Is your Right to Justice being trampled by Bureaucracy in Karnataka?

The hallmark of Democracy is that every Citizen has a right to be entitled to Quick and Fair Justice. But when the system fails to provide this fundamental right of a citizen, the society faces the danger of the raise of extra constitutional forces. Such failures encourage the growth of  “Naxalism” which soon escalates to anti national activities and terrorism.

It is therefore essential for the “System”, which consists of the Government, the Judiciary and the Administrators to do their very best at all times to ensure that the “Rule of Law” prevails in the country.

The Government is responsible to frame proper laws, the Judiciary is responsible to deliver the justice and the Administrators which includes the law enforcement machinery is responsible to provide the support required by the Judiciary.

Karnataka has been often hailed as a technology savvy state and Bengaluru is recognized as the “Silicon Capital” of India in view of the presence of a large number of IT industries. It is also of late trying to be the “Start Up Capital”. The perception therefore is that Bengaluru in particular is endowed with rich IT talent and sets an example to the rest of the country in all matters related to IT.

However, despite specific efforts, Bengaluru has failed to make progress when it comes to delivery of Justice to Cyber Crime victims and I would like to highlight one of the major shortcomings in the administration of Cyber Justice in Karnataka and the specific role of the IT Secretary of the State in this regard.

The law relevant to delivery of Cyber Justice in India is the “Information Technology Act 2000 amended in 2008” (ITA 2000/8).

Under this law, any person who has suffered a financial loss of an amount upto Rs 5 crores, arising out of any contravention of ITA 2000/8 should approach the IT Secretary of the State for seeking damages. The IT Secretary is called the “Adjudicator” who has been bestowed the powers of a Civil Court without the burden of the archaic procedures of the Civil Procedure Code to conduct an enquiry and render his award within 4 months. The Adjudicator has the sole jurisdiction in this regard and no other Court can hear a matter that comes under his jurisdiction.

The net effect of this legislation is that a Cyber Crime victim who has suffered a financial loss can be provided quick justice through an “Enquiry Process” by the Adjudicator. The process of filing a complaint is simple and the cost is less than going to a Civil Court (which option is anyway not available for claims upto Rs 5 crores).

Though the law makers who wrote ITA 2000/8 provided for this special judicial process called the “Adjudication”, the IT Secretaries of Karnataka have not been keen to accept this responsibility and do everything in their powers to discourage public from approaching them with a complaint under Section 46 of ITA 2000/8.

Chennai was the first City from which an IT secretary  started his adjudication activities, way back in 2008. Suequently, an IT Secretary from Mumbai continued the tradition and now the Chattisgarh IT Secretary seems to be active.

The techno savvy IT Secretaries in Karnataka donot seem to be interested in pursuing their statutory responsibilities as “Adjudicators” and have  found a clever way of keeping the applicant’s off. The Government and the High Court of Karnataka are not concerned with the plight of Cyber Crime victims in Karnataka and allowed the lawlessness in Cyber space thrive in Karnataka.

Whenever we speak of Cyber Crimes, we immediately turn our attention to the Cyber Crime police station which is doing an excellent job of investigation. But the role of Police ends with investigation and their success in prosecution depends on the Criminal Justice system which is in the hands of the Courts and administrators.

ITA 2000/8 envisaged that while the Police may pursue prosecution of a Cyber Crime perpetrator, the system of Adjudication may parallely be used by a Cyber Crime victim to claim financial damages not only from the ultimate perpetrator of a cyber crime but also from others who aided and abetted in the crime.

In most of the financial cyber crimes such as Bank frauds or Credit card frauds, the perpetrator may be hard to find but the intermediaries who aided and abetted the crime such as the Banks who opened the accounts for the fraudster and helped him launder the fraud proceeds or the Mobile Service providers who issued duplicate SIM card without verification or a merchant establishment whose employee stole the credit card data can be identified and held liable under ITA 2000/8. If therefore the Adjudicators are interested in dispensing justice to Cyber Crime victims and do their duty cast under law, many Cyber Crime victims can find relief much before the Police are able to find the Cyber Crime perpetrator who may sit in Nigeria or a far corner of India and prosecute him.

In one of the cases which was brought before a Karnataka Adjudicator, the cyber crime victim had lost money due to the negligence of Axis Bank and hence claimed the money from Axis Bank which was vicariously liable under ITA 2000/8. Unfortunately, Axis Bank also happens to be the Bank which does e-Governance work for Karnataka Government and there was a conflict of interest for the IT Secretary to take up the complaint against Axis Bank.

However, the IT Secretary not only went ahead of the proceedings without recusing himself from the proceedings but also passed an award which was bad in law and prevented any further complaints being filed on any Banks under Section 46 of ITA 2000/8. Though the Karnataka Human Rights Commission intervened and the Law department of the State also gave its opinion that the award was legally incorrect, due to the failure of the Karnataka High Court to review the decision and the non functioning of the appellate authority in Delhi, the flawed award remains a law in Karnataka since 2011.

The responsibility for correcting the situation lies primarily with the current IT Secretary of the State. But the silence of the IT Minister, the Chief Minister as well as the Chief Justice of Karnataka who has the ultimate responsibility for maintaining the judicial system in Karnataka are also unpardonable.

Are all of them ignorant? Are all of them unconcerned?

History will judge how the cyber judicial system was trampled upon by the system in Karnataka and the failure of the political leaders as well as the Judiciary in Karnataka.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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