Kerala High Court's E-Filing Rules Have Legal & Technical Defects : KHCAA Report

The Kerala High Court Advocates' Association has filed two reports stating that new e-filing rules introduced by the Kerala High Court are affected by legal and technical problems.

Two Committees were constituted to examine the efficiency of the recent E-filing Rules, namely, Legal and Technical committees. Both these Committees prepared comprehensive reports as to the legal and technical challenges involved in the implementation of the said Rules.  

The letter addressed by the KHCAA to the Chief Justice and other judges of the High Court conveyed how the abrupt introduction and implementation of the E-filing Rules have put the High Court Bar in great distress. 

Although these Rules were implemented on 7th May 2021, the KHCAA only came to know of the same on 11th May 2021. The absence of pre-legislative consultation was cited to be a legal disability emanating from the improper introduction.

The most significant decision in this regard was, however, that these rules for E-filing will be provisional for the period of lockdown and that the system will be reviewed within 30 days.

The system of e-filing was introduced as a purely temporary measure and the review contemplated was to see if such rules should undergo a test whether it should continue at all. Yet, it continues to be effective in the State till date. 

The Reports of the aforementioned Committees were also attached with the letter. 

The Legal committee looked into the legal infirmities in the E-filing rules.

Substance of the Legal Committee Report

• Undue hardship to the lawyer community

The report stated that the E-filing Rules obstruct the speedy and effective administration of justice. The Rules make legal practice difficult, resulting in a denial of access to justice. It brings incurable hurdles and practical difficulties to the lawyers and litigants in filing applications.  

Additionally, it was highlighted that it was improper to implement the e-filing system impulsively in courts without any regard for the inadequate computer literacy among the lawyers. In most of the places, internet access is very poor and unstable, it read. 

A significant finding in the report was that the entire burden to ensure that proper e-filing was cast on the Advocates and litigants, who have no control/access to the intranet of the High court except for online filing. Likewise, lawyers have been imposed with new liabilities even after the disposal of the case.

E-filing rules may also virtually push Advocate clerks to the brink of unemployment, it read.

• Cannot Regulate Procedure of the High Court

None of the provisions, including Article 225 or 227 of the Constitution of India, can be pressed into operation for regulating the practice before the High Court. While Art.225 only saves the High Court's jurisdiction and powers as it existed immediately before the commencement of the Constitution, Art.227 can be applied only for regulating the practice before the Subordinate Courts.

Moreover, Section 122 of CPC mandated previous publication for making rules, whereas the e-filing Rules were made and notified without previous publication.

Similarly, the said e-filing Rules could only be effected in the absence of prior legally valid subordinate legislation. However, the Kerala High Court Rules and Kerala Civil Rules of Practice are enabling provisions already governing the procedure for filing cases in the High Court.

• Contrary to Pre Legislative Consultation Policy

The report cited that none of the stakeholders, (lawyers, Advocate clerks, and litigants) were allowed to partake in the deliberation before the e-filing rules are framed. As such, the E-filing Rules fall short of that cardinal requirement of the democratic process. This is unconstitutional and is in violation of Article 14 of the Constitution of India

The committee also looked into the legal infirmities in the E-filing rules.

Defects and Illegalities in The Rules

• Under Rule2(a), an Advocate is equated with officers of the prosecuting agencies which is inconsistent with Sec.30 of the Advocates Act. Moreover, officers of the prosecuting agencies are not defined.
• Rule 2(f)' defined a Court by including Tribunals as well. But the power to frame rules of practice before these Tribunals are provided under special Statutes under which these Tribunals have been created. 
• Rule 2(g) provides for Designated Counters, but their definition and functions are not clear in the Rules. It is merely a helpline portal provided on the website of the Courts and is not manned by High Court personnel or any outside professional agency.
• Rules 2(h) and (o) insisted on 'Digital Signature and Electronic Signature' on all documents, which is practically impossible. Moreover, as long as the IT Act was in force, it is not legal for the High Court to insist that the rendering of an electronic record in a singular type of electronic form only. 
• While defining 'e-filer', Rule 2(j) failed to include Law Firms. Additionally, there was no provision for multiple login IDs and passwords in the case of LLP and firms.
• Under Rule 2(r), an objection is defined as deficiency and errors in relation to pleadings or documents. But these are matters to be adjudicated by the Court and not by the Registry. 
• Rule 2(zb) defines technical failure in a manner that fully protects the Court officers in the event of any failure of hardware or software. Rather, the lawyer is made liable for such a malfunction, which is discriminatory, unfair, and unreasonable.
• Rule 3(3) deals with the filing of all actions whether fresh, pending, or disposed of cases by the e-filer, which is inconsistent with the provisions of the Indian Evidence Act.
• Rule3(4) is silent about the quantum of charges to be paid to access E Filing Portal at the Designated Counter, although payment is mandatory. The stipulation that the file should not exceed 100 MB was also found to be improper. 
• E-filer cannot always ensure that the pleadings and documents filed by him do not contain any malware or virus that might be harmful to the e-filing system. Hence, Rule 4(8) is unworkable and highly discriminatory.
• The penal provision of Rule 4(9) not only drags the E Filer into insurmountable difficulty but also contravenes Section 35 of the Advocates Act which empowers only the Bar Council to discipline an Advocate.  
• The Rules enable the Registry to act as a Judge which is illegal since clothing the registry with judicial power which is not permissible under law. 
• Rule 7 provides no protection to ensure the security of the remittance of the Court Fee paid to the Registry. In case of payment failure due to bank server defects, there is no evidence to show the payment of the Court Fee and other charges payable under the Act. 
• Rule 8 takes away the right of the client to get back the original document entrusted to the lawyer for filing a suit, and is highly prejudicial, for casting a heavy burden on the lawyers. It discourages litigants from filing cases in the Court where he has to submit important documents. 
•  Rule 17(10) provides for the operation of subsisting rules, which implies that different legal procedures are provided in these statutory documents. Hence, there is an apparent conflict between the High Court of Kerala Rules and the present E Filing Rules. 

