You are on page 1of 10

Assam University Journal of Science &

Technology: Physical Sciences and Technology


Vol. 4 Number II
58-66,2009
Jurisdictional Jurisprudence and Cyberspace
Golak Prasad Sahoo
Law School, Banaras Hindu University, Varanasi- 221005, India
Abstract
The paper deals with Jufisdictional Jurisprudence and cyberspace, in general. In order to ?rotectthe democra.tic
rights of citizens in the borderless world, courts allover are strugglingfor coming up wIth a coherent doctrme
of personal jurisdiction for the internet transactions.
Introduction:
In the new millennium, the major coups of the
'Techno-Scientific Culture' have resulted a new pad
of 'Information Revolution' which has touched
socio-economic organizations and governmental
structure of human beings. The chief foci of
Information Technology are they defeat the
geographical, legal and jurisdictional boundaries
of a particular sovereign nation; and it is rightly
said 'Netizens and web-sites are nowhere and all
over the place'. In this context, the "Information
Revolution' has created for itself one of the most
debated questions i.e. of jurisdiction. Since
jurisdiction is the 'sin qua non' of administration
of justice, a judgment or order or decree is passed
by the court without having the jurisdiction, such
judgment, or order or decree can be said as "coram
non-judice" -before a court which has no
jurisdiction of the matter or before one who is ndt
ajudge, and its invalidity can be set up whenever
it is sought to be enforced as a foundation for a
right even at the stage of execution or collateral
proceeding.
The laws r e l ~ ~ i n g to jurisdictional jurisprudence
characterisiflg in the terms of the subject matter,
territorial aspects, pecuniary and prescribe aspects
have been diluted, and do not answer to the
emerging issues posed by the cyberspace referring
to the standard test laid down in the past nineteenth
century doctrine. To meet the ends of justice, a
new brand of jurisdictional j urisprudence has been
emerged with startling results as there is little or
no domestic legislative recognition of the need to
evolve a distinct set of legislations for internet
jurisdiction. Before appreciating the decisions
of the various courts of the United States of
America and India, the quintessential question
remains;-What is the meaning and the
connotations ofthe word 'Jurisdiction'?
'Jurisdiction', according to The Encyclopaedia
America "is power or authority. It is usually
applied to courts and quasi-judicial bodies
describing the scope of their right to act.
Jurisdiction in the sense of judicial power, often
describes the general authority of a court to hear
and determine controversies and to carry its
judgement into effect. In this abstract sense it does
not relate to particular case, but instead refers to
the scope of courts, capacity to act within certain
geographical boundaries and in connection with
various kinds of legal controversies. In a more
limited sense, jurisdiction means the power of a
court to make valid and binding determination in
particular controversy. This kind of jurisdiction
relates solely to the court's authority in terms of
the specific subject matter and property which are
involved in the case under consideration."
Encyclopaedia Britannica defines, ''jurisdiction in
general, the exercise oflawful authority, especially
by a court or a judge and so that extent or limits
with which such authority is exercisable. It has
primarily a territorial signification, but where its
power are otherwise limited, it is rather a mater
of competence and in system of law based on
codes this distinction is more clearly evident than
it is in English and U.S. law".
- 58 -
Halsbury's Laws of England clearly acknowledges
jurisdiction as, "Where, by reason of any limitation
imposed by a statute, charter or commission, a
court without jurisdiction to entertain any particular
claim or matter, neither the acquiescence nor the
express consent of parties can confer jurisdiction
upon the court, nor can consent give a court
jurisdiction" .
The apex court of India observed, "a defect of
jurisdiction strikes at the very authority of the court
to pass any decree, and such a defect cannot be
cured even by consent of parties." The Hon'ble
High Court, Bombay held that "the jurisdiction of
the court would be ousted, if there was a bar to the
maintainability of the suit" .
In wider sense the expression jurisdiction does not
mean the power to do or order the act impugned
but generally the authority of the judicial official
to act in the terms of subject matter, the prescriptive
matter, the pecuniary and the territorial aspects.
A court may be given exclusive jurisdiction in
respect of a particular subject mater by the
Sovereign, or the constitution or statute, and it may
prescribe restrictions/constraints in respect of the
pecuniary or the territorial aspects. Therefore, the
court need not always have an unfettered and
uncircumcised authority to deal with even with a
particular subject matter. However,jurisdiction to
entertain the suit is different from the point of
maintainability of the suit. The court may have
jurisdiction to entertain a suit in relation to the
grievances made by the plaintiff yet the suit as
field may not be maintainable for various reasons.
