JURISDICTION ISSUES OVER CYBERSPACE IN INDIA

The cyberspace is not like real world, it is created by virtual and intangible elements which
tend to exist everywhere and one cannot find it at a particular place statically for a person but
for many. India being a developing nation has gone through a paradigm shift from agrarian to
technological oriented and driven society. Anyone can anywhere, irrespective of his or her
nationality, residence or ability now moves across countries through the cyberspace. Cyber
world being a borderless world has border less freedoms but no claim to real rights. Now we
are facing disputes regarding intangible properties in cyber world. These intangible properties
include copyrights, trademarks, domains, e-contracts, etc. which are equally owned and
controlled by an individual at his expense. In this era of globalization as the trade and
commerce is flourishing all over the globe it has given rise to issues regarding jurisdiction
which is a matter of concern for each territory judiciary. We are successful enough in setting
dispute resolution mechanism for all matters but what about the matters related to
cyberspace? Where everything and everyone exists virtually and no form of physical
appearance. As easy as the internet makes our life today, it entraps us into an equally
confusing and deceptive mess. Usually in a simple transaction between individuals of two
different countries, the laws of the country on which they decide to be governed under are
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? Particular
jurisdiction has to be inherent in a court to grant an order or judgment against any disputing
party. Jurisdiction is the power given to a court to decide on matters and provide a judgment
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.

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
prosecutions and 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.

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.1 Personal Jurisdiction
is governed by the Code of Civil Procedure, 1908 (CPC) in the Indian Courts.

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.

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 courts jurisdiction.2

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 defendants activity falls within the
forum.

1
See, https://www.academia.edu/3700793/Jurisdictional_Issues_in_Cyber_Crime
2
See, R. Blainpain and B. Verschraegev (eds), International Encyclopedia of Laws: Private International Law
(The Hague: Kluwer Law International, 2005), p.555.
 3. Whether the exercise of jurisdiction would be reasonable.3

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 are these factors
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 conveniens4 or anti-suit
injunctions5 to check for the most convenient forum which can entertain the dispute.

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 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 penalize 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.

3
See, (India Tv) Independent News vs India Broadcast Live Llc And Ors. on 10 July, 2007.
4
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 .
5
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.