Legal Framework for Electronic Archiving
Although some countries require certain types of documents to be kept and archived in their original paper form, for most categories of documents, including HR-related records, there is no such requirement, and it is generally acceptable to use electronic versions of paper records.
The evidential or probative value of electronic versions of paper records may be more easily challenged before a court than it would be for the originals. This is mainly because the original records could be tampered with or changed before being scanned, and, unless proper technology has been used (e.g., encryption and timestamping), it may not be easy to detect such changes from a scanned copy.
In India, the burden of proof for electronic records is quite high, which means that from a practical perspective, courts often prefer paper originals. It may be good practice for employers to retain archives of paper originals in the event such originals would be requested by a specific investigator, auditor, judge or authority.
Are electronic scanned copies of paper originals legally valid?
Electronic records are legally recognized in India under the Information Technology Act (2000). Thus, electronic scanned copies of original paper documents are allowed, as long as they meet requirements under the Indian Evidence Act (1872) and are available for subsequent reference. That said, the burden of proof is so high that Indian courts prefer originals/paper copies when there is a dispute relating to a document. Under the Evidence Act (Section 65B), electronic records can be admitted as evidence without the paper original, subject to:
- the output being produced by a computer regularly used to store/process information by the person who has lawful control over the computer;
- during the period the record was created, data similar to the information contained in the electronic record has been regularly entered into the computer (i.e. the record in evidence was managed in the same way other records were managed);
- the computer operating properly through the material part of such period (or, if the computer was not working properly, the non-operation did not impact the accuracy of the record or its contents); and,
- the electronic record containing or being derived from information entered into the computer in the ordinary course of activities.
To be admitted as evidence, electronic records must be accompanied by a certificate which:
- shows the conditions above were met;
- identifies the electronic record containing the statement;
- describes the manner in which the record was produced;
- provides the details of the device involved in the production of the electronic record to show the record was produced by a computer; and,
- is signed by an individual in a responsible official position relating to the operation of the device or the management of the relevant activities.
Certain statutory records/forms under labor law statutes must be retained in physical form. During inspections, inspectors may demand hard copies of the statutorily mandated forms.
Are there any legal requirements for electronic archiving systems (EAS)?
There is no legal framework in in India specifically governing the electronic archiving of HR-related documents. Under the Information Technology Act, archive systems should ensure records are available for subsequent reference and that the records are retained in the original format or, in a format which accurately represents the original information. In order for electronic archive systems to have evidentiary value, they should meet the requirements listed in the section above.
HR Best Practices: The full electronic archiving era is approaching, but for now it is not possible to guarantee that all paper documents can be destroyed. Indeed, in India, unless you can meet the strict archiving and certificate requirements, it often makes sense to keep a copy of the paper originals in addition to the electronic record.
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.