Can digital services be demanded as fundamental right? Kerala High Court to examine

The Kerala High Court is set to examine whether citizens have the fundamental right to demand digital services from the government (Dhanya Martin v. State of Kerala)..A Division Bench of Justices A Muhamed Mustaque and Kauser Edappagath stated the same while passing an interim order on Wednesday, allowing petitioner-couples to solemnise and register their marriages online, under Special Marriage Act (SMA), 1954 without appearing physically before the marriage officer. .The Bench stated at the outset that it intends to issue orders answering the larger question as to whether citizens can demand digital services, including online registration of marriage, as a fundamental right."The question we are raising is whether citizens have the right to demand digital services from the government. We ought to be mindful of the fact that this would have far reaching consequences in many essential services such as education also. Once we hold that citizens have a fundamental right to demand digital service in matters affecting life, such as marriage, there will be far reaching consequences," the Bench said. The Bench also referred to the judgement of the Supreme Court in the Hadiya case ie., Shafin Jahan v. Asokan KM, in which it was held the right to marriage is a fundamental right, being integral to Article 21 (right to life and liberty) of the Constitution of India..The Bench opined that with rapid evolution in technology and unexpected circumstances such as the current pandemic, it must consider the law under SMA as an evolving statute. "When we interpret the law under Special Marriage Act, it can be interpreted as an ongoing statute which will apply to all times to come. Realising the position of the parties who are not able to come physically, suppose the State goes into a complete lockdown for instance, a technological solution has to be provided," the Bench said. It reaffirmed its belief that the government would also be interested in catering to the interests of citizens in such time."Government is very active in advancing the technological services. But at the same time, certain other issues such as biometric identification and facial recognition would crop up. We would require the Central government's assistance in sharing passport database, etc. One will only need to then make an online application. We understand that this will take time but we need to lay down the law, for which we need to do some more research.".The Court had, on Monday, noted that two methods had been suggested by various parties for online marriage registration. "One, physical presence of the parties before the Consulate, if they are residing abroad or before such authority which could be recognised under domestic law. Second mode is developing technological tools for identifying the parties with reference to facial recognition and biometric credentials," stated the Court in its previous order..In a hearing held on Tuesday, former and current Secretaries of the Electronics and Information Technology Department , K Mohammed Y Safirulla, Biswanath Sinha and Snehil Kumar Singh appeared before the Court to give their inputs on the matter. There was general consensus that barring certain technical limitations as to outdated data, it is possible to use facial recognition and biometric credentials to identify parties who appear online. However, it was pointed out that the existing provisions of the SMA are not conducive to the implementation of online registration of marriage. While the IT department can develop technology to provide solutions, it cannot fix the problems in the statute. Therefore, it was suggested that the Court may pass orders to create a separate provision in the Act itself.Moreover, it was made clear that the government would have to provide its resources both in terms of the biometric and facial recognition data available with it as well as in terms of resources to update the infrastructure available with marriage officers..In this regard, the Assistant Solicitor General, R Suvin Menon, informed the Court that it is already considering the possibility of having foreign marriage officers in consulates and whether or not the data available with the government can be used for the purpose of registering marriages. .Today, the Court directed the State's Attorney, N Manoj Kumar, to place on record, the views of the State government and other expert public officials in light of these interactions..With respect to the individual cases before the Court, the Bench directed the marriage officers under SMA to solemnise marriage online subject to the following conditions:Witnesses required for the marriage shall be present before the marriage officer;Witnesses shall identify the parties who are online;Copies of passport and any other pubic document shall be provided to the marriage officer in respect of parties who appear online for identification by the marriage officer;Wherever signature of parties are required, those shall be affixed by authorised power of attorney or any other official documents as recognised under Indian Evidence Act;All other required formalities shall be complied with before solemnisation of marriage;Marriage officer shall fix the date and time and convey the same to the parties in advance;Marriage officer is free to fix the mode of online platform; Marriage officer is directed to comply with the directions as expeditiously as possible on completion of statutory formalities;Upon solemnisation, marriage certificate shall be issued in the manner as referred to in Section 13 of SMA; The proceedings conducted for solemnisation or registration shall be recorded in the official record..The Court also ordered that, "In view of the fact that the matters are pending before the Court and also regarding the Covid situation in the state and the country, the outer time to solemnise the marriage shall stand extended until the time fixed by the marriage officer.".[Read Order]