The major legal challenge emerging from cloud computing is the issue of extradition and jurisdiction. To understand the extent and jurisdiction of the Information Technology Act, we must examine sections 1(2) and 75 of the Act.
1. Short title, extent, commencement and application
- This Act may be called the Information Technology Act, 2000.
- It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person.
75. Act to apply for offence or contravention committed outside India
(1) Subject to the provision of sub-section (2), the provisions of this
(2) Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.
(2) For the purposes of sub-section (1), 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.
Not only does the Information Technology Act apply to the whole of India, but also to contraventions committed outside India, by anyone, involving a computer located in India.
Illustration: Kylie Minogue, an Australian national, residing in USA, gains unauthorized access to a computer located in India and deletes information. In this case, she will be liable under the provisions of the IT Act.
However, there are exceptions to the term “any person”. Certain persons are exempt from prosecution under the IT Act. These include the President of India and the Governors of Indian states1 , Foreign Heads of State and Ambassadors of foreign countries 2 .
Extradition is the delivery of a person accused of a crime in one country by the other country where he has sought refuge.
Sameer has committed a crime in India and then escaped to USA. The US government could extradite Sameer to India so that he can face trial for his crime.
The delivery takes place pursuant to an existing treaty or an ad hoc arrangement. Extradition is based on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished.
The domestic law of the nation from whom the extradition of the person is sought plays a crucial role in determining whether the State seeking the extradition would be granted its request or not. Extradition Act, 1962 is the relevant law in India.
India has entered into extradition treaties with Belgium(1958), Bhutan (1997), Canada (1987), Hong Kong 1997), Nepal(old Treaty) (1963), Netherlands (1989), Russia (2000), Switzerland (1996), UAE (2000), U.K. (1993), USA (1999), Uzbekistan (2002), Spain (2003), Mongolia (2004), Turkey (2003), Germany (2004), Tunisia (2004), Oman (2005), France (2005), Poland (2005), Korea(ROK) (2004), Bahrain (2005), Bulgaria (2006), Ukraine (2006), South Africa (2005), Belarus (2008), Kuwait (2007) and Mauritius (2008). Additionally India has extradition agreements with Australia (1971), Fiji (1979), Italy (2003), Papua New Guinea (1978), Singapore (1972), Sri Lanka (1978), Sweden (1963), Tanzania (1966), Thailand (1982) and Portugal (2002).1 Article 361(2) of the Constitution of India states that “No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.” Article 361(3) states “No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.” 2 The principle of diplomatic immunity is enshrined in the “Vienna Convention on Diplomatic Relations” of 1961. The convention mentions that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States”. This has been codified in India under the Diplomatic Relations (Vienna Convention) Act, 1972. Similar immunities are conferred on United Nations officers by the United Nations (Privileges and Immunities) Act, 1947.