Professional Documents
Culture Documents
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.
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 e-
commerce 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 e-
commerce 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.
1 1995 AIR1811
2 AIR1966 Mad 13
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
I disagree with Abhilash on this point for the time being as I can clearly see at least
two advantages of this provision.
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.
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.