A RESPONSE PAPER TO AN ARTICLE TITLED: E- COMMERCE LAW IN
DEVELOPING COUNTRIES: AN INDIAN PERSPECTIVE BY C.M
ABHILASH
Name: Pragna GR
PRN : 14101322014
Abstract
C.M Abhilash the author of ‘E- Commerce Law in Developing Countries: An Indian
Perspective’ was a student of the University of Wales, Aberytwyth, UK. During the
course of his studies the prestigious Carfax Publishing group published this
enlightening article in their 11th Volume of Information and Communication
Technology law in the year 2002.
C.M Abhilash has explained how in the advanced digital universe of 21st century,
internet, computer and Communication Technologies have changed the way of life.
Today we have new wordings like digital world, e commerce, and so on other than
the positive side of electronic revolution. Further, in 1990s Business individuals
knew about expanding utilization of ICTs as it was less demanding, quicker and less
expensive to store, execute and communicate electronic data yet were hesitant to
interface electronically on the grounds that there was no lawful assurance under
existing laws. Likewise, a new Branch of law known as Cyber Law or Cyber Space
Law or Information Technology Law or Internet Law, rose to make request in the
internet. Out of the blue, a Model Law on E-trade was received in 1996 by United
Nations Commission on International Trade and Law (UNCITRAL) which was
accordingly received by General Assembly of United Countries. Fundamentally,
principle target of law was to have consistency at global dimension with respect to
law identifying with e commerce furthermore, to give equity treatment to paper-based
and electronic data. India was a signatory to this Model law and thus, instituted the
Information Technology Act, 2000. The author also analyses how to keep pace with
innovation, the Model law on E-Signature (MLES), 2001 was received by United
Nations Commission on International Trade and Law (UNCITRAL). Appropriately
India authorized the Information Innovation (Amendment) Act, 2008. The author
C.M Abilash in his paper has made an endeavor to make in-depth investigation of
online business and its lawful structure national vis – a-vis universal.
As a response paper to this article ‘E- Commerce Law in Developing Countries: An
Indian Perspective’ , I would like to enlist the pros and cons on the main differences
in the Information Technology Act and the Model law regarding the provisions
relating to Electronic contracts and E-signatures. And also suggest/criticize the
difficulties that might arise while implementing the Act in our particular a social and
economic environment and stresses the need to improve electronic governance.
1. Introduction
In the advanced digital universe of 21st century, internet, computer and
Communication Technologies have changed the way of life. Today we have new
wordings like digital world, e commerce, and so on other than the positive side of
electronic revolution. Further, in 1990s Business individuals knew about expanding
utilization of ICTs as it was less demanding, quicker and less expensive to store,
execute and communicate electronic data yet were hesitant to interface electronically
on the grounds that there was no lawful assurance under existing laws. Likewise, a
new Branch of law known as Cyber Law or Cyber Space Law or Information
Technology Law or Internet Law, rose to make request in the internet. Out of the
blue, a Model Law on E-trade was received in 1996 by United Nations Commission
on International Trade and Law (UNCITRAL) which was accordingly received by
General Assembly of United Countries. Fundamentally, principle target of law was to
have consistency at global dimension with respect to law identifying with e commerce
furthermore, to give equity treatment to paper-based and electronic data. India was a
signatory to this Model law and thus, instituted the Information Technology Act,
2000. Creation of free trade zones or other forms of international
Cooperation affects the increase of private law relationships with foreign element.
Adoption and implementation of such a legitimate instrument on electronic contracts
appear to be in close connection with the dispute resolution. Acceptance of uniform
standards on electronic contracts would streamline and quicken methodology to
determine disputes emerging from the contracts. Presentation of a uniform contract
law would improve and accelerate procedures concerning claims emerging from them
and guarantee better and increasingly successful security to the consumers
In the first part of this paper the author has briefly explained the provisions of the
Model law which help identifying with validity and formation of electronic contracts
which is closely in accordance with the Indian legal framework. I’m in the opinion
that Abhilash is right in the above statements and electronic contracts are just as valid
as written contracts.
In the second part Abhilash demonstrates the provisions relating to digital signatures
in online contracting and how the difference in the Indian laws might prove to be
fatal on a global perspective to which I completely disagree.
Thirdly Abhilash emphasis on the importance of IT training to the employees and
suggests enhancing of legal enforcement in the E-commerce field to which I
completely agree.
And lastly, the author elaborates on the impact of E-governance on economy by
stating that in the event that developing nations make up for lost time with developed
nations technologically, the union in profitability in administration areas enables
developing nations to build their outer intensity and increment yield, wages and
welfare. I agree with Abhilash as since, national work has been embraced on ecommerce law it has helped harmonization in India.
