003 when the
Government of India wanted to appoint Adjudicators quickly under
a Court directive, designated all State IT Secretaries as
"Adjudicators" and virtually took over a legal function. Though
the other functions of the IT Secretaries involving promotion of
IT activities in a State had a conflict with their envisaged
duties as a Civil Judicial officer, DIT adopted the system in
the absence of IT knowledge in the traditional Judiciary. Due to
the exigencies prevailing at that time, DIT ignored the fact
that just as Judicial officers donot have adequate appreciation
of technology, the IT Secretaries also have inadquate
appreciation of law and justice.
Eight years later,
this decision of DIT has come to haunt the Citizens of Karnataka
with the exposure of the inadequacies in the Adjudication system
which is administered by the IT Secretary of the State. As head
of the Ministry of IT, it is your responsibility to ensure that
be cause of this development, Karataka does not become the focus
of the UN Human Rights review as a symbol of Human Rights
Violation for Netizens of the State. This could pull down the
rating that the review may give to India in terms of Human
Rights and also a political handle for the opposition to point
out as an inefficiency of your Government.
The reason for sych a
state of affairs is that, taking a contrarian view in three
Cyber Crime complaints referred to him, the Karnataka IT
Secretary has taken an opinion to the effect that
"No complaints can be
admitted for remedies under Section 43 of Information Technology
Act 2000 after the amendments of 2008, against any corporate
entity and that no complaints can be made by a corporate entity
as well".
As a result victims
of Cyber Crimes in Karnataka who have complaints against Banks
and other Corporate entities have been denied access to remedy
under Section 43 of ITA 2000. Companies in Karnataka including
IT Companies and MNCs cannot invoke Section 43 and Section 66 in
respect of offences under the Act. This seriously affects the
punishments for "Hacking" and other offences under Section 66 of
the Act. The consequences will be disastrous on the system of
Cyber Judicial administration in Karnataka.
This development may
also hurt India's rating under the European Union's new data
protection laws and may adversely affect the business of BPOs in
Bangalore much to the delight of President Obama. I will not be
surprised if this also becomes an election plank of Mr Obama to
argue that Bangalore is not the right destination for US
Companies.
Though the
unsustainability of the stand taken by the IT Secretary has been
brought to his attention,he has stood by his opinion to which I
agree he is legally entitled to. This opinion which needs to be
revoked now only on an appeal to Cyber Appellate Tribunal will
stay in place until the tribunal is reactivated by the
appointment of a "Presiding Officer". (DIT is blocking the
appointment of a new Presiding officer in place of the retired
person for reasons which are not relevant here). The crisis in
Cyber Judiciary is therefore likely to continue during the
period the Universal Periodic Review of Human Rights in India
will be taking place.
This combination
of inefficiency of DIT in not appointing a Presiding officer for
CAT and the interim decision of the Karnataka IT Secretary has
enormously benefitted some of the Banks who are e-Governance
partners of the government facing complaints from public.
Unfortunately, the rights of the Netizens of Karnataka are being
held subordinate to the rights of the commercial partners of the
Karntaka Government and the implications of this will not be
lost on the Human Rights Commission.
It is ironic that
in such a state of affairs, the Karnataka IT Department is
conducting a Cyber Security Summit and making untenable promises
which remain promises for the last three years.
In this context,
on behalf of the six crore Kannadigas, I need to request you to
define the priorities of Cyber Security in Karnataka. Is it
meant for protecting the Citizens of Karnataka? or Is it meant
for protecting the business interests of those corporates who
are in E Governance partnership with the Government?. In fact we
need to develop a State Policy for Cyber Security which should
encompass all aspects of Cyber Security including the need to
have an effective Cyber Crime Mitigation and Cyber Judiciary
system in Karnataka.
I request that as
a Lawyer, Chief Minister and Minister in Charge of IT, this
initiative should be taken up directly by the CM Secretariat so
that the damage that has been done to the reputation of
Karnataka and Bangalore is rectified.
I am eagerly
looking forward to your response in this regard. I would be glad
to offer any more clarifications as may be required by you.
Regards
Na.Vijayashankar
37, 20th Main, BSK Stage I, Bangalore, 560050
Founder
www.naavi.org
Naavi
May 4, 2012
[Comments welcome]
