Cyber Appellate Tribunal Goes into limbo again?

Cyber Appellate Tribunal was a creation of the Information Technology Act 2000 and was the appeal Court for all Adjudicators (One in each State and Union Territory) and the Controller of Certifying Authorities. The Adjudication system became effective from 2003 and Cyber Appellate Tribunal started operating in Delhi some time in 2005.

The Cyber Appellate Tribunal in the country was established by the Central Government in accordance with the provisions contained under Section 48(1) of the Information Technology Act, 2000. The Tribunal initially known as the Cyber Regulations Appellate Tribunal (CRAT). After amendment of the IT Act in the year 2008 (Which came into effect on 27.10.2009) is known as the Cyber Appellate Tribunal (CyAT).

The Tribunal started functioning from October, 2006 in a portion of the Department of Information Technology  building at CGO Complex, Lodhi Road, New Delhi.

Hon’ble Mr. Justice R.C. Jain, a retired Judge of Delhi High Court was the first Presiding Officer of the Cyber  Appellate Tribunal, who joined as Presiding Officer on 4th October, 2006. The tenure of Mr. Justice R. C. Jain, as Presiding Officer of Cyber Appellate Tribunal expired on 7th December, 2007.

On appointment of Hon’ble Mr. Justice R.C. Jain as Member of National Consumer Disputes Redressal Commission, Hon’ble Mr. Justice Rajesh Tandon, a retired Judge of Uttrakhand High Court took over the charge as Presiding Officer of Cyber  Appellate Tribunal on 25th February, 2009. Tenure of Justice Rajesh Tandon, as Chairperson of this Tribunal  expired on 30th June, 2011.

Since that day, CYAT has been dysfunctional since no new Chair Person was appointed. Though Justice S.K.Krishan was appointed as a Member and was eligible to be the Chair Person, he was not notified as Chair person and he also retired. Subsequently another Technical member was appointed and the Registrar was functional but no activity could be undertaken since the Central Government and the Chief Justice of India could not agree on a candidate for the post.

As a result the Cyber Judicial system in India has been non existent since June 2011 and odd cases have been tried at the High Court under its jurisdiction as the Court of appeal over Cyber Applellate Tribunal and under the conventional writ jurisdiction.

This also gave an excuse for Adjudicators to stop functioning and today India does not have a properly functioning Cyber Judicial system and the victims of Cyber Crimes have little support from the Judicial system. This would have caused a dent in the “Ease of Doing Business Index” of India about which Mr Modi is very fond off.

Since this appointment of Chair Person of CyAT was caught in the ego battle between the Central Government and the Supreme Court surrounding the NJAC and neither was really concerned with the citizens who were adversely affected by this ego battle, no action was taken from 2011 to 2017 to re activate the Tribunal.

Now the intelligent Finance Minister of the Union Of India found an idea to deflect the criticism of inaction by the Modi Government and stated that some of these dysfunctional Tribunals are a cost center to the Government and have no need to exist. He therefore went on a cost minimization exercise and merged CyAT along with a few other tribunals into one other Tribunal which was functioning. Accordingly he added a provision in the Finance Act 2017 to merge CyAT to TDSAT and washed his hands off. The Minister of IT Mr Ravi Shankar Prasad who is also an advocate like Mr Jaitely and is also the Minister of Law conspired in this apparent cost cutting measure that was actually meant to kill the controversy with the CJI on an agreeable name for the Chair Person and in the process CyAT went into the oblivion.

Necessary legal amendments to ITA 2000/8 has been done and now TDSAT becomes the appellate authority after the Adjudication of a Cyber dispute under Section 46 of ITA 2000/8. The amendments have been incorporated in the version of ITA 2008 posted on www.naavi.org and the mobile App Cyber Law Guru

In the earlier article, “Amendments to Finance Bill on Cyber Appellate Tribunal..We are worried”  I have given my personal views on the subject.

Now it is reported that the Madras High Court is hearing a petition challenging the provisions of the Finance Act 2017 which dealt with the merger of different Appellate Tribunals and the High Court has issued notice to the Central Government.

The petition is filed by Madras Bar Association and is being herd by a bench consisting of Chief Justice Indira Banerjee and Justice M Sundar. Senior Advocate Arvind Datar appeared for the petitioner.

The petitioner has raised some very valid questions on how the abolition of Tribunals was handled as a part of the Money Bill and this is likely to be a huge issue that would determine the scope of the powers of the Government in using Finance Bill for non Finance legislation.

Mr Datar presented that

“When the Constitution gives a special provision for passing a Money Bill, it implies that bills unconnected with matters mentioned in Article 110 cannot be labelled as Money Bills. Such a practice amounts to Fraud on the Constitution and is a colourable exercise of power. This is a repeated practice as evidenced by the passing of the Insolvency and Bankruptcy Code, 2016 and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

The Supreme Court had, in Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1, held that abusing ordinance making power will be a fraud on the Constitution. Likewise, deliberate use of Article 110 to circumvent the need of Rajya Sabha approval will be a fraud on the Constitution. The Supreme Court judgment cannot be nullified by an act of Parliament or by rules. This has been laid down by a number of cases including Madan Mohan Pathak v. Union of India (197 8) 2 SCC 50. Thus, the money bill process was abused to make amendments to the functioning of tribunals…”

The petitioner has prayed for quashing Sections 156 to 189 of the Finance Act, 2017 and the Finance Act, 2017 and the Tribunal, Appellate and other Authorities (Qualifications, Experience and other conditions of Service of Members) Rules, 2017 as unconstitutional

We feel that there is merit in the petition and this is likely to be a long drawn battle which may ultimately be settled by the Constitution bench of the Supreme Court of an appeal over whatever decision the Madras High Court arrives at.

In the meantime we can expect that the TDSAT will not hear any appeals pending at CyAT and hence the defunct system of Cyber Judiciary continues. Victims should therefore continue to rely on the State High Courts to pursue their litigation in Cyber Crime cases coming under the provisions of Section 46 of ITA 2000/8.

Naavi

Earlier articles : 

Amendments to Finance Bill on Cyber Appellate Tribunal..We are worried

Process of Cyber Appellate Tribunal merger with TDSAT complete

Cyber Appellate Tribunal to re-emerge as TDSAT

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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
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