e-Courts, e-Filing and Virtual Hearings

The same amendment inserted the definition in section 2(1)(ta): "electronic signature" means authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule, and includes digital signature.

And it inserted section 3A, under which a subscriber may authenticate an electronic record by an electronic signature or electronic authentication technique which is considered reliable and may be specified in the Second Schedule; reliability turning on matters including that the signature creation data are, in the context in which they are used, linked to the signatory and to no other person, and were under the signatory's control at the time of signing.

Why the change matters. A digital signature is one specific technology, based on a key pair and a hash function. By 2008 it was clear that tying the statute to one technology would date it. "Electronic signature" is technology neutral: it covers digital signatures and whatever else the Second Schedule specifies, which is how Aadhaar based e-signature became usable without amending section 5 again.

Note in passing what this book's own research had to notice. India Code lists Act 10 of 2009 as "(Rep., Act 23 of 2016)". That is a repeal of a spent amending Act and does not restore the word "digital" to section 5. It is the same trap chapter 750 records for the arbitration amendments.

What the e-Courts project actually is

Not a statute. A project of the Government of India implemented under the e-Committee of the Supreme Court of India, which is why its portals carry that attribution rather than a ministry's.

The public-facing parts a law student and a junior advocate use:

Case status and cause lists, at the eCourts services portal. Search by case number, party name, advocate, filing number or FIR number, across district courts and High Courts, with the next date and the order sheet.

Judgment search, at the eCourts judgments portal: full text of district and High Court judgments.

The National Judicial Data Grid, which publishes pendency by court, by age of case and by type. This is the source for a figure about delay, and chapter 740 notes why a public interest petition may want one.

e-Filing, at the eCourts e-filing portal, through which litigants and advocates file cases electronically.

Virtual Courts, a separate portal, which is not the same thing as a hearing by video conference. Below.

Electronic service and notice, and payment of court fees online, where a State has enabled them.

Two things students confuse: virtual courts and virtual hearings

They sound identical and are not.

A Virtual Court is a court in which a case is decided without either party appearing at all. The portal is used in India chiefly for traffic challans: the notice reaches the person, the person pleads guilty and pays the fine online, and the case is disposed of. There is no hearing because there is nothing contested. It handles enormous volume, and the portal itself publishes running totals of proceedings completed and fines paid.

A virtual hearing is an ordinary hearing in an ordinary court conducted by video conference. The parties appear, counsel argue, the judge hears. Only the medium is different.

The rule to hold on to: a Virtual Court removes the hearing; a video-conference hearing removes only the room.

Hearings by video conferencing

Video conferencing moved from an occasional expedient to normal practice during 2020, and the arrangements settled after it are the ones in use.

The framework. The Supreme Court exercised its powers to direct that courts may conduct proceedings through video conferencing, and High Courts were left to determine the modalities for themselves and for the courts subordinate to them. Model rules for video conferencing for courts were then prepared under the e-Committee and adopted, with variations, by the High Courts.

What the rules typically settle, and what an answer should mention:

• that a video conference hearing is a court proceeding, and the place from which a party or advocate appears is deemed to be a court room for the purposes of the law of contempt;
• decorum: dress, background, the requirement to be seated in a quiet place, and the prohibition on anyone else being present off camera;
• no recording or photography by participants, the official record being the court's own;
• the procedure for examination of witnesses, including who administers the oath, who may be present with the witness, and how documents are shown;
• arrangements for persons in custody to appear from prison, which is where court video conferencing in India began;
• the requirement of prior application or intimation to appear remotely, and the court's discretion to refuse;
• provision for assistance and connectivity, since a right to appear that depends on private bandwidth is not equally available.

The rules are per High Court. There is no single national code, so the correct answer to "what are the rules for video conferencing" always includes: those made by the High Court having jurisdiction. Chapter 750's discipline applies here too.

The gains and the costs, briefly. Gains: an advocate can appear in a distant court, an undertrial need not be moved, a witness abroad can be examined, and a hearing survives a closed courthouse. Costs: unequal access to connectivity, the difficulty of assessing a witness on a screen, the loss of the informal exchange that settles many matters outside the court room, and the security of the link. An examiner asking about virtual hearings wants both columns.

Where alternative dispute resolution meets all this

This is a book about settlement, and the connection is direct.

Section 89 of the Code of Civil Procedure, chapter 600, requires the court, where it appears that there exist elements of a settlement, to formulate the terms and refer the parties to arbitration, conciliation, judicial settlement including settlement through a Lok Adalat, or mediation. The reference happens in a case that is already in the court's electronic file, so the referral, the record of it and the return of the matter all run through the same system.

Lok Adalats. National Lok Adalats are organised across the country on a single day, and case identification, notice and disposal figures now run through the courts' systems. Chapter 160 has the practice.

Online mediation. The Mediation Act 2023 contains an express provision for online mediation, section 30 of that Act, and this book's chapter 620 explains the position of the Act's unnotified sections. So the statutory scheme for online mediation exists on paper and is not in force in the part that would govern it, while online conciliation under Part III of the Arbitration and Conciliation Act 1996 has nothing to stop it, because nothing in sections 61 to 81 requires anybody to be in a room.

Arbitration. Nothing in the Arbitration and Conciliation Act 1996 requires a physical hearing. Section 19(1) frees the tribunal from the Code and the Evidence Act, section 19(2) and (3) let the parties or the tribunal determine the procedure, and section 20 deals with the place of arbitration while expressly permitting the tribunal to meet at any place it considers appropriate. So an arbitration may be conducted entirely by video conference by agreement, and the seat remains what the parties chose.

