INTRODUCTION

Cyberspace is a ‘‘borderless’’ world—a world of its own. It refuses to accord to

the geopolitical boundaries the respect that private international law has always

accorded to them and on which it is based. Therefore there is a need to have a

different solution to this different problem. The solution lies neither in adopting

a ‘‘hands-off’’ approach nor in simply extending mutatis mutandis the existing

conflicts rules. Looking at the dismal history of private international law, the

present author proposes a treaty based international harmonisation model as the

most ideal one where rules are certain and predictable and at the same time

flexible in order to ensure that the potential benefits of this technology are

meaningfully consumed by the human civilisation.1

Along with the unique opportunities the Internet offers, it also poses new and

significant challenges to traditional legal philosophy.2 The growth of

transborder activities poses new challenges for law enforcement agencies. Most

existing law enforcing systems were designed to address the fraudulent and

deceptive commercial practices against consumers when such practices were

mostly of domestic in nature. But after the advent of internet it has been seen

that the current system of laws is not capable of addressing cross boundary

issues.

The problem of jurisdiction arises because it is only in the real world that there

exist mechanisms to confer rights, immunities, privileges, etc. with no

corresponding equivalent in the cyber world. In other words, rights are rights

only vis-a-vis the real world. On account of the differences in the normative

standards of conduct among the different political units in the real world, the

question of jurisdiction becomes particularly important, for what may be legal

1 Sachdeva, “International Jurisdiction in Cyberspace”, [2007] C.T.L.R.2 Oberding and Nordenhaugh , ”A Separate Jurisdiction for Cyberspace?”, available at <http://jcmc.indiana.edu/vol2/issue1/juris/html>, visited on 5th nov 2013.

in one legal system may be prohibited by another, and the same may be

circumstantially justifiable in yet another.

DEFINITION OF JURISDICTION

The general meaning of the term jurisdiction refers to, ‘Power of the State to

exercise its authority over property and persons within its geographical limits’.

However, in the context of dispute resolution, a clear concept of jurisdiction is

needed to answer questions such as ‘which is the most appropriate court to hear

the dispute? What law will be applied to resolve the dispute? Which authority

will enforce the judgment? In such circumstances the term jurisdiction would

involve- ‘The scope of the courts power to examine and determine the acts,

interpret and apply laws, make orders and declare judgments. Geographic area,

the type of parties who appear, the type of relief that can be sought, and the

point to be decided may limit jurisdiction.’3

The whole notion of jurisdiction is vital in the context of dispute resolution

because of the deeply rooted relationship between physical proximity and the

effects of any legal activity. Jurisdiction enables the States to monitor and

control the activities of property and persons within and across its territorial

boundaries. The subjects of a sovereign States laws are primarily located within

its physical borders and so are greatly affected by the application of its laws.

Legal theories about sovereignty, territoriality and an entity’s physical presence

support the traditional notion of a Courts jurisdiction in its role as adjudicator.

These schools of thought recognize the sovereign power of a State and the

territorial origin and application of a set of laws. A key assumption in all these

theories is that a State, which is supported by the people of a particular area,

3 Solanki, “Jurisdiction in Cyber Space: Where to File a Suit”, vol1, issue 10, Paripex - Indian Journal of Research, available at <http://theglobaljournals.com/paripex/file.php?val=NTQy>, visited on 5t nov 2013.

makes laws which will only be valid, applicable and enforceable within its

territory.

Cyberspace, which constitutes a technology-driven imaginary space, defies

control by mechanisms evolved in the real world essentially based on

geopolitical boundaries. It is a new social order, which cuts across cultures,

civilizations, religions, etc. and creates a ‘‘new realm of human activity’’4

forcing mankind to rethink the appropriateness of extending the existing rules to

it. Cyberspace clearly disregards the general correspondence, existing in the real

world, between physical borders and ‘lawspace’’—based on considerations of

power, effects, legitimacy and notice.5

The law, in the ‘‘non-virtual world’’, works essentially on a two way premise

that a certain set of legal rules is applicable to only one set of persons, who are

present within the limits of the sovereign prescribing such rules, and to none

other; and that a certain set of persons are required to comply with only one set

of standards, and with none other. It is this perception, which having been

mutually recognized and accepted by most sovereigns gives the requisite

strength and legitimacy to each sovereign to enforce its legal rules within its

territory. However, the case with the cyber world is different as it admits of no

territory or polity based borders sufficient to impose a certain set of rules to a

certain territorially defined set of persons.

This leads each cyber actor to act according to his own legal order (or perhaps

no legal order at all), leading to blatant violations of what may be guaranteed

rights under other legal regimes. Litigation involving the internet has thus

increased as the internet has developed and expanded.6

4 Johnson, David R. and Post, David G. “Law & Borders—The Rise of Law in Cyberspace’’ (1996) 48 Stanford Law Review 1367.5 Ibid.6 Supra note 1.

