WHETHER ONE CAN APPEAR BEFORE COURT THROUGH VIRTUAL MODE, AFTER E-FILING ? WHETHER PHYSICAL FILING IS NECESSARY AFTER E-FILING ?
WHAT SUPREME COURT SAYS:
Hon’ble the Supreme Court of India have been pleased to give direction to all High Courts, Tribunals and the State Governments to provide facility for hearing through the hybrid mode to any member of the Bar or litigant desirous of availing of such a facility. A direction for a uniform SOP has also been given so that it may be adopted across all the High Courts for facilitating video conference / hybrid hearings.
At Para 16 of the Order dated 06/10/2023, in Writ Petition (Criminal) No 351 of 2023 Hon’ble Court observes that Technology plays an essential role in securing access to courtrooms and as a result, access to justice for citizens across the country. Lawyers and litigants using electronic gadgets to access files and legal materials cannot be asked to turn the clock back and only refer to paper books. In the march of technology, the Courts cannot remain tech averse. Placing fetters on hybrid hearings, like mandating an age criteria, requiring prior application, and frequent denial of access to virtual participants has the direct effect of discouraging lawyers and litigants to use technology. Not only does this affect the efficiency and access to courts, but it also sends out the misguided message that access to courts can be restricted at whim to those who seek justice.
At Para 17 of the Order dated 06/10/2023, in Writ Petition (Criminal) No 351 of 2023 Hon’ble Court concludes that the use of technology by the Bar and the Bench is no longer an option but a necessity. Members of the Bench, the Bar and the litigants must aid each other to create a technologically adept and friendly environment. The above directions must be implemented by all concerned stakeholders in letter and in spirit. (Para 17)
It may be worth to mention here that E-Filing Rules have been stipulated by every Judicial/Quasi Judicial bodies in compliance of the direction of Hon’ble the Supreme Court of India and now, Every person may file the case electronically. Now, we are able to contend even before the Higher Forums in paperless manner equipped by these Rules in accordance with Supreme Court’s directions. But still there is a need of some advancement because electronic filing of a case is required by paper filing by various Judicial/Quasi Judicial Forums by their SOPs which causes pile on the agony of the various stake holders, particularly when Hon’ble the Supreme Court of India in Sanket Kumar Agarwal Vs. A P G Logistic Private Ltd. has been pleased to hold that Physical filing in addition to e-filing unnecessarily burdens litigants and the Bar and is a disincentive for e-filing.
Hon’ble Apex Court enunciate at para 30 of that very Judgment that With technological advances, the country’s judiciary and tribunals must move towards e-filing. This process has already commenced and is irreversible. The Union Government must have a fresh look at the rules to encourage e-filing across tribunals. Perhaps one way forward would be to constitute a Working Group to make a comprehensive assessment of the position across tribunals and suggest regulatory changes. Moreover, it is utterly incomprehensible why NCLAT should insist on physical filing in addition to e-filing. This unnecessarily burdens litigants and the Bar and is a disincentive for e-filing. A lawyer or litigant who is compelled to file physical copies in addition to e-filed documents will have no cogent reason to resort to e-filing. This duplication of effort is time consuming. It adds to expense. It leaves behind a carbon footprint which is difficult to efface. The judicial process has traditionally been guzzling paper. This model is not environmentally sustainable. If some judges are uncomfortable with e-files, the answer is to provide training to them and not to continue with old and outmoded ways of working. The judiciary has to modernize and adapt to technology. The tribunals can be no exception. This can no longer be a matter of choice.
It is also worthwhile to recapitulate the decision delivered by Hon’ble the Supreme Court of India in M.P. High Court Bar Association Vs. Union of India at Para 11 and 12 that E-filing provides transparency and efficiency in the administration of justice. E-filing provides for 24×7 access to the court system and, in fact, facilitates the convenience of lawyers as well as litigants. With the march of technology, it would be too late in the day to postulate that e-filing should not be adopted. As a matter of fact, the decision to take up e-filing must be replicated by other tribunals and courts in the country, including the High Courts in a phased manner and that it eventually becomes mandatory.
Initially, with the introduction of the e-filing Rules in 2020, e-filing was made optional at the first stage. In the second stage, e-filing was made compulsory by a notification dated 22 July 2022 where the pecuniary value of the subject matter in dispute was in excess of Rs 100 crores. The introduction of mandatory e-filing in all cases irrespective of the value of the subject matter was introduced at the third stage on 31 January 2023. This indicates that the process has been gradual. Sufficient time was given to all stakeholders to adjust to the new regime.
On 20th August 2024, Hon’ble the Supreme Court of India, Usha Garg Vs. UNION OF INDIA, Writ Petition (Civil) No. 313 of 2024 has observed that “Once advocates are filing in the online mode, why do we expect them to file physical copies?”, and Hon’ble Court has found merit in the submissions of the counsel for the petitioner that since members of the Bar or litigants are filing proceedings online, they should not be saddled with the additional obligation of filing physical copies of the proceedings.
Now time is coming for USE OF TECHNOLOGY IN COURTROOMS with the supervision of Hon’ble the Supreme Court of India. In these circumstances, with due respect to the Judicial/ Quasi-Judicial Forums, it is submitted that physical filing in support of e-filing must be dispensed with; Particularly after perusal of the judgments of Apex Court supra, which are binding under Aerticle 141 of the Constitution of India.
