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Ever since the earlier Chairperson of Cyber Appellate Tribunal (CAT), Justice Mr Rajesh Tandon approached super annuation in June 2011, Naavi has been requesting for quick appointment of a new Chairperson in replacement of Mr Tandon or continue Mr Tandon until an alternate arrangement could me made.

However continuation of a person who attains super annuation is not within the executive powers and hence a decision for appointment of an alternate person had to be taken byt he DIT before Mr Tandon retired at the end of June 2011. Unfortunately, despite several eligible persons showing their interest for taking up the responsibilty the Government did not succeed in completing the formalities of the appointment in time and CAT became headless.

Several requests have been made in this regard by Naavi to the Ministers of the Union Government and attention of the President of India and Chief Justice of India have also been drawn into the requirement. But there was no action from DIT.

In December 2011, Justice S.K.Krishnan, former judge of High Court of Madras was appointed as a “Member Judiciary”. But he was not designated as “Chair Person” and hence had to remain in office without discharging any judicial responsibilities until Nove 2012 when he too attained super annuation. Why was he appointed without authority to conduct proceedings remain a mystery.

While the Government found time to appoint a “Member Technical” and “Head of Department” for CAT, the position of Chair person remained vacant all these days.

While some litigants bypassed the CAT and went for Writ Petitions to the High Court in lieu of an appeal at CAT whenever the need arose, applications already filed with CAT were stuck. The option of withdrawing of the appeal from CAT and filing a writ petition was daisy since the High Court could always hold the view that the remedy at CAT should be exhausted before the High Court is apporached.

The situation was therefore very confusing and called for resolution through judicial interevention.

In this context, a PIL had been filed in Karnataka High Court by an advocate Mr Chaitanya bringing to the notice of the High Court that several Cyber Crime victims were waiting for the CAT to be operational since their appeals were pending for a long time unattended at CAT. (WP37577/2012). After several months of delay,  the advocate for the Government of India filed a few documents  on 3rd of June, 2013, that revealed that on April 3, 2013, the Union Minister Mr Kapil Sibal had written a letter to the Chief Justice of India recommending one person for the post and requesting for the Screening Committee of the Supreme Court to approve the posting. On 10th April 2013, the CJI has also replied stating that such a meeting would be convened at the earliest.

The PIL therefore has had its tiny effect of making the Minister take one small step in the appointment after two years of inactivity. It is not clear why it took the Ministry 2 years to suggest one name for the post.

The Court is yet to dispose off the case and is now deliberating on the developments so far. Since the action appears to be pending with the screening committee at Supreme Court, it may be difficult for the Karnataka High Court to give any strong directions. It is possible that the screening committee of the Supreme Court may not find favour with the recommendation made by the Minister and request for alternate names. The situation may turn out to be similar to the case of appointment of Lok Ayuktas in Karnataka and Gujarat where the  difference of opinion between the Judiciary and Executive caused prolonged delays.

It is possible that the High Court may therefore seriously consider supporting the use of Writ Petitions to the High Courts as a remedy though this would not be useful for the cases now pending with CAT where hearings are already in progress.

This would bypass the CAT but there appears to be no other option at present to provide remedies to the Cyber Crime victims of India. Such a measure would be required at least as a temporary measure until CAT becomes functional once again.

The next date of hearing of the PIL in Karnataka High Court is July 1, 2013 and we need to see if there is any further development in this period.

Naavi