E- GOVERNANCE – LEGAL FRAMEWORK

Abstract

Governments are utilizing the Internet to perform their functions and activities. The society has been historically weighed down by problems of red tape, corruption and an increasing crime rate. With the growing knowledge for technology and the advent of the internet, the government has begun shifting its functions to the digital platform, by showing faith in technology. India aims to control all digital activity through the Information Technology Act 2000. The IT Act (2005) contains detailed provisions regarding electronic governance or E-Governance. This article examines those provisions.

Introduction

Electronic Governance has emerged to be one of the most important aspects in the transformations towards a digitised economy. Strong and effective IT rules have to be formulated and implemented strictly. E-Governance is said to have the potential to transform the way in which the governments operate. It is an evolving phenomena, placing a special emphasis on the need for change in the mind-set of the people.

Chapter III of the Information Technology Act, 2000, hereinafter, (ITA 2000) refers to “electronic governance”. Electronic governance may be defined as the use of informational and computer technology to facilitate interaction between, on the one hand, a public authority and, on theother hand, individual citizens, businesses, or non-governmental organizations.

E-governance is dealt with under Sections 4 to 10A of the Information Technology Act, 2000 and provides for legal recognition of electronic signatures, records and also of contracts formed through any electronic medium.

Section 4 of the IT Act, 2000 confers legal recognition to electronic records and data. It hence sets forth the fundamental premise of the IT Act.Paper based documents are converted to electronic records as long as they are accessible so as to be usable for further reference. Section 4 is in pari material with one of the provisions of the Uniform Electronic Transactions Act (1999).

Section 5 grants legal recognition to digital signatures and equates them with handwritten signatures. The authenticity of such digital signatures are ensured by means of digital signatures affixed in a manner prescribed the central government.

Section 6 provides for filing documents online with governmental authorities, grant of licenses /approvals and receipt/payment of money for governmental services. This section aims to eliminate red tapism and promote the use of electronic data and digital signatures in Government agencies.

The IT Act under section 7 sets forth the basic provisions regarding the retention of e-records. It applies not only to the retention of records that originally exist in electronic form, but also to the electronic retention of records that originally exist in paper form or any other tangible media.

Proviso for an e-gazette

Section 8 confers legal recognition to publication of rule, order, regulation, notification or any other matter in the Electronic Gazette. However, India does not have a provision for  e-gazette yet. Furthermore, where such Official Gazette is published in both electronic medium as well as printed form, the date of publication shall be the date of publication of the Official Gazette that was first originally published, whatever may be the form. At the same time, no individual can force the government for e-filings or maintaining e-records as according to Section 9 of ITA, it is voluntary on the part of the government to implement sections 6,7 and 8 of the ITA. The rationale behind this is that the government agencies are not yet ready to go paperless and lack sufficient infrastructure. 

The Central Government has been conferred with the power to make rules in respect of Digital Signature, interalia, the type, manner, format in which digital signature is to be affixed and procedure of the way in which the digital signature is to be processed

PROTECTION UNDER ITA, 2000

Now, where the Government is provided with all the information about the citizens regarding their identities to access e-governance, it would raise some issues on confidentiality.

• Section 72 provides protection against breach of confidentiality and privacy of the data. Any Person convicted shall be punished with imprisonment which may extend to two (2) years or with fine which may extend to one (1) lakh rupees or both.
• Section 43 provides protection against unauthorized access or use of the computer system by imposing heavy penalty up to rupees one (1) crore.