ISSUE OF JURISDICTION UNDER CYBER LAW IN INDIA

This article was written by Brinda. G. Lashkari a student of Pravin Gandhi College Of Law

 The cyberspace unlike our real world is created of virtual elements which tend to exist not at one place but several, not for a person but for many. India being a developing nation has now emerged from the agrarian oriented society to the industrial and technologically driven society .Every demand, command, action , reaction and word is now put across nations by just a click. So the solution is served to the world in a ready plate .Anyone can anywhere , irrespective of his or her nationality , residence or ability  now move across countries through the cyberspace . Rights, duties and freedom all exist in our real world. Cyber world being a borderless world has border less freedoms but no claim to real rights. Times have evolved.  From times of disputes on movable and immovable property, we now face disputes  in the intangible property  disputes . These intangible properties include copyrights, trademarks, domains etc. which are equally owned and controlled by an individual at his expense. With trade and commerce flourishing all over the globe, exchange of all forms of goods, services and not only monetary goods but also of thoughts, expressions and ideas have led to a intersection of interest among all countries. If we step back and run through our history we realise that every transaction, every exchange or any sharing of commonality had disputes. We are successful in setting up dispute resolution systems for any matter which has existing or real disputes or right infringements, but what about the virtually existing cyber world? In a place where all the members exist virtually with no guarantee of their existence, no form of physical body or actual visible transaction occurring. As easy as the internet makes our life today, it entraps us into an equally confusing and deceptive mess. If everyone is given the freedom to do as they like in the cyber space, anarchy shall soon exist not only in the cyber world but its consequences shall harm the real world too. So who decides what is wrong and right in the cyberspace.  Usually in a simple transaction between individuals of two different countries, the laws of the country on which they decide to be governed under is applicable or the law of the country in which the transaction occurs is under which the parties are governed. This signifies on how major importance is placed on the territory and its demarcated boundaries. But none such clarification is applicable to the internet as it has no relevance of territory. So who decides  the disputes occurring on the internet? A particular jurisdiction has to be inherent in a court to grant an order or judgement against any disputing party. Jurisdiction is the power given to a court to decide on matters and provide a judgement that stands against all odds true and valid. Without any jurisdiction, any court is just a hearing instrument with no power. Jurisdictions are of two types :-

• Subject jurisdiction which allows the court to decide cases of a particular category
• Personal jurisdiction which allows a court to decide on matters related to citizens or people of its territory, the person having some contact to the territory, irrespective on where the person is presently located.

The law of the land has a set territorial boundary with its jurisdiction based on where the defendant is located or has some contact with or the territory on which the cause of action[1] arises. The Internet has no set geographical or fixed boundary which leads to a havoc in deciding which law applies and which court has an adjudicative jurisdiction over the dispute. This confusion allows one to be sued by anyone in any other country for defying his legal right or defying any law of that land without even realising the harm done.  Jurisdiction of courts is decided mainly on the location of the defendant and where the cause of action arises. The internet fails to provide any location indication as the person hosting a website may be in USA but its server may be in France and the consumer of the goods sold on the website may be in India .Hence the laws of three states get involved. One of the prosecution, another of the server host and the third of the defendant. Due to the lack of a uniform jurisdictional procedure for disputes of the Internet, there is always a conflict of law that occurs.

POSITION IN INDIAN COURTS

Indian courts adopt a personal jurisdiction to solve disputes related to the cyber world. Indian courts follow the principle of ‘lex foris’ that means Law of the Forum .This signifies that the Indian courts do not follow the rule of procedure of any foreign law. They accept the well -established private international law and the  law of the forum in which the legal proceedings have been initiated is applicable for  the purpose of all the procedures.  [2]  Personal Jurisdiction is governed by the Code of Civil Procedure, 1908 (CPC) in the Indian Courts .  The CPC does not treat private international law disputes differently. In the Code of Civil Procedure the basis for deciding territorial jurisdiction stays the same as any domestic dispute , but to decide on the subject matter jurisdiction of a suits the code has specified a distinction on which type of suits will be governed under it , these are –

• For suits on immovable property
• For suits on movable property and wrongs to persons
• For any other category of suits , Section 20 is a “default rule” as it provides for categories of suits not covered in the above two categories .

Section 20 of the CPC states that a court can exercise jurisdiction in actions involving persons where:

• the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for work

 (b) any of the defendants, where there are more than one, at the time of commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case with the leave of the court has been obtained or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution

 (c) the cause of section wholly or partly arises. [3]

AGREEMENT OF PARTIES

A very essential factor that decides the jurisdiction of courts is an “ agreement clause” in the contracts between parties .The parties pre decide  on the issue of under which law they will be governed and which court would settle their dispute . Indian courts do allow autonomy to both the parties to decide which courts they want their future disputes to be decided by, however the Indian courts will not permit the parties to be under the jurisdiction of a court which on the face of it lacks jurisdiction . Hence party autonomy is permitted by the courts but not at the cost of the parties deciding a court which lacks jurisdiction.

On the basis of section 20 of the CPC ,Indian courts decide their jurisdiction on the basis of the residence of the parties within the territorial boundaries , also within the territory under which one of the party carries on his or her business irrespective of whether the party resides their or is presently located in the territory . Similarly, conduct of business by a defendant in a forum also gives to the forum court to exercise jurisdiction, irrespective of his non-presence within the jurisdiction [4] Indian courts also assume jurisdiction if the cause of action arises within their territory . by this power the courts can also adjudicate on non-resident foreigners if the cause of action arises within the court’s jurisdiction. [5]  American Courts basically apply a three part test to determine whether specific personal jurisdiction can be exercised over non-resident defendants. These include an act or transaction within the forum state by which the defendant purposefully avails himself of the privilege of conducting activities within the forum; claim/cause of action arising out of the defendant’s forum related activities and whether the acts of the defendant or its consequences have a substantial enough connection with the forum to make the exercise of jurisdiction over the defendant reasonable [Cybersell Inc. case (supra); Panavision International LP case] [6] in India the situation is different .

