In this article, Kapil Mishra pursuing M.A, in Business Law from NUJS, Kolkata discusses Delhi High court’s guidelines on the conduct of Court proceedings through Video Conferencing.

Background and Genesis of the Guidelines

In a case going on in Delhi High court, in which Indian Planned Parenthood Federation (IPPF) was the Appellant and Ms. Madhu Bala Nath was the respondent. There was an appeal to allow the hearing and appearance of one of the key witness, who happens to be a resident of London, UK and requested the Honorable court to record the testimony of the sole appellant’s witness through Audio and Video conference. It was also requested that the appellant is a charitable organisation and it would not be in a position to afford the substantial expenses need for the travel and stay of the witness. Under these circumstances, it was requested to grant permission to record the deposition through video conferencing.

However, in this case, a single judge bench has given the order dated 02.07.2015 – where she dismissed the application holding as¹ –

Against the court order issued by the Judge, the case was again brought to the court for review by a larger bench in Delhi High court and the bench comprising Honourable Judges – Justice Badar Durrez Ahmed and Justice Sanjeev Sachdeva heard the case from both the sides. After hearing the case the honourable Judges reserved their judgement on 28^th August 2015 and the same was delivered on 07^th January 2016. This judgement was a landmark, as it recited acceptance of such requests from many other courts in similar cases. Judgement stated that

“….The learned single Judge has erred in not noticing the development of law and technology that has taken place over years. The Code is a procedural Code and procedures are subservient to justice…………The learned single judge, in the impugned order, has taken a very narrow view of the matter. Merely because a witness I travelling over the world and may have the financial resources to travel to  India does not necessarily imply that the court must insist upon the witness personally coming to the court for the purpose of deposing before the Court and/or her cross-examination……….”

The bench in this judgement observed that courts in India should take pragmatic view while working with an objective to further the dispensation of justice. Court also referred to the ruling of the Honourable Supreme Court of India in State of Maharashtra vs. Dr. Praful Desai – AIR 2003 (4) SCC 601, in which it was stated that in light of section 273 of CrPC, the term ‘presence’ cannot be interpreted to only mean actual presence of a person in any court.

In this transformative judgement, Court also emphasized on the benefits of deposition through video conferencing and said that except for touching, court can see, hear and observe, as if parties and the judicial system all are under one roof. Along with this the behaviour and demeanour of the witnesses can be observed and specifically depositions can be heard and reheard through playback of recordings as many time as court or parties may wish so. This facility of playback at wish will give bring additional efficiency while doing cross-examinations. However, court clearly supported that there may be circumstances where in-person presence may be necessary and in these cases it would be obligatory for the required person to be present in court.

Guidelines to conduct Audio-Video conference

Introduction

In relation to the judgement given by the bench of Justice Sachdeva and Justice Ahmad about accepting the video conferencing request, Delhi high court has released the guidelines to conduct such video conferencing. In the guidelines, court stated that judicial system has many location which are enabled for this – which includes Delhi High court, all the district courts in Delhi such as Saket, Patiala house, Tis hazari and Prison complexes in Tihar and Rohini Prison.

In the introduction segment this guidelines states that while the facility provides capacity to participate in court proceedings without physical presence, however an overriding factor is that this facility must be furthering the interest of justice and should cause minimum disadvantage to the parties. At the end the power to decide in favour of video conferencing or not, is always vested with the Court.

General Guidelines

The annexure given as the guidelines about How to conduct proceedings through Video conference have been summarised as following –

1. In the High court guidelines, the reference to the ‘court point’ shall mean the courtroom or other places where the court is doing its proceedings. This could also be a place an official (commissioner) appointed by court to record the evidence and statements is sitting, whereas the ‘remote point’ shall be the place where the person and/or witness to be examined via video conference is located.
2. Person to be examined shall be the person whose deposition or statement is required to be recorded or in whose presence certain proceedings are to be recorded.
3. As per the possibility, proceedings by way of video conference shall be assumed and conducted as typical judicial proceedings and the prescribed protocols and courtesies shall be followed exactly as if it were to be followed in a physical presence in a court. All statutory provisions applicable to such proceedings including that of Information technology Act, 2000 and Indian Evidence Act, 1872 shall be applicable at par in such video conferences.
4. Excluding the proceedings listed under section 164 of CrPC , video conference facility can be used in numerous matters including remands, civil and criminal trials , bail applications etc , where a witness is located interstate, intrastate, or overseas.
5. The guidelines applicable to Court will mutatis mutandis apply to a local commissioner appointed by the court to record the evidence.

Appearance by Video conference

It is provided in the guidelines that a Court may direct any person to appear before it or give evidence or make submissions to the court through video conference. Such order may either be given suo moto or on application of a party or a witness.

