M P HIGH COURT BAR ASSOCIATION versus UNION OF INDIA & ORS on 29 March 2023

[2023] 7 S.C.R. 347

M P HIGH COURT BAR ASSOCIATION

v.

UNION OF INDIA & ORS

(Writ Petition (Civil) No. 155 of 2023)

MARCH 29, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI,PAMIDIGHANTAM SRI NARASIMHA AND

J. B. PARDIWALA, JJ.]

Debt Recovery Tribunals and Debt Recovery AppellateTribunals Electronic filing Rules, 2020 – e-filing of pleadings –Department of Financial Services introduced e-filing Rules in 2020,where e-filing was made optional – Later on, by a notification dt.22.07.2021, e-filing was made compulsory where the pecuniaryvalue of the subject matter in dispute was in excess of Rs 100 crores– On 31.01.2023, e-filing was made mandatory in all casesirrespective of the value of the subject matter – Appellant filed writpetition u/Art.32 to challenge the provisions of amended Rule 3 ofthe E-filing Rules and for a direction to the DRTs and DRATs tocontinue with hybrid filing of pleadings and applications beforethem and further contented that, the rules are implemented withoutsufficient deliberations with stakeholder – Held: Material placedon the record indicates that the introduction of e-filing by theDepartment of Financial Services was facilitated in gradual stages– Sufficient time was given to all stakeholders to adjust to the newregime and stakeholder’s training has been carried out – E-filingprovides transparency and efficiency in the administration of justice– E-filing provides for 24x7 access to the court system and facilitatesthe convenience of lawyers as well as litigants – In view of thegrievances, directions issued: Bar Associations to submitrepresentations to the Department of Financial Services regardingspecific difficulties encountered in the process of e-filing; TheChairpersons of the DRATs and the Presiding Officers of the DRTsdirected to submit monthly reports to the Department of FinancialServices, highlighting the experience with e-filing and suggestingany necessary upgrades; National Informatics Centre (NIC) toconstitute a team to monitor the progress of e-filing and addressany difficulties on real time basis; The e-filing module to be upgraded

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Awith periodical developments; Help desks recommended, e-sewakendras (e-service centers) to be set up at all centres of theDRTs or DRATs to facilitate e-filing and provide a one step solutionfor all the e-services.

Disposing of the petition, the CourtB

HELD:1. The process has been gradual. Sufficient time wasgiven to all stakeholders to adjust to the new regime. Astakeholder’s training has been carried out. The counter affidavitindicates the specific dates on which training programmes havebeen conducted. E-filing provides transparency and efficiency inCthe administration of justice. E-filing provides for 24x7 access tothe court system and, in fact, facilitates the convenience of lawyersas well as litigants. With the march of technology, it would be toolate in the day to postulate that e-filing should not be adopted. Asa matter of fact, the decision to take up e-filing must be replicatedby other tribunals and courts in the country, including the HighDCourts in a phased manner and that it eventually becomesmandatory. [Paras 11, 12][352-G-H; 353-A]

2. This Court was of the view that the grievance which hasbeen portrayed in this proceeding can be addressed at two levels.Firstly, this Court would permit the Bar Associations representingEthe collective voice of the lawyers in the DRTs/DRATs to submittheir representations to the Department of Financial Services ifany specific difficulties are encountered in the process of e-filing.The representations should focus on concrete suggestions whichhave to be implemented to facilitate to e-filing. In other words,Fthis court clarified that by permitting an opportunity to filerepresentations, this Court was not questioning the need formandatory adoption of e-filing. The purpose is to ensure that anyglitches that may arise are attended to effectively. Simultaneously,this Court also directed all the Chairpersons of the DRATs andthe Presiding Officers of the DRTs to submit reports to theGDepartment of Financial Services on a monthly basis initially fora period of six months, pointing out the experience with e-filingand suggesting, if any upgradation of the facilities or the softwareis necessary. The National Informatics Centre, which has put into H

M P HIGH COURT BAR ASSOCIATION v. UNION OF INDIA &ORS

place the e-filing facilities for the DRTs/DRATs, has also beenfacilitating the same exercise in the judicial system. NIC isequipped with a robust team of officials. The Director General ofNIC shall constitute a team to monitor the progress of e-filing inthe DRTs/DRATs so that any difficulties which are encounteredcan be suitably addressed on a real time basis. The e-filing modulemust be upgraded with periodical developments. The secondaspect which needs to be borne in mind relates to the help deskswhich have been set up at the DRTs/DRATs. [Paras 14, 15,16][353-D-H; 354-A]

