Case for creating a Cyber Disputes Mediation and Arbitration Center
The Cyber Appellate Tribunal (CyAT) which was envisaged under ITA 2000/8 as the national appeal authority over all the adjudication offices is finally confined to history.
Despite being in existence from 2000 upto 2017, the CyAT could not come to a single valid decision. The one decision in which CyAT was close to a decision was ICICI Bank Vs S Umashankar which was posted for judgement on July 3, 2011 when everybody know that the then Chair person was retiring on June 30, 2011. Since then, untill now, Governments could not find a Chair person and CyAT remained non functional.
Now with the passage of the Finance Act 2017, CyAT has been legally closed and merged with TDSAT. (Telecom Disputes Settlement Appellate Tribunal). TDSAT needs to formulate its procedures to hear the past cases which are pending before CyAT (Closed) and to take up future cases.
It is observed that while appeals from TDSAT in its current Telecom related disputes go to the Supreme Court, the appeals of CyAT cases will under Section 62 of ITA 2000/8 will go to the High Courts as in the past. Currently the Chair person of TDSAT is a ex-Supreme Court judge or at least a Chief Justice. How would he like his decision to be reviewed by the High Court without feeling uncomfortable?… is one of the several issues that we may need to resolve to ensure smooth transition of CyAT into TDSAT.
While the TDSAT and the Government sorts out these, it is time for Citizens and other Stakeholders to make their own efforts to ensure that the interests of the Cyber Crime victims are protected and there is a functional Cyber Judicial system in India accessible to all.
In this context, I would call upon interested persons to join hands in setting up a “Cyber Disputes Mediation and Arbitration Center” and try to provide an alternate mechanism of dispute resolutions outside the statutory bodies such as the “Adjudicator” and the “TDSAT”.
Obviously, if the mediation fails, the other alternatives including Adjudication remain open.
If the arbitration is agreed upon but later challenged, there is already a mechanism where by the High Court comes into the picture and the dispute resolution gets back on the statutory platform.
There would be some questions raised as to whether an “Arbitration Contract” would be ultra vires the Information Technology Act 2000/8. Section 61 of ITA 2000/8 bars the jurisdiction of the Courts. But “Compounding” is part of ITA 2000/8 and is available for all Civil disputes and most of the Criminal charges under the Act. Hence, an “Arbitration Contract” or a “Mediation Settlement” must be considered as being well within the provisions of the Act.
Keeping the tradition of Naavi in setting up services based on the concepts that are futuristic, Naavi now intends laying the foundation stone for a “Alternate Disputes Resolution Center” for Cyber Disputes. Presently, it will be developed under www.adr.ind.in (under construction)
It is intended that it will use the services of odrglobal.in as a platform for online dispute resolutions and may also use physical meetings.
This is a concept being seeded now and it requires mentors and participants to make it take root and grow into a full grown tree that can provide shelter to the Cyber Crime victims.
The first set of participants to this endeavour that I am looking forward to are the Cyber Law experts who have the capability of being the “Mediators/Arbitrators” or helping the parties to the dispute as counsels. They can register themselves as “Counsellors” and offering their services for Mediation or Arbitration to the disputing parties.
Naavi will be the promoter and administrator who would like to develop this ADRC for Cyber Disputes as a Mediation cum Arbitration Council with its own set of model rules. This will take time and also needs assistance from like minded persons.
ADR-C-FCD is intended to function as a “Not for Profit” organization, though ODRGlobal.in which is presently owned by Naavi will continue to be a commercial proposition providing its services at a cost. This limited conflict is considered inevitable at this point of time.
Initially, adr.ind.in will focus on spreading the ADR knowledge and function as an ADR Knowledge Center. This may remain the main activity of the Center until this concept which is revolutionary in certain respects gains acceptance of the community.
The acceptance will be visible when some of the “Intermediaries” such as Banks or Mobile Wallet service providers etc start accepting this Center as a part of their grievance redressal mechanism. I am prepared to wait for this to happen over a period of time.
I look forward as always for comments from other domain experts in the area of Cyber Law, ADR and Information Technology to nurse this thought further towards practical implementation.