Substance of Technical Committee Report

• The e-filing was implemented without considering the system efficiency and without adequate testing of its full-fledged operation.
• E Filing module being developed on the basis of the Application Development Document has to be scrutinized to assess the safety, integrity, and efficiency of the module. The data sharing policy also needs explanation since it is vital to ensure whether data is shared with third parties.
• The present E-Filing module strives towards big data creation which could be used by corporate entities for monetary gain, compromising the privacy of the litigants and advocates.
• Initially, the module was applicable only for Bail matters. But with the increasing number of modules, the speed and efficiency of the system have been affected.
• There is no responsibility upon system administrators regarding data validity, security and integrity. The lack of an audit increases the chances of data manipulation being undetectable. There is no method to record cyclic redundancy check (CRC) / hash of documents uploaded, thus casting legal liability on advocates in the event of data integrity being lost in the process.
• A complete switch to online e-filing in the absence of designated counters is impractical and unfeasible. Even with designated counters, such a switch is not possible without resolving the legal and technical issues involved.
• The entire obligation of data entry is on the e-filer. E-filers are called upon to furnish irrelevant information in the modules having no bearing on the case.
• The Rules mainly did not assign the statutory duty of maintaining the e-4 filing cases on the officials.
• It lacks the basic setup to accommodate the several file movements at a time and the file absorption. This will create chaos during peak hours.
• Technical glitches in the payment system reportedly forced multiple payments causing monetary loss, and prejudice to the litigants. There is no mechanism for a refund of excess / multiple payments.
• There are demonstrated instances of the failure of the system to perform its primary functions in the very first module. To adopt a full-fledged implementation without addressing the already existing defects would cause catastrophic consequences to the users of the system.
• There is no e-grievance redressal mechanism in the present system, which is completely unacceptable and ipso facto makes the system unworkable.
• There is no measure to ensure the genuineness of documents filed since it does not provide for data authentication in the manner contemplated under law. The system does not contemplate any protection against fraud/forgery within the E-filing system.
• It unnecessarily casts an onerous financial burden on practicing Advocates by way of additional expenses on specialized high-end technological infrastructure such as duplex scanners, subscriptions to costly software solutions, etc, resulting in a digital divide.
• The e-filing system mandates any litigant who approaches the court to obtain a digital signature upon payment which also increases the litigation cost to be expended by a litigant.
• There is absolutely no information as to how the system can be used. The presumption that users of the system would be competent to operate the modules without information regarding the same will result in  systemic failure and errors during the operation of the system.
• The exhibits produced are to be scanned independently and uploaded separately which is time-consuming. There is no provision for uploading a case as a single document.
• The main reason why email filing was not accepted was that in many cases physical files were not yet submitted before Registry. This could be avoided if there is a provision for issuing code numbers by KHCAA to advocates to be entered at the time of e-filing. Therefore it should be made mandatory that all matters should be filed only through an Advocate accredited to file matters before High Court.

The members of the legal committee were :  Adv.M.P.Asok Kumar(Chairman), Adv. S.Mohammed Al Rafi(Convenor), Adv. P.Chandrasekhar, Adv. D.Kishore, Adv. Jolly John and Adv. T.B.Hood.

The members of the technical committee were : Adv. John Mani V (Convenor), Adv.John Numpeli, Adv.Ashik K Mohammed Ali, Adv.Nimod AR, Adv.Job Abraham,  Adv.PG Jayashankar, Adv.Godwin Joseph, Adv.Rinu S Aswan.

The KHCAA had earlier addressed a letter to the Chief Justice of High Court expressing the same concern. 

Click here to read the representation to the Chief Justice

Click here to read the legal committee report

Click here to read the technical committee report