Due to the absence of a ‘long arm statute’ to adjudicate over non-resident foreigners the Indian courts apply a threefold test –

1. Whether the Defendants activity has a sufficient connection with the forum state (India).
2. Whether the cause of action that arises out of the defendant’s activity falls within the forum.
3. Whether the exercise of jurisdiction would be reasonable.[7]

If the answer is an affirmative one then the party irrespective of him or her being a non-resident foreigner will be adjudicated by the Indian court.  But not only these factors are looked into by the Indian courts while considering their jurisdiction.  Two other aspects are also looked into, they are –

• Domicile of the defendant
• Proximity to the cause of action

If these two aspects are satisfied and are in favour for the Indian court to adjudicate on the dispute , the Indian court begins the adjudication. But  if the defendant is successful in planting an issue of another court having a better  basis of jurisdiction than the Indian court , then the court would look into the question of ‘forum non conveniens ‘ [8] or anti-suit injunctions[9] to check for the most convenient forum which can entertain the dispute. Indian courts act as a chequer of party selected courts. The courts check whether the court mentioned in the contract of the parties has jurisdiction to entertain the dispute. If the court believes that the contract mentioned court lacks jurisdiction it can ask the disputing parties to choose another or the court itself shall provide them with one which possesses jurisdiction  .

Loop holes within the issue of jurisdiction of Indian courts –

Jurisdiction of the Indian courts for disputes relating to the cyber space where the parties are situated in India is governed under the Information Technology Act, 2000 which has formed special forums to solve disputes in the cyber space, such as

• Adjudicating Officers – They are appointed by the Controller and their function is to decide by the geographical location as to which jurisdiction will apply to the disputing parties. The hearing officer also decides as to which party gains an unfair advantage.
• Cyber Regulations Appellate Tribunal – This tribunal is set up by the government and the government decides the matters which would be taken up and also the jurisdiction of the tribunal . It acts as the first appellate tribunal for any matter from the control board or the adjudicating officers.
• High court – The parties can appeal to the high court if they are not satisfied with the decision of the tribunal within 60 days.

The IT Act ,2000 has complete power to adjudicate and implement its judgement on disputes where both the parties are of Indian origin .But what happens when one party is of foreign origin? The IT Act is well applied in extra territorial cases, but is not strong enough to implement its decision on the foreign party. The court possesses no power to bring the foreign party to India for trial . For example an Indian Citizen’s credit card has been misused by an American citizen, he then approached the Indian courts for justice   . under the IT Act ,2000 the court does have the extra territorial jurisdiction to adjudicate on this matter but how effective will it be to bring the American citizen to India to be prosecuted as  the IT Act is not applicable to the American citizen .Consider another scenario in which a particular transaction that A and B get into is legal for A in A’s country to get into but illegal for B in B’s country to get into?  The availability of several equally capable courts and the difficulty in gathering evidence of location and existence makes it difficult for Indian courts to gain jurisdiction.

 The Convention on Cyber Crimes of 2001 which allows the country to have jurisdiction if the cybercrime is committed –

1. In its territory;
2. On board a ship flying the flag of the country;
3. On board an aircraft registered under the laws of the country
4. By one of the countries nationals, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State.[10]

This convention also makes cybercrimes extraditable when the crime committed is illegal in both the signatory countries. The offence can be punished to an imprisonment up to 1 year or more severe penalty. Unfortunately the convention is a produce of International law and the signatories are again let loose on its applicability and its implementation. International law being toothless allows the criminals across countries to commit offences and go scot free as the basic question of jurisdiction of a court confuses the justice system.

For the Jurisdiction of courts in the cyber space to be clear one internationally recognised body should be created which has enough power to decide on the jurisdiction of cyber space disputes and also has the power to penalise cyber criminals.

Cyber space is an imaginary system with equal pros and cons. Cyber space can help one achieve and equally deceive him. India has not faced many cases concerning this issue, but the time is near where internationally and domestically countries would have to cooperate and decide to form a uniform rule of jurisdiction which is strong enough to prosecute and catch hold of cyber criminals.

[1] Cause of action means the right to sue of a party for any harm caused to him or her due to the actions of another party which  is sued.

[2] https://www.academia.edu/3700793/Jurisdictional_Issues_in_Cyber_Crime

[3] http://www.vaishlaw.com/article/Cyberspace%20Jurisdiction-Amit%20Sachdeva.pdf

[4] 1 Chunnilal Kastuschand v Dundappa Donappa AIR 1951 Bom. 190; Frontier Bank Ltd v Shrimati Prakashwati Bahl ILR (1950) Punj. 635.

[5] 3 R. Blainpain and B. Verschraegev (eds), International Encyclopedia of Laws: Private International Law (The Hague: Kluwer Law International, 2005), p.555.

[6] (India Tv) Independent News … vs India Broadcast Live Llc And Ors. on 10 July, 2007 (http://indiankanoon.org/doc/1043775/)

[7] (India Tv) Independent News … vs India Broadcast Live Llc And Ors. on 10 July, 2007

[8] The doctrine of ‘Forum non conveniens ‘ allows the trial courts a discretionary power to stay or to refuse cases whenever the forum or the court would be inappropriate .

[9] An anti-suit injunction is an injunction passed by the court restraining  a party from instituting a case in another court which includes a foreign court.

[10] https://www.academia.edu/3700793/Jurisdictional_Issues_in_Cyber_Crime