Author: Shreya Saxena,
Alliance University, Bangalore
The cyber-world is different from our real and natural world; it is created of virtual elements that exist not for just one or a few people but for many and not in one place but several. Anyone can access it within a blink of an eye from anywhere on the globe. Any commands, demand, action, and reaction in the world are now being put up across the nations within seconds. The invention of such technology has made life easier. The usage of the internet has turned the world into a global village. The cyber-world is a world without borders that has freedoms but has no claims to real rights. On one side of this world, everything seems to be fast, easy, and smooth, but on the other side of this world, culture highlights the various complex issues and vulnerabilities regarding cybercrimes. India, as a developing nation has now evolved from being an agrarian oriented to an industrial and technologically driven society due to such inventions.
This essay focuses on the issue of cyber jurisdiction in India. The essay gives an idea of certain provisions concerning the jurisdiction issue in the country. The necessity of international conventions and participation of India has also been discussed further. Moreover, the essay also mentions a few suggestions for resolving the confusion of cyber jurisdiction.
Cybercrimes have been characterized as high tech offences around the world as such crimes are committed by the abuse of telecommunication technology and computer network system. The range of cybercrime is very wide and vast enough to affect and harm the socio-economic and fundamental rights of the people. Using the computer network system in itself is not wrong, but the illegal actions taken by a person or persons in using such networks as a medium are deemed to be illegal and punishable under various laws enacted in India. Some of the cybercrimes are committed through the computer telecommunication networks which leave the perpetrators, as well as the victim of such crime anonymous and it is difficult to be identified and establishing any evidence against the crime is very difficult as it is easy to erase which ultimately renders the victim helpless.
The issue of cybercrimes involves various criminal activities ranging from minor or small crimes to more serious crimes which can create serious threats to any individual or a nation such as theft of information, illegal gambling, cyber bullying, cyber defamation, cyber stalking, data diddling, web jacking, etc. However, such crimes are not simple to resolve as the crimes aren't the only concern; the main concern arises when the question of jurisdiction of such matters arises. Due to the non-restriction of physical boundaries in cyberspace, it becomes more convenient for criminals to find their way in or in various ways access the system at any time from any part of the world by the accessing computer or any such electronic devices.
The explosion of the internet has generated various jurisdictional disputes which ultimately burdened the courts in order to determine the applicability of various historic concepts concerning the jurisdiction to the boundary-less cyber world. Due to the popularity of internet usage, the cases related to economic offenses and personal victimization in India has increased and evolved. Such is mostly done by initiating hacking at one place that adversely affects any other place or any individual or an institution that brings them to limbo.
The term ‘Jurisdiction’ has not been defined by the Code of Civil Procedure, 1908 (hereinafter referred to as CPC). However, the Code of 1908 describes the jurisdiction of the civil court to entertain such civil suits unless it is expressly or impliedly prohibited. But in the case-law of Ganga Bai v. Vijai Kumar, the Court declared that it is an inherent right of civil courts to entertain a civil suit unless it is restricted by any statute. No special authority is required for the maintainability of the suit in a case where no statute bars the suit. In the case of Sankaer Naryan Potti v. K. Sreedevi, the Supreme Court interpreted Section 9 and held that the civil court has jurisdiction on such matters that unless it is impliedly or expressly removed from such courts.
The courts defined this term in another case of Hriday Nath v. Ram Chandra, as the authority of the civil courts to decide the cases by virtue of the assigned or inherited judicial powers.
This concept of jurisdiction could be defined as the power of the courts to adjudicate a particular matter, or the power assigned to an officially formed legal body to adjudicate on such legal matters and administer justice within a designated place of control. The term describes the subject-matter or geographical area of the suit wherein the authority of such courts extends.
The judiciary in India has adduced the classical legal maxim, “Ubi Jus Ibi Remedium” which means where it is wrong; there is a remedy. Therefore, the jurisdiction lies where the wrong has been committed. In India, jurisdictions are of two types:
1. Subject jurisdiction: Such jurisdiction allows the courts to entertain on matters of that of a particular category.
2. Personal jurisdiction: Such jurisdiction allows the court to entertain on matters related to the citizens or people of its territory, or the person having any relevant contact to the territory irrespective of where the person is currently located.