Preparation and Operational Arrangements

In the detailed guidelines about the conduct if video conferencing, operational aspects are covered as following –

1. Both sides of the conference i.e. court and remote point shall have Co-ordinators.
2. The Registrar (computers) shall be the co-ordinators in the High court, court point.
3. In case the Court point in in the District Courts, Official-in-charge of the video conference facility, as nominated by District Judge, shall be the co-ordinator at the court point. However, any such nominated person should be working as Senior Judicial Assistant or Senior Personal Assistant or above.
4. While in the case of Remote Point , guidelines suggests that –
   • If any person to be examined is not in in Indian and stays overseas, Court may select a co-ordinator from any of the Official of consulate/embassy of India in that country or a relevantly certified Notary public/oath commissioner in that country.
   • If the person to be examined is in another state or Union territory, Court may depute a judicial magistrate or any other officer as deem fit for the role by the concerned District Collector.
   • In case the person to be examined is in jail for a judicial or police custody, the concerned Jail superintendent or any person deputed by him may also take up the responsibility.
   • In situations where the person to be examined in in a Hospital (public or private) , this role shall be played by the Medical Superintendent or IN-charge of the said hospital or any other responsible officer as deputed by him.
   • When the person to be examined is a minor or a child who is under observation in an observation home or Special home or Shelter home; the officer in charge of the home or a person deputed by him may take up the responsibility.
   • In case the person to be examined is in Nirmal Chhaya homes, the Officer in charge of Nirmal Chhaya or a person deputed by him shall take up the responsibility.
   • In cases where this co-ordinators is to be appointed for the remote point, the concerned Court can make formal request which can be made through the District Judge concerned.
   • In exceptional situations which are not mentioned in the guidelines, the court may choose to order as appropriate in such circumstances.
5. Co-ordinators at both the points should ensure that the minimum requirements, as specified in one of the points in the guidelines below, are in position at the respective courts and a test run has been done between both the points in advance to enable a seamless proceeding in real time.
6. The coordinators should ensure that at the remote point, the person to be examined is available at least 30 minutes in advance. It should also be made sure that no other recording device is permitted other than the one installed for proceeding, as well as the entry to the video conference room is duly regulated.
7. Co-ordinators are also supposed to make sure that the Court point and the Remote points, both have certified copies or soft copies of all or any relevant Court records in a sealed cover as directed or provided by the Court.
8. In case that there is a challenge about the language or any similar disablement, Court may order the coordinators to provide a translator for the corresponding language. In case where the person to be examined has speech or hearing impairment, an expert in sign languages should be appointed.

Mandatory Technical Requirements

Guidelines given by court has appropriate mention of the minimum technical requirements to be met while preparing for such video conference based hearing. These requirements are mentioned below as-

1. A computer with high speed internet connectivity
2. Power back devices to ensure uninterrupted power supply
3. Printer attached to the computer
4. Video camera of appropriate audio-video relay quality
5. Microphones and Speakers
6. Display units
7. Document visualizer machine
8. Sitting arrangements ensuring privacy of proceedings
9. Noise insulations as much as possible
10. Digital signatures for the coordinators at both the points
11. Adequate lighting for clear visibility

Cost of Video Conferencing

The contention that who will bear the cost of such set up and also the cost of personnel deployed on such duty could be high enough to be debated and disputed. However the Court guidelines clearly identify with such costs and who will bear them as per below given  directives –

1. In criminal cases, the cost of conference facility, including all the relevant preparation of documents and fee payable to translator, special educator, and to the coordinator at the remote point as well as courts, shall be borne by the party as the Court directs taking into the account the Delhi Criminal Courts (Payment of Expenses to Complaint and Witnesses) Rules, 2015.
2. In civil cases, as a general rule, the party making the request for conduct of hearings through Video conference, shall bear the expenses.
3. In other scenarios, Court may make an order as it may find deem fit to the case as per the rules and instructions prevalent from time to time.

