Extraditing Cyber Criminals in India Need of The Hour

Extraditing Cyber Criminals in India: Need of The Hour

In the recent past, cyber crimes have become more threatening for individuals, corporates, institutions, and nations. In such times, the law enforcement agencies are finding it difficult to check and prevent the crimes in cyberspace as the perpetrators of the cyber-world are tough to crack and while it incurs a very low cost to carry out a cybercrime, the cost of cracking down or even prevention is extremely high.

Cyberspace, today, is more vulnerable than ever before. As we advance in the technological arena, cyberattacks have gone more sophisticated. The ransomware attacks like WannaCry and Petya have shown the world that cybercrimes aren’t just limited to exposing private information on public platforms anymore, but do have the potential to shatter the global markets and thereby, the economy at a global level.

In the cyber world, it is said that cybercrime has no borders and the fight against it shouldn’t have such demarcations either, but the unfortunate truth is that the world is not on the same page. One country sees good in other’s harm, which is why there is a need to understand that in today’s interconnected world, everyone will have to share the brunt of someone’s loss. Hence, the global powers must collaborate to combat the cyber threat.

If we look at the legal aspect, some laws are still trying to cope up with the various challenges that the cyber world poses. A legal framework for the cyber world was first conceived in India in 1998 through the E-Commerce Act. Afterward, the basic law for cyberspace transactions in India has emerged in the form of the Information Technology Act, 2000. The Act was later amended in the year 2008. Although the IT Act is in place in India since 2000, the solution to cyber crimes is more on paper than on the ground.

If we see from a broad spectrum then we will realize that these things are not just happening with India but it has become a global concern. Cybercrime enforcement comes under the area of legal jurisdiction which creates makes it more complex. It is not that easy to resolve the issue of jurisdiction in cyberspace. It requires efforts from the entire globe. The cyber laws are important as it touches almost all aspects of transactions and activities and anything involving the internet. Interestingly, cyber crimes haven’t yet been defined in any of the Acts in India. So, in our country, it can be understood as a combination of crime and computer. Although, it must be underlined that the I.T. Act does define computer, computer network, data, information, and all other necessary ingredients that form part of cybercrime.

The figures of NCRB have shown an increase in the number of cases registered in the year 2011 against the number of cases that were registered in 2010. The number of cases registered in 2011 under the IT act was about 1791 but out of that only 487 individuals were arrested. There have been reported 496 cases of obscene transmission and publications in electronic form in the year 2011 but only the number of individuals arrested was about 443. This data shows that a need has arisen to make strong laws for such cybercriminals.

It is worth mentioning here that the Information Technology Act, 2000 additionally applies to any crime or contradiction conferred outside India by any individual regardless of his nationality if the act or act constituting the offense or negation includes a computer, computer framework, or system situated in India.

As per Section 1(2) of the Information Technology Act, 2000, the Act applies to the whole of our country and also applies to any offense or contravention committed outside India by any person. Further, Section 75 of the I.T. Act, 2000 also mentions the applicability of the Act for any offense or contravention committed outside India. According to this section, the Act will apply to an offense contravention committed outside India by any person, if the act or conduct constituting the offense or contravention involves a computer, computer system, or computer network located in India.

In a bid to nab the hackers transgressing the border, India has entered into agreements with many nations for legal aid in such criminal cases. Information Technology Act is applied to every one of the people regardless of their nationalities (i.e. to non-residents as well) who confers offense under the Information Technology Act outside India, executed the act or lead constituting the offense or contravention includes computer frameworks or computer systems situated in India under Section 1 and Section 75 of the Information Technology Act, yet this statute lacks practical application unless the individual can be extradited to India. Therefore it’s advised that we should have Extradition treaties among countries.

In a cyber-crime, the computer or the data itself is the target of the hacker and also the instrument. Simplistically, it’s an attack by one computer on the other or others. All such acts of crime come under the definition of cyber-crime.

The crimes are increasingly turning inter-national, especially the cyber-attacks have never been a subject to borders. Many serious offenses now have cross-border implications. Even in cases of traditional crimes, the criminals frequently cross borders to escape prosecution. The extradition of a fugitive from India to a foreign country or vice versa is covered by the provisions of the Extradition Act, 1962.

The very Act forms the legislative basis for this area of law. The Act lays down the first principles of the extradition law. The obligation to extradite criminal’s branches out of treaties or arrangements signed by India, with other countries.

It can’t be disputed that the Information Technology Act, 2000 though provides certain kinds of protections but doesn’t cover all the spheres of I.T, where the protection must be provided. The extradition of cybercriminals is still one of the concerns. India hasn’t been able to nab the perpetrators sitting outside the boundary of the country.

The Budapest Convention on Cybercrime calls for provision for extradition and investigation between nations that are a signatory to it. India, however, had refused to ratify this convention since the provisions were drafted by the developed nations without consulting countries like India. It is crucial to note here, that as per media reports; India is reconsidering its position on becoming a member of the Budapest Convention because of the surge in cybercrimes.

Extradition is usually permissible only for relatively more serious offenses, and not for what the law considers as petty offenses. The underlying principles that govern the extradition law, sometimes, make the process more complicated. The crucial of them are the following — Principle of Reciprocity in exchange of fugitives between requesting and requested State; Principle of Dual Criminality; whether the fugitive is seeking asylum from political persecution and trial for an offense of a political character; and others.

The cyber-world requires an enabling and supportive legal structure in tune with the times. This legal infrastructure can only be given by the enactment of the relevant Cyber laws as the traditional laws have failed to grant the same. E-commerce, the biggest future of the Internet, can only be possible if necessary legal infrastructure compliments the same to enable its remarkable growth.

Ramesh Keshav is a law student of iilsindia.

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