Other Relevant Legislations
- Information Technology Act, 2000: The Act under Section 75 implies that any offence or contravention which is committed by any person outside India and such act or conduct which constitutes the offence involves a computer, computer network or computer system which is located in India, then the courts shall have jurisdiction on such matters. Moreover, the Act of 2000 under Sections 43 and 66 mentions about the penal liabilities for various activities ranging from data theft, hacking into a computer network, introducing and spreading viruses through computer networks, damaging or disrupting computers or computer networks or systems or programs, damaging or destroying information stored in a computer, denying a person access to a computer or computer network which is authorised to access, etc. The punishment for the above-mentioned offences is imprisonment of up to three years or a fine of rupees five lakhs or both. Section 66C of the Act of 2000 mentions the penal liability for identity theft. It provides that anyone who dishonestly or fraudulently makes use of the password, electronic signature, or any other unique identification feature of any person in their country or outside the country shall be punished with imprisonment for a term which may extend up to three years or a fine which may be extended to rupees one lakh or both. Section 66D of the Act mentions about punishment for any cheating committed by personation by using the cyber platform and provides that any person who cheats by personation by using the means of any communication device or computer resource, will be punished with imprisonment for a term which may extend to three years or fine which may extend up to rupees one lakh or both.
- Indian Penal Code, 1860: The Code under Section 4(3) deals with the extension of the IPC to extraterritorial offences that state that the provisions of the IPC shall be applicable to any person at any place “without and beyond India” while committing an offence targeting any computer device located in India. The Code defines the term "electronic record” under Section 29A by linking it with the definition given in the Act. Section 378 of the Code concerning the theft of any movable property is applied to the cyber world as well, such as theft of any data, online or otherwise, as Section 22 of the Code explains the term "movable property" as are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. The punishment for such an act is mentioned under Section 378 of the Code, i.e. is imprisonment up to three years or a fine or both. It may be argued that the term “corporeal” mentioned under this section may be argued as it means “physical” or “material” which would not include digital properties from the ambit of this section. A counter-argument could be made to the previous argument that the drafters of the Act intended to cover properties of every description and only excluded the land and things attached or permanently fastened to any such thing which is attached to the earth. The Code under Section 424 states about dishonestly or fraudulently concealment or removal or assist thereof shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both, this section is also applied to data theft. Section 425 of the Code deals with mischief, and the maximum punishment for the same is imprisonment of up to three months or a fine or both. Furthermore, the Code provides for penal liabilities for various cyber crimes under Sections 411 (dishonestly receiving stolen property), 419 (punishment for cheating by personation), 292, and 294.
- Code of Criminal Procedure, 1973: The Code under Section 188 provides that even if a citizen of India commits an offence outside the country, then such citizen is subject to the jurisdiction of courts in India. Section 178 of the Code deals with such crime or part of any such crime committed in India, and Section 179 of the Code deals with the consequences of such crimes committed in Indian territory.
The High Court of Delhi, in the very first case of cyber defamation, i.e. SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, assumed its jurisdiction, and passed an ex-parte injunction on a dispute where a corporate’s reputation was being defamed through e-mails. It was held that the cause of action and consequences extends the jurisdiction of such matters, but completion in such situations arises when there is no defined regulation of such matters at one of the places. For instance, no provision under the Act provides any remedy or procedure to catch the internet pornography uploaded on any foreign websites but only provides for the websites in India.
In the case of SIL Import v. Exim Aides Silk Importers, the Honourable Supreme Court of India has recognized the need for interpretation of a statute by the judiciary while making allowances for necessary and relevant technological changes that have occurred.
In the current scenario, such crimes are increasing to an alarming extent, the present need of the hour is to have broad-based convention which shall be adopted regarding the criminal substantive law matters, criminal procedural questions, international criminal law procedures, and agreements.
It is very important to acknowledge that at present India does not have any properly formed extradition law to deal with cybercrimes that have been committed over the internet. In order to address this issue, India should become a signatory and ratify the Convention on Cybercrimes Treaty. This would make a great change in the current condition of resolving the jurisdictional controversies that arise in cybercrime cases. And necessary amendments shall be made concerning the jurisdiction in the relevant acts as this issue increases the unnecessary duration of the suit process and delays the proceedings.
The Courts in India will have to provide a wide interpretation to the existing statutes, for exercising internet disputes in order to provide justice to the victims until a specific and separate legislation of such cyber activities concerning the jurisdiction of the indian courts are enacted by the Parliament of India, or until India is a signatory to an international treaty and ratify all the necessary conventions concerning the jurisdiction of the national courts and the circumstances under which they can be exercised.
1974 SCC (3) 882 1998 SCC (3) 751 AIR 1929 Cal 445 AIR 2014
AIR 1999 SC 1609