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Naavi.org

Building a Responsible Cyber Society…Since 1998

CDMAC is the proposed “Cyber Dispute Mediation and Arbitration Center”,  promoted by Naavi, a pioneer in Cyber Laws in India  and founder of www.naavi.org and its associate services. (Check www.adr.ind.in)

This Center proposes to offer Mediation and Arbitration Services mainly for disputes arising out of any contravention of Information Technology Act 2000 (ITA 2000) as amended from time to time.

ITA 2000 envisages that disputes arising out of any contravention of the Act leading to a claim of damages by any person against another is resolved through an “Adjudication” process under Section 46 of the Act. Under this provision, the IT secretary of each State or Union Territory have been designated as the Adjudicator with a jurisdiction extending to that particular State or Union Territory. The process of adjudication is an “Enquiry process” leading to an award which is enforceable like a revenue recovery. An appeal on the decision of the Adjudicator lies with the “Appellate Tribunal.

(P.S: Until 31st of March, the appellate authority was called Cyber Appellate Authority or CyAT with an office at Delhi. This has now been merged with Telecom Disputes Settlement and Appellate Authority or TDSAT and is referred to as the “Appellate Tribunal”).

The parties to an adjudication are open to enter into compounding any time before, during or after the adjudication process. (Section 63) The Compounding is arrived between the parties and placed before the Adjudicator for ratification.

Ideally, the compounding is amenable to “Mediation”. However, if the parties agree to voluntarily subject themselves to arbitration and for placement of the arbitration decision before the adjudicator for ratification, the Adjudicator has no reason to object.

It will be necessary for the mediation agreement or the arbitration award to be within the limits of penalty set in the Act.

In the case of criminal prosecution where the Police file a charge sheet in the magistrate’s court, under Section 77A, compounding is permissible excepting for offences under certain sections. Again the compounding application has to be made to the competent Court which may agree.

Therefore in both the Civil and Criminal cases, the disputing parties may come to an agreement between themselves so that they can agree to avoid or cut short the litigation process which is painful for both. Such an agreement of compounding has to be conducted under supervision to avoid coercion, misrepresentation and other illegal methods of arriving at an agreement. It is therefore preferable if such a process is managed under the guidance and supervision of a “Mediation and Arbitration Center” following certain norms which are fair and legally correct.

In the past 17 years since ITA 2000 has been in operation, the Adjudication system and the Appellate System have both had a checkered history. While Adjudication did take off in 2008 in Chennai and later continued well in Mumbai, presently, it is in a limbo everywhere. CyAT on the other hand was unable to settle even one appeal brought before it properly after adjudication.

The present scheme under which the TDSAT would be the appellate authority will be increasing the cost and inconvenience of Cyber victim litigants. Hence there is a dire need for an Alternate Dispute Resolution Mechanism to be developed for Cyber Disputes so that the agreed settlement can be presented to the Adjudicator or a Criminal Court for quick settlement where possible.

In the last 17 years this thought has never been brought before the Government and this is the first time such a proposition is being made.

Obviously, the first reaction could be skeptical. But if one thinks a little deep into the benefits of this system as proposed here, Government, the Judiciary, the Police and the litigants will all consider it a good solution to squeeze out a number of disputes from being held up in Courts over a long period with no benefit to anybody.

I request experts including Mr T.K.Vishwanathan who is now heading a Committee for amending ITA 2000/8 to consider this proposal and facilitate its acceptance.

Since the proposition is well within the legal provisions as of today, Naavi declares a  launch of this Mediation and Arbitration service straightaway and will wait for disputing parties to realize the benefits and approach the Cyber Disputes Mediation and Arbitration Center as indicated here.

As of now the rules of mediation and arbitration of the center has not yet been announced and will be presented soon.

Comments are welcome.

Naavi

The Cyber Appellate Tribunal (CyAT) which was envisaged under ITA 2000/8 as the national appeal authority over all the adjudication offices is finally confined to history.