3. This Court recommended to the Union Government thatin addition to setting up held desks, it would be appropriate if e-sewakendras are set up at all the centres of the DRTs or, as thecase may be, DRATs to facilitate e-filing of cases and provide aone-step solution which encompasses all the e-services at theDRTs/DRATs. The e-sewakendras should have adequateequipment in the form of computers and scanners, together withrobust internet connectivity so as to facilitate the process of e-filing. In this context, a Standard Operating Proceduremust beprepared by the Department of Financial Services in consultationwith NIC, setting out the facilities at every e-sewakendras. Thiswould be in line with the mission of the e-Committee of theSupreme Court of India for providing e-sewakendrasat courtestablishments across the country. The setting up of e-sewakendras would provide access to justice to lawyers andlitigants. The Department of Financial Services would be at libertyto review the set up periodically and to take appropriate decisionsin that regard. [Para 18][354-C-E]

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.155 of 2023.

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

Siddharth R. Gupta, Mrs. Sunita Gupta, Ms. Sakshi Banga,Mrigank Prabhakar, Advs. for the Petitioner.

Shyam Gopal, Samarvir Singh, Mrs. Praveena Gautam, PrahladSingh, Mrs. Swarupama Chaturvedi, Raj Bahadur Yadav, Advs. for theRespondents.

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AThe Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, CJI

1. Thirty-nine Debt Recovery Tribunals[1] and five Debt RecoveryAppellate Tribunals[2] have been constituted under the Recovery of Debtsand Bankruptcy Act 1993[3].B

2. The Department of Financial Services in the Union Ministry ofFinance issued a notification on 23 January 2020 by which the DebtRecovery Tribunals (DRTs) and Debt Recovery Appellate Tribunals(DRATs) Electronic Filing Rules 2020[4] were notified. Originally, the e-filing of pleadings and applications was made optional. On 22 July 2021,Ca notification was issued by which the e-filing of cases involving a valueof Rs 100 crores and above was made mandatory. At a conference ofthe Chairpersons of DRATs and the Presiding Officers of DRTs on 9June 2022, it was recommended that e-filing should be made mandatory,irrespective of the amount involved in the proceedings.

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3. On 31 January 2023, a notification was issued by the Uniongovernment in exercise of powers under Section 36 of the 1993 Act foramending the Electronic Filing Rules so as to make e-filing of pleadingsby applicants mandatory. Any other form of filing, it is provided, shall notbe taken on the record.

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4. These proceedings under Article 32 of the Constitution havebeen instituted to challenge the provisions of amended Rule 3 of the E-filing Rules and for a direction to the DRTs and DRATs across the countryto continue with hybrid filing of pleadings and applications before them.

5. Notice was issued in these proceedings on 24 February 2023.

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6. Pursuant to the order issuing notice, a counter affidavit hasbeen filed by an officer in the Department of Financial Services of theUnion Ministry of Finance. Besides setting out the sequence leading upto the amendment to the E-filing Rules, the affidavit states that prior tothe issuance of the notification dated 31 January 2023, an analysis wasGcarried out of the filing of cases before the DRTs. It was observed thatin respect of cases where the value is less than Rs 100 crores, the 1 “DRTs”

2 “DRATs”3 “10993 Act”H4 “2020 Rules”

percentage of e-filed cases was approximately 25.89% in the case ofOriginal Applications[5] and 20.84% in the case of SecuritizationApplications[6]. This was when e-filing for cases involving a value of lessthan Rs 100 crores was not mandatory prior to 31 January 2023. Asregards cases involving an amount of Rs 100 crores and above, thepercentage of e-filed cases was 15.87% in the case of OAs and 23.81%in SAs. On the basis of the above data, it has been submitted that evensmaller borrowers were filing their cases through e-filing even when itwas not mandatory. The percentage of e-filed cases to the total filedcases where the suit amount was Rs 50 lakhs or below was 27.46% ofOAs filed and 20.63% of SAs filed. The affidavit indicates that mandatorye-filing, besides facilitating compliance with timelines, facilitates 24x7filing by litigants even from remote places with the help of the internet.The total number of e-filed applications across all DRTs in the countryduring the period between 1 February 2023 and 2 March 2023 was10,415.

7. The counter affidavit states that help desks for facilitatingstakeholders for hassle free e-filing of cases have been set up at DRTsand DRATs where currently, 90 staff members are working as TechnicalAssistants and Data Entry Operators for facilitating e-filing. They arestated to be assisting internal and external stakeholders in the resolutionof functional and technical difficulties. Besides this, it has been statedthat a help desk option is available on the e-filing website of DRTs andDRATs where users can log their requests/grievances to be addressedon priority. A three-tier grievance redressal mechanism has, therefore,been provided. The counter affidavit has indicated that comprehensivetraining programmes were conducted by the Department of FinancialServices in coordination with the DRTs/DRATs for making litigants andmembers of Bar Associations acquainted with the e-filing procedure.Multiple rounds of training sessions were conducted by the TechnicalAssociates deployed in the DRTs/DRATs. The e-filing software hasbeen created and is maintained by the National Informatics Centre byadopting open source technology.

