The Pandora’s box of Technical Glitches opened….The e-tender judgement in Maharashtra…1

An interesting judgement has come forth from the High Court of Maharashtra in the Shapoorji Pallonji & Company Private Limited vs State of Maharashtra which has debated some less known aspects of Information Technology Act 2000 (ITA2000) and the use of technology in e-Governance. Some aspects of the judgement are presented here for academic information.

Copy of the judgement is available here

The writ petition pertains to the complaint from Shapporji Pallonji & Company Private Limited (SPC) that their tender application made through the e-tender process by Maharashtra  Housing Development Authority (MHDA) was rejected for a technical reason that the tender process was not completed. National Center (NIC) was a Co-Petitioner since they maintained the system. The judgement was delivered on 28th September 2017 by honourable Justices Anoop V Mohta and Smt Bharati H Dangre.

An important observation of the judgement that needs to be taken note of is the statement that

“…it is clear that technology has its own glitches and the moot question is whether such glitches which causes substantial injustice are permitted to be cured manually, when as on today we have not reached a stage where the systems is fool proof and gives a guarantee that it is not susceptible to any error”

“… In the present case we have observed that uncertainty prevails in certain areas and no technology can make the system full proof (Ed: Is it fool proof?..see here or here) and as such a situation where the technology can err, we cannot completely exclude the element of human intervention in exceptional circumstances. Ultimately it is the human being who controls the technology and when it errs, it is for the human being to rectify it”.

“…Since we feel that the technology has failed to serve its intended purpose in the present case, and interest of justice call for intervention”

In summary the Court has ordered that the bid of the petitioner needs to be considered along with the two other bids.

We congratulate the legal team of the petitioner who successfully convinced the Judges that

a) There was a technical glitch in the system

b) The respondent refused to manually intervene and set the adverse effect of the glitch right

c) As a result, a rightful opportunity was denied to the petitioner and public good was adversely affected

With the decision behind us, we can now proceed on the larger impact of the decision on the e-Tender and other e-commerce industry.

Considering that

a) the dependence of the current society on e-transactions is very high, and

b) the technology cannot be fool proof, the possibility of technical glitches real

c) along with malicious interventions of technical nature to subvert an electronic system

a judicial declaration that that “Manual Interventions cannot be excluded in technical processes” opens up a Pandora’s box the impact of which has been ignored by the Judgement.

In order to understand the complications that the judgement can bring in, I recall the judgement of the Sonu@Anvar Vs State of Haryana  on Section 65B of Indian Evidence Act in which a convicted criminal wanted to seek aquittal because the evidence against him was procedurally not certified as required under law.

The technical argument of the petitioner in this case was sustainable and there was perhaps a flaw in the application of criminal justice system. However, the Court in this case came up with a practical conclusion that strict application of the procedure “.. is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases”.

In a developing society we need to appreciate that mistakes do happen and the Courts need to consider the larger impact on the society that their decisions and the possibility of a chaotic situation being created in protecting the genuine interest of one petitioner. A myopic view is often more harmful and could be avoided.

This e-Tender case is likely to be one such case where the decision could create avoidable chaotic disturbance to the e-Commerce industry in general.

I would try to explain more in my follow up article.

For the time being, let’s end with congratulating the team that brought this complicated issue into the discussion table which includes the NIC which caused the problem in the first place by not anticipating the technical problems and putting contingent remedies in place through inadequate testing and documentation.

(continuation article)


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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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