Jurisdiction With Respect To Cyber Law In India
Updated: Jan 20
The Government of India is working hard to encourage digitalization, a critical and open step into the future. "Digital India" on one hand ensures that people and governments have an incorruptible interaction but on the other hand, the reach of crime in cyberspace is rising. The biggest issue in question is the jurisdiction of cyberlaw as it involves the existence of various parties in different parts of the world with virtual links. So, where should the aggrieved party file a suit, and what solution is available to them?
Traditionally where the cause of action arises is where the jurisdiction lies, but unlike conventional transactions, three parties participate in any cyber transaction: the user, the host server, and the person who conducts the transaction.
1. Prescriptive jurisdiction
It is the jurisdiction of the state to make laws applicable to persons and certain circumstances.
2. Jurisdiction to Adjudicate
It is the power of the state to subject a person or things to courts or administrative tribunals either civil or criminal, whether or not the state is a party to the proceedings.
3. Jurisdiction to Enforce
It is the power of the state to induce or punish for noncompliance with laws and regulations.
JURISDICTION IN INDIA
The superior courts in India have decided only a very few cases involving professional competence in cyberspace. The justification seems to be that people living in India have not embraced or adjusted to this new technology as a suitable mechanism to fulfil legal obligations.
Information Technology Act, 2000: – Article 75 of the Act provides that the Act extends to an offence or flagrant violation committed by any individual outside India where the act or conduct constituting the offence includes a machine, computer system or computer network located in India
Code of Criminal Procedure, 1973: -Section 188 states that even if the crime is committed by an Indian person outside the country, the same is subject to the jurisdiction of the Indian courts. In India, cyberspace jurisdiction is similar to jurisdiction as that of traditional crimes and the concept of subjective territoriality will prevail. Section 178 also deals with the crime committed in India or part thereof and Section 179 deals with the effects of the crime in the Indian Territory.
In a leading case of cyber-crime, SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, High Court of Delhi stated that the concept of consequence and reason for action encompasses competence, but in the absence of a given law at one location, a conflict arises. No provision for surveillance of internet pornography on foreign websites is provided by law. Legal Provisions apply only for websites in India.
The Supreme Court of India, in the case of SIL Import v. Exim Aides Silk Importers, have recognized that unless there is clear legislation relating to the jurisdiction of the Indian courts with respect to internet disputes, or until India is a signatory to an international treaty specifying the jurisdiction of the national courts and the conditions in which they can be exercised, the Indian courts would have to interpret the current laws in a wide-ranging manner.
The following can be done to have a better stand on Cyber Jurisdiction:
Forming of an impartial body acting as a body to resolve conflicts between people from different countries in the field of cyberspace disputes.
The domestic courts of the different countries should resolve all domestic cyber disputes according to their own laws.
The task of evaluation can be delegated to an International Monitoring Or Regulatory Body with some legal authority, etc.
Cyber jurisdiction laws that have binding power over the countries should be framed.
Although it is a major step by the Indian government towards becoming more transparent and more democratic through the introduction of digitalization in all possible areas of work, it also invites and facilitates cyber terrorism. Many unforeseen cybercrimes will occur and will require immediate intervention when they come up and at that moment addressing problems such as jurisdiction would only slow down the process and generate a domino effect that will make it worse. If digitally developing countries, such as India, struggle to develop an appropriate legal structure, then the cybercrime legislation's jurisdictional issue will continue to endanger state sovereignty.
ABOUT THE AUTHOR
Ishan Michael is currently studying Law at KIIT School of Law.
LinkedIn ID: https://www.linkedin.com/in/ishaan-michael-01b375151
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