What is an Digital Signature ?
It is evident that the cognizance of the concept of E-signature has sprouted in different modern state legislations, giving meaning & moulding its definition to be accustomed to its socio-political structural norms. Below are a few definitions devised by foreign legislative assemblies.
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
Section 73A In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the court may direct-
that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate,
any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by the person.
Explanation.- For the purpose of this section “Controller” means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000.] This section consists of two parts. First part provides for comparison of signature, writing, figure etc. purporting to have been written or made by a person with other admitted or proved signature, writing, figure etc. by the court to have been written signed or made by the same person. Second part empowers the court to direct the person to appear before it and to give his specimen signature or writing for the purpose of evaluating the disputed signature, writing, figure etc.
Indian law has recognised digital signatures, or e-signatures, under the Information Technology Act, 2000 (IT Act) for over 16 years. With its increased emphasis on improving the ease of doing business; streamlining the storage of records; and improving the safety, security, and cost- effectiveness of records, the Government of India has promoted the use of digital technologies by Indian citizens and corporations. As a result, there has been a recent increase in the use of e-signatures, with more and more services using them. This, in part, is due to the government’s focus on enabling electronic transactions using Aadhaar, the unique identification number issued by the Indian government to all Indian residents. Indian law treats electronic signatures as equivalent to physical signatures, subject to a few exceptions, and generally allows documents to be signed using e-signatures. However, the e-signature must satisfy a number of conditions, and certain checks must be done before it can be relied upon.
Section 73: Penalty for publishing electronic Signature Certificate false in certain particulars
(a) No person shall publish a Electronic Signature Certificate or otherwise make it available to any other person with the knowledge that the Certifying Authority listed in the certificate has not issued it,
(b) the subscriber listed in the certificate has not accepted it,
(c) the certificate has been revoked or suspended, unless such publication is for the purpose of verifying a digital signature created prior to such suspension or revocation
Any person who contravenes the provisions of sub-section (1) shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.
Background
The concepts of E-signatures and digital signatures are results of gaining eminence of revolution of information technology which embarked its journey from the late 18th century. Many states with evolving times have given due recognition to its applicability & operationality in their jurisdictions.
In the US, before the proclamation of the “American Civil War” in 1861, the usage of the Morse Code had been primarily for espionage purposes but was also intended for the enforceability of contracts. The first landmark judgment accepting the enforceability of telegraphic messages as electronic signatures was observed by the New Hampshire Supreme Court.
Thereafter there has been a flurry of modern legislation in western states such as in Canada, US, Russia, China, Australia, New Zealand, Japan, Singapore, UK & gradually all across the globe.
In 1996 the United Nations with a majority passing resolution enacted UNCITRAL Model Law on Electronic Commerce. In 2001, UNCITRAL Model Law on Electronic Signatures was passed which has been adopted by 30 states in their jurisdictions. The most recent step towards the international recognition of E-signature is the United Nations Convention on the Use of Electronic Communications in International Contracts, 2005, which gives the option to the contracting parties to give effect to the agreement by E-signature subject to the condition that a reliable method is used to identify & indicate the intention of the parties.
The first agreement signed electronically by two sovereign nations was a Joint Communique recognizing the growing importance of the promotion of electronic commerce, signed by the United States and Ireland in 1998.
Conclusion
While technically a Tiered E-Signature Legal Model Country, India has not created specific technical requirements, procedures and practices to implement a QES (Qualified Electronic Signature, or ‘Secure Electronic Signature’ in the Indian legal definition) system. Therefore, no practical application of QES in India exists. In practice, a hard requirement for a theoretical QES would only apply to the limited use case exceptions already discussed if such a signature type existed. The Government of India has introduced a new QES whereby the person who has an official identity card issued by the Government (Aadhar) is able to authenticate a document using the Aadhar eKYC services. Through the interface provided by the Application Service Provider (ASP), users can apply electronic signatures on any electronic content by authenticating themselves through biometric or OTP using Trusted Third Party (TTP) Aadhaar eKYC services through an eSign Service Provider. The interfaces are provided to users on a variety of devices such as computer, mobile phone etc. At the backend, the eSign service provider facilitates key pair generation and the Certifying Authority issues a Digital Signature Certificate. The eSign Service Provider facilitates creation of the Digital Signature of the user for the document which will be applied to the document on acceptance by the user.
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