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Monday, September 22, 2014


FDI is becoming the hot cake in Indian Political arena, people who are on the right side and some are on the left side in support and protest. Certainly it is a great growth tonic for any economy, and India requires the stimulant for its current economic growth. According to Nomura report net FDI inflows to India could cross USD 30 billion marks this fiscal year.

Indian Government is aggressive to increase the FDI inflows in India. Way back government had opened the retail sector to FDI with economic relax process set in place by the Industrial Policy of 1991, in 1995 WTO General Agreement on Trade in Services, for wholesale and retailing services was the forwarding step. Year 1997 seems to be the mile stone when 100% rights allowed under the government approval route; in cash and carry. The escalation in the initiatives seen in the year 2011 and 2012 when 100% FDI in Single Brand Retail allowed, and on the very next year government allowed 51 percent foreign investment in multi-brand retail. Recently Consolidated FDI Policy (Effective from April 17, 2014), setting new horizon in FDI in India,  the Intent and Objective says 

“It is the intent and objective of the Government of India to attract and promote foreign direct investment in order to supplement domestic capital, technology and skills, for accelerated economic growth. The Government has put in place a policy framework on Foreign Direct Investment, which is transparent, predictable and easily comprehensible. This framework is embodied in the Circular on Consolidated FDI Policy, which may be updated every year, to capture and keep pace with the regulatory changes, effected in the interregnum.”

India is moving fast from restrictive FDI regime to liberal word. Resource, Equity, Execution, Banking, Insurance, Compliance, Infrastructure, and Transportation were barrier in Indian FDI, even   big firms in India were not permitted to retrench or layoff any workers, or close down the unit without the permission of the state government, now, States have been more reform-oriented and stringent regulations is going down.

Recently, pardhan mantra jan dhan yojna (PMJDY), is considered to be the Financial sector reforms, to strengthen the micro finance structure of Indian society.

The Foreign investors are optimistic to Indian market, due to rapid globalization of many industries and vertical integration but, to accelerate FDI flow in India, there are still needs for transparent sector oriented policies and a drastic reduction in time consuming re-tapism and an affirmative collaborative political approach is much needed.

Sunday, September 14, 2014

Digital Signature Laws in India

Digital signature is electronically generated and can be used to make sure the veracity and legitimacy of data. The dawn of information technology revolutionized the whole world, India is not an exception to it; as technological activism is the social behavior in India.
IT Act Provisions Related to Digital Signature
Section 3 of IT Act, made the provision for it as: Authentication of electronic records.-
(1) Subject to the provisions of this section, any subscriber may authenticate an electronic record by affixing his digital signature.
In IT Act, chapter 3 related to electronic governance, sections 4 and 5 are quite relevant.
Section 4 made the provision for Legal recognition of electronic records — where any law provides that information or any other matter shall be in writing, typewritten or printed form then not-withstanding anything contained in such law, given requirement shall be deemed to have been satisfied if such information or matter is—
(a) rendered or made available in an electronic form; and
(b) accessible so as to be usable for a subsequent reference
Section 5 Legal recognition of [electronic signatures] — where law provides that information or any other matter shall be authenticated by affixing the signature or any document should be signed or bear the signature of any person then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of [electronic signatures] affixed in such manner as may be prescribed by the Central Government.
Digital Signature Vs. Digital Certificate
Digital signatures are based on three pointers for authentication – Privacy, Non repudiation and Integrity in the virtual world, while the objectives of digital certificate are the authentication of documents, and bind the person who is putting the digital signature, which based on public key cryptography requires two separate keys, as secret and public. However, both the keys are linked together, one key encrypts the plain text, and another decrypts the cipher text, and neither key can perform both the functions. The other difference is digital signature is an electronic process of signing an electronic document while a Digital Certificate is a computer based record which is the identification of certifying agency or the identity of subscriber
Digital Signature Vs. Electronic Signature
The Information Technology Amendment Bill 2006, replaces the word “Digital” with the word “Electronic” at several places in the principal act, which creates a slight difference between the two, electronic signature is wide in nature, while the digital signature is one of the many kinds of electronic signature.
Section 2(ta) “electronic signature” means authentication of any electronic record by a subscriber by means of an electronic technique specified in the second schedule and includes digital signature and section 2(p) defined “Digital Signature Certificate” means a Digital Signature Certificate issued Under sub-section (4) of section 35.
The Indian Evidence Act and Digital Signature
After the IT Act 2000, it was necessary to make an applicable amendment in the Indian Evidence act, to make it compatible.
Section 3 in the definition of “Evidence”, for the words “all documents produced for the inspection of the Court”, the word “all document including electronic records produced for the inspection of the Court”
Section 47A, says when the court has to form an opinion as to the digital signature or any person, the opinion of the certifying authority which has issued the Digital Signature Certificate is a relevant fact. It means while drawing the conclusion, court gives the weight of the digital signature as a relevant fact.
Further 67A proof as to digital signature – except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.
Section 85B exhibits the positive presumption as  Presumption as to electronic records and digital signatures.- (1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
Indian Penal Code
Section 464 Making a false document: A person is said to make a false document or false electronic record—
First — who dishonestly or fraudulently-
Makes or transmits any electronic record or part of any electronic record;
  •  affixes any [electronic signature] on any electronic record;
  • makes any mark denoting the execution of a document or the authenticity of the  [electronic signature],
with the intention of causing it to be believed that such a document or a part of document, electronic record or  [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or
Secondly —Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with  [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or
Thirdly —Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his  [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.