Similarly a suit may be otherwise maintainable,
yet the court in which the suit is instituted may not
have jurisdiction to entertain the same.
Cyberspace andJ urisdiction
On the threshold of the twenty first century, the
'knowledge capitalism' is the guiding stars in the
spectrum of social, economic and political fields,
and by virtue of new inventions and innovations,
it drafts history of e-era in realm of post-
modernisation.
In a country like ours there is a novel saying that,
'Ubi jus ebi remedies'- there is a right and there is
a remedy. In the last two decades, the pervading
impact of information technology being a
transnational character poses a serious threat to
the administration of justice. At this juncture a
fundamental question crops up which courts
would have jurisdiction to adjudicate disputes
between the parties transacting on the internet? A
widely recognised view which is gaining ground
reality is that the existing law of jurisdiction is
redundant for the cyber world and an entirely
different set of rules is required to govern the
jurisdiction over the internet which is free from
the shackles of geographical borders.
Position in America
According to the U.S. constitution, the lawsuits
can be brought either in a state or of federal court.
Provided that the state in which the court is located
must have a long-arm statute which allows the
court to assert jurisdiction over non-resident
defendant. Although these statutes will differ from
state to state, Fifth and Fourteen Amendments of
the U.S. Constitution lay down the outer limits
for the courts while asserting jurisdiction. This
means that before asserting jurisdiction over the
non-resident defendant, the court has to comply
with the provisions laid down in Fifth and Fourteen
Amendments Due process Clouse.
Before moving further, it is pertinent that the
United States has not codified the law of
jurisdiction. Due to this, Courts (mainly Supreme
Court) have evolved the various theories to
measure the legitimate exercise of judicial power
over the parties to the litigation. In view of above,
it is necessary to study the history of the
development of the American law of jurisdiction.
From early times, in United States the law of
jurisdiction has been classified as follows;-
Subject matter of jurisdiction
It is the cause, the object and the thing is dispute.
The authority of a court to decide a particular type
of case is called subject mater jurisdiction and is
set by the federal or state constitution or by the
statute ofthe state.
Personal jurisdiction
Personal jurisdiction is concerned with the power
of the court to decide a case between the parties.
For a court to exercise jurisdiction, there must be
a statutory or Common Law Source of jurisdiction,
which does not surpass the limitations imposed
by constitutional dues process. Personal
- 59-
jurisdiction may be ( a) General or (b) Specific;
(a) General jurisdiction equates to 'continuous and
systematic contacts' with the forums, whether or
not the contacts are related to suit. It would allow
the forum to assert jurisdiction for any cause of
action. Or
(b) A specific jurisdiction may arise from even a
few contacts with the forum related to the suit. It
would permit the forum to assert jurisdiction only
to adjudiCation a dispute to which the contacts are
related.
Prescriptive jurisdiction
PresGriptive jurisdiction is the exercise of state
authority to regulate local conduct, transactions
and activities. The very first U.S. Restatement, laid
down in the 1934, mentioned some simple
mechanical rules for choosing what law to apply
in case of inter jurisdictional litigation. In such
cases the substance of the claim will determine
the application of the rule, e.g. in a wrong related
to 'torts' the first restatement provided that the law
of the place where wrong is committed will be
applicable. Thus, the last event necessary to make
a wrongdoer liable for the alleged tort would be
considered.
In absence of clear rules and regulations, the courts
in the United States of America have devised new
jurisprudence in order to resolve rivalry grievances
of the parties in cyber jungle. Prior to the mid-
nineties, there were very few decisions by U.S.
Courts on competence over the Internet disputes.
Since 1995, there has been a true explosion of
cyber space litigation. American courts have used
various tests to determine whether they have
jurisdiction over the Internet disputes. Some courts
have simply applied traditional rules while other
has tried to devise new tests to accommodate the
peculiarities of the medium.
(a) Pennoyer Theory
The traditional law of personal jurisdiction in the
United State is reflected in the landmark decision
of the US Supreme Court. In the Year 1877,
Penn oyer laid down the fundamental principles
that "every state possesses exclusive jurisdiction
and Sovereignty over persons and the property
within its territory and no state can exercise direct
jurisdiction and authority over person and property
within its boarder. Due to these laws one state
could not infringe the laws of another state because
that other state is also a sovereign power".
