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Legal Sanctity of Electronic Communication

Legal Sanctity of Electronic Communication: A new approach to substantive and procedural law has become necessary. Businessmen, employers, employees, institutions, lawyers, judges and even legislators have to understand not only the change but also have to internalise the paradigm shift.

The whole concept of communication is changing. From days when carrier pigeons were considered quick enough for conveying messages, our society has reached a stage when information and documents can be exchanged across the globe in a matter of seconds by new information technology. The internet, e-mail, e-commerce etc. are terms which we now take for granted. Who could have thought this possible two decades back. Most of our laws, civil as well as criminal, prescribe procedures and substantive provisions for the old model of communication where paper, writing and signature were essential to work out the rights and liabilities of persons. In the new model, paper, writing and signature are all replaced by electronic information exchanged by an entirely different technology. A new approach to substantive and procedural law has become necessary. Businessmen, employers, employees, institutions, lawyers, judges and even legislators have to understand not only the change but also have to internalise the paradigm shift.

As the new information technology is accepted and used by more and more people its use in business and economy is bound to grow. In the West it already plays a big role. E-commerce is challenging traditional modes of business. In India too the power of new information technology is being felt although at a sluggish pace.

In January 1997 the General Assembly of the United Nations adopted the Model Law on Electronic Commerce adopted by United Nations Commission on International Trade Law (UNCITRAL). The member States were urged to consider the said Model Law whenever they enacted or revised their law to provide for the legal effects and consequences of the new information technology. India has accordingly enacted the Information Technology Act, 2000. The purpose of the Act is to provide legal recognition for e-commerce which involves the use of alternatives to paper based methods of communication and storage of information and also to facilitate electronic filing of documents with the Government agencies. The above purposes can be effectively carried out only if the entire process of communication is legally tenable i.e. public has access to electronic information, the incidents can be proved in Courts, sanctions are prescribed and enforced etc. To achieve this, the said Act further seeks to appropriately amend the rules of evidence as contained in the Indian Evidence Act, 1872 and the Bankerís Books Evidence Act, 1891, the Reserve Bank of India Act, 1934 - and the Indian Penal Code 1860 to broaden the width of definitions and sanctions so as to include electronic record.

The Act seeks to achieve the purpose of attribution of communication to specific individuals or entities by using the concepts of digital signature which is electronically as unique as the signature of a person. The effect of the digital signature is to authenticate the electronic record on which it used. By this provision people who are inter-acting electronically can safely rely on representations which bear digital signatures. The Act provides that where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in the manner provided by the Central Government. The Act also contains provisions similar to the Contract Act, 1872 stating as to when communication is complete with respect to the sender and receiver of electronic communication and for determination of place of communication. Without these provisions, legal enforcement of contracts reached by the new mode would have been difficult.

The Act also provides administrative and quasi-judicial machinery - for licensing of Certifying Authorities who issue Digital Signature Certificates, grant of such certificates to applicants, inquiry into contraventions, adjudication and appeal - and matters incidental or connected thereto. The Act prescribes procedures and safeguards for misuse of digital signatures. The Act further defines offences in this new setup and provides for stiff penalties of  large fines including imprisonment.

In the Indian conditions, where bulk of our commercial,  criminal and  procedural law has been given to us by the British in colonial period, one may feel skeptical about how the new law will work practically. It would take some time before the litigants, lawyers and the judges start accepting as real what is only deemed real by the Act. One could never have problems with real paper, ink, writing and signature to prove jural relations. In the new regime, eventhough presumptions are created by legal fiction-for which the Courts are bound - still the question of faith remains. It may take some time before the professional acceptance of this legal fiction comes around.  

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