By Ayushi Budholia
Published on: May 15, 2022 at 15:38 IST
INTRODUCTION
For the development of any nation, one of the key elements is to keep up with the changing technological advancements. Such technological advancements include computers, internet, online transactions, online banking, online contracts, online shopping, etc.
These technological advancements have a huge impact on the lives of people. With the increasing use of these technological advancements, the risk of cyber crimes is also associated to it. To deal with the cyber-crimes, the government established the Cyber Appellate Tribunal (CAT) under the Information and Technology Act, 2000.
However, after 2011, the Cyber Appellate Tribunal (CAT) is found to be non-functioning because of the absence of Chairperson for the Cyber Appellate Tribunal (CAT).
This Article gives a brief analysis of the establishment of the Cyber Appellate Tribunal with it’s main focus on the case of M/s. Gujarat Petrosynthese Ltd. and Rajendra Prasad Yadav Vs Union of India.
CYBER APPELLATE TRIBUNAL (CAT)
- Establishment of the Cyber Appellate Tribunal (CAT)
The government established the Cyber Appellate Tribunal under Section 48 of the Information and Technology Act, 2000. The section states that –
“48. Appellate Tribunal – (1) The Telecom Disputes Settlement and Appellate Tribunal established under section 14 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), shall, on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), be the Appellate Tribunal for the purposes of this Act and the said Appellate Tribunal shall exercise the jurisdiction, powers and authority conferred on it by or under this Act.
(2) The Central Government [shall specify, by notification] the matters and places in relation to which the Appellate Tribunal may exercise jurisdiction.”
It is to be noted that after the Finance Act, 2017, the word “Cyber Appellate Tribunal” was substituted by the word “Appellate Tribunal” under the entire Information Technology Act, 2000.
- Appeal to Appellate Court – Section 57 of the Information and Technology Act, 2000
This section provides for the appeal to the Appellate Court. It states that if either of the party is not satisfied with the order made by the controller or an adjudicating officer, then the appeal can be filed within a period of forty-five days from the date on which a copy of the order made by the Controller or the adjudicating officer is received by the person aggrieved. However, if the Appellate Tribunal can allow the appeal after forty-five days if it is satisfied that there was sufficient cause with the aggrieved party for not filing it within that period.
ABOUT THE CASE
On 11th September, 2011, an obscure order was given by the Hon’ble Karnataka High Court in the case of M/s. Gujarat Petrosynthese Ltd. And Mr. Rajendra Prasad Yadav Vs Union of India. The order was passed by a Bench comprising of the then Hon’ble Chief Justice Mr. D.H. Waghela and Hon’ble Justice Mrs. B.V. Nagarathna of the Karnataka High Court. This case highlighted the non – functioning of the Cyber Appellate Tribunal because of the absence of chairperson in the tribunal.
- Facts of the case
The petitioner, M/s. Gujarat Petrosynthese Ltd. and Mr. Rajendra Prasad Yadav approached the High Court of Karnataka by filing a writ in the nature of mandamus under Article 226 and 227 of the Constitution of India, 1950.
The writ is filed against the respondent, Union of India (represented by Secretary, Ministry of Communication and Information Technology) to appoint a chairperson to the Cyber Appellate Tribunal.
On 6th September, 2013, the respondents filed statement of objections which stated that the post of Chairperson of the Cyber Appellate Tribunal is vacant since the retirement of Hon’ble Justice Rajesh Tandon. However, attempts are made to fill the post of Chairperson of the Cyber Appellate Tribunal.
An advertisement was published on 16th February, 2011 calling applications for the post of Chairperson of Cyber Appellate Tribunal, the first meeting of the Screening/ Selection Committee was convened on 20th July, 2011 under the Chairmanship of Hon’ble Justice Altamas Kabir, Judge, Supreme Court of India and the committee had decided to consider 13 applications received by the due date.