2. Electronic Contracts
I would like to discuss firstly on electronic contracts and Abhilash has clearly stated
that any enactment relating to E-business will be a vain exercise except if it fills the
gap in the current law with respect to the legitimacy of online contracts. Perceiving
this factor, the Model law has implemented a provision in Article 11 identifying with
the validity and formation of contracts is in close accordance with the Indian Contract
Act 1872 which accords statutory impact to the fundamental customary law rule that a
valid contract is one such when it fulfills all the basic essentials i.e offer, acceptance,
competent parties, free consent of the parties, for a lawful consideration and a lawful
object which isn't explicitly announced void.
Nonetheless, the Indian Information Technology Act does not have any express
sections with respect to the online contracts. So it is relevant to look at the motivation
behind Article 11 just as certain fundamentals of Indian contract law. Article 11 isn't
planned to endorse a prescribed standard for the legality of online contracts. It isn't
the point of the Model law to meddle with any national law pertinent to contract
development.
I’m in the opinion that Abhilash is right in the above statements and electronic
contracts are just as valid as written contracts.
Presence of a valid contract frames the core of any transaction which includes ecommerce transaction . In India, web based business like every single other contract
are governed by the essential principles overseeing contracts in India. i.e., the Indian
Contract Act, 1872. In India there does not appear to be very much created statute on
the issue of whether standard structure on agreements executed electronically. Unless
expressly prohibited under Section 23 of the Contract Act the consideration or object
of any agreement is unlawful when
a) It is forbidden by law, or
b) Is of such a nature that if permitted, it would defeat the provisions of any law;
c) Is fraudulent, or
d) Involve or implies injury to the person or property of another, or
e) The court regards it as immoral or opposed to public policy.
On account of LIC of India V. Consumer education and research centre1 . The
Supreme Court of India stated certain components of public purpose. The court
proclaimed certain term provisions in the policy, relating to confining the advantage
of the policy just to those individuals employed in the government as void under
article 14 of the Indian Constitution. His alternative would be either to acknowledge
the irrational or unfair terms or leave the administration until the forever. On account
of Lily White V. R. Munnuswami 2the court held that a clause of limited liability
1
2
1995 AIR1811
AIR1966 Mad 13
imprinted on the back of a bill of a laundry clothing which confined the risk of
clothing to half of the market cost of the products if there should be an occurrence of
misfortune was against public policy and in this manner void. By examining the
different lawful and technological issues I find India is good destination for online
business. Being the most populated and IT empowered nation India has an extremely
brilliant future for e- business. Hence, the legality of online contracts couldn't have
been tested exclusively on technical grounds even before the Information Technology
Act came into power. This structure results in decrease of levy and nontariff barriers
in an international perspective
3. Electronic signatures
Abhilash demonstrates the provisions relating to digital signatures in online
contracting. He states that the Information Technology Act has pursued the Model
law to an considerable degree. In any case, there are a few zones where it departs
from the Model law in key territories, for example, digital signature. These deviations
were presumably done with the legitimate and economic conditions in the nation as a
primary concern. The Indian law is different in respect to the technological standards
that need to be maintained as per Information Technology Act. Because of the
potential for fraud and misrepresentation that could emerge from the utilization of this
strategy, it was basic that the age of key-pairs was endowed to a Trusted Third Party.
The Act tends to this issue by accommodating the licensing of 'Confirming
Authorities' who, by reason of the permit got from the Controller of Certifying
Authorities, may issue Digital Signature Certificates to customers. In any case, the
Act itself renders it fundamental for Certifying Authorities to have a physical office
situated in India. At the end of the day the author is of the opinion that, Digital
Signature Certicates issued by foreign Certifying Authorities or Trusted Third Parties
may not be recognised except if those issuing the certicates have a physical of office
in India and it would debilitate foreign Certifying Authorities from offering their
administrations in India
I disagree with Abhilash on this point for the time being as I can clearly see at least
two advantages of this provision.
First there is the economic perspective. In perspective on the gigantic arrangements
required to set up, Indian Certifying Authorities will set aside some effort to full every
one of the necessities and develop their administrations. It is crucial to ensure their
interests so the enormous fish don't gobble them up. This isn't to imply that that the
Government has set up a closed-door arrangement with the foreign Certifying
Authorities. Nevertheless, it is a sensible way to deal with offer everybody a
reasonable and equivalent chance and this provision bears Indian Certifying
Authorities a dimension playing ground concerning their foreign partners. It respects
the status of the of organizations concerned.