However, off late during 18th and early 19th
. centuries, the federalist model of jurisdiction upon
which Pennoyer theory was founded no longer
reflected political and commercial reality. After
the second world wars, there was an exponential
growth of industrialization, urbanization,
modernisation and 'computerization in the all
walks of life. The expansion ofthe United States,
international Commerce after the world wars and
the increasing ease of travel across the state lines
created problems when state could not assert
jurisdiction over entities that established
connections with the state. The interstate
movement of goods and persons compelled the
states to provide a way for their citizens to sue
non-residents in local court. Unfortunately,
Pennoyer Test could not stand the test oftime, as
it has the effect of prohibiting the states form
exercising personal jurisdiction over persons and
things physically located outside of its territorial
limits. Due to this, and to keep a pace with the
changing needs ofthe society, the state started to
enact long arm statutes, which permitted the local
courts to exercise personal jurisdiction over non
residents-defendants. Provided the exercise of
jurisdiction did not violate the 14th Amendment
of the US Constitution.
(b) Minimum Contact Theory
Now States wanted to give its citizens an option
to sue non-residents in local courts. The impact if
these changes could be seen in a landmark
judgment in which the United Supreme Court
upheld a Massachusetts Statutes, deeming that
non-residents using the roads of Massachusetts
consented to be used in that state. After analysing
the perspective of natural person, the court held
that a state may sue a non-resident foreign
corporation provided the corporation has
"minimum Contact Test" with the forum state and
provided that exercise of jurisdiction does not
violate the "principle offair play and justice". This
case permits the exercise of jurisdiction in the light
of "virtual" presence of defendant within a sate.
Furthermore, the minimum contacts principles
developed by Supreme Court in International Shoe
Co. v. Washington, Office of Unemployment
- 60-
Compensation and Placement et al. Accordingly principle", the court held that, the e-mail, Web
it analysed the distinction between specific and page, and forum message were both directed at
general jurisdiction. Historically, personal Arizona and allegedly caused foreseeable harm
juris,diction could only satisfy due process ifthe to EDIAS. The defendant, in the instant case
foreign defendant was present within the operated a computer Bulletin board system from
jurisdiction or consented to jurisdiction. However, their home California. They loaded on their
U.S. Supreme Court by this case Cleared the mist . bulletin board images depicting bestiality, oral sex,
that was gathered around in 'in rem jurisdiction incest etc. Access to these files was limited to the
and personam jurisdiction', by making it clear that members who were given password after they paid
there must be certain relationship between non- a membership. Subsequently, an undercover agent
residents property and law suit. The factual matrix was accepted as an agent. When the agent
of the instant case; A New York Volkswagen dealer downloaded explicit pertaining oral sex,
sold a car t6 New York residents. The New York incest, bestiality etc. in Memphis in Tennessee
couple relocated to Oklahoma where they met with which violated moral standard laid down in
an automobile accident that injured the wife and Teimessee District. The defendant belonging to
child. The purchaser filled a suit in Okalahoma the resident of California vehemently objected that
under its'long-arm statute claiming defective that-act did not occur in the territorial jurisdiction
automobile design". The Supreme Court held that Tennessee rather California. The Sixth Circuit
the defendant corporation did not have minimum relying on the "effects test" delivered ajudgment
contacts with state of Oklahoma because they that Tennessee court is enough competent to
limited their sales, advertisements and business entertain the matter
within the New York only. The sole fact that then (d) Purpose/ulAvailment Theory
product sold was readily movable in commerce
did not subject to the defendants jurisdiction of
courts outside the area of where they conducted
business. The court held that foresee ability has
never been a sufficient benchmark for personal
jurisdiction under Due process Clause.
(c) Effects Theory
When a defendant targets a particular forum, he
may be called to answer his or her actions in that
forum. The court asserted its jurisdiction on the
principle that when the defendant knew that her
action would be injurious to the plaintiff, and then
she must reasonably anticipate being sued into the
court where the injury occurred. The "Effects
Principle" is of particular importance in cyber
space because conduct in cyber space often has
effects in various jurisdictions. A case centred on
that an allegation that New Mexico published
allegedly defamatory business statements about an
Arizona company. The plaintiff was a former
distributor of the defendant. The defendant, which
has no Arizona presence, sent e-mail to some
customers and other known distributors, and
posted information relating to the termination of
the supplier/distributor relationship, which the
plaintiff contended as defamatory on its Web site
in the New Mexico. While endorsing the "effects
The concept of "purposeful availment" is that
person by conducting activities within a state
enjoys certain benefits and privileges of that state
and with these privileges certain obligation, also
arises which bears nexus with the activities within
the state which require them person to answer
litigations in that state. A principal theory advanced
to justify that a non-resident defendant has
sufficient minimum contacts with a forum relates
to whether or not the defendant has purposefully
availed himself or herself of the benefits of doing
business in the jurisdiction. Parties who reach out
beyond one state and "creates continuing
relationships and obligations with the citizens of
another state are subject to relations and sanctions
in the other states for consequences of their
activities. However, the United Courts held that
the doctrine of minimum contacts would apply to
contracts of electronic nature. The factual matrix
of the instant case as- Richard Patterson, located
in Texas, entered into an electronic shareware
registration agreement with CompuServe that
permitted the use by Richard Patterson of the
services of CompuServe for the marketing and
sale of his Internet navigation product. When
CompuServe later marketed and sold its Internet
Navigation Software, an Intellectual Property
- 61 -
dispute arose between Patterson and CompuServe,
and CompuServe filled a declaratory suit to clear
its name in Ohio. In the first Instance, this suit
was on the ground that CompuServe did
not have personal jurisdiction to bring this suit.
