Those familiar with court proceedings may have heard the word ‘Dasti’. The word ‘Dasti’ is a Persian word and it is a mode of service of court documents ‘by hand’. Traditionally, a clear paper trail was created through registered mail or in-person delivery to demonstrate that the intended recipient received the documents or was effectively served with notice or a court summon. With a thrust on the digitisation of courts, which realistically picked up in the Covid era, WhatsApp became a ubiquitous messaging platform.
With millions of users relying on the messaging platform for personal and professional communication, the legal system embraced the service and digital transformation became important for streamlining processes which were once tedious. Undoubtedly, digitisation has enhanced accessibility and uplifted electronic filing systems, digital signatures, and online platforms for case management. WhatsApp is now an effective tool for enhancing client communication and the flow of information. Documents sent via WhatsApp are now considered valid in certain situations.
The following analyses effective service through WhatsApp:
Proof of Delivery
One of the primary requirements for accepting court service of WhatsApp documents as a valid mode of service is proving delivery of the documents has taken place. With Dasti service, which was traditionally done by hand, it was easier to trace the paper trail through registered post and in-person signatures. Messaging apps like WhatsApp, in particular, come with the challenge of establishing irrefutable evidence of delivery. The recent changes in settings to WhatsApp which can create invisibility for the receiver as well as the sender have added to the conundrum.
Read Receipts as Acknowledgment of Service
WhatsApp offers features like “read receipts”. These may serve as evidence of delivery and receipt of documents. When a recipient opens and reads a message, the sender can receive a read receipt, providing a timestamp as proof of delivery. Additionally, if the recipient acknowledges receiving the message or responds to it, it further strengthens the case for the validity of WhatsApp documents as a court service. It is important to note that the setting for every user on the messaging service varies.
Authentication and Integrity
Courts place a high value on document authenticity and integrity. When considering WhatsApp documents as valid court service, it becomes crucial to establish the authenticity of the sender and the integrity of the document. Verification mechanisms such as digital signatures or encryption can help ensure that the documents have not been tampered with and that they originate from the identified sender. Confidentiality of documents and service is another concern faced by courts, even though WhatsApp has always maintained end-to-end encryption.
Legal Framework and Precedents
Courts in India have, in many instances, explicitly started recognising WhatsApp as a valid platform of communication and service of documents related to court proceedings. However, the burden of proof of service lies entirely on the party which claims effective service through WhatsApp.
In a recent order of January 2023, in Sneha Kumbhat Vs Rohit Kumbhat, the petitioner was given the liberty by the Supreme Court to serve the respondent through e-mail, WhatsApp or any other electronic mode of service, available to her. Noteworthily, vide another order of February 15, in Hemalata Vs Hemant Kumar, the top court stated that as per the affidavit of Dasti service, the notice is served on the sole respondent through ‘WhatsApp’, which is not a valid mode of service as per rules. This order of the top court may be a step backwards in an era where the digitisation of courts is being looked upon with great anticipation.
It is even more important to reflect on this because the High Court of Delhi along with the district courts below, routinely allow for service of summons through ‘all modes of service’ referring thereby to Rule 1(e) of Chapter VI of the Delhi High Court (Original Side) Rules, 2018. In fact, many precedents dictate that WhatsApp as a valid mode of service has been recognised by various courts even before the Covid era struck and digital media became one of the only modes of communication.
The Delhi High Court set a precedent in 2017 in Tata Sons Limited & Ors Vs John Does, by allowing service of summons through WhatsApp after the defendants evaded service through regular modes. Thereafter, in SBI Cards and Payments Services Pvt Ltd Vs Rohidas Jadhav, the Bombay High Court accepted the service of notice in an execution application after finding that the PDF file containing the notice had not only been served but the attachment had also been opened by the opposite party. Justice G.S. Patel observed, “For the purposes of service of Notice under Order XXI Rule 22, I will accept this. I do so because the icon indicators clearly show that not only was the message and its attachment delivered to the Respondent’s number but that both were opened.” Justice G.S. Patel at Bombay High Court in Kross Television India Pvt Ltd & Anr Vs Vikhyat Chitra Production & Ors. also held that the purpose of service is to put the other party to notice. Where an alternative mode (email and WhatsApp) is used and service is shown to be effected and acknowledged, it cannot be suggested that there was ‘no notice’. The Rohini Civil Court in Delhi in a case has also accepted the blue double-tick sign in a WhatsApp message as valid proof that the message’s recipients had seen a case-related notice.
Conclusion
As the Supreme Court is yet to lay down a precedent or ruling accepting WhatsApp as a valid medium of service, its acceptance as a valid court service is a complex issue that requires careful consideration of factors such as proof of delivery, acknowledgement, authentication, and adherence to legal frameworks. As the Indian courts continue to navigate the digital landscape and embrace technology, it is essential for legal professionals, lawmakers, and technology providers to work together to establish clear guidelines and standards that safeguard the integrity of court proceedings while embracing the efficiencies offered by modern communication platforms like WhatsApp. The courts incorporating WhatsApp as part of the legal service workflow demonstrates the industry’s commitment to adapting to the evolving needs of clients in an increasingly digital world.
Garima Mitra is the Co-Founder, Treelife and writes for Lawbeat.in; Sanya Talwar is the Editor at Lawbeat.in. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect News18’s views.
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