Electronic Signature and the Second Schedule

In one line

Section 3A is the 2008 amendment's answer to the criticism that the Act had written one technology into the statute, and the Second Schedule is the list it produced.

In the wording a student can write in an exam: section 3A of the Information Technology Act, 2000, inserted by the Information Technology (Amendment) Act, 2008, provides that notwithstanding section 3 a subscriber may authenticate any electronic record by an electronic signature or electronic authentication technique which is considered reliable and may be specified in the Second Schedule, states five criteria of reliability, empowers the Central Government to prescribe the procedure for ascertaining whether an electronic signature is that of the person purporting to have affixed it, and empowers it by notification to add to or omit techniques from the Second Schedule provided the technique is reliable, every such notification being laid before each House of Parliament.

Why section 3A was needed

Because the Act of 2000 had made the mistake the 2001 Model Law was written to prevent. Section 3 names the asymmetric crypto system and the hash function, so the statute recognised one family of technique and could recognise nothing else without an amending Act.

Article 3 of the UNCITRAL Model Law on Electronic Signatures, 2001, requires equal treatment of signature technologies. Chapter 100 works it. India's answer, eight years later, was to add section 3A alongside section 3 rather than replacing it, so the Act now contains both a technology-specific route and a technology-neutral one.

The practical driver was different and worth knowing. By 2008 the cost and inconvenience of obtaining a Digital Signature Certificate was keeping electronic signatures out of ordinary use in India: a token, a fee, an in-person verification and an annual renewal for every individual. A route that could accommodate something lighter was needed, and what eventually filled it was Aadhaar-based e-authentication.

Section 3A(1): the route

"Notwithstanding anything contained in section 3, but subject to the provisions of sub-section (2), a subscriber may authenticate any electronic record by such electronic signature or electronic authentication technique which (a) is considered reliable; and (b) may be specified in the Second Schedule."

The non obstante clause makes section 3A a free-standing alternative, not a qualification of section 3.

Two conditions, and both are required. The technique must be considered reliable, which sub-section (2) defines, and it must be specified in the Second Schedule. A technique that is reliable and not specified cannot be used, and the Central Government could not lawfully specify one that is not reliable, because the proviso to sub-section (4) forbids it.

Note the two expressions the sub-section carries: "electronic signature" and "electronic authentication technique". The second is wider. A technique may authenticate a record without producing anything that looks like a signature at all, and section 3A accommodates it.