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JURISDICTION OF THE IT ACT 2000

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JURISDICTION OF THE IT ACT 2000
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  1 INTRODUCTION The authority of a court to hear a case and resolve a dispute involving person, property and subject matter is referred as the jurisdiction of that court. It is the legislative function of the Government to enact laws and judicial and/or administrative function to enforce those laws. Thus, the principles of jurisdiction followed by a State must not exceed the limits which international law places upon its jurisdiction.  2 .  INTERNATIONAL LAW AND JURISDICTION IN CYBERSPACE Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. International law circumscribes a state‟s right to exercise jurisdiction . 1  The internet today is making a complete mockery of the law….not just the traditional laws but even the so-called modern laws. The very basis of any justice delivery system, the jurisdiction, which gives powers to a particular court to accommodate a particular case, is itself being threatened over the internet; leave alone the other traditional laws. 2   1. Meaning of Jurisdiction Jurisdiction is the authority of a court to hear a case and resolve a dispute involving person,  property and subject matter. These principles of jurisdiction are enshrined in the constitution of a State and part of its jurisdictional sovereignty. All sovereign independent States possess  jurisdiction over all persons and things within its territorial limits and all causes, civil and criminal, arising within these limits. 3   2. Issues of Jurisdiction The issue of jurisdiction has to be looked into from 2 perspectives :  i.   Prescriptive Jurisdiction It describes a State‟s ability to define its own laws in respect of any matters it chooses. As a general rule, a State‟s prescriptive jurisdiction is unlimited and a State may legislate for any matter irrespective of where it occurs or the nationality of the persons involved. 1   Suryajyoti Gupta, “Civil and Criminal Jurisdiction in the Internet”,  Indian Bar Review , Vol. 29 (2002) p. 45; See also  Lotus Case , (1927) PCIJ Ser A 2   Yashraj Vakil, “Jurisdictional Challenges –    Cyber Crime Prosecutions”, The Lawyers Collective , February, 2005,  p. 29 3  Lord Macmillan in Compania Naviera Vascongado  v. Steamship ‘Cristina’   [1938] AC 485  2 3. Enforcement Jurisdiction   A State‟s ability to enforce tho se laws is necessarily dependent on the existence of  prescriptive jurisdiction. However, the sovereign equality of States means that one State may not exercise its enforcement jurisdiction in a concrete sense over persons or events actually situated in ano ther state‟s territory irrespective of the reach of its prescriptive jurisdiction. That is, a State‟s enforcement jurisdiction within its own territory is presumptively absolute over all matters and persons situated therein. 3.   Jurisdiction under the Information Technology Act, 2000 The State legislative enactments primarily reflect its prescriptive jurisdiction. For example, the IT Act, 2000 provides for prescriptive jurisdiction as it States: “The provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.” 4  Further 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. 5  It is the legislative function of the Government to enact laws and judicial and/or administrative function to enforce those laws. Thus, the principles of jurisdiction followed by a State must not exceed the limits which international law places upon its jurisdiction. 4.   International Law  International law governs relations between independent sovereign States. It is the body of rules, which are legally binding on States in their intercourse with each other. The rules are not meant only for the States but also for the international organizations and individuals. Furthermore, it attempts to regular the extent to which one State‟s enforcement jurisdiction impinges or conflicts with others. I.   Types of International Law International law can be studied under following 2 broad headings: a.   Public International law International law is also referred to as „public international law‟ as it governs the relations of states.   4  The Information Technology Act, 2000; Section 75 (1) 5    Ibid  ; Section 75 (2)  3  b.   Private International law Private international law is that body of law, which comes into operation whenever a municipal court is faced with a claim that contains a foreign element. The resolution of such  private disputes is resolved through the law of `conflict of laws‟ –   it is that part of the private law of a country, which deals with cases having a foreign element. It is a necessary part of the law of every country because different countries have different legal systems containing different rules. ii. Extra-territorial Jurisdiction   a.   Meaning of Extra-territorial Jurisdiction  The public international law reflects the juxtaposition of States (as a legal person) and subjects their jurisdictional sovereignties to certain limitations, i.e. there is a „general prohibition in international law against the extra- territorial application of domestic laws‟. 5   b.   Sources of Extra-territorial Jurisdiction  It has been recognized under international law that a State may assert extra-territorial  jurisdiction under certain circumstances. Following are the sources of these extra-territorial  jurisdictions 7 :    Territorial Principle A   State‟s territory for jurisdictional purposes extends to its land and dependent territories, airspace, aircraft, ships, territorial sea and, for limited purposes, to its contiguous zone, continental shelf and Exclusive Economic Zone (EEZ). The  principle as adopted by the national courts has been that all people within a State‟s territory are subject to national law, save only for those granted immunity under international law. The territorial principle has following 2 variants: ã   ‘Objective’ territorial principle , where a State exercises its jurisdiction over all activities that are completed within its territory, even though some element constituting the crime or civil wrong took place elsewhere; and 5   U.S. v.  Aluminium Co. of America , 148 F 2d 416 (1945)   7   Supra note  1  4 ã   ‘Subjective’ territorial principle, where a State asserts its jurisdiction over matters commencing in its territory, even though the final event may have occurred elsewhere.    Nationality Principle It is for each State to determine under its own law who are its nationals. Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State. In  Nottebohm Case (Liechtenstein v.  Guatemala), 6   it was held that „the nationality serves above all to determine that the person, upon whom it is conferred, enjoys the rights and is bound by the obligations, which the law of the State in question grants to or imposes upon its nationals‟. Under the garb of nationality principle, a State may exercise jurisdiction over its own nationals irrespective of the place where the relevant acts occurred. A State may even assume extra-territorial jurisdiction.    Protective Principle A   State relies upon this principle when its national security or a matter of  public interest is in issue. A state has a right to protect itself from acts of international conspiracies and terrorism, during trafficking, etc. In  Attorney-General of the Government of Israel v.  Eichmann, 7  the District Court of Jerusalem held: “The State of Israel‟s „right to punish‟ the accused derives, in our view, from two cumulative sources  –   (I) a universal source (pertaining to the whole of mankind), which vests the right to prosecute and punish crimes of this order in every State within the family of nations; and (ii) a specific or national source, which gives the victim nation the right to try any who assault its existence.”    Passive Personality Principle It extends the nationality principle to apply to any crime committed against a national of a State, wherever that national may be. It in a way provides that the citizen of one country, when 6    Nottebohm Case (Liechtenstein v.  Guatemala),  (Second Phase), ICJ Rep (1955) 4 7    Attorney-General of the Government of Israel v.  Eichmann,  36 ILR (1961) 5
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