PERSONAL JURISDICTION

The principle of lex fori is applicable with full force in all mattes of procedure.

No rule of procedure of foreign law is recognised. It was held in Ramanathan

Chettier v Soma Sunderam Chettier7 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). The Code does not lay any separate set of rules for

jurisdiction in case of international private disputes.8 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.

The court provides general provisions regarding jurisdiction on the basis of

pecuniary limit, subject matter and territory. Sections 16 to 20 of the Code

regulate the issue of territorial jurisdiction for institution of suits.9

Rules as to the nature of suit

Based on the subject-matter suits are divided into three classes:

(1) suits in respect of immovable property;

(2) suits for torts to persons or movable property; and

7 AIR 1964, Madras 527.8 See ss.9 and 15 of the Code of Civil Procedure 1908.9 Supra note 1.

(3) suits of any other kind.

Suits of immovable property must be filed within the local limits of whose

jurisdiction the property situated.10 The Code therefore incorporates the

principle of lex situs and therefore the property in this section may refer to only

property ‘‘situated in India’’.

Suits for wrongs to persons and movable property may be instituted in the

courts within whose local limits the wrong is done or the defendant resides or

carries on business or personally works of gain.11 Suits of any other kind are

dealt with under s.20 of the Code which is the ‘‘default rule’’ providing for all

others cases not covered by any of the foregoing rules. Under s.20, a court can

exercise jurisdiction in actions involving persons where:

(a) 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; or

(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;

or

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

Rules enforcing ‘‘agreement of parties’’

10 The Code ss.16 and 17.11 The Code s.19.

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(s) is valid.12 The Indian

law therefore recognises and gives effect to the principle of party autonomy.

However, this extent of autonomy does not travel far enough so as to confer

jurisdiction on a court which it inherently lacks.13

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.14

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 the court.15 The Code also provides for rules and procedure for

international service of the processes of the court. However, since the courts in

India do not assume jurisdiction, unlike in England, on the basis of service of

writ, these provisions are of not much consequence to issues of jurisdiction.

Personal jurisdiction in cyberspace12 Hakkam Singh vGammon (India) Ltd AIR 1971SC 740.13 GM, ONGC, Sibsagam v M/s Raj. Engineering Corp AIR 1987 Cal.165.14 Union of India v Navigation Maritime Bulgare AIR 1973 Cal.526.15 R. Blainpain and B. Verschraegev (eds), “International Encyclopedia of Laws: Private International Law” ,The Hague: Kluwer Law International, 2005.

Unfortunately, only a very few cases concerning personal jurisdiction in

cyberspace have been decided by the superior courts in India. The reason

perhaps is that residents in India have not yet accepted or adapted themselves to

this new technology as a fit mechanism to undertake legal obligations (coupled

with an extremely slow justice delivery system).

The approach adopted is similar to the ‘‘minimum contacts’’ approach of the

United States coupled with the compliance of the proximity test of the Code.16

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

analysed. 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 conveniens 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 an ‘‘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.

16 (India TV) Independent News Service Pvt Ltd v India Broadcast Live, LLC CS (OS) No.102/2007.

While the legal system favours 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 three reasons:

(1) ease of enforcement;

(2) compliance with audi alteram partem; and

(3) the (draconian) law of contempt of courts in India (as in most other common

law countries).17

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. However, it seems that the place of conclusion of contract

would not be of much assistance in case of an e-contract. There would be an

insoluble confusion between the rules governing completion of communication

of offer, acceptance and revocation. The rule in the Bhagwan Dass case18 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 summarised 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 analyse the issue of 17 Supra note 1.18 Bhagwan Dass Govardhan Dass Kedia v Purshottam Dass & Co AIR 1966 SC 543.  

jurisdiction from the stand point of the doctrine of forum non conveniens as also

anti-suit injunctions and thus decline to exercise jurisdiction even where there

existed legal basis to do so.19

JURISDICTION UNDER INFORMATION TECHNOLOGY

ACT 2000

The Act talks about the widest jurisdiction power. It aims to bring within the

jurisdiction of Indian court any act which is an offence under the Act. Section

1(2) of the Act states that:

“It shall extend to the whole of India and, save as otherwise provided in this

Act, it applies also to any offence or contravention there under committed

outside India by any person.”

Also S. 75 of the Act is widely defined and it extends jurisdiction to any offence

or contravention committed outside India by any person. The Section 75 of the

Information Technology Act 2000 reads as follows:  

(1) Subject to the provisions of sub-section (2), the provisions of this Act shall

apply also to any offence or contravention committed outside India by any

person irrespective of his nationality.

 (2) For the purposes of sub-section (1), this act shall apply to an offence or

contravention committed outside India by any person if the act or conduct

constituting the offence or contravention involves a computer, computer system

or computer network located in India.

19 Supra note 16.

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.

