JUDICIARY ON CYBER

JURISDICTION

Jurisdiction in general refers to A governments general power to

exercise authority over all persons and things within its territory. A courts
power to decide a case or issue a decree or A geographic area within which
political or judicial authority may be exercised .The term cyber-jurisdiction
generally encompasses the system operators or users power to frame rules
and enforce them in an apparent virtual community interacting in
cyberspace, or virtual space in the cyber world which is perceived as a place
on the Internet and is independent from the normal government regulation.
In other words, cyber jurisdiction or jurisdiction in cyberspace refers to a real
world governments power and a normally existing Courts authority over
Internet users and their activities in the cyber world. A significant reality Is
that net users and the hardware they use are never virtual but have physical
presence in one country or the other, upon whom the jurisdiction can be
exercised and such jurisdiction is called cyber-jurisdiction or jurisdiction in
cyberspace.

Cyber jurisdiction is still in the stage of development as a legal

concept. As internet has led to disappearance of the boundaries, sometimes
a netizen is not aware with whom he is chatting and where person is located.
In such a situation if a legal dispute arises between two persons
communicating o the internet then which court will have jurisdiction to
decide that case is still an issue that is yet to be resolved satisfactorily. In
other words, there must be a law that should provide whether a particular
event in cyber space is controlled by the laws of the state provider is located
or by the law of the state where user is located or by any specific laws.

In cyber world every state should have its national law having
extraterritorial jurisdiction to cover extraterritorial character of cyberspace
activity as there is no international instrument relating to cyber jurisdiction.
Covering this aspect among others, the United Nations Commission on
International Trade Law (UNCITRAL) adopted a model law on E-commerce in
1996 which was adopted by the General Assembly by its Resolution No.
51\162, dated 30-1-1997. The General Assembly recommended that all
states should give favorable consideration to the said model law on
commerce. India being signatory to said model law enacted The Information
Technology Act, 2000 to make law in tune with the said model law.
 One of the biggest drawbacks of the Model Law on E-commerce and
Information Technology Act, 2000, is that these are silent about jurisdiction of
the courts in the cyber world.
Therefore, in presence scenario an important question is whether
present law of jurisdiction of physical world is applicable to Cyber World, or a
separate law is required?

Regarding this there are following two views:

1. If the two worlds are not related, then a separate law of jurisdiction is
required for each.
2. But if there is a strong connection between the two, then, with
necessary modifications, the existing law of jurisdiction of the physical
world can be applied to both.

Argument in favor of first view is that physical boundaries have disappeared

in cyber world therefore physical world and cyber world are not connected
hence separate law of jurisdiction is required for cyber world. However, this
view does not appear logical because though in cyber world there are no
geographical boundaries but still in physical world these boundaries exist.
Further, because of various reasons (especially wide gap between developed
and developing countries) it is not possible to develop separate law of
jurisdiction for cyber world.

Argument in favor of second view is that though in cyber world there

are no geographical boundaries but netizen are citizens of some countries
and they are governed by the national laws of those countries. Therefore,
physical world and cyber world are connected and hence present law of
jurisdiction of physical world, with minor modifications, can be applied to
cyber world.
This view appears to be logical. It means the present law of jurisdiction
of physical world, with minor modifications, is applicable to the cyber world
as well.

In India section 75 of information technology act 2000 provides

extraterritorial jurisdiction to the India courts as often need to assume
jurisdiction over foreign subjects would arise with increase in activity on the
internet. However section 75 has its own inadequacies and may not prove to
effective when it comes to its actual implementation. For instance section 75
appears to be ineffective on the ground that if an act is an offence or
contravention under this act and is committed by a person from outside India
and that act is not an offence in that country, then any judgment passed by
an Indian court may not be enforced by the court of that foreign country
because that foreign court may not accept the principle of extra territorial
jurisdiction as given under section 75 as that act in that country is not
considered unlawful.
 More so, in such a situation, the international community has to take
action due to the nature of the working of the internet and its increasing use
specially exponentially increase in international e-commerce activities and
disappearance of geographical boundaries and conservation of the world into
a globe market, now seems to be right time for international community to
take immediate steps to formulate an international law relating to cyber
jurisdiction. In this scenario, the united nation should take a lead once again
by not only encouraging member states to formulate national laws in this
crucial area but also come out immediately when a model law to facilitate
such a move and bring about uniformity in national laws covering cyber
jurisdiction.