Online Dispute Resolution (ODR) has gained significance in India, serving as a valuable complement to traditional legal frameworks and Alternative Dispute Resolution (ADR) methods. As digital transactions and e-commerce grow, ODR offers an efficient, cost-effective, and accessible approach to resolving disputes. To ensure its legitimacy and enforceability, ODR in India requires a robust legal basis, which this article examines, covering pertinent laws, court rulings, and government initiatives.

In India, Online Dispute Resolution (ODR) enjoys legal recognition, particularly for resolving civil and commercial disagreements. This means that in many situations, parties can legally use online methods to settle their disputes. However, ODR is not universally applicable. Certain cases are excluded due to legal restrictions or public policy considerations.

The Emergence of ODR in India:
The idea of ODR in India has gradually gained traction, coinciding with the increasing reliance on digital platforms for business and legal transactions. Although the Arbitration and Conciliation Act, 1996, laid the groundwork for ADR mechanisms, ODR has come to the forefront with advancements in technology and legal reforms. The COVID-19 pandemic further catalysed the adoption of ODR, compelling courts, tribunals, and private entities to incorporate online mechanisms for dispute resolution.

The Arbitration and Conciliation Act, 1996:
According to Section 7(4) of The Arbitration And Conciliation Act, 1996, an arbitration agreement is considered to be in writing if it meets any of the following conditions: (a) it is contained in and signed within a document by the parties; (b) it is the result of an exchange of letters, telegrams, telex, or other telecommunication methods, including electronic communication, which provide a written record of the agreement; or (c) it is implied through an exchange of statements of claim and defence, where one party asserts the existence of the agreement and the other does not deny it. This provision was inserted by Act No. 3 of 2016 dated 31.12.2015.

The Information Technology Act, 2000:
The Information Technology (IT) Act, 2000, plays a crucial role in legitimizing ODR in India by recognizing electronic records, digital contracts, and electronic signatures. This enables online agreements and dispute resolution processes. Section 4 of the Information Technology Act, 2000, grants legal recognition to electronic records, stipulating that if any law mandates information or matter to be in writing or in typewritten/printed form, that requirement is fulfilled if the information or matter is presented in an electronic form and is accessible for future reference, regardless of any conflicting provisions in that law.

Bhartiya Sakshya Adhiniyam, 2023 and Electronic Evidence:
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) outlines procedures for search and seizure, distinguishing between cognizable and non-cognizable offences. Section 105 BNSS addresses search and seizure in cases of cognizable offences, while Section 185 covers instances involving non-cognizable offences.

Sections 105 and 185 of the BNSS bring significant amendments to the earlier provisions of Sections 93 and 165 of the Criminal Procedure Code, 1973 (CrPC). Notably, they now require mandatory audio-video recording, ideally using a cell phone, of every search conducted and every property seized during an investigation. Furthermore, the officer conducting the search must promptly submit this recording to the District Magistrate, Sub-Divisional Magistrate, or a Judicial Magistrate of the First Class, and also create a list of seized items with witness signatures.

This enhancement aligns with Section 61 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which formally recognizes electronic records as admissible evidence in court. This provision marks a departure from prior practices where the admissibility of electronic records as evidence was discretionary, relying on the Court's judgment.

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, significantly impacts the legal system by allowing electronic records as evidence, a function previously governed by Section 65B of the Indian Evidence Act, 1872.
Section 105 BNSS mandates electronic recording, contingent upon the availability of necessary technological infrastructure. The Supreme Court, in Firoz Hira Manik vs. State of U.P. (2024), reinforced this requirement by rejecting unrecorded evidence and reiterating the mandatory nature of electronic recording.

Section 530 of the Bharatiya Nagarik Suraksha Sanhita, 2023, permits trials, inquiries, and proceedings to be conducted electronically, encompassing the issuance, service, and execution of summons and warrants, examination of complainants and witnesses, recording of evidence during inquiries and trials, and all appellate or other proceedings, through electronic communication or audio-video electronic means.