8. In support of the petition, it has been urged by Mr Siddharth RGupta, counsel appearing on behalf of the petitioner, that the amendmentto the 2020 Rules making e-filing compulsory in all cases irrespective of 5 “OAs”

6 “SAs”

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Avalue with effect from 31 January 2023 was without holding deliberationswith all stakeholders. Counsel submitted that the DRTs are constitutedin far flung areas where internet connectivity may not be adequatelyavailable. Hence, it was submitted that an exception should be providedfor:

B(i)Just and sufficient cause;

(ii) Senior citizens; and

(iii) Female practitioners and clients.

9. Counsel further submitted that in the event of a software glitchCoccurring, some alternative modalities should be followed.

10. On the other hand, it has been urged by Mr Shyam Gopal,counsel appearing on behalf of the Union of India, that, as the counteraffidavit would indicate, the introduction of mandatory e-filing was notabrupt or hasty. On the contrary, it was preceded by consultations andDtraining programmes which were conducted for the members of theBar. Moreover, it is urged that implementation was made on a gradualbasis in three stages. As regards the availability of infrastructure, it hasbeen submitted that help desks have been provided at all DRTs/DRATsto attend to any glitches or requests for assistance.

11. The material which has been placed on the record indicatesEthat the introduction of e-filing by the Department of Financial Serviceswas facilitated in gradual stages. Initially, with the introduction of the e-filing Rules in 2020, e-filing was made optional at the first stage. In thesecond stage, e-filing was made compulsory by a notification dated 22July 2022 where the pecuniary value of the subject matter in disputeFwas in excess of Rs 100 crores. The introduction of mandatory e-filingin all cases irrespective of the value of the subject matter was introducedat the third stage on 31 January 2023. This indicates that the process hasbeen gradual. Sufficient time was given to all stakeholders to adjust tothe new regime. A stakeholder’s training has been carried out. Thecounter affidavit indicates the specific dates on which trainingGprogrammes have been conducted.

12. There can be no gainsaying the fact that e-filing providestransparency and efficiency in the administration of justice. E-filingprovides for 24x7 access to the court system and, in fact, facilitates theconvenience of lawyers as well as litigants. With the march of technology,H

it would be too late in the day to postulate that e-filing should not beadopted. As a matter of fact, the decision to take up e-filing must bereplicated by other tribunals and courts in the country, including the HighCourts in a phased manner and that it eventually becomes mandatory.

13. At the same time, the Court cannot be unmindful of the factthat there is a digital divide in the country and not all citizens have accessto the internet or the facilities required for the effective use of technology.Technology is an enabler and a facilitator. Hence, no segment of thecitizens should be left behind in the adoption of technology, least of all, interms of access to justice. The submission of Mr Siddharth R Gupta isborne out by realities at the grass roots in the legal profession. Not alllawyers may have access to the facilities required. Their needs can andshould be addressed by providing facilities in court establishments.

14. We are of the view that the grievance which has beenportrayed in this proceeding can be addressed at two levels. Firstly, wewould permit the Bar Associations representing the collective voice ofthe lawyers in the DRTs/DRATs to submit their representations to theDepartment of Financial Services if any specific difficulties areencountered in the process of e-filing. The representations should focuson concrete suggestions which have to be implemented to facilitate to e-filing. In other words, we clarify that by permitting an opportunity to filerepresentations, we are not questioning the need for mandatory adoptionof e-filing. The purpose is to ensure that any glitches that may arise areattended to effectively. Simultaneously, we would also direct all theChairpersons of the DRATs and the Presiding Officers of the DRTs tosubmit reports to the Department of Financial Services on a monthlybasis initially for a period of six months, pointing out the experience withe-filing and suggesting, if any upgradation of the facilities or the softwareis necessary.

15. The National Informatics Centre[7], which has put into placethe e-filing facilities for the DRTs/DRATs, has also been facilitating thesame exercise in the judicial system. NIC is equipped with a robustteam of officials. The Director General of NIC shall constitute a team tomonitor the progress of e-filing in the DRTs/DRATs so that any difficultieswhich are encountered can be suitably addressed on a real time basis.The e-filing module must be upgraded with periodical developments.

