None.

According to the ITA, an electronic signature is defined as the “authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature.”

A “digital signature” under the ITA refers to the “authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with section 3 [of the ITA].”

For an “electronic signature” to be valid under the ITA, it must:

• Be considered "reliable"; and
• Use an authentication method specified in the Second Schedule of the ITA.

An electronic signature is “reliable” if it meets the following criteria:

• The signature creation or authentication data are, in the context of use, uniquely linked to the signatory or authenticator and to no one else;
• At the time of signing, the signature creation or authentication data were under the exclusive control of the signatory or authenticator;
• Any changes made to the electronic signature after it is affixed can be detected;
• Any changes to the information after it has been authenticated by the electronic signature are detectable;
• An audit trail exists for the steps taken during the signing process; and
• The digital signature certificates are issued by a Certifying Authority recognized by the Controller of Certifying Authorities under the IT Act.
• The Second Schedule allows authentication of an “electronic signature” or electronic record by either of the following methods:
• Using Aadhaar e-KYC services, or
• Through a third-party service involving key pair generation, storage of key pairs on hardware security modules, and creation of a digital signature, provided the service is offered by a licensed Certifying Authority.
• To generate a digital signature, the user must obtain a digital certificate from a licensed Certifying Authority.

Most commercial agreements can be signed electronically, except for certain documents listed in the First Schedule of the ITA. The following documents or transactions cannot be executed using an electronic signature:

• Negotiable instruments such as promissory notes or bills of exchange (other than cheques);
• Powers of attorney;
• Trust deeds;
• Wills and any other testamentary dispositions, regardless of their name; and
• Any contract for the sale or transfer of immovable property or any interest in such property.

The Indian Stamp Act and the relevant state stamp acts require certain documents to be stamped at or before execution. While the Indian Stamp Act and other laws do not specifically address electronic records or their stamping, several states (such as Maharashtra, Gujarat, Karnataka, Delhi, Uttar Pradesh, Rajasthan, etc.) have amended their stamp laws to include “electronic records” (as defined by the ITA) within the definition of “instrument,” thereby extending stamping requirements to electronic records.

An “instrument” is defined as any document that creates, transfers, limits, extends, extinguishes, or records any right or liability.

Electronic signatures that comply with the ITA are presumed valid, and if their validity is challenged, the burden of proof lies with the party contesting the signature, not the party relying on it.

For electronic signatures that do not meet ITA requirements, if their validity is disputed, the party seeking enforcement must also demonstrate that all essential elements of a valid contract under the ICA are satisfied.