This article is written by Kunal Saini, pursuing his 4th Year of BBA LLB from Christ University, Bangalore. This is an exhaustive article which deals with video conferencing as an emerging trend: a bailout to curb the outgrowth of cases during the COVID-19 pandemic.

Introduction 

In the wake of the recent outbreak of COVID-19 the Supreme Court has decided to restrict physical presence inside the court premises and has also ordered the chambers to be shut down and sealed. During this pandemic, the courts will be hearing matters of urgent nature through video conferencing via different platforms like Skype, Facetime, Zoom, WhatsApp and Vidyo. 

Indian courts in a plethora of judgments have held that the courts need to be equipped with advancements in science and technology and in such times where a nation-wide lockdown is being imposed it is extremely essential for the courts to continue in the process of dispensing justice. 

Over a couple of weeks, we have seen the judges of the Supreme Court and the High Court hearing urgent matters over platforms like WhatsApp and holding trial runs in courts across the country. The driving force for inculcating such advancements in science and technology into the Indian Judiciary has predominantly been the E-Committee formed at the Supreme Court which has been till date quite successful in achieving the E-Courts project formulated. 

The committee has clearly affected digitisation of the judiciary at all levels and is ensuring videoconferencing at various remote points for the perusal of the courts [1], it has also established a substantial link between magistrates and undertrial prisoners to use the video conferencing facility. Additionally, the committee has also sought to improve certain services like E-Filing facility and digital library, the former is being encouraged by the High Courts and the latter provides access to lawyers during such times.

Procedure for Collecting Evidence through Video Conferencing under Civil Procedure and Criminal Procedure Code

The procedure of collecting evidence has been enlarged in its scope through video conferencing by the inclusion of the same in certain statutory provisions. The Civil Procedure Code 1908 and the Criminal Procedure Code 1973 both have inculcated the need for collecting and recording evidence through means of video conferencing. 

Under the Civil Procedure Code, witnesses are summoned and appear to give evidence under Order XVI and XVII, former deals with Summoning and Attendance of Witnesses and consequently Order XVIA deals with summoning witnesses confined or detained in prisons, whereas the latter Order XVII deals with Hearing of the suit and Examination of witnesses. 

The 2009 amendment in the Code of Criminal Procedure Code 1973 [2] has sought to amend Section 275 of the code which deals with recording of evidence and has further included a recording of evidence through audio-video electronic means in the presence of the advocate of the accused person. The Supreme Court in the landmark judgement of State of Maharashtra v. Praful B. Desai (Dr) [3] has observed that under Section 273 of the CrPC, presence of the accused doesn’t necessarily mean physical presence, evidence can be recorded through means of video conferencing and the presence of the accused can be dispensed with.

Video Conferencing Guidelines issued by various High Courts

It is also pertinent to note that the High Courts have laid down video-conferencing guidelines which elucidate the use of video conferencing facilities in all civil and criminal matters. The Delhi High Court video conferencing guidelines [4] have exhaustively covered several aspects pertaining to using such facility and has provided the general procedure which has to be followed whilst using the video conferencing facility. 

The court has identified various remote points where video conferencing facilities can be used such as any person living overseas, a jail/prison inmate, hospital patient, a juvenile or child at observational homes or shelter homes and an old aged person at old age homes (Nirmal Chhaya). 

The High Courts whilst formulating the guidelines also have addressed the issues of cost to be borne by the parties and usually by the party which requests for the video conferencing facility. There are minimum requisites which have been laid down by the courts needed for the video conferencing facility to work such as:

1. Desktop,
2. Power supply,
3. Video Camera,
4. Microphone and Speakers,
5. Display Unit,
6. Document Visualiser,
7. Comfortable sitting arrangement to ensure privacy,
8. Adequate lighting,
9. Insulation for proper acoustics.

Such guidelines pave the way for video-conferencing to emerge as a reliable trend for the judiciary since it is often quoted by the Indian Judiciary itself that Law and Technology mix like oil and water. Besides the Delhi High Court guidelines, there are several High Courts as well, such as the Punjab and Haryana High Court and Karnataka High Court which have laid down its own video conferencing Guidelines and are considering video-conferencing as a viable piece of the facility to be used by the courts. 

It is evident from the guidelines that video conferencing facility is not something novel to the Indian Judiciary and there have been positive strides adopted by the High Courts in order to self-equip them with the necessary events in science and technology.

Judicial pronouncements: Enhancing the Scope

The Supreme Court in the famous case of Dr Praful B Desai [5] had extensively held the use of video-conferencing to examine a prosecution witness residing in the United States of America and further held that the meaning of evidence as per Section 3 of the Indian Evidence Act 1872 would also include video-conferencing and the court has also appreciated such advancement in science and technology. The Court also observed an important aspect of trial through video conferencing being the facility of playback and rehearing the deposition of witnesses, depositions and witness examinations can be heard again multiple times.

It is pertinent to note that the above observations by the court have been reiterated by the Calcutta High Court in the case of Amitabh Bagchi v Ena Bagchi [6] and held that video-conferencing facilitates the courts and prevents delayed justice and is a must practical outlook to be taken by the courts.

