Authentication of Electronic Records: Limitations of Indian Legal Approach

• Author: Farooq A. Mir - M. Tariq Banday
• Position: Department of Law, University of Kashmir, Srinagar, India - Department of Electronics and Instrumentation Technology, University of Kashmir, India
• Pages: 223-232

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Authentication of Electronic Records: Limitations of Indian Legal

Approach

Farooq A. Mir

Department of Law, University of Kashmir

Srinagar, India

far_lwtr@rediffmail.com

M. Tariq Banday

Department of Electronics and Instrumentation Technology,

University of Kashmir, India

sgrmtb@yahoo.com

Abstract. Paper based documents have inherent auth enticity and high evidentiary value for

obvious reasons. The d ocuments are perman ent record of the contractual relationship of the

parties and their co ntents cannot be so easily altered, modified or changed and even if any

change is effected that can be e asily detected. This is the reason that the Indian Evidence Act,

1872 excludes oral evidence in presence of documentary evidence. The moot point is that can an

electronic record be treated equivalent to paper based record? In other words, can an electronic

record have all the properties of the physical d ocument appended with the hand written signature?

This is necessitated by the fact that there are d ifferent laws in India providing that a contract is

not valid unless it is in writing and signed by the parties. An attempt is made in this paper to

analyze the provisions prescribing authentication of electronic records in India to demonstrate

inherent limitations in th em. To overcome these limitations, a new model of authentication is

proposed which is based on digital signature combined with time stamping service.

© 2012 Farooq A.Mir & M. Tariq Banday.Published by JICLT. All rights reserved.

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Generally, law does not favor any particular mode of execution of commercial transactions save in exceptional

situations where it is expressly provided that a commercial transaction be in writing and signed b y the parties so

as to be enforceable. T his document is the reco rd of the parties to an agreement and the signature is the stamp of

a person’s identity and marks his intention to commit himself legally. The commercial community ha s found

these two requirements convenient to create legal relationship and forms now a well-established mode of

executing business transaction.

The legal systems across the globe do not exhibit uniform requirements of writing and signature a nd legal

efficacy of these requirements also vary. For instance, a promise made on account of love and affection between

the parties having near relations with each other or a promise to pay time barred debt or something already

voluntarily done is only unenforcea ble and not invalid if the promise is not in writing, signed and registered as is

required under the India n Contract Act, 1 872. The same is true for the E nglish Statutes of Fraud, which makes a

transaction unenforceable in court and not invalid for lack of writing and signature by the parties to be charged.

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The formal requirements of legal transactions witnessed a great transformation in the present century and

consequences of failure to satisfy these requirements have been greatly di minished. Leaving aside this

1

Arthur, I., 1950, Corbin, Corbin on Contracts, pp. 20-23.