| . | The IT industry had it good for too long in India. So, it had to face its share of disappointments. Otherwise, who will respect the Bureaucracy? and the Politicians in power?. It is therefore perfectly understandable that the proposed rules for formalizing the ITA-2000 provides plenty of disappointments for the industry. First the two good thing about the Rules...One it is still in Draft form and public have been given an opportunity to comment. Secondly, the key appointment of the Controller has been held in abeyance and surprise of all, the public has been actually invited to suggest names for the post. This is perhaps the only time in the history of India that the public has been suggested to recommend a person for a government appointment. I think this is not a bad idea at all. However, it is obvious that things may not be as transparent as it is made out to be. It appears that already one official each from IIT Mumbai and IISc Bangalore have already been short listed. Probably there is a tie to be resolved between these two and the opinion poll would do just that. We can even make a guess that the final round would go to the IITan. It was very disturbing that the indications to the short listed candidates came out of a report in Times of India last week emanating from Pune from one of the office bearers of CSI and an official of NCST. Now have a look at the qualifications prescribed for the post. a) Experience in management out of which 5 years experience should be in the area of Information Technology; andIt appears that the qualifications have been defined only to accommodate specific persons. Otherwise it just doesn't make sense why a "Professor" or a "Scientist" should be preferred by rules to hold what is essentially an administrative post. Leaving a detailed discussion on this subject for a later day let's look at some funny parts of the rules. Amongst the "Disqualification clauses" listed for the appointment
of the Deputy and Assistant controllers, the following makes a special
mention.
No person: -I am not sure if any other appointment has been specifically debarred for people practicing bigamy ! and that the executive retains the right to permit therefor if found expedient !!. After all no similar mention has been made for the appointment of the Controller for whom the following disqualification clause has been indicated. Let's now look at the qualification requirement of the "Adjudicating Officer" which states as follows We should appreciate the generosity in prescribing "Any training in the area of Information Technology". I presume a training in "Widows 95 operating systems must do". A fact which is not so funny however is the definition or infact the re-definition of the role of the "Adjudicating Officer". The rules has turned the expectation that the adjudicating and appellate system was an attempt to provide speedy justice in Cyber Cases. Sec 46 of the Act gave an impression that the Adjudicating officer would be dispensing justice to any person who is affected by a Computer crime. However the rules which states: indicates that the Adjudicating officer would be only a tool in the hands of the Government and would be appointed only for a specific enquiry. If it was not intended to create an office of the Adjudicating officer, what is the need to talk about qualifications and judicial powers for the officer in the Act? It would have been effectively be handled by a notification on the enquiries under the normal act. From the Rules, it appears that the Citizen of the country will not be able to invoke the "Adjudicating Officer". He has to approach the normal courts for any remedy for Cyber crimes. Only the Government may use the Adjudicating officer and the Cyber Regulations Appellate Tribunal for following any cases in which it is a party.. such as penalty for not maintaining accounting records by the Certifying authority etc. Yet another point to be noted is " If the office of the Adjudicating Officer itself is adhoc, where is the need for setting up the office of the Cyber Regulations Tribunal and his huge paraphernalia of assistants?" (There are more points to discuss about the Rules which I will cover in the next part of this commentary tomorrow.) It is clear that the Rules have been framed by people who were not involved with the drafting of the Act. Nor they have understood the spirit of the law. They have very efficiently murdered the Act and all the positive expectations one had about it. I urge NASSCOM and all the right thinking persons to get the proposed rules scraped
so that a re-look can be ordered. It doesn't matter even if the implementation
of the Act is delayed due to this. What we should remember is that ITA-2000
is a fundamental law that will define the rules of the digital society.
We cannot allow a bunch of uninformed bureaucrats to create a special provision
that will only serve as an employment house for a few bureaucrats with
powers to harass the society and no intention of serving the society and
protect its citizens.
August 17,2000 |
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