LEGAL PROVISIONS GOVERNING E-SIGNATURES

In the past decade, it has been observed that major world economies have transformed their policies and legislations to adapt to the new economic standards of globalisation and liberalisation. Though the entire process of digitalization is very recent to the Indian sub-continent, electronic signatures or e-signatures were inducted under the Information Technology Act, 2000 (Hereinafter IT Act). Initially, the term ‘Digital’ was utilised to denote electronic record information, but later on the Information Technology Amendment Bill, 2006 (Hereinafter ITAB) replaced it with ‘electronic’ in the principal act. The prime proposal of the Bill was to enable authentication of electronic records by e-signature technique.

Along with the Sec. 3 of the IT Act, 2000, Sec. 6 of IT ACT, 2006 has several conditions which are to be considered together. Primarily, Sec. 6 provides that a subscriber must authenticate any electronic record which is reliable and specified in Second Schedule. With the initiation of the IT Act, there were several alterations made in other subsequent legal provisions. Foremost, Under Sec. 65-B of the IEA provides that electronic records must be admissible in the court of law.

Sec. 47A of the Indian Evidence Act (Hereinafter IEA) states that when the court has to form an opinion as to electronic signature or any person, the opinion of the certifying authority which has issued the electronic signature certificate is a relevant fact.

Though in various situations, it is observed that the term ‘digital’ and ‘electronic’ is used as complementarily, but there is a slight line of difference between the terms. As per the definition of E-signature, Digital signature is one of the many kinds of electronic signature. As an interpretation of Sec. 47A of the IEA, in formation of opinion of electronic signature, the court will give emphasis to digital signature.

Further, As per Sec. 67A of IEA, provides that information provided in a electronic signature certificate is valid unless contrary is proved. The Information Technology Amendment Act, 2008 stated that the term ‘electronic signature certificate’ is a substitute of ‘digital signature certificate’. Under the Indian Penal Code (herein after IPC), Sec. 464 defines about preparation of a false document. The provision states that the document can be electronic in nature. The provision discusses regarding transmission, affixing and authenticity of electronic record or signature.

For reliability

  • E-signature is linked only to the signer.
  • The signer must have absolute control.
  • Any alteration to e-signature to the signature affixed must be detectable.
  • Presence of an audit trail.
  • The signature certificate must be issued by Controller of Certifying Authorities.
Legal Provisions under the IT Act.

Under the IT Act, there are two separate areas related to electronic signatures under the current act. There are provisions for both electronic signature and electronic signature certificates. This section will exclusively deal with the prime legal provisions for electronic signatures under the IT Act.

  • Sec. 5 of the IT Act considers the legal recognition of electronic signature as per the prescription of the Central Government. Thus, a format should be prescribed for the prevalent electronic signature.
  • Sec. 6 of the IT Act validates the use of electronic signatures in Government and its agencies. It states that where the law provides for filing any form of any office or authority or body partly or fully owned by the Government, issuance of license and receipt or payment of money, if the procedure of electronic signature is followed then it would be acceptable. Thus, this provision entitles responsibility on the Government and other related agencies.
  • Sec. 10 states that the Central Government may have the power to make rules in relation to electronic signature. The government may determine the type, manner, format of the signature. It also has the power to control processes and procedures or undertake any such action which is required to provide legality to electronic signature.
  • Sec. 15 states that an electronic signature will be considered secured under two main conditions. Firstly, the signature was created in such a manner that the signatory was in control. Secondly, the signature was stored in the prescribed procedure.
  • Sec. 18(f) states the Controller has the function to specify the contents written, printed or visual maters and advertisements that might be distributed in relation to electronic signature.

As the prime subject of the blog does not deal with electronic signature certificate, thus the subject has not been dealt here. Nevertheless, Chapter VII of the Act deals primarily with Electronic Signature Certificates wherein under Sec. 35 of the Act it discusses on all the relevant information on Certifying authority to issue electronic signature certificate along with the procedure and fee. Sec. 40A of the Act also mentions about the duties of subscriber of Electronic Signature Certificate.

Analysis

With the growing level of interconnections among the countries of the world, there are several issues of privacy and protection of identity that arise. The IT Act attempts to cover intricacies related to electronic signature. Apart from that, the Act under Sec. 66C also provides for Punishment for theft for electronic signature. The punishment if found guilty is either imprisonment which may extend to three years and fine which may extend up to Rupees 1,00,000. As a final analysis of the current legal provisions, the researcher observes that the prevalent legal provisions are quite well developed but at the same time there are certain legislative gaps. Foremost provisions under the IT Act and other relevant legislations, there is an absence of time period or limitation period, which might result in slow functioning in the current world order.