The Consumer Protection Act, 2019:
The Consumer Protection Act, 2019, introduced a significant legal basis for ODR by mandating the establishment of an online dispute resolution mechanism for consumer grievances. The Act led to the creation of the Consumer Dispute Redressal Commission (CDRC), which enables consumers to file complaints and resolve disputes online. The introduction of the E-Daakhil portal has further solidified the legal framework for ODR in consumer disputes. Section 65 of the Consumer Protection Act, 2019, outlines the procedures for serving notices, specifying the permissible methods of service, which includes electronic method, and granting authority to the District Commission, State Commission, or National Commission to formally declare that a notice has indeed been served.

The Legal Services Authorities Act, 1987 and Lok Adalats:
The Legal Services Authorities Act, 1987, empowers Lok Adalats to conduct mediation and conciliation proceedings. With the advent of digital technology, virtual Lok Adalats have been introduced, allowing disputes to be resolved online. This aligns with the legal framework supporting ODR and enhances access to justice for marginalized communities.

Judicial Recognition of ODR:
Indian courts have increasingly recognized ODR as a legitimate form of dispute resolution. In various cases, the Supreme Court and lower courts have emphasized the importance of alternative dispute resolution mechanisms, including online arbitration. Ensuring that digital dispute resolution adheres to legal standards and due process is crucial.

Both the Supreme Court, in Indian Bank Association & Ors vs Union of India & Anr, and the Bombay High Court, in Ksl and Industries Ltd., Vs Mannalal Khandelwal and the State of Maharashtra, have authorized service of legal documents via email.

In Tata Sons Ltd & Ors. Vs. John Doe(s) & Ors., the Delhi High Court permitted the Plaintiff to serve summons to a Defendant via WhatsApp, text message, and email, and further directed them to file an affidavit of service.

In the case of Central Electricity Regulatory Commission v. National Hydroelectric Power Corporation Ltd., the Supreme Court of India mandated the use of email for service of documents.
In the case of Dr. Madhav Vishwanath Dawalbhakta & Ors. v. M/s. Bendale Brothers, the Bombay High Court considered substituted service as described in Order 5 Rule 20 of the Code of Civil Procedure. The court stated that modern communication methods, such as the internet, can be used for service. This includes options like courier, email, or WhatsApp. The main goal of service is to ensure that the defendant or relevant party is aware of the legal proceedings.

• ODR and the E-Courts Project: The E-Courts Project, initiated by the Supreme Court of India, aims to digitize court proceedings and promote virtual hearings. This initiative has facilitated the integration of ODR in various judicial processes, allowing litigants to resolve disputes online without physically appearing in court.
• Regulatory Role of NITI Aayog: NITI Aayog has been instrumental in promoting ODR in India. In 2020, it released a report advocating the adoption of ODR to resolve commercial and governmental disputes. The policy recommendations include creating a robust legal framework, encouraging the private sector to develop ODR platforms, and integrating ODR into judicial and quasi-judicial processes.
• Role of Private ODR Platforms: Several private ODR platforms, such as SAMA, Presolv360, and CODR, have emerged in India, offering arbitration, mediation, and negotiation services. These platforms operate within the legal framework established by Indian laws, ensuring compliance with arbitration and contract laws.
• Challenges in the Legal Framework of ODR: Despite the existing legal backing, ODR faces several challenges in India, including the absence of a dedicated law governing ODR, ambiguities in its application, and enforcement of ODR decisions. Addressing these challenges requires a unified ODR policy and further legal refinements.
• A Unified ODR Policy: A uniform ODR policy is essential to address inconsistencies in legal interpretation across different jurisdictions. Establishing a national ODR framework with clear guidelines for enforcement, jurisdiction, and procedural norms will enhance the credibility and effectiveness of online dispute resolution in India.
• Integration of Artificial Intelligence in ODR: The use of Artificial Intelligence (AI) in ODR can improve efficiency by automating dispute resolution processes. However, ensuring that AI-based ODR adheres to legal standards and due process is crucial.
• Impact of ODR on Access to Justice: ODR has the potential to enhance access to justice by making dispute resolution more affordable and convenient. Rural populations, who face logistical challenges in accessing courts, can benefit significantly from digital dispute resolution mechanisms. However, digital literacy and internet access remain key barriers to widespread ODR adoption.
• Government Initiatives to Promote ODR: The Indian government has undertaken several initiatives to promote ODR, including digital court services, e-filing systems, and virtual dispute resolution programs. The establishment of online mediation centres and digital arbitration platforms demonstrates the government's commitment to integrating ODR into the legal system.
• Future Prospects of ODR in India: The future of ODR in India is promising, with ongoing legal reforms and technological advancements shaping its evolution. Strengthening the legal framework through dedicated ODR legislation, increasing public awareness, and investing in digital infrastructure will be crucial in ensuring the long-term success of online dispute resolution in India.

