CYBER CRIME JURISDICTION

Position in India

Personal Jurisdiction

The principle of 'lex foris' (The Law of the Court or Forum) is applicable with full force in all matters of procedure. No rule of procedure of foreign law is recognized. It was held in Ramanathan Chettier v SomaSunderam Chettier 7 that India accepts the well-established principle of private international law that the law of the forum in which the legal proceedings are instituted governs all matters of procedure.

In India, the law of personal jurisdiction is governed by the Code of Civil Procedure, 1908. The Code does not lay any separate set of rules for jurisdiction in case of international private disputes. It incorporates specific provisions for meeting the requirements of serving the procedure beyond territorial limits. In matter of jurisdiction what is treated differently is the question of subject-matter competence and not of territorial competence, i.e. the question of territorial jurisdiction arises in the same way in an international private dispute as in a domestic dispute. 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; or (c) The cause of section wholly or partly arises.

Rules enforcing ''agreement of parties''

It is well-established law in India that where more than one court has jurisdiction in a certain matter, an agreement between the parties to confer jurisdiction only on one to the exclusion of the other is valid. 8 The Indian law therefore recognizes and gives effect to the principle of party autonomy.

Thus the position of law on the point is that first, a choice of law agreement is permissible; and secondly, the agreement operates only in respect of a court, which does not otherwise inherently lack jurisdiction. In any such case, the courts also consider the balance of convenience and interests of justice while deciding for the forum.

Thus, in India, the principle is well settled that residence in the territorial limits of a court furnishes a ground for exercise of jurisdiction. 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. The Indian courts also assume adjudicative jurisdiction on the basis of the territorial nexus with the cause of action. In this regard, the consistent view of the courts in India is that the courts are empowered to pass judgments even against non-resident foreigners, if the cause of action arises in whole or part within the territorial limits of court. 9

Personal jurisdiction in cyberspace

Unfortunately, only a very few cases concerning personal jurisdiction in cyberspace have been decided by the superior courts in India. 10 The approach adopted is similar to the ''minimum contracts'' approach of the United States coupled with the compliance of the proximity test of the Code. Considering the present rules of international jurisdiction and the tendency of the Indian courts to ''suitably modify'', the existing domestic rules to international situations in other areas of private international law may be analyzed. The reaction of the court would much depend on whether the contract contained a choice of court clause or not.

Case I: where the contract contains a choice of court clause

In such a case, the Indian courts would normally give effect to such a clause subject only to a survey of forum non convenience particularly when the same would result in foreclosure of its own jurisdiction.

Case II: where the contract does not stipulate an agreed forum

In a case of this sort, the Indian courts would be inclined to apply the test of s.20 CPC since none of the other provisions seem to be of much assistance. The court would make a twin inquiry: place of habitual residence of the defendant and proximity of the cause of action to the forum, where even and 'in part' cause of action may furnish sufficient basis to exercise jurisdiction.

Thus the Code provides for the tests of both objectivity and proximity to base its jurisdiction. While the legal system favors exercise of jurisdiction on the basis of proximity of cause of action, its exercise based on the residence of the defendant is also accepted for two reasons:

(1) Ease of enforcement;

(2) Compliance with audi alteram partem (hear the other side); and

For the purpose of determining whether the cause of action arose in the local limits of a court, the courts generally go into the question of place of conclusion of the contract. 11 However, it seems that the place of conclusion of contract would not be of much assistance in case of an econtract. There would be an insoluble confusion between the rules governing completion of communication of offer, acceptance and revocation. The rule in the Bhagwan Dass case would neither apply nor lend much support in reaching a reasonable solution in contracts entered into through the Internet.

Thus the Indian position as may also be inferred from the trend of the Indian courts may be summarized as follows:

An Indian court would not decline jurisdiction merely on the ground that the international contract in entered through the Internet. It examines the two bases of jurisdiction: domicile of the defendant and proximity to cause of action. Even if one is found to be satisfied, the Indian court it seems would assume jurisdiction. However, it would be for the plaintiff to prima facie also convince that the courts elsewhere do not, have a better basis of jurisdiction since the Indian courts in such a case may also feel tempted to analyze the issue of jurisdiction from the stand point of the doctrine of forum non convenience as also anti-suit injunctions and thus decline to exercise jurisdiction even where there existed legal basis to do so.