ANALYSIS OF ARTICLE 22 OF THE CONVENTION ON

CYBERCRIME

The Convention on Cybercrime was opened for signature in Budapest,

November 23, 2001 and entered into force in 2004. Jurisdiction issues were

addressed by this Convention. However, some weaknesses prevent this

Convention from being more effective in making international cooperation the

solution for cybercrime. As an additional problem, cyber terrorism also became

a hazard the international community has to deal with.

No less than five different jurisdiction theories have been applied altogether by

courts and governments, all leading to the ascribing of jurisdiction to one court

and adversely affecting other courts’ jurisdiction.

An analysis of the several litterae of paragraph 1 of article 22 of the 2001

Budapest Convention on Cybercrime (hereafter “the Convention”) shows that

the Convention relies exclusively on the territoriality and nationality theories to

empower parties to establish jurisdiction.

According to litterae a to c, any offence established under articles 2 through 11

of the Convention that has occurred in the territory of one Party, in a ship flying

its flag or in an aircraft registered under its laws, is to be prosecuted in that

State. A Party is, therefore, asked by the Convention to assert territorial

jurisdiction if both the person attacking a computer system and the attacked

system are located within its territory. The same would be true when the

attacked computer system is within a Party’s territory, even if the attacker is in

another country.

Litterae b and c specifically require each Party to establish criminal jurisdiction

over offences committed on board of ships flying its flag or aircraft registered

under its laws. Already implemented in the laws of many States, this type of

jurisdiction assumption is most useful where the ship or aircraft is not located in

the Party's territory (or territorial waters/pace) at the time of the commission of

the crime.

Then, according to littera d, when one national of one State Party commits one

of the Convention-laid down offences in another State, the State of nationality

of the offender also has to establish jurisdiction provided, however, the target

State criminalises the said offence or the offence was committed outside

territorial jurisdiction, of any State, v.g. in the High Seas.

Paragraph 4 of the Convention further allows Parties to establish jurisdiction in

conformity with their domestic law, which enlarges the base for jurisdiction

should a State Party so desire.

CONCLUSION

The lack of any appropriate legislation has been felt time and again. Cases of

cyber frauds are regularly reported from different parts of the country, the most

significant chunk being the various Ponzi Schemes which operate stepwise. In

the first step people find mails in their inbox which informs them that they have

won some lottery or prize, etc from some unknown sender who claims

himself/herself to be some authority representing some organization but the

condition to obtain the prize money is that the receiver of the mail is asked to

pay certain amounts as part of the procedural requirements which is to be

deposited through bank transfers. In the next step they are showed some fake

award certificates and seals of some government bodies to make the whole

transaction look real. Also the promise of confidentiality about the whole

process, till it is complete, is taken from the receiver. Once a person falls to the

trap and deposits the money asked for neither the person nor his organization

can be found or traced.

Such cases have mostly been reported from the smaller cities where people tend

to get more attracted by such lucrative schemes. The law however is silent on

such cases as the fraudsters cannot be traced, not even one of culprits involved,

of the numerous incidents reported so far has been caught.

Executive takes the plea of lack of technologically advanced resources and even

if they succeed initially then there is no concrete law which can ensure that the

guilty would be caught irrespective of territorial borders. The law dealing with

cyber fraud is, however, not adequate to meet the precarious intentions of these

fraudsters and requires a rejuvenation in the light and context of the latest

developments all over the world. The laws of India have to take care of the

problems originating at the international level because the Internet, through

which these activities are carried out, recognises no boundaries. A country may

employ enforcement measures against a person located outside its territory on

the grounds of reasonable circumstances to press charges, opportunity to be

heard, courts having jurisdiction and principle of natural justice. So far no treaty

or global organizations have been able to formulate uniform policy acceptable

to the global forum.

The task of the inventors is to develop new technologies. On the other side,

there are criminals who use those technologies for commission of more advance

crimes. Legislatures, Executive and Judiciary are trying to control such crimes.

It is a circle, and in between, it is the society who suffers. Society suffers

sometimes with terror- as a new invention springs up, then with distrust- when

the invention is used for anti-social activities and then with the hope as the law

will catch holds the wrongdoers. As the wheels of justice become operational,

such unsociable activities though cannot be eradicated fully are forced to

reduce. To think that cybercrimes could be fully curbed- is fighting against

reality, against the inevitable, that it cannot by removed/curbed fully.

Legislators have taken a great step forward by enacting the IT Act 2000. Now

it’s a time for its proper implementation.

BIBLIOGRAPHY

Law Relating to Computers Internet and E Commerce by Nandan Kamath

Moore, R. (2005) "Cyber crime: Investigating High-Technology Computer Crime," Cleveland, Mississippi: Anderson Publishing.

Indian Laws on Internet by Ashok Srivastava An Introduction to Cyber Crime and Cyber Law by R.K

Chaubey. Sachdeva, “International Jurisdiction in Cyberspace” Johnson, David R. and Post, David G. “Law & Borders—The

Rise of Law in Cyberspace’’ www.lawinfo.net www.legalservicesofindia.com www.lawyerscourt.com