In this blog post, Ashutosh Singh, a student of Department of Law, University Of Calcutta, who is currently pursuing a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, deliberates on whether a minor can apply for a Digital Signature.

Brief introduction and object

This article tries to explain digital signatures and whether a minor can apply for it under Indian law? We all are familiar with signatures we put using our hand and sometimes our signatures are embossed on rubber or metallic stamps when a large number of signatures are to be affixed. The term ‘sign’has been defined under Section 3 of the General Clauses Act, 1897 as “sign” with its grammatical variations and cognate expressions, shall with reference to a person who is unable to write his name include mark with grammatical variations and cognate expressions” thus even though the Act does not specifically define the term it states that it would also refer to a mark in case a person is unable to write his name. The Webster dictionary defines it as sign means “to write one’s name on as in acknowledging authorship, authorizing action, etc.”

Now we shift our focus to digital signatures which came into being with the passing of the Information Technology Act 2000.The Act applies to India and also to the offenses committed outside the country. The Act validates the use of Digital Signature as provided under Section 3 of the IT Act which states that subject to the provisions of this Section, any subscriber may authenticate an electronic record by affixing his digital signature. It must here be mentioned that the provisions contained in Sections 4 and 5 are also applicable regarding digital signatures.

Digital signature refers to the creation of a signature using the Public Key Infrastructure technology which requires two keys that are a public key and a private key for encrypting and decrypting information. The message encrypted by a key can only be decrypted by the other key and standard rules related to cryptography apply in the case of digital signatures i.e. the format is unreadable to the person who does not have the key.

Here, we must specify two terms which are used i.e. digital signature and electronic signature interchangeably, though used commonly, they both differ in their scope. The term electronic signature has a very wide scope whereas the term digital signature only defines a particular form of electronic signature. Electronic signature defined under Section 2(ta) of the IT Act 2000 (as included in the Information Technology Amendment Act 2006) is as follows -Electronic signature means authentication of any electronic record by a subscriber using the electronic technique specified in the second schedule and includes a digital signature. Digital Signature as defined in Section 3 of the IT Act 2000 states that it means authentication of any electronic record by a subscriber using an electronic method or procedure in accordance with the provisions of Section 3.

The object and purpose of the electronic signature are similar to that of a traditional signature. In the cyber world, electronic signature ensures that the electronic records are authentic and legitimate as electronic signature are safer and cannot be forged and is convenient as the sender himself does not have to be present personally at the place to contract to sign the document. For example, a person can sign a contract in India and send it to any part of the world to complete the transaction.

Digital Signature Certificates are the electronic equivalents of other certificates like driving licenses and can be used to establish one’s identity and access information online. Although the Act does not contain the definition of the term Digital Signature Certificate (DSC), it is mentioned under Section 35 of the Act as to how can a DSC be applied for. If all the conditions contained therein are satisfied only then, the Certifying Authority grants the DSC.

Types of Digital Signature

There are three types of digital signatures based on security like class 1, class 2, and class 3 based on the level of security sought for. Class 1 signature do not have any legal verification associated with them as they are granted via email verification.In the case of class 2 signature, the identity of the applicant has to be verified by a pre-verified database and this type of signature is preferred for all filings. Class 3 signature is considered to be the most secured where the applicant has to be present in person before the Registration Authority to prove his identity. MCA 21 insists the presence of class 2 certificates for all filings under the Companies Act and Limited Liability Partnership Act. Other authorities also ask for class 2 signatures for filing. Under the Companies and LLP Act the directors, auditors and company secretaries require the DSC to file various returns and documents. The DSC once issued is usually valid for 1 to 2 years depending on the service provider’s terms of service and can be renewed on expiry.

Minor’s application for Digital Signature

Now, it has been clearly stated under Section 11 of the Indian Contract Act, 1872 that any contract entered into with a minor is void ab- initio and no liability arises on the minor in respect to such a contract. This principle has been dealt with in various cases, the most prominent among them being Mohiribibi v. Dharmodas Ghoshe decided by the Privy Council.

A person is said to be a minor if he has not attained the age of 18 years as provided under Section 3 of the Indian Majority Act, 1857.  However, if his property is under the supervision of the Court of Ward’s,  majority is to be attained at 21 years. Now since a minor can’t enter into any valid contract before he attains majority hereby falls out of contention his obtaining a DSC from the service provider  even the simplest of digital signature because in order to avail such a service the applicant must enter into a contract and agree to the terms of service with the service provider. A prominent service provider like E-mudra has very specifically declared on their website that in the case of any misrepresentation made by the applicant in obtaining a digital signature the service provider will not be liable in any respect. This statement in itself is self-explanatory and makes it clear that any misrepresentation as to the age of the applicant shall also not be a liability of the service provider. Thus, even if the applicant falsely states his age to obtain such a certificate he would not be able to use it to enter any legally binding contracts, moreover, this is only applicable in the case of class1 signatures because the other two types have strict verification and involve submission of documents about proof of residence and majority.

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Amendments to other statutes related to Digital Signature

Earlier, the Indian Evidence Act, 1872 had no provisions as to electronic signature being produced as evidence. But now taking into account the modern day situation and increase in the number of cyber-crimes, an addition of Section 47A provides that the Court has to establish the opinion of the validity of the digital signature and in doing so the opinion of the certifying authority has great relevance. Similar amendments to the code have been made to other Sections like Sections 67A, 73Aand 85B.

Even the Indian Penal Code, 1860 has been amended to incorporate the provisions relating to digital signatures. Section 466 contain the provisions relating to forging of electronic records whereas section 464 deals with the situation where a man is said to false document or electronic record.

Conclusion

It can hence be concluded that in this growing age of online transactions, the contracts being executed require strong security provisions which are currently being met with the digital signature. Although encryption was considered safe till the recent past, it is not so now; new methods have arisen which prove that a user can now access the encrypted code without the key. Thus, this is where the government needs to step in and provide better online security to businesses as cases of cyber fraud including siphoning of funds have taken massive proportions in our country. What is required is that these signatures be linked to Adhaar card and other forms of biometric identification which would provide a more secure methodology for conducting business and filing compliance. Now, coming back to the question as to a minor applying for a digital signature, the answer in this respect stands that no, a minor can’t apply for such a signature as any contract entered into by him is void ab-initio.