By Dr. Jaijit Bhattacharya
Of all those who are illiterate in the world, 37 percent are in India. India is a country with the largest number of illiterates at 287 million. Add to it the population of those who are visually challenged, and we have almost 300 million people who are, what is technically referred to as ‘print blind’, means, they cannot read what has been printed.
Does it mean that these 300 million people should also be excluded from legal contracts since they cannot read the contracts? Or they should provide consent to the contracts without have any information — without informed consent. Add to this number of 300 print blinds, all those who cannot read English, and those who can barely read English but cannot understand the legal language. The last set of people include many who are reading this article, as many of us are not trained to read and interpret heavy legal language, also often referred to as legalese. The total number of such people in India, will easily cross a billion, if not more.
So what is the way out? Do we ignore the legal requirements of this population? For over two decades, I have been championing the need for capturing contracts in a voice format. India is an oral nation. It is but natural, that we should capture contracts in voice, saving them in non-repudiable compute infrastructure, which ensures that the agreements cannot be changed or refuted.
So what stopped us thus far to create such an infrastructure? There were many hindrances. People didn’t have widespread access to mobile phones that becomes the access devices for the oral contracts. The blockchain technology did not exist that would ensure that the oral contracts are saved in an inexpensive manner in non-repudiable infrastructure. Unique identity through Aadhar had not matured. And payment systems had not reached to the last person standing in the Indian society.
Given the massive rollout of digital infrastructure, it is not possible to roll out an oral contract system. In fact, it can be not just an oral contract system, but also audio-video contract system, where in the video of the parties involved can also be recorded. In addition, Bashini, the government’s machine translation system for Indian languages, helps take an oral contract system deeper into the society, helping serve those who do not speak the 22 scheduled languages, thereby extending legal support to the last person standing in the country. This would be the equivalent of legal antodaya.
Do we need to change the legal framework to give cognisance to such oral contracts recorded over a digital infrastructure? Can such contracts be upheld in the court of law? Can the judiciary accepts as valid and rely on them as evidence to settle disputes? Oral contracts under the Indian Contract Act of 1872 are valid forms of contract.
Under the Contracts Act, an enforceable agreement comprises four components – free consent, the competence of parties, lawful consideration and lawful object, and expressly not declared void. Oral agreements satisfying the four criteria are legally enforceable. A regular oral contract that is not captured anywhere, has the problem that it is generally difficult, if not impossible, to furnish clear and satisfactory evidence for their legal enforcement. But oral contracts saved on a non-repudiable digital infrastructure should be accepted in a court of law as permissible evidence. This understanding is further confirmed through a reading of the Evidence Act of India. In fact, we are already having oral consent recorded on digital infrastructure, mandated through law for the purpose of clinical trials of new drugs being held in India.
The availability of such an arrangement can revolutionise the manner contracts and agreements are made. It would have far greater significance in a country like India where not everyone can read or write. Getting into a written agreement duly attested by the court is not an option for everyone, particularly those working in the unorganised sector where employers routinely give the short shrift to the employees. A trip to a lawyer or the court is also not worthwhile for small agreements that are struck and often violated. Audio-visual evidence of the oral agreements can metamorphosize contractual protection to the vulnerable sections of the society.
A successful implementation of this contractual framework from a policy perspective would require two things. First, awareness. People would need to be made aware about the benefits of audio-visual contract and how it can be beneficial. Second, there needs to be a framework for institutionalising of such oral contracts. They need to be stored in a tamper-proof platform – either government-sponsored or tech-aided with reasonable securities.
Once those recording their oral agreements know how to record them with verification of their identities using the Aadhar infrastructure, and to store the contracts without the risk of the contracts being doctored, the evidence becomes irrefutable. It would become far easier to establish what was agreed upon between the parties.
The visual aspect of the contract showing the body language and facial expressions of the parties will provide additional proof of the agreement, avoiding misunderstandings and misinterpretations that often crop up while concluding the terms and conditions of an agreement.
Of course, the government too will need to focus on the enforcement of such contracts once furnished. Lok Adalats or alternate dispute redressal forums can be designated to quickly adjudicate on the digital contracts.
Clearly, the benefits of audio-visual contracts are many and all the work that requires to be done for its mass acceptance will be worthwhile. Armed with a mobile phone and the ability to record the oral agreement that she enters into with the houseowner, the domestic help can hope to secure the pay she had been promised every month. Ditto with the farmer who was driven to despair on being cheated after selling his cow.
The biggest beneficiaries undoubtedly will be those in the unorganised sector. Employers would no longer be able to take them for a ride since all the commitments they make – from pay to work hours – would be recorded by the employee. Audio-visual contracts will empower ordinary Indians like never before.
This article first appeared in ET Government, https://government.economictimes.indiatimes.com/blog/empowering-the-legally-illiterate-through-oral-contracts-on-digital-infrastructure/99753468
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