'Let Us Join Hands, Let Us Try It': Kerala High Court Judge Urges Advocates To Try E-Filing Rules On Experimental Basis

Prior to taking up cases listed before him today, Justice AK Jayasankaran Nambiar of the Kerala High Court appealed to the Bar to lay aside their apprehensions regarding the new E-filing Rules and adopt it on an experimental basis.

"We were all searching for something...Let us try it as a body and if it is working, it is ultimately going to benefit all of us. Right? That is the philosophy that should inform the decision"

"Let us join hands, let us try it", the Judge urged the Bar.

The Judge also stated that he was authorised to address the General Body of the Kerala High Court Advocates Association on the question of e-Filing. 

The E-Filing Rules, introduced by the High Court last week, has seen many lawyers' groups voicing their concerns at the lack of a consultative process before finalising the rules, while others expressed reservations about the technological and other processes involved in the newly-introduced e-filing system.

During the exchange today, some counsel pointed out that they were facing trouble with the technological requirements that the e-fling process mandated, such as scanning pleadings for urgent cases.

"The problem is, many lawyers do not have the facilities", Senior Advocate George Poonthottam said.

The Judge emphasized that the High Court Administrative Committee had given the green light to physical filing where absolutely necessary. He also stressed that the present Rules were temporary, for the period of the lockdown.

"Although the Chief Justice may have said you can do physical filing also, you weigh the options...If Advocates need physical filing because of lack of equipment, it would require a person in court. Is this desirable? Keep that in mind. Ultimately..Making a facility available is one thing, whether you want to use it is another thing...and that is where the lawyer and the responsible citizen come in..We are saying online filing, we are also giving you an option to file physically for those who don't have the facility to file online..."

Justice Nambiar continued,

"My only request is this, before you go for physical filing, please think twice before doing it because the minute you file physical, you are automatically asking someone else to come and do."

The Judge, who stated that he was speaking after a meeting with the Chief Justice informed the VC audience that the Administrative Committee decided that there would mainly be online filing amid the lockdown. If a lawyer was unable to file online, he could file the documents physically with the rider that the file would be processed only in four days.

"But my caveat to that is, please use your good offices and your discretion before you resort to physical filing because your physical filing will put another person at risk," the Judge impressed.

An advocate weighed in, observing that the Court was promoting e-filing while allowing physical filing.

"We are not going to put that last ..on paper, that is something that has to come from lawyers...we have to get out from the mindset that courts are dictating to lawyers", Justice Nambiar replied 

A lawyer interjected saying that consultation was required (prior to bringing in the Rules)

Justice Nambiar continued saying, "The lawyer must dictate things to the court!"

"That was earlier", another lawyer added wryly, in Malayalam.

Lawyers Senior Advocate George Poonthottam, Advocate Kaleeswaram Raj, Senior Government Pleader V Manu, Advocate Mohammad Shah and Advocate Bijumon raised various concerns before the Court.

The counsel stated that the process for filing applications in matters that were pending before court was a cumbersome process.

To this, Justice Nambiar responded that the High Court was taking steps towards extending all interim orders till a certain date. The Judge also suggested putting in place a system whereby a judge could upload an online memo before the Judge concerned, who would then extend the order as necessary. This could be done without uploading all the documents, he went on to say.

"Those are practical suggestions that can be taken into account", the Counsel agreed. 

"Those are all issues that can be addressed in Court", Justice Nambiar averred.

After wide-spread discontent among lawyers against the new rules making e-filing compulsory, the Kerala High Court has allowed the option of physical filing.

The Kerala High Court last week notified its Electronic Filing Rules For Courts (Kerala), 2021 (Rules) for Courts across the state.

The new rules prescribe e-filing for all cases in courts in Kerala. A person who is unable to access the e-filing portal is required to visit a 'designated counter', paying required fees. Files having a size greater than 10 MB will have to be filed at a designated counter.

The Rules provide that online electronic filing shall be done for the High Court at the High Court website or a portal assigned specifically for electronic filing by the Chief Justice. Online electronic filing shall be made either at the website of the Subordinate Courts or Tribunals or at the web portal created specifically for filing in the particular courts, it is stated. The Court is permitted to allow regular filing if all other methods fail.

Major Lawyers' Organisations in the state, the Kerala High Court Advocates Association, the Bar Council of Kerala as well as the Bar Council of India have sought a reconsideration of the Rules, deferral of its implementation, and consultations with the Bar and Advocate Clerks.