Long considered a means of sending ugly selfies to your near and dear, and the bane of every parent who catches their kid texting late into the night, Indian courts seem to have found an entirely new purpose for WhatsApp – serving legal notices, and at times even nailing convicts.
It was in April this year that the first court summons of the kind was delivered by IAS officer Ashok Khemka in Chandigarh. The same month, the Bombay High Court (BHC) also resorted to sending a summons via WhatsApp, in a copyright infringement case. This was done, the court explained, because of “defendants who avoid and evade service by regular models”. The defendants in question (two Kannada film producers) had been particularly hard to get hold of, and the court was finally able to track them down using another app – TrueCaller.
And it’s not just BHC that’s getting more tech savvy. Soon after on May 4, the Delhi High Court also permitted plaintiffs to serve summons using the messenger, expanding on the existing list of methods, which included fax and email and text message. At about the same time, a court in Rohini (North West Delhi) officially recognised the ‘double blue tick’ on Whatsapp (which means the recipient has read the message) as proof of legal notice being served.
In many ways, this method is likely to speed up the summons process. But administrative ease aside, WhatsApp proved to be particularly useful in a sexual assault case involving students of OP Jindal Global University. Three law students – Hardik Sikri, Karan Chhabra, and Vikas Garg – were taken to court for gang-raping and blackmailing a junior management at their university between 2013 and 2015. The sessions court in Sonepat sentenced Sikri and Chhabra to 20 years in jail each, and Garg to seven – and the conviction wouldn’t have been possible without WhatsApp. It was data exchanged over the instant-messaging service that proved to be crucial and incriminating evidence against the three male students. This online data helped establish that the survivor had been continually sexually abused, forced to travel to Chandigarh for sex, and forced to purchase and use a sex toy over Skype, among several other things.
“The WhatsApp chats running into pages is so abusive and vulgar that the extracts of the same cannot be explained and put into the judgment and what only can be concluded through the WhatsApp chat is that the prosecutrix (victim) was totally under control and dominance of the accused, Hardik,” additional sessions judge (ASJ) Sunita Grover said in her judgment.
The extensive use of electronic evidence was a rare first in the country, and given the startling rise of online harassment, it sets an important precedent.
There is of course the obvious issue of access – since not everyone in India has a WhatsApp enabled phone. But it doesn’t appear that electronic means, least of all WhatsApp, are gradually going to replace “regular models”. They are meant for those exceptional cases of evasion, and this is being done in other countries as well.
It was as far back as 2010 when the Supreme Court of Singapore recommended that substituted service by social media be permitted. Not only did they include WhatsApp, they also stated that “other smart phone messaging platforms linked to mobile phone numbers” would be allowed too. It was in October last year that this came in handy for a Singapore state court, when a defendant failed to appear in court, even after relevant documents and notices had been served to him electronically.
Electronic communication also helps cut down the cost and effort that goes into serving notices to defendants, especially those who do not want to be found. Sure, using it to serve notices or as evidence may be in its infancy, but it definitely sets a precedent. And as such, it appears to be an important new development in judicial proceedings.