Digitalizing the Procedural Law

By Shubhalakshmi

internet

Introduction

The justice system in India has only very recently begun undergoing certain changes in order to incorporate the rapid change which has occurred due to the increasing use of technology and internet transactions. This paper will look at some of the changes that have taken place through judicial decisions, as well as look at the difference in the way civil and criminal cases are approached with the digitalisation of processes. Last year, the Delhi High Court passed an order stating that summons could be served either through text message or Whatsapp or even email.[1] Even before this order, the Bombay High Court had also, in a copyright infringement case where the defendant was being evasive, stated that the legitimate summons could be sent via Whatsapp.[2] This step taken for civil cases might seem extremely progressive, yet the fact still remains that there are several parts of the Code of Civil Procedure, 1908 which need to be amended in order to incorporate internet processes and the growing use of technology.

Procedural Differences in Civil and Criminal Law

It is interesting to note that this order does not apply to criminal cases. In the case of Meters and Instruments v. Kanchan Mehta, the Supreme Court discussed the issue of service of summons through speed post or courier in a summary trial. The court then looked into the fact that the offence under the particular section was primarily a civil wrong and went on to state,

 “…in every complainant under Section 138 of the Act, it may be desirable that the complainant gives his bank account number and if possible, the email id of the accused. In every summons issued to the accused, it may be indicated that if the accused deposits the specified amount, which should be assessed by the Court having regard to the cheque amount and interest/cost by a specified date, the accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant. If the accused complies with such summons and informs the Court and complainant by e-mail, the court can ascertain the objection, if any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case.”[3]

This becomes important to note since it brings out the difference in the manner in which civil wrongs and criminal wrongs are treated with respect to a change in the procedure. In most cases concerning civil wrongs, the service of summons can be done via other modes. Even in cases where the offence is under the Indian Penal Code, but is essentially a civil wrong as seen in the aforementioned case, the same has been allowed. However, on the other hand, criminal wrongs are treated with more caution and the accused party needs to be in Court during the hearings and throughout the trial. Moreover, with respect to the procedure employed, for criminal wrongs, processes such as summons or proclamations cannot be done by any electronic method.

Procedural Issues regarding FIRs

In 2016, the Supreme Court directed that “the copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website.[4] The time period for this was 24 hours and the Court also stated that due to connectivity issues or any other problem, the time period could be extended to 48 hours. Moreover, this time period could be extended to 72 hours only, as per the Court’s orders. However, the Court did not provide how this process would be carried out and any associated guidelines, which could end up making the status quo worse.. Even before this, however, the Allahabad High Court as well as a few other High Courts had made a similar directive to the Uttar Pradesh Government in order to ensure that all FIRs would be uploaded on the website of the UP Police barring cases dealing with exceptional circumstances. Exceptional circumstances in this regard mean those “where the need to preserve the identity of the victim, the course of proper investigation, the protection of witnesses and other aspects involving a predominant consideration of public interest may warrant the FIR not being uploaded on the website.[5]

However, mandating that all FIRs are uploaded within a particular period of time almost seems counter-intuitive, especially since there is a lack of internet connectivity in several parts of India.Thus, this process does not seem to be feasible. Even after extending the time to 72 hours, some areas will stillnot be able to upload their FIRs and this would then be detrimental to the entire objective of the scheme. Moreover, the first guideline states that “an accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C.”[6] and in such a situation, if the accused himself has no way of gaining internet access, the purpose of the guidelines would be defeated. Furthermore, even police stations have been seeking clarifications with regards to the guidelines set out by the Supreme Court. For instance, Police Chief Loknath Behera wanted a clarification related to the time period for which online FIRs would need to be stored, as they would require a large amount of server space in order to keep them for an unlimited time. Another drawback to this would be that in order to make sure all FIRs were uploaded online and the people responsible for doing this were not engaging in corrupt practices, there would need to be a double check which would increase man hours and which brings a possibility that more people would be employed especially for this job.

