AN OPEN LETTER

To

Sri D.V.Sadananda Gowda
The Honourable Chief Minister of Karnataka
Bangalore

Dear Sir

Karnataka is one state in India which has been in the forefront of IT development. Bangalore as a city does not escape the attention of Mr Obama whenever he thinks of winning an election in US. In the light of the US attention on Bangalore, a suggestion was made in a conference in Bangalore in 2009 organized by the IT Cell of BJP, that we need to take special efforts to make Karnataka the “Cyber Security Capital” in the world. (See :Bengaluru as Information Security City). In this direction, some efforts were taken in the last two years and several more are in the pipeline.

In the month of June 2012, a committee of Human Rights from UN will be in India for a “Universal Periodic Review” of Human Rights Status in India. One of the aspects that UN has identified is the role of Internet as “Human Right”. It has been recognized that “Denying Cyber Judicial Process” is one of the deficiencies in Human Rights implementation.

I would like to bring to your notice that when such a reivew is taken, Karnataka will be having the dubious distinction in India as one State where Cyber Judicial System is nealy absent. If we take an index, Tamil Nadu will come at the top followed by Gujarat, Maharashtra and may be all other States. Karnataka will come at the bottom with a negative score even below all states which may score a Zero. This is completely contrary to the image which we wanted to build for Karnataka and hence it is necessary to bring this to your notice.

The responsibility for remedying this situation lies with three ministries in Karnataka namely the IT Ministry, The Home Ministry and the Law Ministry.

Through this open letter, I bring to your notice the voice of the Citizens in Karnataka who have been facing a serious problem as regards Cyber Crime complaints.

The problems regarding Police officers refusing to register Cyber Crime complaints is well known. It is widely prevalent everywhere in India and also in Karnataka. Remedy for this starts with a statewide training of police officers that is long overdue. At present the responsibility for this has been left to the Cyber Lab in Bangalore which does not have adequate capacity. It is necessary for the Police training  school in Mysore to be made the nodal office for building the capacity of the Karnataka Police system to handle not only Cyber Crimes under Information Technology Act 2000 (ITA 2000) amended in 2008 (ITA 2008) but also use digital evidence properly in other cases.

Additionally statewide education of prosecutors is required to be undertaken along with a coordinated plan with the Chief Justice of Karnataka for training of the Judiciary.

More importantly, I would like to point out that the woes of the citizens of Karnataka has been significantly escalated because they have been shut off from civil remedies as envisaged in Information Technology act 2000.

The reason for this can be directly traced to the functioning of the IT ministry in the State which is under your direct control. As you are aware, the Civil Cyber Judiciary in the State is predominantly controlled by the IT Secretary who is also the “Adjudicator” of the State. All civil complaints seeking remedy upto Rs 5 crores are within the exclusive jurisdiction of the Adjudicator. No Civil Court has a jurisdiction in this regard.

In 2003 when the Government of India wanted to appoint Adjudicators quickly under a Court directive, designated all State IT Secretaries as “Adjudicators” and virtually took over a legal function. Though the other functions of the IT Secretaries involving promotion of IT activities in a State had a conflict with their envisaged duties as a Civil Judicial officer, DIT adopted the system in the absence of IT knowledge in the traditional Judiciary. Due to the exigencies prevailing at that time, DIT ignored the fact that just as Judicial officers donot have adequate appreciation of technology, the IT Secretaries also have inadquate appreciation of law and justice.

Eight years later, this decision of DIT has come to haunt the Citizens of Karnataka with the exposure of the inadequacies in the Adjudication system which is administered by the IT Secretary of the State. As head of the Ministry of IT, it is your responsibility to ensure that be cause of this development, Karataka does not become the focus of the UN Human Rights review as a symbol of Human Rights Violation for Netizens of the State. This could pull down the rating that the review may give to India in terms of Human Rights and also a political handle for the opposition to point out as an inefficiency of your Government.

The reason for sych a state of affairs is that, taking a contrarian view in three Cyber Crime complaints referred to him, the Karnataka IT Secretary has taken an opinion to the effect that

 “No complaints can be admitted for remedies under Section 43 of Information Technology Act 2000 after the amendments of 2008, against any corporate entity and that no complaints can be made by a corporate entity as well”.

As a result victims of Cyber Crimes in Karnataka who have complaints against Banks and other Corporate entities have been denied access to remedy under Section 43 of ITA 2000. Companies in Karnataka including IT Companies and MNCs cannot invoke Section 43 and Section 66 in respect of offences under the Act. This seriously affects the punishments for “Hacking” and other offences under Section 66 of the Act. The consequences will be disastrous on the system of Cyber Judicial administration in Karnataka.

This development may also hurt India’s rating under the European Union’s new data protection laws and may adversely affect the business of BPOs in Bangalore much to the delight of President Obama. I will not be surprised if this also becomes an election plank of Mr Obama to argue that Bangalore is not the right destination for US Companies.

Though the unsustainability of the stand taken by the IT Secretary has been brought to his attention,he has stood by his opinion to which I agree he is legally entitled to. This opinion which needs to be revoked now only on an appeal to Cyber Appellate Tribunal   will stay in place until the tribunal is reactivated by the appointment of a “Presiding Officer”. (DIT is blocking the appointment of a new Presiding officer in place of the retired person for reasons which are not relevant here). The crisis in Cyber Judiciary is therefore likely to continue during the period the Universal Periodic Review of Human Rights in India will be taking place.

This combination of inefficiency of DIT in not appointing a Presiding officer for CAT and the interim decision of the Karnataka IT Secretary has enormously benefitted some of the Banks who are  e-Governance partners of the government facing complaints from public. Unfortunately, the rights of the Netizens of Karnataka are being held subordinate to the rights of the commercial partners of the Karntaka Government and the implications of this will not be lost on the Human Rights Commission.

It is ironic that in such a state of affairs, the Karnataka IT Department is conducting a Cyber Security Summit and making untenable promises which remain promises for the last three years.

In this context, on behalf of the six crore Kannadigas, I need to request you to define the priorities of Cyber Security in Karnataka. Is it meant for protecting the Citizens of Karnataka? or Is it meant for protecting the business interests of those corporates who are in E Governance partnership with the Government?. In fact we need to develop a State Policy for Cyber Security which should encompass all aspects of Cyber Security including the need to have an effective Cyber Crime Mitigation and Cyber Judiciary system in Karnataka.

I request that as a Lawyer, Chief Minister and Minister in Charge of IT, this initiative should be taken up directly by the CM Secretariat so that the damage that has been done to the reputation of Karnataka and Bangalore is rectified.

I am eagerly looking forward to your response in this regard. I would be glad to offer any more clarifications as may be required by you.

Regards

Na.Vijayashankar
37, 20th Main, BSK Stage I, Bangalore, 560050
Founder www.naavi.org

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