In an interesting development in Bangalore, Axis Bank which is a business client of the Government of Karnataka for e Governance payment system management has filed a writ petition against the Principal Secretary IT and BT of the Government of Karnataka in his capacity as the “Adjudicator of Karnataka”. It may be noted that “Adjudication” is an institution having powers of a Civil Court, regarding the administration of the Adjudication system under Information Technology Act 2000 amended in 2008 (ITA 2000/8) and the “Adjudicator” is having the powers equivalent to a Civil Judge. Hence the writ petition is on a judicial authority filed before the High Court.
The Writ petion number WP 21049 of 2013 will be heard for admission by the Principal bench of the High Court of Karnataka today in Bangalore. The Writ petition has been filed objecting to the proceedings in the adjudication complaint filed by M/S Gujarat Petrosynthese Ltd. (GPL) a company which as a customer of Axis Bank had lost Rs 39 lakhs due to a suspected Phishing activity.
GPL had filed an adjudication complaint in 2011 against Axis bank and several other Banks involved in the laundering of the proceeds. In December 2011, the then Adjudicator had abdicated jurisdiction on the issue and dismissed the complaint as not maintainable under Section 43 of ITA 2008.
The ground for rejection was that Section 43 can be invoked by a “Person” and the term “Person” means only an “Individual” and GPL was a Corporate entity and hence it cannot invoke the section. Immediately thereafter the same Adjudicator dismissed another Complaint of Mr Rajesh Yadav Vs ICICI Bank again on phishing (filed earlier and held pending for judgement), under the same premise holding that “ICICI Bank” is a corporate entity and hence deciding that the complaint was not maintainable.
Thus the adjudicator had categorically opined that Section 43 cannot be invoked either against a Company or by a Company.
It may be noted that Section 43 inter alia also defines the offences under Section 66 which covers almost all Cyber Crimes arising out of unauthorized access, unauthorized downloading, Virus introduction, causing damage or denial of service, assisting another person to contravene, charging a service to another person (creidt card frauds) and any offence involving modification, deletion of data or diminishing in the value of information residing inside a computer etc.
As a consequence of the decision, Section 43 and by implication Section 66 could not be invoked by any company nor against any company. This meant that a substantial part of ITA 2008 was made irrelevant for the corporate sector. It also introduced anomalies such as rendering around 15 lakh digital certificates issued by Corporate Certifying Authorities infructuous by questioning the validity of the license issued to the Certifying Authority itself.
The undersigned therefore found that the decision created an unhealthy precedent. It was considered so bad that the image of the Adjudication system in general which involved IT Secretaries across the country as well as the image of Karnataka as an IT Savvy State were seriously jeopardized. Readers may refer to other articles written in this blog over a time on this aspect.
A review petition had bee filed by the complainant (GPL) a day after the decision in December 2011 to protect the image of the State’s legal system for Cyber Crimes apart from protecting its own right to fair and equitable justice.
Unfortunately the Adjudicator kept the review pending without assigning any reason. During this period no adjudication applications could be filed in Karnataka against any companies or by any companies. There was therefore a void in the judicial system concerning contraventions of ITA 2008.
With several complaints being made to different authorities on the prevailing “No Judicial Redresss through Adjudication for Cyber Crime Victims in Karnataka”, the Karnataka State Human Rights Commission took cognizance of the adverse impact of the state of affairs on the Human Rights aspect and took up the issue with the State Government.
It is understood that the current Adjudicator (IT Secretary) sought the opinion of the Law department and upon their advise considered that the ground “Person does not include Corporate entity for the purpose of Section 43” was not tenable and accepted the request for review made by GPL and re started the process with a hearing scheduled for May 15, 2014.
On 14th May 2013, a day earlier around 4.00 pm, Axis Bank filed a Writ Petition (WP 21049/2013) at the High Court of Karnataka against Mr S.N.Prasad, the Adjudicator of Karnataka seeking cancellation of the order to re start the hearing. On the basis of the petition which was pending admission, Axis Bank requested the Adjudicator to stop the hearing on 15th May 2013. However the request was rejected and next date of hearing was posted for May 31, 2013.
In the meantime the writ petition was modified by naming the “Adjudicator” by designation as the first respondent and GPL as the second respondent instead of S.N.Prasad as the only respondent. This petition is coming up for consideration of admission on 16th May 2013 at the principal bench of the Karnataka High Court.
The issue is of great importance since it challenges the provisions of Section 61 of ITA 2008 along with powers of Adjudication under Section 46 of ITA 2008. It also challenges the views of the State Human Rights Commission though the fact might not have been brought out in the petition.
It is pertinent to note that a similar petition had been filed by Punjab National Bank in the High Court of Madras last year challenging the jurisdiction and procedures adopted by the Adjudicator. The Honourable High Court of Madras however dismissed the petition and directed that the Adjudicator may continue the proceedings.
We hope that Axis Bank would disclose the background to the Karnataka High Court before seeking any remedy.
I request the media in Bangalore to take note of the incident and ensure that the process of speedy justice envisaged under ITA 2008 is available to the Cyber Crime victims of Karnataka.
Naavi
