[P.S.: This article contains a relatively long preface
on the Relative Thinking Doctrine. Let this not deter you from the essence
of this article discussed later. There is a reason for the preface which
you would appreciate after you read the whole article and ponder over it
for some time. If you still want to skip the preface,
jump here.]
The Relative Thinking Doctrine:
There is a famous proverb "An Early Bird Catches the
Worm". This is certainly true in most cases particularly in Business.
However there is also a word of wisdom in the thought
that this proverb also means that "An Early Worm Gets Caught".
As a true follower of Einstein's theory of relativity,
I strongly endorse that both the above views are true and one has to
relate the proverb to a reference frame.
Is it time to slow down some E-Governance
Initiatives?
I am reminded of the above adage when I observe the
conflicts in the Indian E-Governance and Corporate Governance initiatives
in adopting to Information technology.
As an E-Business consultant, I am committed to
encouraging every initiative that takes India further in adopting to the
emerging Convergent society which holds a great promise for an efficient,
less corrupt governance being made available to the Indian society.
However, as a Cyber Law Educationist, it is difficult
not to express some doubts from time to time that apparently could mean a
suggestion to slow down the process of E-Transformation.
To avoid my intentions being misunderstood, let me
reiterate that I belong to the school of "Relative Thinking" with the
philosophy that "Nothing is Good or bad per-se. It looks so because of the
frame of reference. If some thing appears "Wrong", the solution may not
lie in in dropping that "something" that is causing disharmony but in
also exploring if there is a need to alter the frame of reference.
This doctrine applies as much to my thinking on
regulations in India such as SEBI regulations on Capital Markets and RBI
regulations on NBFC s, on which I had occasions to carry on an
unsuccessful crusade in the past as to the Cyber Space Regulations, I am
now focusing on.
On those earlier occasions, my predictions that SEBI
would destroy the unique Indian Capital Market of individual investors
would die as a result of SEBI regulations and the highly potential NBFC
industry would die because of RBI regulations, became true, very
regrettably.
Even to this day, those regulations stand as examples
of how "Good Intentioned regulations Can Destroy What they are supposed to
protect" because the Transformation of the society from pre-regulation
state to the post regulation state was not handled properly.
The reason for this was that the regulators had no
experience of the industry they were regulating and therefore made costly
mistakes.
Perhaps the current Indian financial regulators working
overtime on WTO compliancy are again making similar mistakes because their
actions have resulted in the extinction of SME sector as a whole in India
and indigenous Entrepreneurship in general, unmindful of the long term
adverse impact on the Indian society.
As a person deeply involved in the regulations for the
Netizens of India, I therefore consider it a duty to raise my voice
whenever some mistakes in the system are spotted and could have a long
term adverse impact on the society.
This article has to be seen in this relative
perspective and not to be interpreted as a criticism of any IT initiative
which is otherwise laudable.
Naavi
January 12, 2003
The
Problems in E-Governance Projects
Information Technology Act 2000 (of India) was enacted
over two years ago. During these two years, several State Governments have
started E-Governance initiatives with an intention to improve Governance.
Some Governments who were early adopters had started
some projects before the ITA-2000 was enacted and the projects continue
even in the post ITA-2000 scene without any modifications.
Some of these projects have received international
acclaim for the vision and boldness of approach that they represent.
"Are Our Projects Cyber Law Compliant?"
After the enactment of ITA-2000, some of these projects
needed a review and rethinking in the changed scenario. Perhaps the
natural inertia and the fear of being accused of haste in the first place
has lead to delay in taking corrective steps.
However, since further delay could lead to some
explosive consequences, it is necessary to start a debate now rather than
procrastinating further.
The central theme of this debate is "Are Our
Projects Cyber Law Compliant?"
One of the types of projects that raise a serious
concern are the E-Governance projects that involve "Digitization of Land
Records". It is a matter of delight that many State Governments are today
in a position to issue Encumbrance Certificates or RTC extracts online.
While some Governments are running the new digital
system parallel to the existing manual system, some Governments have even
gone to the extent of dismantling the existing manual system by an
appropriate order so that all current updations to the land records are
done only in the digital mode.
The object of this article is to examine such projects
involving "Digitzation of Land Records" from the point of view of
Compliancy of ITA-2000 provisions.
1. Digitization of records:
a) Types of Documents that can be Digitized:
The authority of a Government agency to keep documents
in digital form available under ITA-2000 must be examined with reference
to Section 4, Section 1 and also sections 6, 7 and 8.
Section 4 and Section 1 suggest that “Any” document not
specifically excluded under Section 1, that can be rendered in writing,
can be rendered in electronic form with the same legal validity.
According to Section 5, in any place where there is a
need for an authentication, the legal requirement would be deemed to have
been fulfilled if the document is affixed with “Digital Signature” as
defined under the Act. According to Section 3, the only form of “Digital
Signature” defined under the Act is the PKI system.
Sections 6, 7 and 8 of the ITA-2000, provides that a
Government agency may (at its option) use Electronic Documents instead of
paper documents for filing of forms, grant of licenses, retention of
records, publication of Gazettes, receipt or payment of money etc.
It must also be noted that Section 1 (e) excludes the
following type of document from the provisions of ITA-2000.
“Any contract for
- the sale or
-conveyance
- of immovable property or
-any interest in such property”.
