CYBER JURISDICTION OF CASES: INDIAN OUTLOOK

CYBER JURISDICTION OF CASES: INDIAN OUTLOOK

INTRODUCTION

Jurisdiction means the official power vested in a particular court which acts as a medium to facilitate justice and take legal decisions on the matter concerned. These are generally classified as original, appellate, exclusive, pecuniary, territorial, subject matter, etc.

In the landmark judgement of Hriday Nath v. Ram Chandra[1], the court on defining the term ‘jurisdiction’ has enshrined it to be the authority of courts to decide the case by virtue of judicial powers vested in it. The legal maxim Ubi Jus Ibi Remedium is of great importance in this regard which means that where there is a right there is a remedy.

Technology has been taking paradigm shifts in the current scenario. With the changing times something new and more innovative is being discovered and developed owing to the drastic changes in these times. The cyber world refers to the intangible virtual world where people communicate behind the screens and they may or may not reveal their original identities.

Determining cyber jurisdiction in such cases may not be as easy as determining any offline jurisdiction. But for a valid and enforceable judgement, determining jurisdiction to prescribe, adjudicate and enforce is indispensable and needs to be satisfied. Therefore, the aim of this article is to deal with the cyber jurisdiction of cases.

 

EVOLUTION

According to the conventional perspective of deciding jurisdiction of a case, a court has to fall under any type of jurisdiction but this aspect becomes even more complicated keeping in view the fact that the internet does not have any boundaries.

In order to articulate such internet revolution in a society it is extremely important to study the pros and cons of it. To regulate such cons, our society needs proper laws for cyber space. In 1996, United Nations Commission on International Trade and Law (UNCITRAL) adopted the model law on e-commerce which was further adopted by the General Assembly of United Nations by passing a resolution on 31st January, 1997.

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India has also been a signatory to this model law, and had to revise its national laws as per the said model. Therefore, India enacted the Information Technology Act, 2000.[2] Under this law, the internet intermediaries are obligated to comply with cyber law with the due diligence requirements as well.

For further compliance with legal backdrop, contract law, Indian Penal Code, Banking and financial norms, etc. are of much vital importance. However, jurisdiction is the very first step which is undertaken in order to decide and resolve any dispute effectively. And before solving a dispute, it is very crucial to determine as to which court is competent to solve the particular problem.

 

RELEVANT LEGAL PROVISIONS

Section 20 of the Code of Civil Procedure 1908 has been widely interpreted in this topic. It states that the jurisdiction of the case will be where the defendant resides or where the cause of action arises. However, the legal maxim lex loci deliciti means that the civil jurisdiction of a case will lie where the wrong is done. This gives a more clear idea about the offline jurisdiction of the case.

Section 75 of the Information Technology Act 2000 states that the Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence involves a computer system or computer network located in India.

Sections 3 and 4 of the Indian Penal Code 1869 deal with extra-jurisdictional power given to Indian Courts.

Section 188 of the Code of Criminal Procedure 1973 enlightens that even if a citizen of India commits any offence outside the territorial boundaries of India then the same can be subjected to the jurisdiction of courts in India. Jurisdiction in cyber space is similar to jurisdiction of the traditional crimes hence the concept of subjective territory will prevail. Moreover, Section 178 deals with the criminal offence committed within the territory of India and Section 179 deals with the consequences of this offence committed within the territory of India.

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Indian courts have actually adopted a personal jurisdiction to resolve cyber disputes. The principle of lex foris which means ‘Law of the Forum’ is followed. This highlights the forum in which legal proceedings are initiated applicable for the purpose of all the procedures.

 

ISSUES AND CHALLENGES

The internet world falls short of jurisdiction because of the reason that it can be accessed from any corner of the world and giving rise to a number of issues and challenges faced.

It is very mandatory to determine the extent to which a court is legally competent to entertain a dispute falling out of jurisdiction and how the laws of that place are to be applied. Plus determining as to when a court or tribunal is entitled to decide jurisdiction as a result of a dispute arising between private parties also has to be ascertained.

Usually when a dispute arises out of a contract that is entered between two parties in different countries, there is often confusion as to where an action can be brought.

It is easier for every party to sue in their own home court but this cannot be possible because the same suit cannot arise in two different places. This has led to many jurisdictional disputes and uncertainty.

 

CASE LAWS

In the case of SMC Pneumatics (India) Pvt. Ltd. V. Jogesh Kwatra[3] which was India’s first case of cyber defamation, Delhi High Court presumed jurisdiction of a case where the reputation of a firm was being defamed through social platforms hence an ex-parte injunction was passed.

In the case of SIL Import v. Exim Aides Silk Importers[4] the Supreme Court of India recognised the need to interpret a statute by making allowances for any relevant technological change occurring from time to time. Wide interpretation to the existing statues will have to be made for resolving internet disputes unless there is no legislation framed for recognition of jurisdiction of the Indian Courts.

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In the case of Trimex International FZE Ltd. Dubai v. Vedanta Aluminium Ltd.[5] an electronic transaction conveyed by way of e-mails between parties constitute a contract giving rise to mutual obligations.

In the case of Bhagwandas v. Girdharilal[6] it was held that the method of communicating through e-mails is useful only for not instant forms of communication like contracts entered through e-mails like web click contracts.

In another case of Kusum Ingots & Alloys Ltd. v. UOI & Anr.[7]  it was held that the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum at their convenience.

 

CONCLUSION

Keeping in view the current scenario where cyber crimes are increasing to an alarming stage, it is crucial to maintain a broad base for dealing with jurisdictional issues. Proper extradition laws have not been yet framed in India for dealing with offences committed over the internet. India should be a signatory to the convention on global cyber crime for enhancing its laws on protection from cyber crimes.

A proper jurisdictional procedure has to be laid down in other statutes. Cyber jurisdiction has posed a threat for institution of civil suits. These cyber laws have to be made universal in nature in order to articulate the extra territorial jurisdiction in it also.

[1] (1921) AIR Cal 34

[2] CYBERSPACE: JURISDICTIONAL ISSUES OF ECOMMERCE AND CONSUMER PROTECTION,  Abhinav National Monthly Refereed Journal of Research in  Commerce & Management(Volume 3, Issue 7 (July, 2014)) ‘Chetan Karnatak’

[3] Suit no. 1279/2001

[4] (1999) 4 SCC 567

[5] 2010 (1) SCALE 574

[6] AIR  1966 SC 543

[7] (2004) 6 SCC 254

Author: Shubhi Dhiman,
School of Law UPES Dehradun; 3rd year

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