On 18th August, 2011, it was decided to that for selection of Cyber Appellate Tribunal Chairman, we may start the process of identifying the fresh candidate through a wider consultation process. However, the appointment for the post of Chairperson is still not made.
- Issue in the Case
The petitioners have asked this Court to issue a writ of mandamus ordering the respondent to appoint a Chairperson to the Cyber Appellate Tribunal (CAT), in order to ensure that the CAT’s proceedings are held on a regular basis.
- Arguments of the Petitioner
The learned counsel for the petitioner referred to Section 49 (2) of the Information and Technology Act, 2000. The Section stated that –
“(2) The selection of Chairperson and Members of the Cyber Appellate Tribunal shall be made by the Central Government in consultation with the Chief Justice of India.”
The counsel for the petitioners argued that for the selection of the chairperson and Members of the Cyber Appellate Tribunal, it is the duty of the Central Government to initiate the process of selection and is to be finalized in consultation with the Chief Justice of India.
The counsel relying on the statement of objects argued that the Ministry concerned has hardly done any exercise except periodically writing letters to the Hon’ble Chief Justice of India, with the result that the Cyber Appellate Tribunal (CAT) is dysfunctional since June 2011.
Learned counsel also submitted that the averments made in the statement of objections of the respondent clearly show lack of bona fide and diligence on the part of the authorities in taking up the matter of appointment in right earnest.
- Arguments of the Respondent
The learned counsel for the respondent relied on the letters dated 3rd April, 2013, 10th April, 2013, and 24th July, 2013 and argued that no omission or commission took place on their part for the appointment of the Chairperson of the Cyber Appellate Tribunal (CAT).
It is also argued that the Union of India wrote a letter dated 16th February, 2012 for referring the matter to the Department of Legal Affairs for entrusting the additional charge of the post of Chairman to one Hon’ble retired justice, but it did not appear to be legally in order.
It is further stated that the action for appointment of Chairperson, CAT is under process and laborious efforts are made for an earlier appointment, for speedy disposal of cases. On the basis of such submission, the respondent prayed for the dismissal of the petition filed by the petitioners.
- Decision of the Court
The respondent submitted to the Court that all the necessary measures and steps would be taken to fill the post of chairperson for Cyber Appellate Tribunal (CAT) within six months. They furthermore submitted that since the issue is in public interest, efforts shall be made to appoint the Chairperson even earlier than the expiry of that period.
On the basis of this submission, the Court formed the opinion that no direction is required to be issued and hence the petition was dismissed but without any cost.
CONCLUSION
However, even after the order given by the Hon’ble High Court of Karnataka, the appointment of the Chairperson for the Cyber Appellate Tribunal (CAT) was not made. The six-month time frame, which was submitted by the respondent in the Court lapsed.
Till now, even after years, the appointment of the Chairperson for the Cyber Appellate Tribunal is not made. This results in the non – functioning of the Appellate Tribunal.
This was evident from the case of Vodafone India Ltd Vs Sh Prabhakar Sadekar and others in which because of the absence of Chairperson for the Cyber Appellate Tribunal (CAT), the matter was adjourned to 9th December, 2016. The order reads as –
“Since the bench is not assembling due the non-availability of the Hon’ble Chairperson, this application is adjourned to December 9th, 2016.”
What happened on December 9? While the case status still isn’t publicly available, it presumably has simply been adjourned to yet another date. This is presumably happening to all 66 cases of appeals that were pending as of March 2016.
ABOUT THE AUTHOR
Ayushi Budholia is a third-year, B.A.LL.B Student of Lloyd Law College, Greater Noida.
Edited By: Tanvee Jain, Publisher, Law Insider
REFERNCES
- M/s. Gujarat Petrosynthese ltd and Rajendra Prasad Yadav Vs Union of India, 2014 (1) Kar L J 121.
- tragic-comedic-functioning-indias-cyber-appellate-tribunal
- the-cyber-applellate-tribunal
- landmark-judgments-on-cyber-law