Second, from a lawful viewpoint, requiring a physical office in India tackles
numerous jurisdictional and procedural issues. Section 47A of the Indian Evidence
Act, as altered as per the Information Technology Act, manages the 'relevancy of
facts' with regards to computerized signatures. It says that 'when the court needs to
frame a conclusion with regards to the e-signature of any individual, the statement of
the Certifying Authority which has issued the electronic signature is an important fact.
Without any international treaty that obliges nations to regard each other's
certifications, it is a reasonable way to deal with the situation with reasonable
provision
4. IT illiteracy and enhanced law enforcement
Abhilash states that the preparation and training of staff, particularly working-level
staff, ought to be given importance. Existing staff who are IT unskilled ought to be
prepared, with the necessity that they achieve IT proficiency inside an exceptional
time span. He also of the opinion that the Indian Government should practice specific
consideration while authorizing the Information Technology Act and extraordinary
attention must be given to its specialized nature.
IT education, according to an all around course module, ought to be made obligatory
for recruitment in the government organization at all levels. India face an absence of
abilities and preparing, particularly in drafting, deciphering and authorizing laws. As
noted above, there have been a few limit building ventures in the area, bringing about
the preparation of parliamentarians, the legal executive and approach producers. In
any case, staff turnover also, advancement rates are regularly impressive, raising the
requirement for extra preparing.
Member nations detailed dissatisfaction at the moderate pace of the legislative
procedure (counting critical excesses) in certain purviews. One key zone is the
examination and requirement of cybercrime crosswise over borders. Regional
collaboration between cybercrime law implementation organizations, counting the
foundation of a typical preparing and asset focus and every minute of every day
national contact focuses, ought to be a need. Thought ought to be given to the
foundation of a provincial online question goals plot for dealing with area name
question
5. Electronic governance and its impact on the economy.
C. M Abhilash elaborates on India’s achievement in the IT sector and how it aims to
become a superpower in the industry. He supports this statement with various vital
statistics and how the Government chose to utilize IT as a noteworthy vehicle for allround financial advancement in the nation and in this manner, as a side-effect,
encourage production of a solid household IT advertise. Thusly, the Information
Technology Act is relied upon to be a noteworthy empowering influence for the mass
spread of data innovation in the nation
The reasons why governments ought to go online were explained in the United
Nations Conference on Trade and Development (UNCTAD) E-business and
Development Report 2001. In the event that developing nations make up for lost time
with developed nations technologically, the union in profitability in administration
areas enables developing nations to build their outer intensity and increment yield,
wages and welfare.
I agree with Abhilash since national work has been embraced on e-commerce law it
has helped harmonization in India.
In any case, different committees and working groups have kept on checking
improvements in this field, and individual part nations have made critical
advancement on improving their laws. Indeed, even with a law set up, India face
difficulties in enforcing, implementing and promoting the prerequisites of those laws.
The harmonization of laws in the area moreover relies upon nations embracing
comparative methodologies in light of worldwide best practice – which has not
continuously been the situation as appeared. The harmonization of e commerce
business laws can encourage improvement and further regional development in the
India in building up an empowering legal framework which will bolster internet
business advancement just as other key zones, for example, tourism, social
networking, mobile commerce, cloud computing etc. Further I believe that the result
of harmonization can be seen in cross-border transactions, which helps lessening
clashes and also enhancing co-operation of India in an international perspective.
Harmonization in cross border exchanges would encourage smoother international
transactions in various areas.
6. Conclusion
The Information Technology Act is an excellent bit of enactment for India and is a
strong positive development. It maintains the soul of the UNCITRAL Model law.A
thorough reading various legislations and technologiavl advancements I find India as
one of the best destinations for E-commerce. Being technically and legally equipped
India is a forerunner in accepting E contracts as valid in accordance with standards
laid dow by the Model. So also, however the expert vision identifying with electronic
signatures fit the nation's predominant circumpositions and accessible technology and
it the standards laid down do not undermine India on an International platform.
But there is a horde of issues that could radiate from the usage of this enactment.
preparing of administrative staff and implementation faculty is imperative and ought
not be disregarded. E business can possibly generate immense wealth for India.
Implemeting enactment so as to encourage E-business exchanges is simply a stage.
Successful usage of its potential is a considerably more burdensome undertaking and
ought to be finished with consideration and alert. Likewise, more prominent
consideration ought to be given to advancing electronic administration. The
Information Technology Act of India is a praiseworthy work of the Govern-ment and
it is to be trusted that it will be a motivation for other creating nations to enact Ebusiness laws as imagined by the United Nations Resolution on the UNCITRAL
Model law. In addition, these nations will have the benefit of watching and gaining
from India's involvement and taking measures to address some more issues at the
establishment organize itself.