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.