On appeal, this decision was reversed on the'
following grounds.
a. Patterson had entered into a written albeit
electronic contract with CompuServe that
expressly provided that it was entered into and
governed by Ohio Law.
b. Patterson exclusively used CompuServe to
advertise market and his product.
c. Patterson derived benefits from the marketing
relationship with Co.:upuServe, which income
flowed through CompuServe in Ohio to
Patterson.
Thus, the court in Ohio therefore, assumed
jurisdiction over the dispute because of the
repeated contact (telephone calls and sending
mails) that Patterson had with CompuServe, within
the territory of Ohio, evidenced by Patterson's
repeated efforts at sending mail and software
products to CompuServe for distribution.
Furthermore, the court held that as the cause of
action for the dispute arose in Ohio as it was the
result of the exclusive marketing arrangement
through CompuServe based in Ohio. Moreover,
the Ohio long arm statute allows and Ohio Court
to exercise jurisdiction over'a non-resident
"transacting business" in the state to the full extent
allowed by the due process clause of the fourteenth
Amendment to the U.S. constitution.
(e) Active and Passive Theory
To understand the scope and scale of this theory
mentioned above, it is necessary to examine a
landmark case i.e. Webber v. Jolly wherein local
court is not competent to assert the jurisdiction
over the foreign national. The factual matrix of
this case runs as "the plaintiff, Eileen Weber, was
resident in New Jersey, USA and made inquiries
of the. local travel agent about hotel
accommodation in Italy. The defendant (Jolly) ran
a hotel Chain in Italy (Europe), and had its
principal place of business in Valdagno, Italy. Jolly
did not conduct any business in New Jersey.
However, it did provide photographs of hotel
rooms, descriptions of hotel facilities, in formation
about number of rooms and telephone numbers
on the internet. Ms Weber booked a stay at one of
Jolly hotels through the travel agent and was
injured during her stay at the hotel. On her return
to USA, She sought to. sue the. hotel Chain in a
USA court for failure to keep promises. A
threshold question was whether the courts had
jurisdiction over jolly based on the facts that they
advertised on the Internet and that this advertising
could be viewed in New Jersey";
The Judge looked at' several
before rejecting Miss Weber's claim' for
jurisdiction on the grounds that the connections
with New Jersey were simply too tenuous to
uphold. solidified cornerstones principles
are emerged to assert the jurisdictiort in the Internet
on the ground of active and passivetransactions.
(a) The first category includes' cases where
defendants actively do business on the
internet.
(b) The Second Category deals with the situation
where a user can exchange information with
the host computer. In these cases, the exercise
of jurisdiction in determined by examining
the level of interactivity and commercial
nature of the exchange of information that
occurs on the web site.
(c) Third category involves passive web sites e.g.
sites that merely provide information or
advertisement to users.
Position in India
To formulate whether the jurisdiction of the courts
is exclusive or non-exclusive, in the internet
setting, one must involve the jurisdictional
principles as highlighted in the CPC.
Jurisdiction of Civil courts in India-(Sections.
15 to 20)
(1) Pecuniary jurisdiction: It limits the power of
the court to hear cases up to a pecuniary
limit only. As S.6 provides "nothing herein
contained shall operate to give any Court
jurisdiction over suits the amount or value
of the subject matter of which exceeds the
pecuniary limits of its ordinary jurisdiction."
(2) Subject matter jurisdiction: Sections 16 to
- 62-
18 deal with suits relating to immovable
property. Clauses (a) to (e) of section-16 deal
with the following five kinds of suits, viz;
(a) 'suits for recovery of immovable property;
(b) suits for partition of immovable property;
(c) suits for foreclosure, sale or redemption in
case of mortgage of or charge upon
immovable property;
(d) suits for determination of any other right to
or interest in immovable property;
(e) Suits for torts to iinmovable property.
