A Response Paper .docx

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

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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.