Kerala HC’s digital thrust: eSigning of affidavits and Vakalaths

In what comes as a big respite to lawyers practising in Kerala, the Kerala High Court has allowed Affidavits and Vakalaths to be electronically signed by the parties involved therein. By explicitly stating this in its own Rules, the High Court has brought in greater security and convenience for both litigants and litigators:

• Aadhaar based electronic signatures ensure that a person can sign a document only after her identity has been authenticated, removing the possibility of the signer refuting her signature later on
• Delays in filing due to litigators and litigants physically being in different locations has been eliminated as they can eSign the documents from anywhere, anytime and instantly file them
• The time, money and effort involved in physically printing, signing and couriering the documents to the lawyer’s office has been completely replaced by a simple 2 minute eSigning process

So what did the HC say exactly?

Through the Rules of the High Court of Kerala (Amendment), 2022, the Kerala High Court has formally recognized the use of electronic signatures for e-filing Affidavits and Vakalaths.

Kerala HC Rules - eSign Amendment

Vakalaths

Through this Amendment, Rule 19(7) has been added to the Rules of the High Court of Kerala which reads as follows:

“19(7) Notwithstanding anything contained in the foregoing sub-rules, a vakalath in electronic form shall be valid, if the party/parties executing it has signed using an electronic signature and it is accepted by the advocate/advocates by putting his/their electronic signature confirming the identity and validity of the electronic signature of the executant/s and shall, unless otherwise permitted by the Court, be in Form No.1B”

This means that litigators can get Vakalths signed electronically using Aadhaar based electronic signatures and file the digital document on the e-filing portal, and submit a printed copy of the Vakalath with the registry. 

The format of an electronically signed Vakalath has been provided for under Form 1B (see page 4 of the Amendment).

Affidavits

A provison has now been added to Rule 77 of the Rules of the High Court of Kerala:

“Provided that an affidavit in an electronic form signed using an electronic signature shall be authenticated after verifying the identity of the deponent and after ascertaining the validity of the electronic signature used, and shall be in the manner provided in Form No.4A. Notwithstanding anything contained in rule 79 of these rules, authentication as aforesaid shall be sufficient to confirm the identity of the deponent.”

This means that Affidavits can be electronically signed by deponents by authenticating their identity through an Aadhaar based electronic signature. Just like Vakalaths, even eSigned Affidavits can now be filed on the e-filing portal, a printed copy of which needs to be submitted to the registry.

The affirmation to be included in an electronically signed Affidavit has been provided for under Form 4A (see page 5 of the Amendment).

What is Aadhaar eSign? How does it work? What is the legal framework around it in India?

Aadhaar eSign is a recognised electronic signature under Section 3A (read with the Second Schedule) of the Information Technology Act, 2000. It allows anyone to electronically sign a document by authenticating their identity through OTP verification.

Aadhaar eSign was given legal sanctity through its inclusion in the second schedule of the IT Act via Gazette Notification No. 2015 Jan – GSR 61(E) (the Aadhaar eSign Notification), dated January 27, 2015, entitled “Electronic Signature or Electronic Authentication Technique and Procedure Rules, 2015”. 

Before Aadhaar eSign, the only electronic signature available to individuals was the USB shaped DSC token. DSC tokens however were not easy to use:

1. They cannot be used to eSign a document on one’s mobile phone
2. One must always have the physical DSC token with them to eSign any document
3. Acquiring a DSC token was a time consuming and expensive process
4. Using a DSC token was cumbersome as the signer needs to install a software on their computer and remember a PIN specifically for this purpose. DSC tokens would also malfunction often.

For Aadhaar eSign, all a signer needs is:

1. A valid Aadhaar number 
2. Linkage between their Aadhaar number and phone/email 
3. Access to their registered phone/email ID

The signing process using Aadhaar eSign is super easy and quick. You can check it out for yourself here:

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‍Section 5 of the IT Act further grants electronic signatures like Aadhaar eSign identical validity to physical wet-ink signatures. That is - an “electronic signature” is seen as legally identical to a wet-ink physical signature - even if its form and design may be different.

Enforceability of Aadhaar eSign

Aadhaar eSign is the most secure and easiest to enforce signature type in India. The Bharatiya Sakshya Adhiniyam, 2023 provides several presumptions in favour of Aadhaar eSign:

• Section 66: Presumption that the Aadhaar eSign belongs to the signatory whose name is captured in the eSign 
•  Section 85: Agreements executed with Aadhaar eSign are presumed valid unless proven otherwise
•  Section 86:
  • Court will presume the signatory's intent to sign or approve the document 
  • Court will presume that the document has not been altered after the eSigning
• Section 87: Verified information in the electronic signature certificate is presumed accurate.

But will the registry raise any objections?

With the passage of this Amendment and the High Court EXPLICITLY allowing electronic signatures, lawyers in Kerala have already started using Leegality to get Vakalaths and Affidavits eSigned. The digital eSigned versions are to be filed on the e-filing portal and their printed copies are to be submitted to the registry.

How can I get started with eSigning all my Vakalaths and Affidavits?

To get started with your eSigning journey, all you need is to sign up with Leegality and setup an account. Setting up an account with Leegality takes less than a minute. 

You don’t have to pay for anything apart from the electronic signatures. Each Aadhaar eSign costs ₹25. In case the party you have sent the document to for eSigning doesn’t sign it, then ₹25 will be credited back to your Leegality wallet.

Once your account has been set up and you have recharged your Leegality wallet, you can start sending documents to your clients for eSigning. Your clients do not need a Leegality account to eSign these documents.

Here’s how simple it is with Leegality:

What if my client is a company? How will they add a seal?

Simply add an image of your client’s company seal to the Vakalath or Affidavit draft before uploading it on your Leegality dashboard and sending it for eSigning. 

Secure Audit Trail

Leegality also instantly issues a Secure Audit Trail once the document has been signed. This Audit Trail contains all the details about who signed, when they signed and from where. This irrefutable Audit Trail ensures that the electronic signatures cannot be disputed in Court.

Storage and tracking of documents

On your Leegality dashboard you can access all the signed documents and audit trails. You can also track the status of each document that you have sent for eSigning so that you know who to follow up with.

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