What will happen if the property is situate within
the jurisdiction of more than one court? Section
17 of the Code provides for this contingency. It
says that where a suit is to obtain a re lief respecting,
or damage for torts to, immovable property situate
within the jurisdiction of different courts, the suit
can be filed in the court within the local limits of
whose jurisdiction any portion of the property is
situate provided that the suit is within the pecuniary
jurisdiction of such court. This provision is
intended for the benefit of suitors and to prevent
mUltiplicity of suits.
A case may, however, arise where it is not possible
to say with certainty that the property is situating
within the jurisdiction of the one or the other of
several courts. In such a case, one of these courts,
if it is satisfied that there is such uncertainty, may
after recording a statement to that effect proceed
to entertain and dispose of the suit.
Section 19 of CPC states "Where a suit is for
compensation for wrong done to the person or to
movable property, if the wrong was done within
the local limits of the jurisdiction of one court and
the defendants resides or carries on business, or
personally works for gain, within the local limits
of the jurisdiction of another court, the suit may
be instituted at the option of the plaintiff in either
of the said courts."
Section-20 of CPC states "every suit shall be
instituted in a court within the local limits of whose
jurisdiction-
(a) the defendant, or each of the defendants
where there are more than one, at the time of
commencement of the suit, actually and
voluntarily resides, or caries on business, or
personally works for gain; or
(b) any of the defendants, where there are more
than one, at the time of the commencement
of the suit, actually and voluntarily resides,
or carries on business, or personally works
for gain, as aforesaid acquiesce in such
institution; or . ~ ..
(c) the cause of action, wholly or in part arise.
(Explanation-I. A corporation shall be deemed
to carry on business at its sole or principal office
in India or, in respect of any cause arising at any
place where it has subordinate office, at such
place.)
Cause of Action and Contractual Obligation
The expression "cause of action" signifies that
bundle of facts or infringement of rights which
the petitioner must prove, if traversed, or entitle it
to ajudgment in his favour by the court.
One can find a better answer to aforesaid plea in
relation to cause of action by referringto a decision
of the Apex Court in the case of Oil and Natural
Gas Commission V. Utpal Kumar Basu and others.
It was a case where the petitioner learnt about
tenders being invited for a particular project at
Hazira in Gujarat from advertisements appearing
in the Times of India in circulation in West Bengal
by reading it at Calcutta, submitted its offer from
Calcutta, made representations and also sent fax
messages from Calcutta and received reply thereto
at Calcutta. A writ petition was filed before the
Calcutta High Court on the plea of part of cause
of action having arisen at Calcutta. In view of the
aforesaid facts, holding lack of jurisdiction on the
part of Calcutta High Court, which it had assumed
by passing impugned order, while allowing the
appeal, the Supreme Court laid down in the
following terms; ' .... merely because it read the
advertisement at Calcutta and submitted the offer
from Calcutta and made representations from
Calcutta would not in our opinion, constitute facts
forming an integral part of the cause of action. So
also the mere fact that it sent fax messages from
Calcutta and received a reply thereto at Calcutta
would not constitute an integral part of the cause
of action.' Where the cause of action arises from
contract, and the parties have not effectively
- 63 -
selected the governing substantive law, the relevant
criteria in choice-of-Iaw analysis are (l) the place
of contracting, (2) the place of negotiation of the
contract, ,(3) the place of performance, (4) the
location of the subject IJ;latter of the contract and
(5) the location of the p ~ i e s .
Criteria of Accepting foreign judgment
A foreign judgment is not conclusive in certain
circumstances in Indian. In this context, S-13 of
the Code of Civil Procedure is relevant and reads; .
A foreign judgment shall be conclusive as to any
mater thereby directly adjudicated upon between
the same parties or between parties under whom
they or any of them claim litigating under the same
title exoept-
(a) where it has not been pronounced by a court
of competent jurisdiction,
(b) where it has not been given on the merits of
the case;
(c) where it appears on the face of the proceedings
to be founded on an incorrect view of the
international law or a refusal to recognize the
law of India in cases in which such law is
applicable,
(d) where the proceedings in which the judgment
was obtained are opposed to Natural justice
(e) Where it has been obtained by fraud
(t) Where it sustains a claim founded on a breach
of any law in force in India.