Despite being in existence from 2000 upto 2017, the CyAT could not come to a single valid decision. The one decision in which CyAT was close to a decision was ICICI Bank Vs S Umashankar which was posted for judgement on July 3, 2011 when everybody know that the then Chair person was retiring on June 30, 2011. Since then, untill now, Governments could not find a Chair person and CyAT remained non functional.

Now with the passage of the Finance Act 2017, CyAT has been legally closed and merged with TDSAT. (Telecom Disputes Settlement Appellate Tribunal).  TDSAT  needs to formulate its procedures to hear the past cases which are pending before CyAT (Closed) and to take up future cases.

It is observed that while appeals from TDSAT in its current Telecom related disputes go to the Supreme Court, the appeals of CyAT cases will under Section 62 of ITA 2000/8 will go to the High Courts as in the past. Currently the Chair person of TDSAT is a ex-Supreme Court judge or at least a Chief Justice. How would he like his decision to be reviewed by the High Court without feeling uncomfortable?… is one of the several issues that we may need to resolve to ensure smooth transition of CyAT into TDSAT.

While the TDSAT and the Government sort out these issues, it is time for Citizens and other Stakeholders to make their own efforts to ensure that the interests of the Cyber Crime victims are protected and there is a functional Cyber Judicial system in India accessible to all.

In this context, I would call upon interested persons to join hands in setting up a “Cyber Disputes Mediation and Arbitration Center” and try to provide an alternate mechanism of dispute resolutions outside the statutory bodies such as the “Adjudicator” and the “TDSAT”.

Obviously, if the mediation fails, the other alternatives including Adjudication remain open.

If the arbitration is agreed upon but later challenged, there is already a mechanism where by the High Court comes into the picture and the dispute resolution gets back on the statutory platform.

There would be some questions raised as to whether an “Arbitration Contract” would be ultra vires the Information Technology Act 2000/8. Section 61 of ITA 2000/8 bars the jurisdiction of the Courts. But “Compounding” is part of ITA 2000/8 and is available for all Civil disputes and most of the Criminal charges under the Act. Hence, an “Arbitration Contract” or a “Mediation Settlement” must be considered as being well within the provisions of the Act.

Keeping the tradition of Naavi in setting up services based on the concepts that are futuristic, Naavi now intends laying the foundation stone for a “Alternate Disputes Resolution Center” for Cyber Disputes. Presently, it will be developed under www.adr.ind.in  (under construction)

It is intended that it will use the services of odrglobal.in as a platform for online dispute resolutions and may also use physical meetings.

This is a concept being seeded now and it requires mentors and participants to make it take root and grow into a full grown tree that can provide shelter to the Cyber Crime victims.

The first set of participants to this endeavour that I am looking forward to are the Cyber Law experts who have the capability of being the “Mediators/Arbitrators” or helping the parties to the dispute as counsels. They can register themselves as “Counsellors” and offering their services for Mediation or Arbitration to the disputing parties.

Naavi will be the promoter and administrator who would like to develop this ADRC for Cyber Disputes as a Mediation cum Arbitration Council with its own set of model rules.  This will take time and also needs assistance from like minded persons.

ADR-C-FCD is intended to function as a “Not for Profit” organization, though ODRGlobal.in which is presently owned by Naavi will continue to be a commercial proposition providing its services at a cost.  This limited conflict is considered inevitable at this point of time.

Initially,  adr.ind.in will focus on spreading the ADR knowledge and function as an ADR Knowledge Center. This may remain the main activity of the Center until this concept which is revolutionary in certain respects gains acceptance of the community.

The acceptance will be visible when some of the “Intermediaries” such as Banks or Mobile Wallet service providers etc start accepting this Center as a part of their grievance redressal mechanism. I am prepared to wait for this to happen over a period of time.

I look forward as always for comments from other domain experts in the area of Cyber Law, ADR and Information Technology to nurse this thought further towards practical implementation.