This article is written by Utkarsh Srivastava and Aryan Ahmed, pursuing BA. LL.B (Hons.) from Dr. Ram Manohar Lohiya National Law University. This is an exhaustive article which deals with the proceedings through screens: analyzing its implementation in the coronavirus outbreak.

Video conferencing of court proceedings in times of COVID-19 is a welcome step, but its implementation needs further thought. 

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Introduction

On 23rd March 2020, the Hon’ble Supreme Court of India, through a circular, notified that it would hear only matters of extreme urgency through the mode of video conferencing and this practice will be followed till further orders. This step was taken as a precautionary measure against the COVID-19 outbreak which has wreaked havoc around the world. It is also being seen as adhering to the concept of social distancing which is being advocated by the government as well as the medical professionals of the country. Unlike the courts of other countries, the Indian Supreme Court didn’t decide to close the court in entirety.

Instead, it chose a middle path of video conferencing, seeing the pendency of cases and the urgency of some matters which were to be heard. Video Conferencing, as a method to be adopted in the current legal system, has numerous advantages and possesses the potential of serving as an efficient method of conducting court proceedings. Its application is already being used in the area of Arbitration and other Alternate Dispute Resolution forums. However, whether its present usage in the court proceedings would fulfil its objective of implementation as a precautionary measure against COVID-19 outbreak is to be seen. This article attempts to analyze this step and check how or even if, this method achieves its objective. 

Video Conferencing: Guidelines in the Indian legal system, advantages and disadvantages

The genesis of the usage of Video Conferencing in the Indian Judiciary dates back to 2003 when the apex court in the case of State of Maharashtra v Dr Praful B Desai (2003) 4 SCC 601, upheld the validity of implementation of video conferencing as a tool for the collection of evidence if the witness was unable to be conveniently examined in the courtroom. Since then, this facility has been used in various cases for witness testimonies, recording of pleas etc., considering the demands of the situation of the case and the advantages it carries. The advocates of this method describe its implementation as a tool to achieve prevention of transportation which further reduces costs of fuel, saves time and reduces the high pressure placed on the legal structure in a lot of places and especially the lower courts. This also fosters security of criminals by eliminating the situation where a criminal will be taken out of prison premises for going to the courtroom. 

However, in the Indian context, the majority of cases where this method is used is only for specific procedures. An Indian court proceeding involves various procedures which are to be followed such as filing of Vakalatnama, receipt of the court fees, memorandums which involve thorough checking by the court authorities. Recognizing the importance of these procedures, the courts in India have laid down guidelines for implementation of this technology in Indian court proceedings. The guidelines have successfully been achieved to make this method an efficient method of conducting proceedings in the Indian Courts.

COVID-19 and the implementation of Video Conferencing as a precautionary measure 

With the spread of the coronavirus outbreak all over the country, different organs of the present administrative setup have begun taking steps to combat the disease by adopting various measures. These measures primarily focus on the domain of social distancing and sanitization. For example, multiple departments of the central and the state governments have shut their offices and have granted leave to their employees for the time being. Additionally, the transport services in the country such as the Railways and the Bus Transport departments of most states have also halted functions. The Central Government’s lockdown of the entire country, which is aimed at reducing the possibility of physical contact from the infected to the non-infected and also promotes social distancing, is a commendable step. This drastic action stems from the fact that coronavirus is a highly communicable disease which poses a high risk of spread to a non-infected individual by close physical contact from an infected person. 

The judiciary’s approach to dispensing cases by video conferencing is also a result of the necessity to avoid physical contact of any sort in the courtroom. It is acting as a catalyst for carrying out court proceedings amid the outbreak by being a middle path where there’s no physical contact between the individuals when the proceedings are being carried on. However, there are some concerns in the provisions of the guidelines which provide for the implementation of video conferencing for conducting court proceedings. Various guidelines by High Courts and the Supreme Court of India provide for coordinators to be present at the court point and remote point physically for conducting the conference smoothly and verifying the essential files of the proceedings. This task can be successfully conducted while remaining at a separate location rather than marking physical presence at the remote point. Although, there are certain tasks such as the installation of the screens, the arrangement of rooms for serving as remote points which need a physical presence. But, these tasks can be performed by executive authorities of that particular area who are familiar with the hygienic conditions of the area and ensure whether the person who is to be brought in the remote area possesses any infection or not. 