The aforesaid clauses from (a) to (t) underlines
under what conditions a foreign judgment shall
be taken as conclusive. It was observed by the
Supreme Court in Smita Conductors Ltd. V. Euro
Alloys Ltd. that a foreign award cannot be
recognized or enforced if it is contrary to (1)
fundamental policy of Indian law; or (2) the
interest of India; or (3) justice or morality.
It is obligatory to know that provisions as contained
in S. 13 and S.14, CPC would apply when a suit is
brought on a foreign award. Under S.14, CPC "the
Court shall presume, upon the production of any
document purporting to be a certified copy of a
foreign judgment, that such jUdgment was
pronounced by a court of competent jurisdiction,
unless the contrary appears on the record; but such
presumption may be displaced by proving want
of jurisdiction." Also, under S.44A CPC, there is
a provision for execution of decrees passed by
courts in reciprocating territory.
Information Technology and Criminal
Procedure Code. (S. 75 and S. 179)
One of the interesting provisions of S. 75 of IT
Act-2000 which contemplates for offences or
contraventions committed outside India.
According to this Section, 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.
. Though India is not one of the signatories to the
cyber crime convention, but it has adopted
principle of universal jurisdiction to cover both
the cyber contraventions and cyber offences under
the Act. It has been argued that from the point of
view of application, it would be extremely difficult
to enforce the jurisdiction of Indian Courts on
cyber criminals belonging to different
nationalities. Moreover, the Extradition Treaties,
which India has signed so far, do not cover 'cyber
crime' as an extraditable offence.
On the same footing S. 179 of Cr. P.C. defines,
when an act is an offence by reason of anything
which has been done and of a consequence which
has ensued, if the thing has been done in one local
area and the consequence has ensued in another
local area. In this case, the consequence means
only such consequence as is a necessary ingredient
of the alleged offence. For instance, 'A' is
wounded within the local jurisdiction of court 'X'
and dies within the local jurisdiction of court 'Y'.
The offence of culpable homicide committed
against 'A' may be inquired into and tried by court
'X' or Court 'Y'. Section 179 contemplates a
situation wherein the accused has done an act,
prescribed consequence has followed such act, and
that the accused is being tried for the offence as
result of both the act and the consequence.
Case laws: Position in India
In India, there are a large number of cases where
Courts have exercised jurisdiction over non-
resident defendants. Recently, Justice Sanjay
Kishan Kaul in a hotly contested matter on
- 64-
selected the governing substantive law, the relevant
criteria in choice-of-Iaw analysis are (1) the place
of contracting, (2) the place of negotiation of the
contract,.(3) the place of performance, (4) the
location of the subject matter of the contract and
(5) the location of the p ~ i e s .
Criteria of Accepting foreign judgment
A foreign judgment is not conclusive in certain
circumstances in Indian. In this context, S-13 of
the Code of Civil Procedure is relevant and reads; .
A foreign judgment shall be conclusive as to any
mater thereby directly adjudicated upon between
the same parties or between parties under whom
they or any of them claim litigating under the same
title exoept-
(a) where it has not been pronounced by a court
of competent jurisdiction,
(b) where it has not been given on the merits of
the case;
(c) where it appears on the face of the proceedings
to be founded on an incorrect view of the
international law or a refusal to recognize the
law of India in cases in which such law is
applicable,
(d) where the proceedings in which the j udgment
was obtained are opposed to Natural justice
(e) Where it has been obtained by fraud
(f) Where it sustains a claim founded on a breach
of any law in force in India.
The aforesaid clauses from (a) to (f) underlines
under what conditions a foreign judgment shall
be taken as conclusive. It was observed by the
Supreme Court in Smita Conductors Ltd. V. Euro
Alloys Ltd. that a foreign award cannot be
recognized or enforced if it is contrary to (I)
fundamental policy of Indian law; or (2) the
interest ofIndia; or (3) justice or morality.
It is obligatory to know that provisions as contained
in S. 13 and S.14, CPC would apply when a suit is
brought on a foreign award. Under S.14, CPC "the
Court shall presume, upon the production of any
document purporting to be a certified copy of a
foreign judgment, that such jUdgment was
pronounced by a court of competent jurisdiction,
unless the contrary appears on the record; but such
presumption may be displaced by proving want
of jurisdiction. " Also, under S.44ACPC, there is
a provision for execution of decrees passed by
courts in reciprocating territory.
Information Technology and Criminal
Procedure Code. (S. 75 and S. 179)
One of the interesting provisions of S. 75 ofIT
Act-2000 which contemplates for offences or
contraventions committed outside India.
