SubscriberWrites: SC Registrar’s stance on WhatsApp as invalid mode of service outdated, dogmatic

SubscriberWrites: SC Registrar’s stance on WhatsApp as invalid mode of service outdated, dogmatic

High Court of Delhi along with district courts routinely allow for service of summons through ‘all modes of service’ , write Ivan and Vivek Mathur.

A woman uses her phone next to a logo of the WhatsApp application during Global Fintech Fest in Mumbai | Reuters file photo

A woman uses her phone next to a logo of the WhatsApp application during Global Fintech Fest in Mumbai | Reuters file photo

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As has recently been ruled upon by the Apex Court’s Registrar, ‘WhatsApp’, a popular instant messaging service shall not be considered a valid mode for service of documents as per the Supreme Court Rules, 2013 (hereinafter ‘Rules, 2013’) and as archaic as that may be, it is no surprise considering that the Rules, 2013 belong to the pre-smartphone and pre-VoIP (voice over internet protocol) era in India.

As is the case throughout the Rules 2013, provisions for ‘Service of Documents’ vide Order LIII are heavily grounded in the system of Advocates-on-Record (hereinafter ‘AoR’) as followed at the Supreme Court of India. Thus, the service of notice to any party’s AoR (including to the registered clerk of such AoR), physically and/or via said advocate’s registered e-mail, is considered valid service. Additionally, for matters involving the union government or the state government, service to the concerned department/central agency section and/or the nominated counsel/Standing Counsel shall be deemed to be valid service of notice. In catering to the system of AoRs at the Supreme Court, the Rules 2013 thus seem to function devoid of blemishes. 

Notably however, a regular litigant especially in matters concerning the original jurisdiction of the Supreme Court would invariably approach vide ‘Application for Transfer of Cases’ and it is here that the issue at hand becomes crucial simply for the fact that even at the level of the apex judiciary the litigants may face pitfalls as before the courts below. For such an eventuality Rule 3 of Order LIII outlines that,

“3. Service of any notice, order or other document upon a person who resides at a place within the territory of India may ordinarily be effected by posting. copy of the document required to be served in a pre-paid envelope registered for acknowledgment addressed to the party or personally at the place where be ordinarily resides and through the District Judge concerned: 

Provided that the Registrar may direct in a particular case or class of cases, that the service shall be effected in the manner provided by the Code for the service of summons: …”

Evidently, the Rules 2013 allude to the Code of Civil Procedure, 1908 (hereinafter the ‘Code’) towards ensuring that the concerned Registrar has latitude in service of notice. Interestingly though, the Code itself in-turn alludes to the rules framed by the concerned High Court and reference to the same may be found vide Rule 9(3) of Order V of the Code 1908; 

“(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.”

The stance of the Supreme Court’s Registrar thus seems sloven and archaic especially considering that the Hon’ble High Court of Delhi along with the District Courts below it routinely allow for service of summons through ‘all modes of service’ referring thereby to Rule 1(e) of Chapter VI of the Delhi High Court (Original Side) Rules, 2018 which outlines that, 

“1(e). Notwithstanding anything contained in Order V Rule 10 of the Code, the Court may, in the very first instance, issue summons (together with copies of plaint, application, affidavit, documents etc.) by all or any of the following modes of service, viz., registered post (acknowledgement due); speed post; authorized courier; fax; electronic mail service; SMS with a hyperlink (if required) or any other web based or virtual communication mode; or dasti service; in addition to service of summons in the ordinary way. 

For this purpose, the publicly available email address and fax number, either on the website of the party or in public domain/ records shall also be deemed to be the correct e-mail address and fax number respectively.”

Surely the Code 1908 has enough latitude to ensure that the concerned courts may accept and allow for service of summons/notice/order via ‘any other means of transmission of documents’. Although it eventually ascribes the task to the High Courts to frame rules it remains beyond comprehension why the highest court of the land still balks at evolving with the times. 

It is no one’s case that the Registrar’s order is not in accordance with the Rules, 2013 or the practice and procedure of the Apex Court. However the same must not sit well with the push towards digitisation of court records and the Hon’ble Chief Justice’s vision for e-Courts in the country. The situation thus is in urgent need of an intervention, be it on the administrative side or even by way of a judicial order.

These pieces are being published as they have been received – they have not been edited/fact-checked by ThePrint.

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