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Jurisdiction in Cyberspace

Jurisdiction, as applied to a particular claim or controversy, is the power to hear and determine that controversy. The term imports authority to expound or apply the laws, and excludes the idea of power to make the laws. It refers to the right to adjudicate on a given point; the local extent within which the court can and does exercise the right when ascertained. The law relating to crimes would generally require that the courts within a state would have jurisdiction to try and adjudicate upon all such offenses committed by a person within the territorial boundaries of such a court. However,

the exceptions have been created where even though, technically and strictly, the offender might not have committed the crime on the soil of the country, yet the courts would exercise jurisdiction over such an offender.

To fully appreciate and comprehend this issue, we first need to understand the jurisdiction issues arising in an offline environment in India in criminal cases and the body of law applicable to ascertain jurisdiction. Then we proceed to apply the same rules in a cyberspace environment and
assess the difficulties.

Theories of Jurisdiction in Criminal Cases:

We have to bear in mind that a State, while framing laws, exercises its legislative power to:
  1. regulate;
  2. adjudicate upon; and,
  3. enforce measures, against criminal actions.
Law of regulation of criminal actions encompasses declaring certain acts or omissions to be a crime and provides for punishment there of. Law of adjudication provides for establishment of courts and defining their jurisdiction. Enforcement measures ensure that the orders of the court are carried out and persons found guilty are appropriately punished.

There are six generally accepted bases of jurisdiction or theories under which a state may claim to have jurisdiction to prescribe a rule of law over an activity. Subjective territoriality is by far the most important of the six. The substantial part of criminal legislation across the globe is based With the advent of Internet and increase in cyber crime, especially, cross-border illegal activities, it is a matter of much concern to the courts whether they have the jurisdiction to put the offenders under trial and if found guilty, eventually punish them.

General Jurisdiction in Computer Crimes

The law of jurisdiction with respect to crimes relating to computers is the same as that relating to traditional crimes. The theory of subjective territoriality would apply. In India, Chapter XII of the Code of Criminal Procedure, 1973 relates to jurisdiction of courts with regard to criminal matters. The foremost and most commonly applied theory of territoriality is embodied in section 177 of the Code in the following words:

177. Ordinary place of inquiry and trial:

Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Thus, any computer crime committed, say, in Indore, would be tried by the criminal courts in Indore itself. However, computer crime, by its very nature, is capable of being committed at more than one place at the same time. For instance, a person sitting in Mumbai can hack into a computer at the IISc at Bangalore through a proxy server located in Kanpur. In such situations, the offence can be inquired into and tried by a court having jurisdiction over any of such areas where the crime has been committed. Section 178 of the Code provides for this kind of a situation:

178. Place of inquiry or trial

  1. When it is uncertain in which of several local areas an offence was committed, or
  2. Where an offence is committed partly in one local area and partly in another, or
  3. Where an offence is a continuing one, and continues to be committed in more local areas than one, or
  4. Where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
Thus, based upon the subjective territoriality theory and the above provisions of our criminal procedural law, the requirement that our courts should have jurisdiction to book persons found guilty of committing crimes relating to computers within the territory of India is well taken care of.

However, issues arise when someone is sitting across the border and initiates a digital action which has a direct adverse consequence within the territory of a state. The ‘effects’ doctrine (objective territoriality theory) assumes significance when offenders involved in cross-border crimes are required to be put on trial.

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