The Indian judiciary has been plagued with the traditional approaches to the legal system. However, recent developments in the sphere have sharply rebutted this claim.
The latest decision of the Bombay High Court about the use of email and WhatsApp as a substituted service of summons stands as a testimony to this fact. It was held that “the Court can take into account the modern ways of service which are available due to internet connection. It can be served also by courier or by email or by WhatsApp etc.”
The court read down Order 5 Rule 20 of the Code of Civil Procedure, which prescribes that the court after resorting to various manners of service of summons can serve the summon in such other manner as the Court thinks fit.
It is to be noted that this is not the first time that the court has adopted the process of service of notice through WhatsApp, to be legally tenable. Last year, it was the Bombay High Court itself, that had first allowed for the service via Whatsapp. In a copyright infringement case against producers of the Kannada movie Pushpaka Vimana, the Court had allowed for such an innovative method to be used. In that case, the defendant could not be contacted by the regular means and therefore, a message through WhatsApp was sent to the defendant to which he had duly replied.
A month later, the Delhi High Court, also allowed service through WhatsApp.
Recently, the Delhi High Court in an order in the month of May had opined that the “Double Tick” on the printout of the Whatsapp messages, prima facie shows that the copy of the summons has been delivered on the mobile number of the respondent. This in turn, has led to significant development in the jurisprudence of service of summons as now it is reasonably presumed that if there is a double tick in a summon sent through WhatsApp then it has been read by the recipient.
The law of issue and service of summons is given under Order V of the Code of Civil Procedure, 1908. The usual way of service of the summons is through the physical delivery of the document. But there are jurisdictional restrictions to the same. Alternatively, if it cannot be served by physical delivery then a copy of the summons has to be affixed on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. This is resorted to only when, after due diligence, the serving officer is not able to know the whereabouts of the person.
Another form of service includes delivering it through registered post. But, in India, due to the myriad reasons including shortage of manpower and insufficient training, the service of summons is usually not done in a time bound manner. Hence, there is a delay in the adjudication of the case and the judicial process suffers.
To tackle this problem, the Courts across various jurisdictions have included the "electronic means" in their respective rules in order to speed up the summons process. But still, the service of summons moves at a very staggering pace. Therefore, there is a dire need of such innovative judicial reforms that can help speed up the process of dispensation of justice as according to the old adage—“ Justice delayed is justice denied”.
However, we should also be wary of the implications that such a decision would carry with it. It should be settled as to whether the delivery of summons through WhatsApp would be completed with a double tick or a blue double tick (as many users do not use the blue tick mark). While the Rohini Civil Court in Delhi has held blue tick marks to stand as valid proof, various High Courts have held the requirement of double tick itself to be a valid substitution of service of summons.
Another important question for consideration can arise when a case is adjudicated on the basis of service of summons through WhatsApp, but it is later found that the intended defendant was actually not using the number on which the service was delivered.
Whatever be the case, this order should be a welcome step into the upgradation of the judicial process in India to keep up with the growing technology. The Courts need to “take realistic and just view and not to limit itself in the procedural wrangles” as was done in the recent order of the Bombay High Court.
Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai.