We are facing challenge of Covid-19 restrictions. A whole
generation is facing another unique challenge. Many senior citizens and people
from socio-backward classes and communities are unable to exercise their basic
right to life because they may be unable to use the electronic payment
mechanisms.
By the end of 1990’s
electronic commerce started getting popularity and almost by the first half of
the millennium, banks of several countries had expanded their services for
electronic money transactions. Soon plastic money in the forms of ATM, credit,
debit cards etc., were introduced and the smart generation started relying more
on plastic money rather than carrying currency in their wallets. But this
proved dangerous for majority. There were physical theft of wallets and the
cards, misuse of the cards, hacking of e banking systems which directly
affected the card operating systems, ATM machines were unauthorizedly accessed,
spycams were installed in the machines to detect the banking information including
the passwords etc. Senior citizens were worst affected as most of them in
countries like India could not operate the e-banking system or the cards:
either they could not understand the operational mechanisms or they were not
physically able to conduct the entire transactions either through the ATMs, or
through their smart devices. This was due to generation gap.
With the advancement of technology, e wallets were
introduced. Through online banking mechanisms, one can deposit a particular
amount of money in e—wallets. However, this would not be operating as a single
and independent device or mechanism. Users may connect their valid government
identity proofs with e-wallets. Such e-wallets may necessarily be used through computers,
smart phones etc.[1]
Everything remains virtual except the device/s that will help a user to access
the online transaction mechanisms. It has been continuously stated that plastic
money, e-wallets and e-banking systems are safe and better than carrying the
currency.
But do we really know who is safeguarding our money in
this system? A few provisions Chapter III of our very own Information
Technology Act, 2000(amended in 2008) would make this clear. Chapter III discusses
about electronic governance. S.6A of the Information Technology Act (IT Act),
2000, amended in 2008 is noteworthy here: it says as follows:
6A Delivery of services by service provider. -
(1) The appropriate Government may, for
the purposes of this Chapter and for efficient
delivery of services to the public through electronic means authorise, by
order, any service provider to set-up, maintain and upgrade the computerised
facilities and perform such other services as it may specify by notification in
the Official Gazette. Explanation. -For the purposes of this section, service
provider so authorised includes any individual, private agency, private
company, partnership firm, sole proprietor firm or any such other body or
agency which has been granted permission by the appropriate Government to offer
services through electronic means in accordance with the policy governing such
service sector.
(2) The appropriate Government may also authorise
any service provider authorised under sub-section (1) to collect, retain and
appropriate such service charges, as may be prescribed by the appropriate
Government for the purpose of providing such services, from the person availing
such service.
(3) Subject to the provisions of sub-section (2), the
appropriate Government may authorise the service providers to collect, retain
and appropriate service charges under this section notwithstanding the fact
that there is no express provision under the Act, rule, regulation or
notification under which the service is provided to collect, retain and
appropriate e-service charges by the service providers.
(4) The appropriate Government shall, by
notification in the Official Gazette, specify the scale of service charges
which may be charged and collected by the service providers under this section:
Provided that the appropriate Government may specify different scale of service
charges for different types of services.
Online transactions for e-commerce purposes are
directly connected with the concept of service delivery by service providers.
S.6A has got two main component parts: (i) authorization to the service
providers by the government to set up provisions for delivery of services in
the electronic mode; and (ii) collection of service charges by the service
charges. Whenever we get to see a smooth or a bumpy operation of services from
the banks or from any other government or corporate authorities, we must know
that there is a secret team behind that government department, bank or the
corporate authority. They may be independent agencies who are commissioned by
such government /bank/corporate authorities. These ‘secret teams’ perform all
the technical functions for economic transactions, maintenance of the records
for money transactions, maintenance of cyber security issues etc., and they are duty bound to not to violate the confidentiality
of the user-data. Intact there are layers of contracts between the actual user
and the bank/government/company, between such service provider and the actual
users and the government etc. We know only the first layer of contracts and agreements
between us, the actual users and the bank/government /company etc., who are
providing us certain services or even goods. But there are several examples of
violating the agreements and contracts. These ‘service providers’ know us more
than we know ourselves because they know our bank details, our spending habits
and even our location data too.
Considering the risk for breaching of confidentiality
in all such cases S.7A of the IT Act, 2000(amended in 2008) has prescribed for
auditing of documents etc., maintained in electronic forms. This Section says
as follows:
“7A
Audit of documents, etc., maintained in electronic form. -Where in any law for
the time being in force, there is a provision for audit of documents, records
or information, that provision shall also be applicable for audit of documents,
records or information processed and maintained in the electronic form.”
But this is hugely neglected by many stakeholders and
this loophole creates several data breaching related legal issues. The Indian
legislature has also brought in the Intermediary guidelines Rules, 2021 which
also shifts the liability for data protection for intermediaries in certain
cases.
However, we must not forget that there is digital
divide in our societies. Adults including men, women and people belonging to
LGBTQ communities may not always access information and digital communication
systems and services. This is a universal problem. Women may not be empowered
to use electronic devices in socio-economically backward classes and
communities. Not to forget that even though Indian constitution mandates for
equal pay for all, women may not always get equal pay in unorganized sectors. Many
households in India as well as in many Asian countries do not allow women to
take any decision related to family-finances. But there are situations when people are
forced to use electronic payment/transaction systems. Covid-19 pandemic is one
such situation where the WHO advised to reduce usage of anything which may
transmit the viruses from people to people: reduction of usage of currency
notes were also suggested as it was understood that the materials in the
currency notes may get wet with sweat, saliva etc., and this may be extremely
dangerous since it might increase the risk of spreading of pandemic. But there
are new researches coming up every day which are suggesting how to take
precautions while dealing with papers (including materials which are used to
make currency notes) or clothes during pandemic times.
In all such cases, aren’t our constitutional rights
get violated if the government or any other stakeholder insists on
e-transactions? It actually does.
Answer to this question may be found in S.9 of the IT
Act, 2000(amended in 2008). This says as follows:
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.
Nonetheless, the above mentioned provision empowers all who may not be able to use or who may want to refuse the use of electronic payment system. But this may not always be considered as the Rule: this is rather Exceptio probat regulam (an exception proves the rule) in the era of internet. Even though the government and other corporate stakeholders may extend their services on humanitarian grounds to help those who may not be able to use the digital payment systems or the e-wallets etc., people’s trust may easily be broken by gross misuse of the powers that such ‘helpers’ may have: ATM debit cards may be stolen, data may be compromised, e-wallets may be illegally operated by such ‘volunteers’ who may want to gain illegal and unethical profits at the cost of innocent people.
It will take longer time to make people from all
backgrounds aware about electronic payment modes. It will probably take even
longer to control cyber criminality targeting vulnerable people. One must not
violate the legal norms and constitutional principles to make the right to life
of others almost unachievable. Vulnerable groups including senior citizens,
disabled people, socio-economically backward communities, women and children
must be given enough protection to gain their trust so that all can survive and
win over adverse situations.
Please note: Please do not violate the copyright of this writeup. Please site it as Halder Debarati (2021) Is using electronic payment mode mandatory? Published @ https://debaraticyberspace.blogspot.com/2021/04/is-using-electronic-payment-mode.html on 22-04-2021
[1] https://economictimes.indiatimes.com/definition/e-wallets