According to this Section, 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 corilputer network
located in India.
Though India is not one of the signatories to the
cyber crime convention, but it has adopted
principle of universal jurisdiction to cover both
the cyber contraventions and cyber offences under
the Act. It has been argued that from the point of
view of application, it would be extremely difficult
to enforce the jurisdiction of Indian Courts on
cyber criminals belonging to different
nationalities. Moreover, the Extradition Treaties,
which India has signed so far, do not cover 'cyber
crime' as an extraditable offence.
On the same footing S. 179 of Cr. P.C. defines,
when an act is an offence by reason of anything
which has been done and of a consequence which
has ensued, if the thing has been done in one local
area and the consequence has ensued in another
local area. In this case, the consequence means
only such consequence as is a necessary ingredient
of the alleged offence. For instance, 'A' is
wounded within the local jurisdiction of court 'X'
and dies within the local jurisdiction of court 'Y'.
The offence of culpable homicide committed
against 'A' may be inquired into and tried by court
'X' or Court 'Y'. Section 179 contemplates a
situation wherein the accused has done an act,
prescribed consequence has followed such act, and
that the accused is being tried for the offence as
result of both the act and the consequence.
Case laws: Position in India
In India, there are a large number of cases where
Courts have exercised jurisdiction over non-
resident defendants. Recently, Justice Sanjay
Kishan Kaul in a hotly contested matter on
- 64-
jurisdiction examined the entire conspectus of the
law in different jurisdictions. The case, India TV
(Independent News Service Ltd) Vs. India
Broadcast Live LIC & Ors related to the domain
name Indiatvlive.com registered and used by the
defendants as a domain name for video streaming
of Indian television channels. After the
commencement of the action in the Delhi High
Court, the defendants filed a 'Reverse Domain
name Hijacking' action in Arizona against India
TV. The court was concerned with two issues, viz,
(a) Exercise of jurisdiction over the defendants
located in the US, (b) Whether an injunction ought
to be granted restraining the defendants from
proceeding with the suit filed in the United States?
On this issue the Court followed the principles laid
down in Modi Entertainment Network and
another. In the said case the Hon'ble Supreme Court
of India had held as, 'The courts in India like the
courts in England are courts of both law and equity.
The Principles governing grant of injunction-an
equitable relief- by a court will also govern grant
of anti-suit injunction which is but a species of
injunction. When a court restrains a party to a suit!
proceeding before it from instituting or prosecuting
a case in another court including a foreign court,
it is called anti-suit injunction. It is a common
ground that the courts in India h;;tve power to issue
anti-suit injunction to a whom it has
personal jurisdiction in an appropriate case. This
is because courts of equity exercise jurisdiction in
personam. However, having regard to the rule of
comity, this power will be exercised sparingly
because such an injunction though directed against
a person, in effect causes interference in the
exercise of jurisdiction by another court.'
From the above discussion the following principles
emerge;
(1) In exercising the discretion to grant an anti-
suit injunction the court must be satisfied of
the following aspects;
(a) the defendant, against whom injunction is
sought, is amenable to the personal
jurisdiction of the court.
(b) If the injunction is declined, the ends of justice
will be defeated and injustice will be
perpetuated; and
(c) the of comity- respected for the court in which
the commencement or continuance of action!
proceeding is sought to be restrained-must be
borne in mind.
(2) In a case where more forums than one are
available, the court in exercise ofits discretion to
grant anti-suit injunction will examine as to which
is the appropriate forum having regard to the
convenience of the parties and may grant anti-suit
injunction in regard to proceedings ;which are
oppressive or vexatious or in a forum non-
convenience.
(3) The burden of establishing that the forum of
choice is a forum of choice is a forum non-
convenience or the proceedings therein are
oppressive or vexatious would be on the party so
contending to avert and prove the same.
In so far as the position in this country is
concerned, there is no 'long arm' statute as such
which deals with jurisdiction as regards non-
resident defendants. Thus, it would have to be seen
whether the defendant's activities have a sufficient
connection with the forum state (India); whether
the cause of action arises out of the defendant's
activities within the forum and whether the
exercise of jurisdiction would be reasonable.
The above review also establishes the manner in
which the judiciary in India is pro-active and even
in the absence of clear statutory provisions, the
attempt is to uniform the law and to strike the right
balance rather than alienate India from the rest of
the world.
