Using the Principle of Comity to resolve Jurisdictional Issues in Cybercrimes

“Jurisdiction is defined as the power to hear or authority to decide the subject-matter in the imbroglio between the parties who are involved in the dispute, to adjudicate or assert any judicial power over them; but the question arises, whether if a case is taken before the court, the action would be deemed to be judicial or extrajudicial; without the facets of the authority of law, to render a decision, upon the rights vested in the litigant parties. If the law gives such power only then the court has jurisdiction” [1].

The correct working of any judicial system is based on the framework of rules and regulations, which define every aspect of the system’s functioning, and fundamentally, its jurisdiction. In pre-industrial society, people could not easily communicate across far off distances, and the power to assert the legality of rules was limited by the physical location of the law officer and the debate around jurisdiction was limited to the areas delineated by the frontier boundaries of states [2].

Since times immemorial people and transactions have become more mobile and jurisdictional rules have become obsolete based solely on the current location of the defendant. Courts increasingly have found that there is a need to assert authority over persons who are not within their borders because that would give rise to trampling upon the privacy rights of people [3].

If on one hand, we try to look from the Indian perspective, as long as the tussles concern parties that are within the confines of the country, the question of enforcement of rights of parties can be decided by one state court in another state when the defendant himself/herself lives in the same state taking into consideration the provisions of the Civil Procedure Code of 1908. However, the problem arises when the defendant is outside the territorial boundaries of the country and unless there are mutual agreements for acceptance of decrees or orders entered into the country of the defendant’s location, the imposition of such legal remedies will be put to question.

The most pertinent question which arises is that “How will the Indian courts adjudicate upon such cases in which there is a limitation on the extra-territoriality extent of the laws” and “Whether the applicant would be rendered a hapless citizen just because of the reason that there is no law in the country which effectively deals with it”? The transmogrification from territorialist jurisdictional rules based on the presence of the defendant to neo- territorialist ones based on acts and effects have expanded the number of states that could legitimately consider claims on the said activity.

If we start looking at problems from a neo-territorialist perspective, we will find that it raises certain interesting problems in acquiescing all of the conflicting state claims on cyberspace activity. The remarkable claim as propounded by legal jurists, for a separate cyberspace legal rules is not that the activity is subject to multiple claims of authority, but rather that it requires the abandonment of individual claims by the states. It calls for lacunas in territorial based sovereignty [4].

There cannot be a single dint of doubt that Indian courts will be called upon to assert their legitimate claims of jurisdiction over alien defendants involved in cross-border internet disputes. The biggest challenge that would arise for the Indian courts is that there is no law that could be looked upon to decide such claims and it is thought that the Indian courts, even while they try to adapt themselves to puzzling nature of the problem, will have to resort to the laws developed by the common law courts or civil law courts elsewhere. It seems that just as the technology is by and large a borrowed one, the law in relation to it will also inevitably be that.

The need of the hour is to develop a country made law. Although it seems to be a huge task, what can unfold during the process is that the task can create more cyber borders, which can, in turn, generate a whole new framework of new technologies thereby leading to a contentious issue that what course could be taken by the courts to harmonize between the principles of municipal law and foreign law when both are antithetical to each other.

The answer to this problem lies in applying the Principle of International Comity so that if there is no particular law in the country, the court can resort to the principles already established in other legal systems of the world.

The doctrine of “comity,” as well as principles applied when distributing authority to other self-regulatory organizations, will provide us with guidance for managing such disputes in a timely manner. The doctrine of comity is “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard to both international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws” [5].

The Constitution of India forces the state to comply with international law principles although it does not render international law to be taken as a part of Indian law. Article 51 of the Directive Principles of State Policy (DPSP) is not legally enforceable in itself and has to be read in consonance with the other Articles of the Constitution, which provides with the provisions that even though DPSPs are not judicially enforceable but are nevertheless fundamental in governing the conduct of the country and the onus lies upon the state for application of these laws.

Taking the liberal approach, the Apex Court of India in the case of Gramophone Co of India v. Birendra Bahadur Pandey [6] held that the comity of nations wants that the principles which seem to be of international nature may be accommodated in the municipal law even without express legislative action just in order to trail upon the path set down by the framers of our Constitution.

The Indian courts can follow the principles for resolving the disputes pertaining to the usage of the internet from foreign jurisdictions. For example, the Australian High Court has rendered a decision in which the effects test is applied for adjudication [7]. Similarly, the Canadian Supreme Court emphasized the ‘real and substantial connection’ as a test for determining jurisdiction. It was observed that the approach of permitting suit where there is a real and substantial connection with the action strikes an appropriate and reasonable balance between the rights of the parties [8].

Thomas Schultz has vividly pointed out that “The Internet is caught between old forces of local territorialism and new forces of global economies. As a result, it may end up in being a fragmented piece of law – a progression which is itself antithetical to classical vision of the Internet, as an archetypal example of a frontierless world of global transnationalism”.

An often-repeated adage in the context of the internet is that of Judge Nancy Gertner which she gave in Digital Equipment Corp. v. Altavista Technology [9] judgment – “The internet has no territorial boundaries.” As far as the internet is concerned, not only is there perhaps ‘no there, there’, the ‘there’ is everywhere where there is internet access.

References

[1] State of Rhode Island v. State of Massachusetts, 12 Peters, US 657

[2] H.L.A. Hart, The Concept of Law 24-25 (1994)

[3] Joseph Kalo, Jurisdiction as an Evolutionary Process: The Development of Quasi In Kern and In Personam Principles, 1978 Duke L. J. 1147 [4] David R. Johnson & David G. Post, The Rise of Law on the Global Network, in Borders in Cyberspace 13 (Kahin and Nesson eds., 1999)

[5] Hilton v. Guyot, 159 U.S. 113, 164 (1895); MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 330-38 (1988)

[6] 1984 AIR 667.

[7] Dow Jones & Company Inc. v. Gutnick (2002) H.C.A. 56 (Austl.).

[8] Morguard Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077 (Can.).

[9] 969 F. Supp. 456 (D. Mass. 1997).