Procedural Guidelines

1. Along with the guidelines that gives a framework around how to set up an appropriate system that enables a health and conducive environment for Court proceedings, the Court has given Procedural guidelines as well. Such guidelines are summarised as following –
2. Identity of Person: The identity of a person who is appearing for the proceedings shall be confirmed by the court with the assistance of the co-ordinator at the remote point at the time of recording an evidence.
3. In civil cases, the party, which is requesting for recording of statements through video conference, shall have to confirm the court location of the person and his express willingness to appear into a particular facility/place for video conferencing.
4. In criminal cases, where the person to be examined is a witness from prosecution side or a Court witness, the Prosecution; while if the person to be examined is a defendant witness, the Defence counsel will confirm the Court about the willingness and location for such video conferencing.
5. In case where the person to be examined is an accused, prosecution will confirm his location at remote point.
6. General timings of the video conference to take place shall be ordinarily routine Court hours. However the Court may pass suitable time schedule as per the prevailing circumstances.
7. Proceeding records including the transcription of statement shall be prepared by the authorised personnel at the Court point as per routine rules and regulations of recording the court proceedings. While this will get authenticated at the Court point, a soft copy of the transcript digitally signed by the co-ordinator at the court shall be sent by email to the remote point – where the deponent will sign a printed copy of the same. A scanned copy of the signed letter by the deponent shall be digitally signed by co-ordinator at the remote point and the same shall be sent by email to the Court point. This will be followed by a hard copy sent by courier/mail preferably within three days of the recording.
8. The court, after the request of a person to be examined or by itself also, in best interest of the person to be examined, can direct to have appropriate measures to protect privacy of the person keeping in mind his age gender and other conditions.
9. In case a party or a lawyer requests that during the course of video conferencing some privileged communication may have to take place, Court will pass appropriate directions in this regards.
10. The copy of the audio video recording shall be archived as an encrypted master copy with hash value in the Court as part of the records, whereas another copy shall also be stored at any other safe location for backup to avoid any emergency data loss situation or serve failure. Transcript of the evidence recorded by the Court shall be given to the parties as per applicable rules. Any party may be allowed to view the master copy of the recordings through an application which shall be decided by the Court subject the interest of justice of that case.
11. Person who is bearing the responsibility of the co-ordinator at the remote point shall be paid an honorarium as may be decided by the court in consultation with the parties.
12. In a scenario where a party or its representative wants to be present in person for the hearing at the remote point, the party shall be free to make the arrangements at party’s own cost including appearance, however subject to contrary orders by the Court.

Putting and sharing of Documents during hearing

During the course of examination of a person at a remote point by the video, if it is necessary to put a document to him , then the Court may permit the presentation of document in the following manner –

1. If such document is at Court point, then such document will be share with the remote point electronically including through a document visualizer.
2. If the document is at the remote point then the same method will be used for sharing the document i.e. through document visualizer, however remote point shall have to send the hard copy to the court point by mail afterwards.

Unconnected persons during proceedings

Parties may be allowed by the court to have third parties present during the video conferencing subject to the condition that such persons shall be identified by the co-ordinator at the remote point at the start of the proceedings and the objective of such person being present should also be explained to the Court.

Control of Proceedings

Court shall have full control over the start and finish or disconnection of the link to conduct the video conferencing. The court shall make sure that Court is able to see and hear the person to be examined at the remote point as well as the remote point is clearly able to see and hear the Court point.

The court at all the time shall have control of the camera to have an uninterrupted view of all the persons present at the remote point , the Court shall have clear view of all the deponents to observe their behaviour.

It is stated in the guideline that covering every possible aspect of such proceeding run through video conference may not be possible, and any other residual issue and circumstances which may not have been observed and guided in this guidelines shall be governed by the court in the spirit of furthering the justice.

Conclusion

While this particular judgement from Delhi High court is considered a game changer, there are few previous cases where video conferencing was accepted by court for proceedings, such as the case² in 2003 when Supreme Court upheld the judgement of Maharashtra Trail court to allow the video conferencing for recording of deposition.

The judgement given by Delhi high court, which was followed up by detailed guidelines have been followed by numerous courts in numerous cases afterwards. However the precedence goes back to the Supreme Court ruling in State of Mahrashtra vs Dr. Praful B Desai where court has stated that the term ‘Presence’ cannot always be interpreted as Physical presence.

Even in the case³ of terrorist Kasab , proceeding were conducted through video conferencing.

Furthering the guidance to the one issued by Delhi High court, as recent as in March, 2017; in yet another case while hearing a transfer petition, Honourable Supreme court bench, comprising Justice UU Lalit and AK Goel, has ordered⁴ lower courts to adapt latest technology and start proceedings through video conferencing if required.

According to an analysis, if all the judges in our country were to close 100 cases per hour without sleeping and taking any break it would take 35 years to catch up with the pending cases!!  In such scenarios, video conferencing is a very welcome move that can make the cases move faster.

Few Suggestions that should be considered to make judicial system work much faster while deposing the cases are also dependent upon use of technology like video conferencing. It has been suggested from experience in many countries that technical supports and software built around artificial intelligence can take care of a lot of formalities and data gathering steps that eat up half of the court’s time in most of the cases. Such as, in China nine of their prominent research institutes came together and developed a software that helped their 300 judges to handle 150,000 cases and reduced the workload to one third.

In the concluding remark an editorial article published in Paris Innovation review⁵ dated 9^th June 2017, is worth mentioning, it talks about how Algorithms can pervade the law and Artificial Intelligence tools may help in great deal to speed up the Judicial system.

Video conferencing is a big step in the right direction that Indian sytem has taken, however this article leaves a very large topic of discussion as open ended with reference of another great article published⁶ in LexisNexis (as mentioned in the snapshot above) about future technology amalgamation with Law and how it may change course of legal justice systems across the world.

References:

1. Excerpts from the court order, source : FAO(OS) 416/2015.
2. Excerpts from the court order as published in Newspaper [Link]
3. Excerpts from the court as published in India today [Link ]
4. Excerpts from the court as published in Mail today [Link]
5. Paris Innovation review [link]
6. Lexis nexis article [Link]