E-Governance and IT Act

Introduction:

The Information Technology Act, 2000 (IT Act) was a revolutionary step in the development of cyber law in India which came into force on 17^th October, 2000. It was based on the guidelines of the United Nations Model Law on Electronic Commerce (UNCITRAL) which was recommended by the United Nations General Assembly upon the passing of the resolution dated 30 January 1997. The coming of this Act at the start of the 21^st century brought a lot of changes especially in the governance of the country as it promoted e-governance (along with e-commerce).

E-Governance and its Scope

The World Bank defined e-governance as “the use of information and communication technologies by government agencies to transform relations with citizens, business and other arms of the government.[1]” It aims at improving the relations between government, citizens, and businesses or business services through information technology. In India, the concept of e-governance has more to do with the facilitation rather than regulation.[2] 

One of the first states to put e-governance into practice was Karnataka through BHOOMI which was an e-governance project on land records computerization followed by Tamil Nadu which launched Rural Access to Services through Internet (RASI). At present, several other states have used Information and Technology in their governance and there are more to follow.

The inclusion of e-governance has not only connected the government with the citizens but has also empowered the citizens. All the policies of the government under e-governance are put in the forefront which educates the citizens about the concerned policy and also facilitates them to exercise their Right to Information under Article 19 of the Indian Constitution in a better way.[3] The use of IT by the government to facilitate services like filling the forms online, payment of bills (electricity, water supply, etc.), distant education for its citizens, filing the tax returns, registration of land records, and birth and death rates in India, and tele-medicines, and the services like e-chaupal have lead to an efficient, and easy to use of system for the citizens irrespective of any disparity among them.[4]

E-Governance is very different from normal or physical governance of the country as being dynamic, it is in pace with the technological advancement[5] and efficiently saves the time and expense of the government in its functions as all the work is done by technology. It puts a check on the practice of red-tapism and corruption and allows the government to function in a transparent way saving the citizens from exploitation and harassment.

Chapter III of the IT Act, 2000 deals with e-governance from Section 4 to 10A highlighting the electronic governance rights to both the citizens and the government.

Legal Recognition of Electronic Records

Under Section 4, electronic records are treated at par with the written, typewritten, or printed records and the only necessary condition is that such electronic records must be available for subsequent or future reference. The term “electronic form” used in this section has been defined under Section 2 (1) (r) of the IT Act as “any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer generated micro fiche or similar device.”

Legal Recognition of Electronic Signatures

Section 5 legalizes and makes electronic/digital signatures equivalent to handwritten or manual signatures for authentication of any required record. How the affixation of such electronic or digital signature is to be prescribed by the Central Government. What is to be considered as an electronic signature has been dealt with under Section 3A[6]. According to Section 3(2)[7], the authentication of electronic records can take place with the help of an “asymmetric cryptosystem and hash system which envelope and transform the initial electronic record into another electronic record.”

Use of Electronic Records and Electronic Signatures in Government and its Agencies

Section 6 of this Act calls for the decentralization of e-governance as it grants legal mandate to appropriate government[8].Itrecognizesthe application of electronic or digital signature in the filing of any form, application, or document under appropriate government, for issuance, approval, or sanction of license and payment and receipt of money ( if the given action is done through electronic means ). The appropriate government is assigned with the authority to frame rules in order to decide the manner in which such electronic records will be filed and the method of the payment of fee or fee charges for filing of any electronic record. The basic aim of this section is to prevent red-tapism and promote the use of electronic records and digital signatures in government and its agencies[9].

Some of the e-governance applications using digital signatures are:

• Income tax e-filing.[10]
• Indian Railway Catering and Tourism Corporation (IRCTC).[11]
• Director-General of Foreign Trade (DGFT).[12]
• RBI Applications (SFMS: Structured Financial Messaging System).[13]
• National E-Governance Services Delivery Gateway (NSDG).[14]
• E-Procurement.[15]
• E-Office.[16]
• E-District Applications of UP, Assam etc.[17]

Delivery of Services by Service Provider

Section 6A of the IT Act is a distinctive section of this chapter as it allows private participation in the delivery of e-government services[18] with an aim to facilitate efficient delivery of services through electronic means and enable such service providers to set-up, maintain, upgrade the computerized facilities belonging to the government. Service provider can be :

1. Individual
2. Private agency
3. Private company
4. Partnership firm
5. Sole proprietor firm
6. Any other body or agency permitted by the government to provide these services through electronic means.

The government in order to enable private participation in e-governance has been issuing e-procurement tenders with defined Scope of Work (SoW) and the service providers are required to do their given work on the basis of :

1. BOO (Build-Own-Operate) Model[19]
2. BOOT (Build-Own-Operate-Transfer) Model[20]
3. ASP (Application Service Provider).[21]

The appropriate government may also allow the service providers to collect, retain and appropriate service charges from the concerned person utilizing those services and the scale of the service charges charged and collected will be specified by the appropriate Government by notification in the Official Gazette.

Retention of Electronic Records

Section 7 lays down certain conditions for the retention of electronic records which are as follows:

1. Their information stored by means of the electronic form must be accessible for future reference.
2. The electronic record must be retained in the format in which it was originally generated, sent, or received or in a format that accurately demonstrated the information originally generated, sent, or received.
3. The details of origin, destination, date, and time of despatch or receipt of such electronic record must be contained in the electronic record.

This section does not apply to information that is automatically generated to record the dispatch or receipt of electronic record.

