Contributor: Advaya Legal
Author: Ramesh Vaidyanathan, Mansi Singh, Pratik Bhat
1. Is there specific legislation in India ruling the using of documents (such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs) executed with the use of digital platforms or any electronic signatures by the local Aviation Authority?
The Information Technology Act, 2000 (“IT Act”) provides the legal framework for electronic signatures in India, enabling them to have the same legal effect as physical signatures when done in the manner prescribed under the IT Act.
All types of contracts can be executed using electronic signatures except the following:a negotiable instrument such as a promissory note or a bill of exchange; a power-of-attorney; a trust deed; a will or any other testamentary disposition; and a contract for the sale or conveyance of immovable property or any interest in such property.
Electronic signatures and documents executed with the use of digital platforms are accepted by the local aviation authority (Directorate General of Civil Aviation – DGCA), and no separate legislation exists for governing electronic signatures or digital executions within the aviation industry in India.
2. If your answer to (1) is yes, is there any specific requirement for the validity of such signatures, such as completion with a specific cryptographic platform developed by any local institute of technology?
For an electronic signature to be considered reliable and presumptively valid under the IT Act:it must be unique to the signatory; at the time of signing, the signatory must have control over the data used to generate the electronic signature; any alteration to the affixed electronic signature or to the document to which the signature is affixed must be detectable; there should be an audit trail of steps taken during the signing process; and The signer certificates must be issued by a certifying authority recognized by the Controller of Certifying Authorities appointed under the IT Act.
3. Does the Aviation Authority in India use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
Yes, the DGCA maintains an electronic register for aircraft documents and lease documents. The DGCA has implemented the e-Governance of Civil Aviation (“eGCA”) project, which aims to digitize and automate various aspects of aviation administration, including aircraft registration and leasing.
4. If your reply to question 3 is yes, is it possible to upload electronic files for registration, such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs with the Aviation Authority in India?
Yes, it is possible to upload electronic files of documents such as lease agreements, extension of lease documents, IDERA, etc., on the e-GCA portal for registration with the DGCA.
5. Do the courts of India consider valid and enforceable documents executed by the use of some type of digital signature or certification even if not registered (or registrable) with the local Aviation Authority?
While all aviation-related documents (except for power of attorneys) can be digitally certified/executed, they must necessarily be filed/registered with the DGCA if DGCA has to take them on record.
6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in India?
E-filing (electronic filing of legal papers, including pleadings and procedural documents) is accepted in almost all courts in India, including the Supreme Court of India and the various High Courts. However, certain lower courts, such as the Metropolitan Magistrate Courts, have not accepted e-filing until now.
7. Do the courts of India accept procedural documents executed digitally? Is there any specific certification required? Does India make any distinction between official digital signatures and private digital signatures?
Yes, the courts of India accept procedural documents executed digitally (barring a few exceptions mentioned above). A licensed Certifying Authority issues the digital signature. Certifying Authority means an entity that has been granted a license to issue a digital signature certificate under the IT Act. Three classes of digital signature certificates (“DSC”) are issued in India, i.e., Class 1 DSC, Class 2 DSC and Class 3 DSC. Each class of digital signature certificate is associated with specific security features and corresponds to a specific level of trust.
Private digital signatures such as DocuSign are also identified in India. However, DocuSign is not used for statutory filings where Class 3 DCS is used.
8. Are there any formal requirements for the validity of documents executed by digital signatures? Ex.: Does the consent of the parties to digital signatures have to be expressly referred to in the agreement?
The law upholds digitally executed documents, and the parties do not need to expressly consent to the use of digital signatures in the agreements.
9. Can foreign entities not located in India execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in India? Are there any other formalities required?
Yes, foreign entities not located in India can execute lease agreements or any finance documents with digital signatures. The signatory must be authorized by the board resolution of the foreign entity, and any executed document that is brought into India (including in the electronic form) entails payment of applicable stamp duty.
10. Does the Aviation Industry in India usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?
While the aviation industry in India is beginning to adopt digital tools for certain purposes, the use of blockchain technology for the control of aircraft documents is not yet widespread. However, the DGCA has been exploring the use of blockchain technology for purposes such as the management of aircraft records and maintenance logs, as well as the tracking of drones and other unmanned aerial vehicles.
11. Are there any Notary or Apostille requirements in India? If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?
a. Has India implemented the e-Apostille program?
Yes, India has implemented the e-Apostille program for the attestation of documents. The program provides a centralized platform for document verification/attestation/apostille service for Indian citizens and foreigners who have obtained documents from document-issuing authorities in India. Certain documents filed with the DGCA are required to be notarised and apostilled, and in such cases, coloured scanned copies of the notarised and apostilled documents can be filed electronically.