An amendment to the Code of Civil Procedure 1908 (CPC) has recently been approved in principle to digitise the judiciary and rectify procedural defects. Of all the changes, the issuance of summons via short message services, voice calls, Instant Messaging Services (IMS) is perhaps the most significant change.

It needs to be noted that the issuance of summons through digital means of communication was, to some extent, already included in the Code by the 2012 amendment. Order V Rule 9, sub-rule 3 allowed the Court, on the application of the plaintiff, to direct summons to be served by means of transmission of documents through 'fax message' or 'email' by the plaintiff at his/her own cost. Thus, the present amendment only adds some other convenient means of communication to the older ones.

However, the proposed amendment does not make SMS, voice calls, or IMS a substitute for the physical service of summons, rather, makes those means supplementary to the physical means. Some are criticising the Amendment for not completely replacing the older system with the digital system. However, in my opinion, the traditional system cannot be totally replaced. It may seem, at first glance, logical to completely replace the physical system with the digital ones, since we are living in the digital age and most people have, at least, access to digital devices. However, digital service of summons, although more convenient and efficient, comes with certain fatal defects vitiating the due process of law.

In case of physical service of summons, the serving officer attains the signature of the person to whom the summons has been delivered or tendered to as an acknowledgement of receipt of the summons (Order V Rule 16). The serving officer also endorses the time when and the manner in which the summons was served, and the name and address of the person identifying the person served and witnessing the delivery or tender of the summons (Order V Rule 18). This works as a confirmation that the summons has been duly served and curbs the probability of fraud or suppression of summons.

On the contrary, summons served through SMS, voice calls, or IMS-- all suffer from a lack of transparency. For example, in the case of SMS, the sender does not get a 'read receipts' to know if the summons has even been received by the defendant. Summons if served through automated voice calls or IMS will suffer from the same defect as the mode of communication is one-way. Unlike the physical service of summons, the recipient cannot sign the summons to acknowledge receipt. There is no person who identifies and witnesses the delivery of summons in case of digital service, keeping the gate open for abuse of the process. We need to also remember that SMS, voice calls, or IMS, if successfully sent, only confirm that the summons has reached the device it is intended to reach. But it does not confirm that the defendant has been duly served with the summons. Because the person before the device may not be the same as the defendant, and it is the defendant alone (or his agent), not the device, upon whom the law mandates that the summons be served. Hence, it keeps uncertainty if the 'right' defendant or his agent has received it. This shows why it is still important to have the traditional means of sending summons in addition to the new system. 

However, there is a fair criticism to this provision that I would like to pose and it is relating to lack of authentication of the summons when it is served via SMS and voice call. The older amendment (2012), by allowing summons to be served through fax or email 'by transmission of documents', provided better means to ensure that the notice is authentically issued and served by the Court. It is because Order V Rule 10 categorically states that summons shall be served with a copy signed by the Judge or such officer as he/she appoints in this behalf and sealed with the seal of the Court. When the document itself, containing the sign and seal of the Court, is transferred through fax or email, it assures the defendant of the document's authenticity, which is important to prevent abuse of the process.

But the draft amendment is supposed to substitute the phrase 'transmission of documents through' with 'Short Message Services, Voice Calls, Instant Messaging Services', which is likely to adversely affect the authentication provided by law. None of the newly added services mentioned in the amendment, except for IMS, allow for transmission of the document itself. It will also not be obligatory to send the document via fax or email according to the substituted words of the new amendment. We need to remember that the concept of serving summons is part of the principles of natural justice. Hence, if the service of summons is defective, it will prejudicially affect the opposite party's right to appear before the court, defend themself, and may vitiate the whole proceeding.

The writer is intern at Law & Our Rights, The Daily Star.