General

Trial Through Video Conferencing – Its Future In India

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This Blog is written by Ruhani Garg from Institute Of Law, Nirma University, Gujarat. Edited by Yash Jain.

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INTRODUCTION

The domain of law must keep growing and should have been proactive in adapting scientific developments and advancements in technology. The judicial process in India is a multi-step process that leads to the procedure of the entire case completely slow. The litigation process involves red-tapism, examining the witnesses, cross-examinations, trials, etc. which is a lengthy procedure in obtaining decisions from the court. Statutory Changes in this process like in recording the statements of witnesses are needed which is one of the monotonous tasks of the courts. These changes are needed to deal with the burden of work on authorities who deals with these cases. Sometimes it can be difficult for investigators to get a witness to the court due to safety issues or if a witness is residing in another city. To deal with these issues Indian Judicial System introduced the concept of Video Conferencing as technological advancement in the domain of law.

Video conferencing is one of the technological advancements which allows users to communicate in the same way as they are present before one another. The Indian Judicial System used Video conferencing as a tool for recording of evidence and it has been used in cases where the witness was unable to attend the court proceedings. Also, it can be used for the purpose of producing the undertrials from the prison itself i.e. linkage of courts and prisons through video conferencing.

SIGNIFICANCE

Trials through video conferencing improve the efficiency of courtrooms by reducing the backlogs of cases and therefore reducing the burden. This will result in the Judicial System more hearings per day and can reduce months-long waiting periods between hearings and practices. Through video conferencing, prisons and courts can be linked which saves them time and large costs of transportation even for short hearings.

Video conferencing plays a major role in supporting rural court systems. It is a significant tool in rural areas where prisoners are located miles away from the courtroom. It saves time and money spent by rural people on transportation. Though it saves money, the system of video conferencing is inefficient in rural areas due to the lack of proper video conferencing setups. It is important to spread the technology in even the most remote areas of the country so that less time and money will be spent on redundant travel. One of the major problems faced by backlogs of cases in courtroom is that it often leaves potentially suspected and dangerous criminals free or in unresolved position. Also, a person on bail is free for a long amount of time before having justice dealt out. By speeding up proceedings through video conferencing will help to minimize these risks.

Through video conferencing, there will be more security of certain individuals, when it is not safer to take them to different locations and courts. Taking prisoners to the courts creates risk for the public and authorities especially when there are criminal proceedings or cases involving terrorism. Videoconferencing also allows judges and court personnel to use technology in different ways.

PROVISIONS IN THE LEGISLATURE

In 2003, the landmark judgement of State of Maharashtra v Dr Praful B Desai [1] justified the use of video conferencing as a tool for taking evidences. As a result of an amendment in Cr.P.C, a provision was added to section 275[2] which states that “Provided that evidence of a witness under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offense”. By analyzing this provision, it can be said that evidence from witnesses through video conferencing is permissible.

The court in the case interpreted the term ‘presence of accused’. According to section 273[3] of Cr.P.C the evidence must be recorded in the presence of accused but as per the interpretation by the court in case of State of Maharashtra v Dr Praful B Desai, the presence does not mean the actual physical presence of the accused. The court contended that evidence of the witness can be taken in the presence of a pleader of the accused. Also, as a result of an amendment in the Evidence Act by inserting subsection 65A [4] and 65B [5], evidence which is related to electronic records (introduced earlier) was considered in this case.

Since Praful B Desai, the trend of video conferencing in civil proceedings has a significant rise especially in cases related to collecting evidence from a witness who resides abroad.

In Alcatel India Ltd v Koshika Telecom Ltd & Ors. [6], the Court permitted the witness to give evidence through video conferencing, as he was unhealthy.

In Amitabh Bagchi vs Ena Bagchi [7] it was held that ‘presence’ does not necessarily mean actual physical presence in the court and a practical outlook has been taken by Calcutta High Court that video conferencing is a cost-effective facility.

In Dr Kumar Saha v Dr Sukumar Mukherjee (medical negligence case), the court went a step further and ordered the submission of testimonies and cross-examination of foreign expert witnesses and evidences through the internet conferencing instead of video conferencing.

The courts have used video conferencing based on different facts and circumstances. For instance, if an examination has to be done of a victim who had been sexually exploited or was suffering from trauma or stress or any disorder can be done through video conferencing. It has also been used by the lower courts, where the court personnel requires to record evidence of under-trial prisoners for security reasons.

PROCEDURES AND SAFEGUARDS FOR RECORDING EVIDENCES

The court provided certain guidelines and provisions for recording evidences through video conferencing which must be followed and necessary precautions must be taken. The guidelines which are laid down in the judgements, are summarised as:

1• An officer that is appointed should be from India or from the embassy in the country where the evidence is being recorded. The officer would remain present and will ensure that there is no other person in the room where the witness is present while the evidence is being recorded [8].

