Electronic Governance

Note the same drafting technique as section 4: deeming, and a requirement that the electronic form be the prescribed one. A citizen cannot invent his own format.

Section 6A: delivery of services by service providers

Inserted by the 2008 amendment. It allows the appropriate Government, for the purposes of Chapter III and for efficient delivery of services to the public through electronic means, to authorise any service provider to set up, maintain and upgrade the computerised facilities and to perform such other services as it may specify.

The section defines a service provider to include any individual, private agency, company, partnership, sole proprietor firm or any other body or agency which has been granted permission by the appropriate Government to offer services through electronic means, whether or not they are its own services.

Two features matter:

• The Government may authorise the service provider to collect, retain and appropriate service charges, notwithstanding anything in the rules about depositing money into the Consolidated Fund. This is what makes a commercially operated common service centre possible.
• The Government must specify the scale of service charges, and the service provider may not charge more.

Section 6A is the statutory basis on which much of Indian e-governance delivery is outsourced, and it is worth naming for that reason.

Sections 7 and 7A: retention and audit

Section 7 provides that where any law requires documents, records or information to be retained for a specific period, that requirement is satisfied if they are retained in electronic form, provided three conditions are met:

1. the information is accessible so as to be usable for a subsequent reference (the same condition as section 4);
2. the electronic record is retained in the format in which it was originally generated, sent or received, or in a format which can be demonstrated to represent accurately the information originally generated, sent or received; and
3. details which identify the origin, destination, date and time of despatch or receipt of the record are available in it.

The section adds that the third condition does not apply to information automatically generated solely to enable a record to be despatched or received, that is, routing data. And it does not apply where any law expressly provides for retention in the form of electronic records.

Section 7A, inserted in 2008, is one sentence and closes a gap: where any law requires the audit of documents, records or information, that provision applies also to documents, records or information processed and maintained in electronic form. Without it, an entity could have argued that a statutory audit requirement did not reach its electronic books.

Sections 8 and 9: the Electronic Gazette, and the limit

Section 8. Where any law provides for a rule, regulation, order, bye law, notification or any other matter to be published in the Official Gazette, that requirement is satisfied if it is published in electronic form. The section adds a proviso of real practical importance: where the Gazette is published both in printed and in electronic form, the date of publication shall be the date of the Gazette which was first published in any form.

Section 9 is the limitation on the whole chapter, and its marginal note states it exactly: "Sections 6, 7 and 8 not to confer right to insist document should be accepted in electronic form."

Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.

This is the section that decides the character of the Act. The scheme is enabling, not mandatory. If a department chooses to accept electronic filings, section 6 makes them legally effective. If it does not, a citizen has no right under this Act to compel it. Whether such a right exists elsewhere, under some other statute or in administrative law, is a different question and not one this Act answers.

Section 10 completes the chapter by empowering the Central Government to make rules prescribing the type of electronic signature, the manner and format of affixing it, the procedure identifying the person affixing it, control processes to ensure integrity, security and confidentiality, and any other matter necessary to give legal effect to electronic signatures.

A worked example

A municipal corporation accepts building plan applications only over the counter in paper form. Sunil submits his application by email, relying on section 6, and the corporation rejects it.

• Does section 6 help him? Section 6 operates where the filing is effected "by such electronic form as may be prescribed by the appropriate Government". If no electronic form has been prescribed for this filing, section 6 has nothing to bite on.
• Can he insist? Section 9 answers directly: nothing in sections 6, 7 or 8 confers a right on any person to insist that an authority should accept a document in the form of electronic records. So under this Act, no.
• What if the corporation HAS notified an online portal, and Sunil files through it, and the corporation later says the application was not properly made? Now section 6 does apply: the requirement of filing in a particular manner is deemed satisfied, and the objection fails.

Change the facts. A statute requires the corporation to preserve building plan records for thirty years. It scans and destroys the paper.

• Section 7 permits retention in electronic form, but only if the records are accessible for subsequent reference, retained in the original format or one demonstrably accurate, and carry the details of origin, destination and date and time. A scan that meets those conditions satisfies the retention requirement; one stored in an unreadable format does not.

What it does NOT mean

"E-governance is compulsory under the Act." Section 9 says the opposite in terms. The chapter enables; it does not compel.

"Section 9 means electronic filings can be refused even where a portal exists." It means no right to insist is conferred. Once the appropriate Government has prescribed an electronic form, section 6 deems the requirement satisfied by filing in that form, and the authority cannot then treat the filing as no filing.

"Any scanned copy satisfies section 7." Only one meeting all three conditions, including the retention of origin, destination and date and time details.

"Publication in the Electronic Gazette is a secondary publication." Under the proviso to section 8, where both forms are published, the date of publication is the date of the Gazette first published in any form, so the electronic publication may well be the operative one.

Quick revision

• Section 6: filings, licences and payments with government in prescribed electronic form; requirement deemed satisfied.
• Section 6A (2008): appropriate Government may authorise a service provider to deliver services and collect service charges at a specified scale.
• Section 7: retention in electronic form, on three conditions: accessible for subsequent reference; original or demonstrably accurate format; origin, destination, date and time details available. Routing data excepted.
• Section 7A (2008): audit requirements extend to documents maintained electronically.
• Section 8: publication in the Electronic Gazette; where both forms exist, the date is that of the Gazette first published in any form.
• Section 9: sections 6, 7 and 8 confer no right to insist. The scheme is enabling, not mandatory.
• Section 10: rule making power on electronic signatures.

Test yourself

1. What does section 9 provide, and why does it matter? That sections 6, 7 and 8 confer no right on any person to insist that a government body accept, issue, create, retain or preserve a document electronically, or effect a monetary transaction electronically. It matters because it makes the whole chapter enabling rather than mandatory.

2. State the three conditions in section 7. The information must be accessible so as to be usable for a subsequent reference; the record must be retained in the format in which it was originally generated, sent or received, or in a demonstrably accurate one; and details identifying the origin, destination and date and time of despatch or receipt must be available.

3. What was inserted by section 6A, and what does it permit? The 2008 amendment inserted it. It permits the appropriate Government to authorise a service provider to set up and maintain electronic service delivery facilities and to collect, retain and appropriate service charges at a scale the Government specifies.

4. Where a rule is published in both printed and electronic Gazettes, which date counts? The date of the Gazette which was first published in any form, under the proviso to section 8.

5. Does section 7A create a new audit obligation? No. It extends existing statutory audit requirements to documents, records and information processed and maintained in electronic form, closing the argument that such an obligation reached only paper.