Jurisdiction in case of Cyber crime

In order for a national court to adjudicate criminal and regulatory sanctions internationally, there must be some connection, or nexus, between the regulating nation (the forum) and the crime or criminal. Four nexuses have been invoked by courts to justify their exercise of jurisdiction.

There is one final preliminary matter to note before we look at examples of cases in which the different nexuses have been used. That is: the nexuses are not mutually exclusive. Courts routinely rely on more than one in assuming jurisdiction.

Law passed in India and its enforcement

In India, the Information Technology Act, 2000 has been passed to deal with cyber crimes and there are specific forums in the Act which have the sole jurisdiction to deal with the cyber crimes mentioned in the Act.

Adjudicating Officers Appointed by Controller

The Controller appoints adjudicating officers to hear and resolve alleged violations of the aforementioned rules and determines the geographical locations where each may exercise jurisdiction. After giving all parties an opportunity to present their cases at a hearing officer will render a decision in the matter. The officer will take into account: the wrongdoer's "gain of unfair advantage;" the amount of loss caused by the wrongful acts; and the number of times the wrongdoer committed the acts. Penalties will be imposed or awards will be made on a case-by case basis. 12 The qualifications for adjudicating officers will be stated by the government and will include both information technology experience and legal/judicial experience. The officer's authority will be both civil and criminal in nature. 13

Cyber Regulations Appellate Tribunal

The government of India is authorized to establish one or more Cyber Regulations Appellate Tribunals, and to specify the "matters and places" pertinent to their jurisdiction. 14 Their general purpose is to serve as the first appellate level to which cases may be appealed from decisions of the Control Board or adjudicating officers established in the Information Technology Act,

No other court has jurisdiction to meddle in the affairs of an adjudicating officer under the

Information Technology Act, 2000 or in the affairs of the Appellate Tribunal by issuing an injunction against their orders or acts, so long as the adjudicating officer or the Tribunal has been properly empowered by the Information Technology Act, 2000. If the parties previously agreed to an order of an adjudicating officer, it may not be appealed. An appeal to the Tribunal must be filed within 45 days from the date on which the aggrieved party received a copy of the order of the Controller or the adjudicating officer. The Tribunal will make every effort to dispose of each appeal within six months from the date it is received. The Tribunal will hear all parties to the controversy and may affirm the previous order, modify it or set it aside. All parties and the concerned Controller or adjudicating officer will be given a copy of the Tribunal's order. 15

Appeal to High Court

Decisions rendered by the Appellate Tribunal may be appealed to the High Court. The appeal must ordinarily be filed at the High Court within 60 days after the decision has been received. However, for good cause shown, the High Court may allow up to an additional 60 days in which to file the appeal. 16

Extra territorial jurisdiction

The main problem arises when a citizen of some other country causes harm to citizens of a native country, let's take for an example in India, though Information Technology Act, 2000 does have extra territorial jurisdiction but it's very difficult to enforce it and exercise it. If a crime is committed in Delhi by a citizen of US by hacking the systems of an Indian Company, that maximum the court can do is pass an order in favor of the plaintiff but the problem arises that how to punish the US citizen, the only thing which the hacker has to do is avoid coming to India, moreover as it's an international matter collection of evidence will also be a trouble for all.

Hacking is still a crime of greater degree but it creates problem in case of crimes like publishing obscene materials on websites, if a citizen of U.K posts obscene material. Are the international Extradition laws strict enough enforce an arrest? What if the Act is an offence in India but not in his native country? Prosecuting and trying a person also raises difficult problem in the field of jurisdiction. These problems relate to determination of place where the offence was committed (locus delicti-The place where a crime was committed) and where several jurisdictions are equally competent.