Sunday, September 7, 2014

How is an Electronic Contract is Enforced?

Advancement of technology, globalization, speed, convenience and efficiency are the prime attribute to promoting the electronic contract. All the general rules such as offer acceptance and other qualification of contract are mentioned in the Indian Contract Act 1872 are applicable, adding to that certain provisions of IT Act 2000 authenticate its importance.
Browse Wrap Agreement or Browse Wrap License
Browse Wrap term is used to denote access to the use of materials which are available on websites for use and download, which is hyper-linked, and users must agree in exchange for using the website. Such types of agreements are intended to be binding on the contracting parties by the mere browsing of the website.
Such a type of contract does not require the manifestation of assent by clicking “I Agree” or “I Accept” tab, but a web-site user purportedly gives his or her assent by simply downloading or using the product or by entering the website.
An important feature of browse wrap agreement is that the party/ user can see the applicable terms and conditions before downloading/ using the product, which exhibits more transparency compare to other electronic contract, and it deem to be constructive notice by the court.
But it is the strange situation to answer the question like: How does one demonstrate that a user assented to the Terms of Use agreement?
Though there is no way to express sign of consent, and any acceptance of the agreement, if it comes, must be subject on the simple act of browsing the site. It is deem the browse wrap agreement is the implied contract, as there are no clear sign of acceptance, but the other party puts a notice on the website to terms of use, it certainly raises a question: Does it mean it is an implied contract or a standard form of contract?
The answer may touch both the aspects, it is sort of an implied contract, as no clear manifestation of acceptance is given, but the mere use of website implies consent to the terms and conditions of website.
And as for the second aspect, it seems to be standard form of contract, as there is no room for bargain or redlining the contract as the general rule of contract meeting of mind, but the dominance of party subsist. It does not mean that it is the absolute principle, because there are many protective devices available, and merely using the website does not constitute acceptance of the terms of use unless there was evidence that the user knew, or should have known, it means the use is the conditional aspect.
It is also important to perceive the standard contract doctrine which enunciates that when an advantage is offered subject to declared conditions, and the user decides to obtain the benefit with knowledge of the conditions of the offer, the act of taking the benefit constitutes an acceptance of the terms, which therefore become binding on the user.
The same situation In Register.com, Inc. v. Verio, Inc., 356 F.3d 393; 2004 U.S. App. LEXIS 1074; 69 U.S.P. Q.2D (BNA) 1545 a New York court dealt wherein a violation of browse-wrap agreement. It was contended by the defendant that the terms (Terms of Use) did not form a binding contract because there was no” I accept” button to click. But the court held that “act of using the website is deemed to be acceptance”
Conditions for Binding in Browse Wrap Contract
Visibility on Website: There must be a reasonable anticipation that the user of the site would see it, either it is being exhibited to look for or displayed clearly so that user can visualize it easily before using the website.
Manifestation of Over Act: There must be some kind of physical over action, like downloading, accessing a site, that is sufficient to constitute an act of acceptance.
Thus, a browse-wrap agreement can be created by use of a web page or a hyperlink or a small disclaimer on the page. Courts examine the enforceability of browse-wrap agreements on a case-by-case basis, and there are no “bright-line” rules on whether a given agreement is sufficiently conspicuous.
That the icon for the terms of use agreement be placed in the upper left-hand quadrant of the homepage and that all visitors be channeled through the homepage. The reason for this suggestion is that the court will take judicial notice of the fact that all Internet pages open from the upper left-hand quadrant, thus the defendant must overcome the presumption that the icon was viewed. Without this presumption, the plaintiff has the burden of proving the defendant did see the icon.
Notice to the user is the key to enforce-ability.
  • Legal enforce-ability in browse wrap agreement by Notice
  • Legal enforce-ability is the fundamental condition of any contract, in browse wrap agreement; such as “using the Website, you’re agreeing to the terms and conditions of the agreements claiming that merely by click.