Hence any document matching the description under
Section 1 (e) if rendered in the electronic form will not be legally valid
under ITA 2000. Hence such documents would not be covered either under
Section 4 or Section 7.
The moot point to be discussed in the context of land
records digitization projects are whether the digitized document
constitutes a Contract for any interest in such property.
Land records are often matters of fact as recorded by
an official and to that extent are not perhaps contractual documents.
Typically Encumbrance Certificate is one such document.
However, over a period of time some documents such as a
“Patta” have come to be considered a special type of record and is
recognized as a “Title Deed” that confers the “right to the Property”.
Hence the above projects should take care that the
digitization is restricted to only such documents which are not considered
as forming “Title Deeds”.
(b) Is Digital Signature Mandatory?
Section 6 of the ITA-2000 provides for use of
electronic records and digital signatures for filing of any form,
application or document to any Government agency by a Citizen, as well as
the issue of license, permit, sanction or approval from the agency.
Section 7 addresses the issue of “Retention of
Documents” in electronic form and permits electronic retention if the
following three conditions are satisfied.
a.Information remains accessible for future
reference.
b. It is retained in the same format as in which it
was originally generated or in a format in which it can be demonstrated
to represent accurately the information originally generated, sent or
received.
c. the details such as identification of origin,
destination, time and receipt of dispatch are available.
It appears that this section was written keeping in
mind the new electronic documents that are generated originally in
electronic form. It was not written keeping in mind the conversion of an
existing paper document into electronic form.
In this context we can debate whether the term
“Original” refers to the first version of the digitized copy of a paper
document or can also be applied to the “original document in pre
digitization stage”.
Section 7 (b) is relevant in the context of retention
of land records in a form that is different from the form in which it was
originally generated.
It is a condition precedent to legal recognition that
an electronic record is retained in the format in which it was originally
generated, sent or received or in a format which can be demonstrated to
represent accurately the information originally generated, sent or
received”.
In the absence of any direct reference to the
recognition of documents which were originally in a non electronic form
and later converted into an electronic form, we can use the section also
to cover such cases.
If so, the words “Demonstrated to represent accurately”
should be interpreted as suggesting that there should be some mechanism
for maintaining “Data Integrity” of the documents converted from one
format to another format.
Since “Digital Signature” with a “Unique Hash Code” is
one of the accepted forms of verifying data integrity, it should be
considered as a possible way by which “Converted Documents” has to be
maintained.
Each subsequent modification of an electronic record
should similarly be verified.
Probably the condition under this section can be
satisfied even by some form of “Check Sum” not necessarily accompanied by
the PKI system.
However, since all land records need to be
“authenticated” by an appropriate official of the Government under the
usual land record legislation and the only method by which ITA-2000
approves authentication of an electronic document is through Digital
Signature, it appears that no document can be electronically stored in a
legally recognized form unless they are digitally signed.
Supplying Print Outs:
In discussing the legal recognition of the Print outs
of land records, we must examine the amendments made to the Indian
Evidence Act (IEA) by the ITA-2000.
According to section 62 of the IEA, primary evidence
means the document itself produced for the inspection of the court. On the
other hand Section 63 of the IEA refers to secondary evidence such as
copies made from the original.
In the context of the electronic documents, they are
always copies of the original which is in the data base. The copy itself
may either be in electronic form on a floppy or a CD ROM or in the form of
a print out.
Section 65 B of the IEA lays down elaborate procedure
for the admissibility of electronic records.
Briefly, according to this section, a “Print Out” is
also an “Electronic record”. However, for it to be acceptable as evidence,
it has to be certified by a person having lawful control over the use of
the computer stating inter-alia, that the Computer was operating properly
through out the relevant period etc etc.
If in the process of creating an electronic document
(including a print out) more than one computer is used for processing the
data as it happens in a network environment, then all the systems will be
considered as one single computer and hence the certification should cover
the working of all the computers involved in the process of generating the
print out.
This means that an ordinary print out signed at the
bottom as “Revenue Officer” etc will not suffice it to make a document
acceptable in a Court.
If the printing involved a “Server” and “Client”
computer operated by different officials, it may be necessary for both of
them to sign the certificate.
This has no relevance to the authority of the person as
per the land revenue act which may authorize persons of some official
status alone to be capable of signing a land record.
It is doubtful if a land record officer such as the
Village Accountant can effectively certify to the effect that “To the Best
of my knowledge and belief the Computer from which this print out was
taken was working satisfactorily through out the material part of this
reproduction process.etc” since his technical competence to provide such a
certificate can be challenged in a court.
The correct recommended procedure to be followed in
such cases is that the official authorized to sign the documents as per
the land legislation should create the digital document in the server with
his digital signature. Then the computer operators provide a copy there of
with their certification as to the technical functioning of the Computers
when such copies were taken.
Consequences of Non Compliance:
If the system of digitization of land records is held
not to be in compliance with ITA-2000 and the manual documents have been
discontinued, we may face a situation where there may not be any valid
legal document after the manual system is discontinued. It may require a
major statutory intervention to correct this lapse.
In the bargain, the E-Governance initiative would
derive a bad name and opponents of modernization will use it as stick to
prove that the system itself is flawed.
It is therefore essential that Governments undertake an
immediate review of their systems and ensure compliancy of Cyber Laws
without any delay so that corrective action can be taken at the earliest.
Naavi
January, 12,
2003