Convention on Cyber Crimes

The Convention on Cyber Crime was opened at Budapest on 23 November 2001 for signatures.

It was the first ever-international treaty that dealt with criminal offences committed against or with the help of computer networks such as the Internet. The Convention deals primarily with offences related to infringement of copyright, computer-related fraud, child pornography and offences connected with network security. It also covers a series of procedural powers such as searches of an interception of material on computer networks. The main aim of the Convention as set forth in the preamble is to pursue, "a common criminal policy aimed at the protection of society against cyber crime, inter alia, by adopting appropriate legislation and fostering international co-operation."

The Council of Europe's Convention on Cyber crime suggested certain guidelines in relation to jurisdiction in respect of cyber crimes. A country has jurisdiction if the cyber crime was 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.

The Convention on Cyber Crime has made cyber crimes extraditable offences. The offence is extraditable if punishable under the laws in both contracting parties by imprisonments for more than one year or by a more severe penalty. This is in tune with the double criminality rule which states that the conduct be an offence in both the requesting State and the requested State.

A pertinent point to note is that a large number of cyber crimes have been made extraditable under the Convention. Moreover, the Convention has the force of international law behind it. In other words, to investigate, search, seize, arrest, prosecute and extradite cyber criminals for cyber criminals for cyber crimes, a proper legal framework is already in place.

It is a real possibility that more than one country may establish jurisdiction in respect of a cyber crime. The Convention on Cyber crime states that when more than one signatory country claims jurisdiction in respect of an offence the countries should consult to determine the most appropriate jurisdiction for a prosecution. The country in which most of the elements of the crime were committed or the country that was affected the most by the crime could be decisive.

The location of witnesses could also be an important factor to take into account. 17

India's position

Under the Information Technology Act, 2000, India claims "long arm" jurisdiction over foreign parties committing criminal acts outside of India which have an effect on a computer information system located within India. A court may order law enforcement authorities to seize computer equipment that is suspected of having been used in the commission of a computer crime. It is possible for more than one punishment to be administered for commission of the same unlawful acts if more than one criminal law has been violated.

Section 75 of the Information Technology Act, 2000 deals with extraterritorial application of the law, the section states that the provisions of the Act will apply to (a)Any person irrespective of nationality (b)An offence or contravention committed outside India

The said offence or contravention must have been committed against a computer, computer system or computer network located in India. The Act has therefore adopted the principal of universal jurisdiction to cover both cyber contraventions and cyber offences. It is important to note that the universal jurisdiction over specified offences is often a result of universal condemnation of those activities, and requires co-operation to suppress them, as reflected in widely accepted Cyber Crime Convention.

Conclusion

If the mere contract, on the basis of which jurisdiction is sought to be assumed, is the ''effects'' of an online act, its exercise must be declined unless the effect is itself an essential ingredient of 17 Convention on Cyber crime, Council of Europe, Budapest 2001. the wrongful act or unless there exists no other more appropriate forum for redress to the plaintiff. In such a case, the place where the harm occurred or its effects surfaced may form an acceptable jurisdictional basis.

In the present scenario where the cyber crimes are increasing to an alarming extent, the present need of the hour is to have broad based convention dealing with criminal substantive law matters, criminal procedural questions as well as with international criminal law procedures and agreements. The Information Technology Act, 2000 would be crippled without proper means and ways of implementing it. To overcome the difficulties, necessary amendments must be made to

The Code of Criminal Procedure, 1973. Moreover, it is important to note that India at present does not have a proper extradition law to deal with crimes that have been committed over the Internet. To address this issue, India should become a signatory to the Convention of cyber crimes treaty and should ratify it. This move would go a great deal in resolving the jurisdictional controversies that may arise in cyber crime cases. Furthermore, the setting up of special courts, "Cyber Infringements Courts to replace the Adjudication Officer under the IT Act. These courts would be dealing exclusively with cyber law and other related matters like trademark etc, to ensure efficient delivery of justice.