Under this section, a huge responsibility is brought upon the government and its agencies in fulfilling the necessary conditions for the retention of the electronic record and thus to ensure and sustain effective governance.

States like Maharashtra, Chattisgarh already have their electronic record retention policies in place. The Central Government has also introduced the Digilocker System with a digital locker account for every Indian resident to store and retain all necessary electronic records in one place for subsequent use.

Audit of Documents, etc. maintained in Electronic Form

According to Section 7A, if there is a provision for audit of documents, records, or information, then the provision of audit will equally be applicable for such electronic record or electronic counterpart.Thus, making auditing of such electronic records compulsory. The audit period will be decided according to the law which is in force in respect of a particular subject matter. For example: the Income Tax Act, 1961 requires audit of documents or any similar records on an annual or semi-annual, or quarterly basis[22].

Publication of rules, regulations, etc. in Electronic Gazette

According to Section 8, where any law requires any rule, regulation, order, bye-law, notification to be published in the Official Gazette, then the publication of such rule, regulation, order, bye-law, notification in the Electronic Gazette will also be considered legal and valid. This section makes Electronic Gazette functionally equivalent to Official Gazette for the public of rules and regulation. The date of publication of any rule or regulation would be the date in which it was first published in either form – official or electronic.

In Orissa Consumer Association v. Orissa Electricity Regulatory Commission[23], it was held that “ if a notification is published in the Electronic Gazette, the notification is deemed to have been published in the Official Gazette. The proviso to Section 8 of the Act also makes it clear that where the notification is published both in the Official Gazette and the Electronic Gazette, the date of publication shall be deemed to be the date of Gazette which was first published in any form.”  

Section 6, 7, and 8 not to confer the right to insist document should be accepted in electronic form

Section 9 of this Act highlights limitations of e-governance and rightfully points out that no individual can insist the Central or State Government and its agencies to carry out its monetary transactions in electronic form or to issue or accept documents in electronic form as it depends upon the capability of the government to carry out its functions using Information and Technology.

Power to make Rules by Central Government in respect of Electronic Signature

According to Section 10, the Central Government is entrusted with the sole authority to make rules in respect of :

1. The type of electronic signature.
2. The manner and format in which the electronic signature shall be affixed.
3. The manner and procedure of establishing the identity of the person affixing electronic signature.
4. Control processes and procedures to ensure that sufficient integrity, security, and confidentiality of the electronic records or electronic payments are maintained.
5. Any other matter necessary for the legality of electronic signatures.

Validity of Contracts formed through Electronic Means

Section 10A of this Act makes no distinction between contracts through physical communication or contracts through electronic means as it gives legal recognition to all contracts where there is communication of proposals, the acceptance of proposals, the revocation of proposals etc.The contract does not stand unenforceable merely on the ground that it was initiated through electronic means or with the help of electronic records.

National e-Governance Plan

The National e-Governance Plan (NeGP) is an initiative of the Government of India to make all government services available to the citizens of India via electronic mode[24]. It takes a holistic view of the e-Governance initiatives across the country, integrating them into a collective vision, a shared cause[25]. The ultimate objective of this plan is to bring public services closer home to citizens as articulated in its vision:

“Make all Government services accessible to the common man in his locality, through common service delivery outlets, and ensure efficiency, transparency, and reliability of such services at affordable costs to realize the basic needs of the common man”[26].

The NeGP was ratified by the Government on 18 May, 2006 together with 27 Mission Mode Projects (MMPs) and 8 components. In 2011, the Government further increased the number of MMPs from 27 to 31 with the addition of Health, Education, Public Distribution Services (PDS), and Posts under NeGP. It was inspired by Singapore’s ONE Programme to gradually assimilate all the government services to the people under E-governance and thus lay a stronger foundation for its long term growth.  

Conclusion

The various provisions of Chapter III of IT Act, 2000 demonstrate the government’s efforts to legalize all the concerned information, documents, records, etc. in electronic form taking into consideration the changing needs of the people and the society in the middle of the Information and Technology revolution. More and more computerized applications are launched by the government every day with a motive to connect to the people and to provide and secure effective, efficient, and transparent governance.

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References:

[1] E- GOVERNANCE & INFORMATION TECHNOLOGY ACT,2000.

[2] Ibid.

[3] Akansha, Role of Law in E-Governance, Legal Service India (Jan 4,2020, 04:26 PM), http://www.legalserviceindia.com/article/l143-Role-of-Law-in-E-governance.html.

[4] Ibid.

[5] Supra note 1.

[6] IT Act, 2000.

[7] Ibid.

[8] Supra note 1.

[9] Karnika Seth, Electronic Governance under Information Technology Act, 2000, https://www.karnikaseth.com/electronic-governance-under-information-technology-act2000.html.

[10] Mayank Shekhar, E-Governance: Meaning, Provision and Relevance, https://www.legalbites.in/e-governance/

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Supra note 1.

[19] Supra note 1.

[20] Ibid.

[21] Ibid.

[22] Supra note 1.

[23] AIR 2005 Ori 11.

[24] About NeGP, (Jan 10, 2021, 01:41 PM), http://negp.gov.in/index.php?option=com_content&view=article&id=77&Itemid=464 .

[25] National e-Governance Plan, Ministry of Electronics and Information Technology, https://www.meity.gov.in/divisions/national-e-governance-plan .

[26] Ibid.