The Cyber Appellate Tribunal - Will It "Work"?
By Sanjay Bhatia


Ever since the passing of the Information Technology Bill by both the Houses of Parliament, a lot has been said both for and against the Act. The controversy seems to have largely revolved around the fact that the police have been given unfettered powers to enter and search any place as well as the powers to arrest any person who is reasonably suspected to have committed or is about to commit an offence under the I.T. Act. The Government, on its part, has defended the above provisions by arguing that there is nothing new in enacting such a law and that similar provisions already exist in other statutes as well. Besides, there are adequate safeguards in the I.T. Act itself, which provides that the provisions of the Code of Criminal Procedure shall apply in relation to any entry, search or arrest made under the I.T. Act.

Be it as it may, it will not be long before the above provisions are subject to judicial scrutiny and ultimately it would be for the High Courts and the Supreme Court to decide whether the provisions of search, seizure and arrest are arbitrary or not.

What have so far escaped the public eye are the provisions relating to the Cyber Regulations Appellate Tribunal (CRAT) and more specifically, its composition. The I.T. Act envisages the establishment of CRATs at one or more places as the Government may deem fit. 1 These Tribunals are placed lower in hierarchy to the High Courts and higher in hierarchy to the "adjudicating officer" The primary function of an "adjudicating officer" would be to hold an inquiry into whether any person has contravened the provisions of the I.T. Act and impose penalty accordingly. Although the CRAT does not seem to be vested with any original jurisdiction, it has been vested with the powers of a Civil Court in respect of, interalia,

Typically, such powers are vested in a judicial body having original jurisdiction. Therefore, by being juxtaposed between the High Court and the "adjudicating officer", the CRAT would be both, an appellate authority as well as a fact finding authority, whose function would be to determine whether the provisions of the I.T Act have been contravened. Interestingly, the Act provides that the Tribunal shall consist of one person only (presiding officer) who is qualified to be a High Court judge or a member of the Indian Legal Services holding a Grade I post.3

Apart from the factual issues that would be raised, the disputes before the CRAT are invariably going to involve the following legal issues as well:

Since the above issues are to be resolved vis- a -vis the laws pertaining to Information Technology, one would also need an in-depth knowledge of computer applications in the field of information technology. It is essential for the Tribunal to understand the technical aspects pertaining to digital signatures, cryptography etc. apart from keeping abreast with the latest developments in the field of Information Technology. While one cannot call into question the legal acumen of the presiding officer, as adequate safeguards are contained in the enactment to ensure that he possesses the requisite legal qualifications, it is still doubtful whether such presiding officer would possess the technological expertise and knowledge which is to be harmonized with the legal knowledge for resolving I.T. related disputes. It would therefore have been ideal for the CRAT to comprise of at least one judicial member and one technical member (with a computer science background) to effectively hear and resolve disputes before it. The omission of a technical member is all the more glaring since several tribunals/quasi judicial bodies like the Income Tax Appellate Tribunal, Sales Tax Tribunal, Central Administrative Tribunal, Company Law Board, Board for Industrial and Financial Reconstruction etc. have departmental members who assist the Presiding Officer or the judicial member in resolving the disputes.

Considering the fact that the case laws with respect to Information Technology are almost non-existent in our country and the decisions of the Cyber Regulations Appellate Tribunal are going to be trend setting, it is still not too late for the Government to consider amending the I.T Act and providing that the CRAT comprise of one technical member as well, which undoubtedly, is going to go a long way in ensuring that the correct concepts of Information Technology are applied while resolving I.T. disputes.

* The author is an Advocate practicing in Bangalore, India.

  1. Section 48(1) of the Information Technology Act, 1999
  2. Section 58 of the Information Technology Act, 1999.
  3. Section 49 r/w Section 50 of the Information Technology Act, 1999.

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