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 ReportUndue hardship to the lawyer communityThe 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 CourtNone 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 PolicyThe 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 IndiaThe committee also looked into the legal infirmities in the E-filing rules.Defects and Illegalities in The RulesUnder 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...

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

Hannah M Varghese

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

Hannah M Varghese

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