When ODR is Legally Permitted in India:
ODR is generally allowed when parties willingly choose to resolve their civil or commercial disputes online. Examples of suitable cases include:

• Contractual Disputes: This covers disagreements arising from business contracts, service agreements, and other commercial transactions.
• Consumer Disputes: ODR can be used for complaints related to online shopping, defective products, or unfair business practices.
• Banking & Financial Disputes: This includes loan disputes, cases of credit card fraud, and issues with online banking services.
• Intellectual Property (IP) Disputes: ODR can facilitate resolution of domain name disputes, copyright infringements, and trademark conflicts.
• Family Disputes (Mediation & Conciliation): If both parties agree, ODR can be used for divorce settlements, child custody arrangements, and maintenance agreements through mediation or conciliation.
• Employment & Workplace Disputes: Issues such as wrongful termination, harassment claims, and labour disputes can be addressed using ODR.
• Insurance Claims: ODR can be used to settle claims related to health, motor, or life insurance policies.
• Real Estate & Property Disputes: This includes disputes related to rental agreements, property possession, and land lease agreements.
• Small & Medium Business Disputes: ODR can help resolve conflicts between vendors, payment disagreements, and partnership issues.

When ODR is Not Permitted or Illegal in India:

ODR is not appropriate in cases where the law requires a physical presence or where public policy dictates that alternative dispute resolution is not suitable. These scenarios include:

• Criminal Cases: Serious offences like murder, rape, theft, or fraud require formal court proceedings and cannot be resolved through ODR.
• Serious Family Law Matters: Cases involving judicial separation, child adoption, or domestic violence require judicial intervention and are not suitable for ODR.
• Public Law Disputes: Matters concerning taxation, challenges to the constitution, and disputes related to government policy must be handled in courts.
• Land & Property Title Disputes: Cases that necessitate title verification, claims of adverse possession, or determination of property inheritance cannot be resolved through ODR.
• Matters Involving Minors & Persons of Unsound Mind: Guardianship, child custody cases (when there is no mutual consent), and cases requiring state intervention are not suitable for ODR.
• Insolvency & Bankruptcy Cases: These cases must be adjudicated under the Insolvency and Bankruptcy Code (IBC), 2016, in designated tribunals.
• Fundamental Rights & Writ Petitions: Cases filed under Article 32 or 226 of the Indian Constitution, which concern fundamental rights, cannot be decided through ODR.
• Serious Medical Negligence Cases: Complex medical malpractice cases often require judicial scrutiny and expert medical opinions, making them unsuitable for ODR.

Conclusion:
In India, the legal basis for Online Dispute Resolution (ODR) stems from a blend of laws, court decisions, and governmental strategies. Acts like the Arbitration and Conciliation Act, the IT Act, BNSS, BSA, and the Consumer Protection Act offer a firm base, but further legal precision is needed to tackle enforcement and jurisdictional concerns.

As India advances towards digital justice, ODR's importance in improving access to justice and easing the pressure on conventional courts will grow. Sustained ODR expansion in India will depend on reinforcing the regulatory structure and fostering technological advancement. Consequently, ODR is a legally accepted and effective approach for settling numerous civil and commercial disagreements in India, contingent on the mutual consent of all involved parties, although it cannot substitute traditional courts in all complicated criminal, complex family, or public law disputes.

The legal framework in India provides recognition and validity to electronic transactions and evidence through various provisions: Section 4 of the Information Technology Act, 2000 (ITA 2000) grants legal standing to electronic records, while Section 5 recognizes electronic signatures. Section 10A of the ITA 2000 validates electronically formed contracts, and Sections 11-13 address the aspects of attribution, acknowledgment, and dispatch of such records.

Furthermore, the Bharatiya Sakshya Adhiniyam (BSA), 2023, incorporates electronic records within its definition of evidence (Section 3) and establishes their admissibility through Section 63, with Sections 85, 86, and 87 further bolstering the evidentiary value of electronic records and signatures.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565