On the contrary, a few states have streamlined the process for filing FIRs online for certain cognizable offences. In the case of non-cognizable offences, a complaint can be made online, which can later be escalated into an FIR with the permission of the Magistrate. This process has been implemented in states such as Tamil Nadu, Maharashtra, Delhi and Himachal Pradesh. For this process, the person filing the FIR need not go to the nearest police station and can file it from home, thereby guaranteeing that it will be online from its nascent stage. Moreover, very recently, the Central government spoke about launching a nation-wide portal where citizens would be able to file complaints of seven crime related services and will also allow the citizens to verify prospective employees for antecedent criminal activity. To protect the privacy of the citizens and for national security purposes, only authorised police officers would be able to access this crime data and reports.[7] This policy has been implemented with the objective of reducing the loss of time for follow-up action and increasing the ease for users.

In my opinion, this step is one that makes the process of filing an FIR much easier on the informant and therefore should be considered a positive step. Moreover, this also prevents a situation where the police would refuse to file an FIR (even though this is established to be against the law) and put pressure on the informant. This is also great since it becomes the informant’s choice whether they want to file the FIR online or go to the police station. Therefore, this could cater to those areas without any internet connection as the option to go to the police station is remains open to them. However, for this to be successfully implemented, the policy would have to detail the manner in which the “authorised police officers” would be selected and the accompanying requirements, instead of keeping this information from the public domain.

In the current scenario, most of the High courts and the Supreme Court have websites which have a particular section dedicated to checking the status of a case, or looking at the listings of the hearings scheduled for that particular day. This makes the process of attending Court much simpler and more efficient, since the person concerned can simply check the time they would have to appear and the status of any case which is being heard by the respective Court. The drawback here is that this system has only been operational in higher courts. However, the lower courts, which also have a heavy case load, have no mechanism for this purpose. It is necessary to rectify this because there are several lower courts which lie within jurisdictions having internet connection, which also need to be catered to in order to make the judicial process smoother and simpler for the people who have to travel long distances to come to the Court.

One of the main challenges that would affect the digitalisation of the criminal process in India would be lack of access to the Internet in parts of India. This would mean that a substantial number of police stations would not be at par with the rest, thereby making the amendments redundant. Over 43,000 villages in India have no mobile services and the number is much higher for those without internet. This goes to show that due to the lack of connectivity, several other issues can prop up. Moreover, if in order to combat this, there were two provisions made, one specifically for those jurisdictions which do not have access to internet and one for those which did, there would be much confusion and the law would then become even more difficult to comprehend. In any case, the Cr.P.C. is already a confusing piece of legislation as certain sections relating to particular procedures have been distributed throughout the Code instead of being written together and this would just make the situation worse.

Another aspect to be considered is that under various criminal laws, a large variety of people are either arrested or have FIRs filed against them. The digitalising process does not take into account the sections of the society which may live in the urban areas, but are still unable to access the internet. This would then lead to a situation where the accused individual would still not know about the FIR filed against him, which as mentioned above, would defeat one of the main purposes of making it mandatory to upload the FIRs online.

Conclusion

Therefore, the distinction created between the recourse to civil and criminal wrongs with respect to the digitalisation of processes is one that is valid when it comes to appearing in Court for the hearing of the cases. Moreover, the range and diversity of people who are accused of committing a crime is vast with respect to their means of being connected to the internet or having a legitimate email address or even Whatsapp which would then have to be taken into account. If this was not the case, then the change in the law could be detrimental to certain sections of the society. Additionally, while certain areas of the Criminal Procedure Code do need to be amended in order to give the option of sending summons or posting proclamations online on legitimate platforms, these provisions cannot be made mandatory as was done in the case of FIRs. However, in order to make the entirety of the judicial process more efficient, the lower courts with access to the internet should be able to update the status of cases and the hearings for the next day. The fact that there are now provisions which allow you to file FIRs from the comfort of your home through the internet and not having to go to the police station is a positive step in the direction of digitisation of procedural law in India.

[The author is a third-year student at Jindal Global law school.]

[1] Tata Sons Ltd. v. John Doe, (2017) SCC OnLine Del 8335.

[2] Kross Television India Pvt. Ltd. v. Vikhyat Chitra Production (2017) SCC OnLine Bom 1433.

[3] Meters and Instruments v. Kanchan Mehta (2018) 1 SCC 560.

[4]Youth Bar Association of India v. Union of India and Others,(2016) 9 SCC 473.

[5]Youth Bar Association of India v. State of U.P,(2015) SCC OnLine All 6386.

[6] Supra note 4.

[7] Ibid.

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