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It is reported that former Supreme Court Judge, honourable Justice Shiva Kirti Singh will be the next chair person for the Telecom Disputes Settlement & Appellate Tribunal (TDSAT).

The appointment is for a period of 3 years and he takes over the position which was vacant since last June.

TDSAT has become relevant for Cyber Law and Cyber Crime watchers since it is now also the “Appelalte Tribunal” under Information Technology Act 2000/8 and will be hearing all the appeals against the orders of the Adjudicating Officers.

The report in Economic Times reporting the appointment highlights the high profile disputes before the TDSAT between Jio and Airtel etc. Obviously, the attention of TDSAT will be on such high profile and high stake complaints. Against such complaints, the appeals that are being transferred from CyAT to TDSAT will be too insignificant for  TDSAT to even glance at. There is every likelyhood of Cyber Crime victims getting a lower priority in resolution of their disputes.  It is precisely for this reason that Naavi.org has been uncomfortable with the designation of TDSAT as the Appellate Tribunal under ITA 2000/8.

We have also highlighted that the Cyber Appellate Tribunal (CyAT, now called Appellate Tribunal or AT under ITA 2008) was headed by a Chair person at the level of High Court and below and it made sense that the appeal from CyAT went to a High Court. Now TDSAT is headed by a Chair person at the level of the Supreme Court and it makes it difficult how the appeals can be heard by the High Court which consists of Judges who are perhaps junior in stature.

The Judiciary is very conscious of their hierarchy and protocols and hence the move of the Finance Minister in merging CyAT with TDSAT is considered as leading to many practical issues which ultimately affects the Cyber Crime Victims adversely.

This is all the more reason for the Cyber Crime victims to seriously look at the proposition of Cyber Disputes Mediation and Arbitration (CDMAC) put forth by Naavi. (Refer www.cdmac.in)

Naavi

For those who know how the Judicial system functions, it is needless to say that it is always a pain to pursue justice through normal Courts. We are tired of the saying “God sees the truth but waits”. Many would say that I can tolerate injustice but not end less delay.

Further, Courts operate under the constraints of what the lawyers propose to them and not entirely on the basis of truth. More often we see Courts saying, based on the evidences before me, I come to this judgement. There are only a few honest and bold judges left in the system who can try to see the truth behind the powerful arguments put forth by the “Senior Advocates”. We know that these “Senior Advocates” collect crores of rupees as their fees based on their power to lie and also how much they can corrupt the system which we believe to be honest.

All litigants therefore should look to go the Courts only as a “Last Resort”.

In the case of business related disputes, normally both parties are normally reasonable and the dispute would be only because of a difference in interpretation of some terms. Hence both parties are not interested in wasting their time in Courts and hurting their further businesses.

Alternate Dispute Resolution therefore comes in as a relief to most. Only those persons who want to use Courts as an instrument of prolonging injustice prefer to litigate.

Hence there is no second thought that if an alternative dispute resolution process is available every litigant would like to avail of the same.

It was with this belief that Section 89 of Civil Procedure Code (Refer this article for details) provided that in any Civil Proceedings the Court  tries to persuade the litigants to try the ADR before the Case proceeds in the Court.  Such process could be through the process of a Court appointed mediator. However despite more than 10 years since the amendment came in force on 1st July 2002, not many litigants are using the facility.

The section states as follows:

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for

(a) arbitration;

(b) conciliation

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute had been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

Unfortunately the established legal community  may not be keen on the success of the ADR process  since any curtailment of litigation in Courts directly affects their revenue potential. The new generation of advocates however may not be averse to striking settlements and acting as mediators since this is the only method by which they can break into the system otherwise firmly occupied by the senior advocates.

However, until recently the Arbitration system had its own weaknesses because of which it only prolonged the litigation rather than eliminating it. Also in most cases, arbitration was always thought of only as a part of the pre-dispute agreement and parties never trusted to enter into an arbitration when it was not mandated in the agreement.

Now with the new amended Arbitration and Conciliation Act 2015 (ACA 2015) being in force, the ADR process has got a big boost in terms of ensuring that there is no delay in the arbitration process nor there is an automatic stay of the arbitration award when an appeal is filed.  Additionally, the new Act tries to promote digital communications and opened the means for ODR (Online Dispute Resolution).

With the advent of the new ACA 2015, all judicial precedents of the past have lost meaning and we need to look at every thing afresh. We are in the After Amendment Era where the before Amendment Era judicial pronouncements are all amenable to be questioned and over turned.

It is therefore essential for all Civil disputes to make use of the benefits of ADR and this move has to be initiated by the parties at the time of contracting. Those contracts in which an Arbitration clause was not a part should be reviewed now or even after a dispute has formally arisen to introduce an ADR process.

An ADR process need not always be the Arbitration. It may be a “Mediation” or “Conciliation” that is an attempt to achieve a negotiated settlement with the assistance of a professional mediator. Arbitration however is more binding.

Legally, there is no difference between Mediation and Conciliation though technically, a Conciliation may be a process in which the Mediator may try to achieve a settlement with the force of the respect that the disputants place on  his stature and knowledge.  Ultimately however, a mediation/conciliation ends up with a settlement agreement between the parties out of their own free will.

Arbitration on the other hand may be a forced award which one party may not like and therefore wish to challenge.

As regards Criminal proceedings, there are provisions of “Compounding” (Sec 320 of CrPc) where there could be a negotiation between the accused and the victim which may result in the proceedings being dropped. (See the details here).

(P.S: CDMAC will address compounding under ITA 2000/8 which will be discussed separately in a subsequent article)

In summary we need to recognize that the time for ADR has arrived and without simply complaining about the delays in the Courts, inefficiency or corruption of Judges etc, we need to explore settlement of all our disputes through Negotiation, Mediation/conciliation or Arbitration.

Courts are the last resort for seeking justice and the more we avoid them better it is.

Naavi

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.

With the presidential assent given to the Finance Bill 2017, the amendments to some other Acts including the “Merger of Cyber Appellate Tribunal with TDSAT” is deemed to have been enacted.

Now it is necessary for the Government to pass necessary rules and also operationalize the amendments to individual section of the Information Technology Act 2000/8.

We need to watch out how this process would be rolled out.

One option would be to retain the current provisions of Cyber Appellate Tribunal as it exists in Chapter X of ITA 2000/8 and only replace the earlier notified rules with new rules stating that TDSAT will henceforth administer also as the Cyber Appellate Tribunal. The Chair person of TDSAT may himself be also appointed as the Chair person of CyAT (New) and the entire proceedings of CyAT(Present) can be handled by TDSAT as CyAT (New).

It is also possible that TDSAT may designate a separate bench for CyAT operations and one of the current members of the TDSAT may be also appointed as the CyAT chair person.

Let us observe how the operational matters would be addressed.

Naavi

Reference:

Finance Act 2017

Pages 59-60 of Finance Act 2017