When Will Cyber Appellate Tribunal Chair be Named?Post Remains Vacant; Fraud Cases Pending
The government of India's Ministry of Communications and Information Technology has not yet appointed a chairperson for its Cyber Appellate Tribunal. However, the Department of Electronics and Information Technology recently defined powers and functions of the Chairperson under Section 21 of the Indian IT Act, 2000. (See: India's Cyber Tribunal Seeks New Chair)
Cyber law experts, surprised over the government defining specific powers for a non-existent chairperson, say it may be a calculated move, strategically letting distressed citizens and the industry believe the government is serious about disposing of pending cyber fraud cases.
Bengaluru-based cyber law expert Naavi Vijayashankar, founder of Naavi.org and director of Cyber Law College and Ujvala Consultants Pvt. Ltd, says, "I understand a retired judge from the Madras High Court, Ms Justice Vasuki, was identified for the post, but it's still vacant."
Registered appeals and cases are waiting, Vijayashankar says. "Without a chairperson, CAT has very little to do. Defining powers and functions for the non-existent chair is strange,"
What's the Challenge?
Critics are baffled over the government's challenge in recruiting a chairperson for CAT, which was instituted for the purposes of discharging its functions under the IT Act to provide justice to the citizens around cyber fraud.
Prashant Mali, Mumbai-based cyberlaw expert and president of Cyber Law Consulting, says DeitY has been dodging the issue even when questioned in parliament.
"The challenge lies in the lack of co-ordination between DeitY, the IT ministry and judiciary, in freezing on the candidacy," Mali says.
Delhi-based Pavan Duggal, Supreme Court advocate and president of Cyberlaws.Net, says a non-functional CAT has had a direct detrimental impact on administration of justice.
"All our matters before CAT are currently adjourned, to be taken up when a Chairperson's appointed," Duggal says.
Duggal doesn't see any challenge in meeting the criteria, as these are well detailed. "It's only a lack of initiative and prioritization," he says. Further, he argues, it's important that CAT be given prominent significance, since predominant use of emerging technology and electronic data by Indian citizens mean new challenges for CAT.
According to Vijayashankar, the candidate must be identified by the government and approved by the Chief Justice of India.
However, he says, perhaps getting the consensus of the CJI is a challenge: Anyone the government recommends may either be unacceptable to the CJI or earmarked for other duties.
"The delay's due to inaction by the CJI, as it does not consider it a priority," he says.
According to Col. Rajan Agarwal, the newly appointed CAT Registrar, CAT is unlikely to appoint a chair anytime soon.
"The appointment's stalled due to unavoidable reasons. All cases related to cyber fraud or grievances are pending and awaiting final verdict," says Agarwal.
Experts say, therefore, citizens must appeal to the High Court or Supreme Court.
CAT Chairperson's Powers
DeitY has defined the powers and functions as a procedural policy, per the demand of the IT Act and also to fill up voids in defining rules for the adjudication officer.
According to the official gazette, the chairperson shall have the power to:
- Ensure timely and efficient disposal of matters pending before the Cyber Appellate Tribunal;
- Implement various statutory provisions related to employees, social welfare schemes and grievance and redressal framework and guidelines as formulated by the Supreme Court and the Central Government from time to time;
- Issue guidelines or circulars from time to time;
- Engage such number of experts and professionals, including amicus curiae, of integrity and outstanding ability, who have special knowledge of, and experience in information technology and cyber laws, as it deems necessary to assist the Cyber Appellate Tribunal in the discharge of its functions under this Act;
- Rectify any clerical or arithmetical mistakes in any proceedings or order of the Cyber Appellate Tribunal at any time, either on its own motion or on the application of any of the parties;
- Determine procedure in certain circumstances, for reasons to be recorded in writing, where no such procedure has specifically been provided in the Act or Rules;
- Seek details of cases filed before or disposed of by the Adjudicating Officers appointed under the Act on regular basis.
According to Duggal, the government is empowered to come up with rules to keep effective enforcement of the provisions of the IT Act and used Section 87 to amend powers.
Experts say many cases were taken to the High Court, but they were sent back to CAT based on the statement by the government that the CAT chairperson is likely to be appointed very soon.
"However, as on date, matters are being adjourned for the constitution of the Bench of the CAT," says Duggal. He argues, that given the threat landscape changing rapidly, the absence of an efficient CAT definitely impairs jurisprudence in cyberspace.
"Further, many cases requiring instantaneous orders are now stuck in the pipeline. It's important that the CAT's instantaneously operational," says Duggal.
Vijayashankar observes there are about 68 pending cases on a monthly basis; the latest cause list indicated 34 items.
According to CAT's Agarwal, CAT's seeking amendment to the IT Act to enable adjudication officers on the bench to dispose cases with the help of technical consultants. This is at the discussion stage.
"Since CAT is the key foundation for the growth of cyber law jurisprudence, there's a need for constituting the CAT's bench," Duggal says. "Matters pending must be decided in a time-bound manner; that requires amendments to the IT Act."