The latest orders by the Indian Government also mandate the executive authorities to make a list of the infected in their respective area of administration. Therefore, an executive officer would be in a better position than a court official, to know whether the person from his/her area of administration, who is going to be present in the proceeding, is infected or not. A coordinator going to an unknown area (unknown with respect to whether the area is sanitized and infection-free or not) and coming in contact with a person there who is not known of being infected or not, increases the risk of the spread of disease. A recent video conferencing also involved judges assembling in one judge’s chamber for hearing the pleas. In a situation where it is seen that governments and medical authorities across the world are urging the mass to avoid physical touch and practice sanitization as far as possible, this practice of assembling in a chamber or at a residence by the judges poses a high risk and calls for further measures to be taken in this area. 

Video conferencing, in this pandemic, is being utilized for the reason of avoiding physical contact and such acts defeat the very purpose of its implementations. We regard the fact that total separation in this situation is an idealistic concept and cannot be achieved pragmatically. We also recognize that there are certain essential services which cannot achieve total separation in their conduct and need to be carried on in the present administrative system. Neither do we contend that the usage of this technology in this situation is bad as it is better than conducting proceedings in courtrooms where the possibility of spreading the virus is far more. We, as the authors of this article, just contend that more steps, as far as possible, should be taken in the process of implementation in the situation of such a pandemic in which a highly communicable disease, whose cure is still not found, is spreading at an alarming rate throughout the world taking lives in huge numbers.

Another concern which arises with this medium of court proceedings is the use of ‘Vidyo’ application for conducting the proceedings. It is not clear with the privacy policy of the application whether it provides ‘end-to-end encryption’ to its users or not. The relevance of end to end encryption in this area pertains to the fact that court proceedings contain various procedures such as recording of the evidence etc. which are sensitive parts of a case and it should be up to the courts to decide whether these parts should be accessible to the third parties or not. 

Comparative Analysis from different Countries

At the onset, we would like to mention that the selection of countries for this part of our article is based on similar demographic conditions and the expansion of the spread of the virus. Population and density of a country can play a vital role in varying the rate of spread of coronavirus. Similar is the case with the practice adopted by the people and the government in this outbreak. For the purpose of comparison keeping regard to Indian demographic conditions and the extent of the spread of the disease till now, it would be judicious to compare the procedures adopted by Chinese, American and Indonesian courts. For instance, in this outbreak, the Chinese courts have adopted an approach of conducting the trials online as analogous to India. The only difference between their implementation and ours is that the trial only involves the bench, a clerk, and the parties of the case sitting at different locations making it a “contactless” proceeding. It is also a matter to be appreciated that the country’s courts have made specific requirements such as filing pleas, submitting memorandums etc. through electronic media which gives strength to their approach of “contactless” proceedings.

Considering the situation in the USA, there exist multiple approaches which the courts are adopting while dealing with the pandemic. While the Californian state courts are following their epidemic plan which focuses on providing information to the judge about the health conditions of every employee of the court, the Miami circuit is keeping hand sanitizer boxes in each of their courts. This also forms a major precaution which should be adopted in the Indian courts along with social distancing; sanitization too is a paramount measure which should be taken for the prevention of spreading the disease. The US Court of Appeals is conducting the oral arguments of the cases through the technology of live streaming, similar to the Indian approach. Similarly, Indonesian courts have issued a circular which stresses all the judges to work from home, further postponing the hearings of all the cases except some urgent civil, religious and state administrative cases which are being conducted by the e-court system of Indonesia.

It is evident that some other countries which have analogous demographic conditions as of India are adopting this technology as a means to conduct the proceedings of the urgent cases which are scheduled in their courts. The difference with India lies in the way of conduct which is to involve minimum participation of individuals in a conference and the minimum assembling of individuals at one location.

Conclusion

The approach with which the Government of India, its medical professionals and the Indian judiciary is dealing with this deadly pandemic is worth applauding. The effect of these strategies can be analyzed with a comparison of the number of infected individuals from countries which have similar demographic conditions as of India. The comparison of numbers very evidently shows that the number of tested positive persons in India is far less than other countries which have similar demographic conditions.

While it can be contended that the judiciary’s approach towards Video Conferencing can be a valid method to conduct proceedings of urgent cases, it is a matter of concern that there need to be reformed in its method of implementation so that it can achieve its objective of avoiding physical contact and maintaining social distance. Along with it, the concerned authorities should also look into the matter of usage of the ‘Vidyo’ application and whether the aspect of privacy of proceedings is maintained while using the application or not. If resolved, this practice can provide a totally new interface for the management of court proceedings which would solve major lacunae of the current litigation system such as pendency of cases, hefty costs, stressed infrastructure and management of the security of the parties.