A worked example

A junior is asked to file a commercial suit and to appear at the first hearing from another city.

Is an electronically filed plaint "in writing"? Yes. Section 4 of the Information Technology Act deems a requirement of writing satisfied where the matter is rendered or made available in electronic form and is accessible so as to be usable for a subsequent reference.

Is the electronic signature on the vakalatnama a signature? Yes, if it is an electronic signature affixed in the manner prescribed by the Central Government, under section 5 as it now stands after the 2008 substitution, the technique being one specified in the Second Schedule and satisfying the reliability conditions in section 3A.

What must be done before the plaint is filed at all? Pre-institution mediation under section 12A of the Commercial Courts Act, unless urgent interim relief is contemplated. Chapters 610 and 710: Patil Automation makes it mandatory, and the plaint may be rejected under Order VII rule 11 even without the defendant applying.

How does the junior appear from another city? By applying under the video conferencing rules of the High Court having jurisdiction, in advance, and appearing subject to the decorum requirements, remembering that the place from which she appears is treated as a court room for contempt.

The court raises settlement at the first hearing. That is section 89 of the Code of Civil Procedure. The reference and its outcome are recorded in the same electronic file.

Could the case have gone to a Virtual Court instead? No. A Virtual Court disposes of matters in which nothing is contested, chiefly challans. A contested commercial suit is heard, whether in a room or over a link.

What beginners get wrong

Saying section 5 covers "digital signatures". It did until the 2008 Act substituted "electronic signature" in section 5 and its marginal heading. Say electronic, and know why.

Quoting section 4 without clause (b). Accessibility for subsequent reference is a condition, not decoration.

Treating e-Courts as a statute. It is a project under the e-Committee of the Supreme Court, not an Act.

Confusing Virtual Courts with virtual hearings. One removes the hearing; the other removes the room.

Assuming one national set of video conferencing rules. Model rules exist; each High Court adopts its own.

Thinking a remote hearing is informal. The place from which the advocate appears is treated as a court room for contempt.

Quick revision

• IT Act s.4: a requirement of writing, typewriting or printing is satisfied by matter rendered or made available in electronic form and accessible so as to be usable for a subsequent reference.
• IT Act s.5: a requirement of signature is satisfied by authentication by an electronic signature affixed as prescribed by the Central Government. The Explanation defines "signed" as affixing a handwritten signature or any mark.
• The word was "digital signature" until section 2 of the IT (Amendment) Act 2008, Act 10 of 2009, substituted "electronic signature" in section 5 and its marginal heading; the same Act inserted the definition in s.2(1)(ta) and the reliability test in s.3A.
• e-Courts is a project under the e-Committee of the Supreme Court: case status and cause lists, judgment search, the National Judicial Data Grid, e-filing, Virtual Courts, e-service and online fees.
• Virtual Court = disposal without a hearing, chiefly challans. Virtual hearing = an ordinary hearing by video conference.
• Video conferencing runs on model rules adopted High Court by High Court; the remote location is treated as a court room for contempt, recording by participants is barred, and witness examination is specifically provided for.
• ADR links: s.89 CPC referrals run through the electronic file; online mediation is in the Mediation Act 2023 but that Act's operative sections are not in force; arbitration may be wholly remote by agreement, since ss.19 and 20 leave procedure and meeting place to the parties and the tribunal.

Test yourself

1. State section 4 of the Information Technology Act 2000 and identify the condition students usually omit. Where any law requires information or any other matter to be in writing or in typewritten or printed form, that requirement is deemed satisfied, notwithstanding anything in such law, if the matter is rendered or made available in an electronic form and is accessible so as to be usable for a subsequent reference. The omitted condition is the second: accessibility for subsequent reference. An electronic record in a form that cannot later be retrieved or opened does not satisfy section 4.

2. What did the 2008 amendment change in section 5, and why? Section 2 of the Information Technology (Amendment) Act 2008, Act 10 of 2009, substituted "electronic signature" for "digital signature" in section 5 and its marginal heading, among other provisions. The reason is technology neutrality: a digital signature is one particular technique, whereas "electronic signature" is defined by section 2(1)(ta) to mean authentication by the electronic technique specified in the Second Schedule and to include digital signature, so new techniques can be recognised by adding to the Schedule rather than by amending the section.

3. Distinguish a Virtual Court from a hearing by video conference. A Virtual Court disposes of a case without either party appearing, and is used in India chiefly for traffic challans where the person pleads guilty and pays the fine online, so there is no hearing at all. A hearing by video conference is an ordinary hearing in an ordinary court in which the parties and counsel appear and argue, with only the medium changed.

4. Who makes the rules for video conferencing in courts, and what do they typically provide? Model rules were prepared under the e-Committee of the Supreme Court and are adopted, with variations, by each High Court for itself and the courts subordinate to it, so there is no single national code. They typically provide that the proceeding is a court proceeding and the remote location is deemed a court room for contempt, prescribe decorum and prohibit recording by participants, set the procedure for examining witnesses and administering the oath, provide for persons in custody to appear from prison, require prior application to appear remotely, and address connectivity and assistance.

5. Can an arbitration be conducted entirely by video conference? Yes, by agreement. Nothing in the Arbitration and Conciliation Act 1996 requires a physical hearing: section 19 frees the tribunal from the Code of Civil Procedure and the Evidence Act and leaves the procedure to the parties and, failing agreement, to the tribunal, and section 20 permits the tribunal to meet at any place it considers appropriate while leaving the seat as the parties chose. The position differs from mediation under the Mediation Act 2023, whose provision for online mediation sits among sections that have not been brought into force.