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A16. The second aspect which needs to be borne in mind relates tothe help desks which have been set up at the DRTs/DRATs.

17. Mr Shyam Gopal has adverted to a notice dated 22 February2023 issued by the DRTs for Madhya Pradesh, Chhattisgarh andErnakulam and by the DRAT at Delhi indicating the arrangements whichBhave been made for setting up help desks or, as the case may be, providingtechnical assistance.

18. In this regard, we would recommend to the Union Governmentthat in addition to setting up held desks, it would be appropriate if e-sewakendras are set up at all the centres of the DRTs or, as the case may be,CDRATs to facilitate e-filing of cases and provide a one-step solutionwhich encompasses all the e-services at the DRTs/DRATs. The e-sewakendras should have adequate equipment in the form of computers andscanners, together with robust internet connectivity so as to facilitatethe process of e-filing. In this context, a Standard Operating Procedure[8]Dmust be prepared by the Department of Financial Services in consultationwith NIC, setting out the facilities at every e-sewa kendras. This wouldbe in line with the mission of the e-Committee of the Supreme Court ofIndia for providing e-sewa kendras at court establishments across thecountry. The setting up of e-sewa kendras would provide access to justiceto lawyers and litigants. The Department of Financial Services would beEat liberty to review the set up periodically and to take appropriate decisionsin that regard.

19. Most of the specific grievances which have been urged byMr Siddharth R Gupta stand assuaged in terms of the above directions.

F20. The digital divide between men and women in India is a starkreality:

i.The National Sample Survey Office carried out a MultipleIndicator Survey covering the entire country in its78th round. The report,[9] inter alia, looked at the performanceGof persons between 15-29 years in performing 9 differentICT skills. It concludes that the percentage of men who 8 “SOP”

9 Multiple Indicator Survey in India: NSS 78th Round (2020-2021), The National SampleSurvey Office, Ministry of Statistics and Programme Implementation, Government ofHIndia (March 2023)

M P HIGH COURT BAR ASSOCIATION v. UNION OF INDIA &ORS [DR. DHANANJAYA Y CHANDRACHUD, CJI]

could successfully perform different ICT tasks is more thanthe percentage of women. For example, while 19.4% ofmen of age 15 years and above could send emails withattached files, only 11.5% of women of age 15 years andabove could perform the same task.

ii.The National Family Health Survey-5 data[10] for the periodbetween 2019 to 2021 measured the proportion of men andwomen (15-49 years of age) who have ever used theinternet. The survey reveals that only one in three womenin India (33.3%) have ever used the internet, compared tomore than half of men (51.2%). The gender divide in ruralIndia is more pronounced, with men (43.4%) being abouttwice as likely as women (24.6%) to have used the internet.

iii.The GSMA Mobile Gender Gap Report 2022[11] found thatfrom 2020 to 2021, the mobile internet gender gap haswidened to 41% in South Asia. In India, men’s mobileinternet use increased from 45% to 51% while women’smobile internet use remained flat at 30%.

The representations by the Bar Associations on specific difficultiesfaced in the process of e-filing, and the reports prepared by theChairpersons of the DRATs and the Presiding Officers of the DRTsshould be cognizant of digital exclusion on the basis of gender, whilesubmitting their respective representations/ reports. The help desks canconsider providing a dedicated portal to address the grievances of femalelitigants. However, we are not inclined to accept the submission thatthere should be a general exception to female practitioners and litigants.There is no reason to postulate that there is a gender divide in one’sinherent ability to use technology.

21. For the above reasons, we have issued directions for attendingto the genuine grievances of the members of the Bar in regard to theavailability of facilities that would ensure that in the adoption of e-filing,no segment of the citizens is unable to access justice. Properlyimplemented, the above suggestions will meet the purpose.

10 National Family Health Survey (NFHS-5) 2019-2021, Ministry of Health & FamilyWelfare, Government of India (March 2022)

11 Matthew Shanahan, The Mobile Gender Gap Report 2022, GSMA (June 2022)

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A22. The exercise which has been directed to be carried out in theabove terms should be completed within a period of three months fromthe date of this order. This would not preclude the Department of FinancialServices from making such further arrangements as are found necessaryto deal with an emergent situation in any of the DRTs/DRATs in variousparts of the country. In a country as diverse like India, a one-size-fitsBapproach cannot be adopted in all circumstances and situationalmodifications can be suitably adopted according to exigencies.

23. The petition shall stand disposed of in the above terms.

24. Pending application, if any, stands disposed of.

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Ankit Gyan

Petition disposed of.

(Assisted by : Aarsh Choudhary, LCRA)

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