Conclusion
The Internet operates in an environment which
allows infringements to take place with no clear
and convenient jurisdiction in which the right-
holder can file suits. The challenge to the legal
community posed by such an environment is
currently being dealt with at the national and
international level. There has been an ongoing
effort to form new rules that would apply to the
online environment. Some very interesting
beginnings have been made in the area of
adjudication through the internet itself. Domain
name disputes are being settled by online
arbitration under the Uniform Domain Name
Disputes Resolution policy adopted on August 26,
- 65 -
1999 by The Internet Corporation for Assigned
Names and Numbers (ICANN), which has been a
through success. Moreover, the disputes pertaining
to the sam,e have also been successfully settled by
its Alternative Disputes Resolution (ADR) service
providers.
The ,Internet is a place where the infringer is neither
domiciled nor has his place of business or property
within national territory, the right holder has no
choice but to enforcy judgment obtained within
national territory in a foreign country. At regional
'level, there are proceedings for recognition of
foreign judgment, but they are sometimes rather
tedious and time consuming. Consequently steps
should be taken towards creating an international
convention for the recognition of foreign
judgments, applicable throughout the world.
To conclude, technology reconstructs societies,
alters its concern and law is an instrument through
which these altered concerns need to be regulated,
managed and facilitated. To protect the democratic
rights of the citizens in the borderless world, the
courts around the world are struggling to come up
with a coherent doctrine of personal jurisdiction
for the internet transactions. Though, the
application of real world norms in the virtual
society is well established, the virtual world should
be subjected to a greater degree of control than
the real world. However, the principles on which
regulation of virtual society should be based
necessarily differ from the principles of real world
regulation.
References
I. Sood, Vivek. (2001). Cyber Law Simplified, Tata
McGraw-Hill Publishing Company Ltd. pp-187
2. Khera, R.C., Volume 13 (1959) pp.196, Volume
16 (1960) pp. 257. Legal Glossary with the Legal
Maxims pp.225
3. Singh, Kiran. and Paswan, V Chaman., (1955). 1
SCR 117. Halsbury's Laws of England (4th Edn)
Reissue. Vol. pp. 317
4. Beecham, Smith Klin., (2002) 1. Consumer
Healthcare Gmbhy V. Hindustan Lever Lever Ltd.,
Mah. 1.1.453
5. Shah V" Ujwalaben Mahindra., Keshaschand
Gulabchand and others. (2002) 1 Mah. U.378
6. Choice oflaw Theory and Background available at
www:hewm.com.lchoice co.htm visited on 20.8.07
Ibid
7. Law of jurisdiction available at www.Lex2K.orgi
indexlindexlhtmal visited on 27th July, (2008).
8. Jones, Stephen D. Internet use and personal
jurisdiction; Have mouse, will Travel? (Ohio Bar
Association Annual Convention Computer Law
Committee Seminar).
9. Neff, Pennoyer V. (1877).95 U.S.714.
10. Pawl, Hess V. (1927). Ski 274 U.S.325.
11. Supra Fn. 14. (1945). 326 U.S. 310, 316
12. World-Wide Volkswagen Corp V Woodson.
(1980).444 U.S. 286,295.
13. Cox, Noel. The Regulation of Cyberspace and the
Loss of National Sovereignty. A paper presented in
the (2002) Annual Conference of Socio-Legal
Studies Association, University of Wales
Aberystwyth, available at http;/I
www.geocities.com/noelcox/regulation of
cyberspace,htm visited on 12.9.07
14. United States, Thomas, V. (1996). 74F3d.
15. Compuserve Inc. Patterson, V. (1996) U.S. Appeal
Lexis 17837
16.997 F. Supp. 327 (September 1997)
17. Section 18 of the code of civil procedure (1994) 4
SCC 711 (2001) 7 SCC 728
18. Explanation 1 to this section defines, reciprocating
territory to mean any country or territory outside
India which the Central Government may, by
notification in the Official Gazetter, declare to be
reciprocating territory for the purpose of this
section.
19. Legislations of the European Union which forbid
not only its own nationals but also persons wanted
by another non-EU country to be extradited for
cases which award the capital punishment.
20. Mehta, Kashi Ram V. Emperor, A.I.R. 1934 All.
499 (FB)
21. Dattatraya, Rekhabai V. (1986). Cr.LJ. 1797
(Bomb. H. C.); Ravindra Sanusing Patil V. Rajendra
PanditPatil1991 Cr. L.J. 963 (Bomb. H.C.)
22. Judgment dated 10.7.07 in CS (OS) No. 102 of
2007;MANU/DE11703/2007
23. Modi Entertainment Network V. WSC Cricket Pvt.
Ltd (2003) (4) SCC 341;MANU/SCI0039/2003
- 66 -