Continuing the relentless effort to restore the availability of Judicial support to the Cyber Crime victims of India, the undersigned has recently written a letter to the Chief Minister of Karnataka namely Mr Siddaramaiah. This is the fourth time the undersigned has approached the Chief Minister of the State in this connection. Earlier similar letters have been written to Mr Yeddyurappa, Mr Sadananda Gowda and Mr Jagadish Shettar. None of them had time to respond since they were busy with their infighting. Now we need to wait and see if Mr Siddaramaiah has the time to look into the vows of the people of Karnataka.
(Refer Article in Vijya Karnataka, a Kannada daily)
For the information of those who have not followed the fight on this website, I would like to provide the essence of the dispute.
The essence of the issue is
a) The Adjudicator of Karnataka (the IT Secretary) on 27th December 2011 gave a judgement that Section 43 of Information Technology Act 2000 cannot be applied to any complaint where the complainant or the complained entity is a corporate entity. It therefore ruled that a Company namely Ms Gujarat Petrosynthese Ltd cannot file a complaint under Section 43 which can be invoked only by individuals. Also the adjudicator opined that an individual such as one Mr Rajendra Prasad Yadav could not file a complaint against ICICI Bank which was a company.
b)When the decision was sought to be reviewed with reference to the General Clauses Act, the Adjudicator remained silent and non responsive. The fact that the beneficiary of the decision was Axis Bank which was a contractor of the same IT department and could benefit to the extent of Rs 50 lakhs by the decision made the decision look murky.
c) When the next Adjudicator took over and referred the matter to the Law department based on a query by the Karnataka Human Rights Commission, the law department gave an opinion that the earlier decision was wrong. This prompted the new Adjudicator to issue fresh notices to parties to continue the hearing.
d) Axis bank attended the hearing, took time to reply and before the next date of hearing moved the vacation bench of Karnataka high Court alleging that the hearing should not have been reopened without giving prior notice to them and hence there was a failure of natural justice.
e) The vacation bench of Karnataka High Court agreed with the contention of Axis Bank that natural justice was denied to them by reopening of the hearing and there was no need to provide natural justice to the cyber crime victim. The Court also opined that Axis bank had the right to move the High Court ignoring the presence of Cyber Appellate Tribunal as the appellate authority but the Cyber Crime Victim can only seek redressal of his grievance at the Cyber Appellate Tribunal.
The Court did not recognize the inherent discrimination of a Cyber crime victim against a commercial entity in arriving at this decision and showed that the Court has less appreciation of the problems of cyber crime victims as compared to the profitability concerns of a Commercial Bank. The decision of the High Court suggesting the cyber crime victim to approach the Cyber Appellate Tribunal has to be seen in the context of the Tribunal not being in operation since June 2011 since the Chair person has not been appointed by the Kapil Sibal’s department in the center.
d) In the process, Axis Bank has been able to use the law to its advantage defering even a judicial review of the complaint which claims a compensation from the bank for money lost by a customer due to the failure of security in the Banking system and possible connivance of Bankers in robbing the customer.
e) Thus both the Adjudicator of Karnataka who is also an official of the Government of Karnataka as well as the High Court of Karnataka are unresponsive to the plight of Cyber Crime victims.
f) Though the matter has been brought to the notice of the Chief Justice of India formally and informally, there has been no suo-moto corrective action
In the background of these developments, the undersigned has now asked the Chief Minister to refer the legal issue namely “Whether the term PERSON used in Section 43 should be restricted to mean only an individual and not a corporate entity” to the Chief Justice along with an enquiry on whether there was any vested interests behind the decision.
I would like to point out that if Section 43 is restricted to “individuals” as what the Adjudicator appear to believe, then all cyber crimes under Section 66 will also be restricted to individuals. hence no company can either commit a cyber crime under Section 66 nor any complaint can be made by a company under section 66. Additionally, if this interpretation of “Person” means an “individual” is extended to other sections in ITA 2008, there will be chaos in the cyber judicial system.
I suppose those on whose laps the next level of decision lies namely the Chief Minister of Karnataka and the Chief Justice of Karnataka will remember the interlinking of Section 43 and Section 66 and how the continued validity of the erroneous order dated 27th December 2011 of the Adjudicator of Karnataka has made Karnataka a “Cyber Crime Heaven” where no cyber crime such as “Unauthorized Access”, “Unauthorized Downloading”, “Virus introduction”, “Damage of a computer”, “Denial of Service”, “Wrongful charging”,”Assisting contravention”, “diminishing value of information”,”Deleting source code” etc which are all part of Section 43/66 can be tried under ITA 2000/8.
Since Chief Minister Mr Siddaramaiah himself was once a law teacher, he must be able to appreciate the legal issue involved here without the assistance of any body else. But will he have the political will to take up the issue and see it to the logical end?… only time will tell.
Naavi
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