“Even since man began to modify their lives by using technology they have found themselves in a series of technological traps” — Roger Revelle
For millions of people across the world today, internet has become part of the daily life. The use of the internet has gone beyond the purpose of sharing information, entertainment and social networking. A significant aspect of internet usage today is e-commerce, with lakhs of companies and big-budget corporate using the worldwide web for trading purposes.
Recognizing this, it became impertinent for the legislature to enter into the cyberspace world and bring an enactment or a law to recognize e-governance and e-commerce and prevent cyber-related wrongs. This gave way to the enactment of the Information Technology Act, 2000 (hereinafter referred to as ‘IT Act’). It is altogether a separate branch of law (special law) and it is because of this that many companies have been encouraged to explore their e-commerce businesses on the web.
This article specifically deals with two aspects — jurisdictional and investigatory issues. It discusses the grey areas or perplexing issues in relation to the Indian IT Act.
The application of the IT Act can very wellbe understood by Section 1 as it extends to whole of India, including the State of Jammu and Kashmir, and also to any offence or contravention thereunder committed outside India by any person. Now this is enshrined under Section 75 of the IT Act which envisages that in case of any contravention or act committed outside India by any person who is related to computer network located in India, irrespective of his nationality, IT Act has the jurisdiction. The inference being made here is that the IT Act has extra-territorial jurisdiction.
In other words, cyberspace has no specific boundaries. One may access a website from anywhere in the world. Generally, all websites have their terms and conditions, private policies and disclaimers subject to their domestic laws and if disputes occur, it will govern as per their agreements.
The principle of international law comes into picture and has arisen out of the problem of multiple jurisdictions. It is very important to discuss here the extradition procedures because cyber offences come under the category of extraditable offences. In the case of Daya Singh Lahoria v. Union of India (2001) 4 SCC 516, the Supreme Court of India held that “A fugitive brought into this country under an Extradition Decree can be tried only for offences mentioned in the Extradition decree and for no other offences and the criminal courts of India will have no jurisdiction to try such fugitive for any other offence”. In additionto this, there is a Convention on Cyber Crime which has made cyber-crimes extraditable offence. This has provided that punishment can be made under the laws of both the contracting parties. But, India is not a signatory to this Convention and other bilateral extradition treaties.
There are lot of contradictions which are involved and thereby it affects the IT Act extra-territorial jurisdiction. Section 188 of the CrPC envisages that a prior permission is required from the central government to inquire into or try offences committed outside the country.
As far as the Indian approach to Personal Jurisdiction is concerned, it can be classified into two: (here, jurisdiction is in case of cyber offences/wrongs.)
In India, personal jurisdiction is concerned mainly with the cause of action. However, jurisdiction in cyber space is still a complex and perplexed issue, and it can further be understood by the interpretation of the IT Act by the precedents and so on. As far as the Principles of International Law are concerned, it is important to mention that maintenance of suit must not offend notion of fair play and substantial justice should be maintained.
The power to investigate under the IT Act is enshrined under Section 78. It envisages that a police officer not below the rank of Inspector shall investigate any offence under the Act. It is important to note that it is a non-obstante Section which overrides the Code of Criminal Procedure, 1973. This means that in case of both cognizable and non-cognizable offences, the police officer, i.e. not below the rank of Inspector, has the power investigate under the IT Act.
The IT Act again overrides the provisions of Code of Criminal Procedure, 1973 under Section 80 of IT Act, which envisages that a police officer not below the rank of Inspector can enter any public place and search and arrest without warrant any person who is reasonably suspected. Not only a police officer below the rank of Inspector but is also includes any other officer of the central government or state government on the same footing. Such extra ordinary powers are given to police but still it has restrictions. The reference is being given to the explanation to Section 80 of the IT Act which envisages ‘public place’ — it is inclusive of only public conveyance, any hotel, any shop or any other place intended for use by, oraccessible to the public. But, it does not include private places.
Basically, IT Act has its own statutory framework for investigation, arrest and search.
After analysing the complex issues which are involved in the IT law, it can be said that there is a lot more to come and to be analysed. It is a special law. In the view of this author, in India, courts have not duly analysed and interpreted the provisions of the IT Act. There are many grey areas involved which still remain unanswered. The best example as discussed above is of jurisdiction. Despite strong teeth to the Act, including the power of arrest and search, and that too by overriding the CrPC, it really has not helped curb cyber wrongs and convicting or penalising cyber offenders.
Technology has to be understood while dealing with these kinds of special laws, as herein IT Act. There is a lack of practical expertise and knowledge on the part of judicial minds in India. This is the reason that a fair interpretation of technological laws cannot be made and thereby proper justice cannot be achieved. As such, there is hardly any precedent in India which can be followed in case of IT Act offence. It is evident that we all are following the precedents of other countries and mainly U.S case-laws.
Similarly, there are various other issues which are to be decided in terms of IT Act. This is a law in making with a number of issues that remain to be interpreted. However, one has to affirm the positives of this enactment too. Uncontrolled and uninhibited use of internet urgently required the creation of such a piece of legislation. It has been rightly said that the process is half done. Let us say, it is just the beginning.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
