Mr Rajesh Aggarwal was one of the most active IT secretaries in recent times who pursued diligently his additional responsibility as an “Adjudicator” under Section 46 of Information Technology Act 2000. Unfortunately, he was shifted some time back to duties in Delhi. Since then no cases seem to have progressed in Mumbai and the doors of justice have been shut on the Cyber Crime victims in Mumbai.
As of now it appears that IT Secretaries all over the country are not keen to accept the responsibility which was given to them as custodians of justice for Cyber Crimes and unless Mr Ravishankar Prasad who is currently the Minister for both the IT and Law ministry takes some immediate action the status of Cyber Judiciary in India will remain pathetic and adversely affect the “Ease of Doing Business Index” of the country which prime minister Mr Modi keenly observes.
It has now been reported that two advocates of Nagpur have moved the High Court through a writ petition No.3816/2016 filed by Nirmalkumar Athawale against
1) Govt of India through Department of Electronics and Information technology and
2) Government of Maharashtra through its Chief Secretary and
3) Adjudicating Officer Maharashtra
which was heard on 7th instant by Hon.High Court’s Division bench consisting of Hon.Justice Vasanti Naik and Justice S.Joshi.
Advocate Mahendra Limaye and Adv.Chetan Dhore represented petitioner and prayed for directions to be issued to Adjudicating Officer for timely conduction of Civil matters as mandated under Information technology Act.
It is reported that it was contended by Adv.Mahendra Limaye,the lawyer for petitioner that more than 100 matters are pending before Adjudicating Officer since last 18 months but he has not taken up any of them. It was also informed to the High court that office of adjudicator also failed to timely en-cash court fees submitted to it shows apathy towards Cyber Litigation. In the prayer clause petitioner has reportedly prayed for setting up benches of Adjudicating officers at every district headquarter place since currently all the litigants are required to file the matter at Mumbai only .
The Court has issued directions for issuance of notices to the respondents.
Opportunity to Bring Positive Changes
It may be noted that the Adjudication system is a process of “Enquiry” and there should be no bar on the Adjudicator travelling on his own and conducting the hearing where ever he wants. He can even use Video conferencing techniques to conduct his enquiry where parties donot need to travel to the seat of the adjudicator. It may be noted that ITA 2000 was progressive enough in its draft to provide for setting up benches of Cyber Appellate Tribunal (CyAT) outside Delhi as well as conduct sittings outside Delhi.
In the past two sittings of CyAT (by Chair person Rajesh Tandon) were held in Chennai in the ICICI Bank Vs S. Umashankar case. Maharashtra Adjudicator (Mr Rajesh Aggarwal) conducted a video conference hearing. It is therefore an established practice for these two bodies namely Adjudication and CyAT to move to wherever the cyber crime victims reside and if this is frequently followed, there would be a revolution in the system of justice dispensation in Cyber Crimes.
It should therefore be made as a general rule that “Hearings of Adjudication” should as far as possible be held near the complaint’s place which could be the district headquarters of the State which is the jurisdiction of the adjudicator. This will also give an opportunity to the IT Secretary to visit different parts of his state and learn about the developments of IT and status of Cyber Crimes , interact with the Police officials in the respective places, conduct trainings etc and contribute positively to the mitigation of Cyber Crime Risks in the State. This will be well within the functional responsibilities of the adjudicator who needs to also work on the “Cyber Security” in the State. Some of the States have even developed “Cyber Security Policies” for the State and creating a Cyber Crime free (or more practically, Cyber crime less) state would be a service which these IT Secretaries need to undertake. This will also provide meaning to the “Suo Moto” powers given by ITA 2000 to the Adjudicators.
I hope that the advocates press for such an order and the Court concedes such a prayer.
At the same time we cannot forget that in certain cases, adjudicators have shown their inability to come out of their IT Secretary’s role and take on the role of an Adjudicator (more like a Civil Judge). In states such as Karnataka, serious judicial errors have been committed by the Adjudicator (eg: Declaring that “the word ‘person’ means only an individual and does not include a corporate person”). It should be noted that this decision which annuls the most of ITA 2000/8 including Section 66, in the State of Karnataka has not been over turned due to the non existence of CyAT for the last 5 years and refusal of the Karnataka High Court to intervene. Neither the State Government machinery such as the Chief Minister nor the Central Government under Mr Modi has been able to correct the situation despite it being well within their rights to
a) Appoint a Chair person for CyAT
b) Educate and energise the IT Secretaries to discharge their stautorily allocated responsibility as Adjudicators
I have also pointed out that the current status of the non functioning CyAT and the Adjduication system is a serious “Human Rights Issue” which may be taken note of the Human Rights bodies in UN to tarnish the image of the Modi Government as not serious enough to provide an effective Cyber Judiciary system.
It is also possible that part of the problem lies with the Supreme Court since the appointment of a Chair Person of CyAT is a joint responsibility of DeiTY and the CJI and has not happened for the unreasonably long time of 5+ years.
One of the changes that becomes necessary at the State level which in the light of the Karnataka decision becomes relevant and does not interfere with the current law is that the IT Secretary may be advised to invite the Law Secretary of the State to every hearings as an observer and take his advise on legal issues that may arise during the hearings. The law secretary however should ensure that the IT knowledge of the IT secretary should be also reflected in the awards and no unnecessary procedural complications are created due to his traditional law judicial background.
I therefore urge the advocates of the Nagpur writ petition to persuade the Court to go beyond the mere issuing of directions to the Chief Minister of the State and define certain major changes to the system at least at the state level.
I wish that what I have written here is taken note of by the Karnataka High Court to hear the pending PIL which an advocate Mr Chaitanya has moved and over turn its earlier order on a petition filed by the Adjudicator of Karnataka in which Court crushed an attempt by the Karnataka Human Rights Commission and the then IT Secretary to correct the mistake of an earlier IT Secretary.
Even the media which often takes up innocuous comments made in Twitter or Facebook by ordinary people for national discussion has failed to understand the impact of the erroneous Karnataka Adjudicator’s decision and the failure of the Central Government to appoint a Chair Person for CyAT and undertake a proper discussion on the national TV medium.
I hope people like Arnab Goswami are listening.
Naavi
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About Vijayashankar Na
Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