2• The officer who is being deputed to record evidence is under the duty to fix the time of recording the evidence.

3• The witness would be examined only during working hours of Indian Courts. A request for any inconvenience on account of time contrast between India and other countries will not be allowed.

4• In any case, if it is discovered that witness is not attending at the time fixed by the officer, without any adequate reason than it would be open to the Magistrate to disallow recording of evidence by video conferencing.

5• The magistrate can take the legal action as provided by the law to compel the attendance of respondents and counsel if, they do not make it convenient to attend at the time fixed by the officer.

6• A set of all necessary documents has to be sent to all non-party witnesses for their acquaintance and acknowledgment of the matter concerned.

7• The witness has to file an affidavit verified by notary or judge that the person shown as a witness is the same person who is going to depose with a copy of such affidavit to the other side.

8• An affidavit is also filed by the person who wants to examine the witness on the screen.

9• The concerned officer has to ensure that the witness is not prompted. The officer will also ensure that the witness is not prevented to bring any documents which may be required by their counsel.

10• The concerned officer will ensure that there are no interruptions in between, once video conferencing begins.

11• The concerned officer will make a memo if he finds that the witness is not answering the questions. This aspect will be taken into consideration when the evidence is read in court.

12• All material remarks regarding the demur of the witness, while he is on the screen will be recorded by the court and commissioner either manually or mechanically.

13• The applicant who wants to avail the facility of video conferencing will borne expenses and will make arrangements himself.

IMPACT OF COVID-19

World Health Organisations has identified the outbreak of Covid-19 as a ‘Public Health Emergency’ and a matter of international concern. When the nationwide lockdown was declared, considering the situation, the Supreme Court issued guidelines of hearing in courts through video conferencing, so that justice will not be delayed. A three-judge bench headed by Chief Justice S A Bobde, and Justices DY Chandrachud and L Nageshwara Rao, addressed the issue of delivery of justice in the global pandemic. The Supreme court directed the courts across the country to use video conferencing for Judicial proceedings and to take measures to reduce the physical presence of litigants within the premises of court and to maintain social distancing.

The guidelines were issued under Article 143[9] of the constitution to guide all the High Courts to frame a procedure for use of technology in the pandemic. District courts were directed to switch to video proceedings i.e. virtual court hearing and to provide video conferencing facilities for litigants who lack resources.

Chief Justice S A Bobde stressed on ‘technology is here to stay’ and said that in the pandemic situation it is necessary to ensure that court premises do not contribute spread of the virus. Also, it has been made clear by the apex court that no evidence would be recorded by video conferencing and if it is necessary in any case to record evidence in the court than the judge would ensure the distance is maintained inside courtrooms.

The bench also said it is ‘not a matter of discretion but of duty’. It is to ensure that spread of coronavirus is not contributed by the court premises and courts issued guidelines to take measures to maintain distance and ensure public health.

ANALYSIS

The Indian legal system must keep amending with the pace of scientific developments and technologies. The use of video conferencing for conducting trials is progress in the domain of law with science and technology. Trials through Video conferencing saves the time of court personnel and also large costs of transportation. Although, this system is inefficient in the remote regions where due to lack of proper video conferencing setups, people are not able to access this facility. It is an effective tool for the Indian Judicial System as it helps in collecting evidences and aids unnecessary adjournments of the cases. The advent of the concept has enabled the recording of evidences of witnesses who resides abroad. It also enables the linkage of court with prisons which reduced the risks of taking prisoners to court.

The courts have used Video conferencing in cases based on different facts and circumstances. For recording evidences, the court provided certain guidelines so that the necessary precautions must be taken. The concept of video conferencing can help judges to understand the cases with the help of video recordings.

When nationwide lockdown has been declared due to the outbreak of Covid-19, Supreme Court issued guidelines of hearing in courts through video conferencing. Even after the pandemic is over, courts should aim to expand the use of video conferencing so that the backlogs of cases in the system can be reduced. In moving towards virtual courts, courts should also provide a strong framework so that the privacy of the citizens will be protected. Courts should ensure the security of data of people. It is necessary that even in virtual courts, citizens and lawyers have the confidence that their case will be heard on merit and the decision of the court will be fair.

CONCLUSION

The Indian Judicial System has recognised video conferencing as an effective tool to collect evidence and avoid unnecessary adjournments of cases, saves the time and cost of transportation of the parties, and reduces the risks of other inconveniences that may arise.

The use of video conferencing can be boon for the Indian Judicial System as it can help judges to understand the case better with the help of video recordings. The concept of video conferencing will ensure speedy trials and remove the hardships of undertrial. It can be mentioned that with an increase in the use of technology there can be other legal uncertainties and issues that citizens will face like data protection or confidentiality of documents. Courts should ensure the privacy of the parties by providing a strong framework. It can be said that the use of video conferencing in Indian Dispute resolution has given a favorable response and escalated tremendously.