The Karnataka High Court in the case of Twentieth Century Fox Film Corporation v. NRI Film Production Associates (P) Ltd. [7] the court held that hearing suit and examination of witnesses by a commissioner under Order XVIII Rule 4, the words witness to be in attendance are not to be compulsorily understood as a physical presence but can be in presence through audio-video links. The court also laid down necessary safeguards to be followed while carrying out such facilities for the purposes of recording evidence which are:

1. Before a witness is examined in terms of the Audio-Video Link, the witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification affidavit).
2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
3. The witness has to be examined during the working hours of Indian Courts. Oath is to be administered through the media.
4. The witness should not plead any inconvenience on account of the time difference between India and the USA.
5. Before the examination of the witness, a set of the plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
6. Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
7. Learned judges must note the objections raised during the recording of witnesses and to decide the same at the time of arguments.
8. After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
9. The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certify to this effect.
10. The learned Judge may also impose such other conditions as are necessary for a given set of facts.
11. The expenses and arrangements are to be borne by the party requesting for the facility.

Further substantiating the aspect of such facilities established at remote points like prisons, the Apex court in the case of Asha Ranjan v. State of Bihar [8] directed the Tihar Jail authorities and the competent state authority to make necessary arrangements for video conferencing so that the accused and witnesses could be made available for the purpose of trial through video conferencing. The above observation made by the Supreme Court substantiates the dictum laid down in the case of Praful Desai in relation to the presence of the accused.

The Delhi High Court also has held in an arbitration matter [9] which came up for enforcement of a foreign award that witness examination can be conducted through video conferencing if the witness is unhealthy.

On similar lines, the Madras High Court in the case of Abdul Karim Telgi v. State [10] had held that owing to the health conditions of Abdul Karim Telgi the presence of the accused shall be dispensed with and he is allowed to be examined through video conferencing facilities. Indian Judiciary is somewhat facing the same situation presently with the COVID-19 pandemic.

In the case of Kunal Saha v. Sukumar Mukherjee [11] it has been held that in case of recording of testimonies and cross-examination of foreign expert witnesses, the same can be done through video conferencing. 

In an interesting case of Sucha Singh v Ajmer Singh [12] before the Punjab & Haryana High Court, the court while observing that one of the parties whose evidence was necessary for the trial, ordered for taking evidence through different video conferencing platforms like WhatsApp, Skype, Facetime and other similar applications which are available both on mobile and computer.

In a recent case before the Supreme Court one of the submissions put forward by the Amicus Curiae was that for the speedy disposal of cases, investigative officers and witnesses who reside outside the jurisdiction of the court the video conferencing facility is an effective model at the perusal of the judiciary. [13]

In another recent case [14] before the Supreme Court, when one of the witnesses was residing in Nigeria the court ordered that the witness should be summoned by the High Commission of Nigeria for the purposes of taking evidence on record.

In Shahrukhkhan Abdulraufkhan Baban khan Pathan v Azaruddin Valiuddin Saiyed [15] the Supreme Court has held that courts shall take advantages of such advancements in science and technology which will ultimately save the time of the courts and also specifically the time of the police who are required to present the accused before the court after every 15 days. Furthermore, the court also held that such facilities will also save time, energy and expenses spent by the stakeholders involved which will be beneficial to the larger interest of society and avoid the delay in the trial.

However, in another recent landmark judgement by the apex court in the case of Santhini v. Vijaya Venketesh [16] that in matrimonial matters where reconciliation is encouraged which is possible only if the physical presence of both parties is secured and an emotional bond is to be maintained between the parties, video conferencing in such matters will subserve the process and might create a dent in the process of settlement.

Drawbacks and Challenges

One of the glaring challenges which stand in the way of such advancement is the volatility of the security feature of using such applications and possibilities of breach of data. This will lead to certain confidential information of the parties to be out in the open. The prevention of unauthorised access to the usage of these applications puts an added stress on the judiciary since it is clearly evident to the public of instances of breaches on such platforms and needs no further explanation.

Moreover, another challenge to the usage of such facilities will be the effect on the speed of the delivery of justice, the increasing technical difficulties which are bound to arise will slow down the process. Cross-Examination of witnesses, taking evidence on record and hearing arguments of the counsels will certainly take its own time over such platforms.

Conclusion

It is quite evident how the courts in India are open to inculcating such advancements of technology into their working, which goes to show the fact that the saying of law and technology mix like and oil and water don’t stand much value now. On similar lines, Justice V. R. Krishna Iyer the logophile of the Indian judiciary had elucidated the same relationship by observing that, “In our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt.” [17]

However, the Indian Judiciary has also been wary of the fact that such technological advancements like video conferencing will require the necessary technical know-how and expertise. Such steps help in reducing the humongous amount of pending cases before the judiciary and also during such extraordinary situations of a pandemic resulting into a complete nation-wide lockdown it is absolutely imperative to keep the judicial proceedings running to some extent. 

References

[1] https://main.sci.gov.in/pdf/ecommittee/PolicyActionPlanDocument-PhaseII-approved-08012014-indexed_Sign.pdf

[2] https://bombayhighcourt.nic.in/libweb/actc/yearwise/2009/2009.05.pdf.

[3] (2003) 4 SCC 601.

[4]http://www.nja.nic.in/CJCM_Resolution/Delhi_HC/Video%20Conferencing%20Guidelines%20issued%20by%20DHC.PDF.

[5] Supra note 3.

[6] AIR 2005 Cal 11.

[7] AIR 2003 Kar 148.

[8] (2017) 4 SCC 397. 

[9] Alcatel India Limited & Anr. v Koshika Telecom Limited & Ors. (2004) 76 DRJ 524. 

[10] 2008 Cri LJ 532.

[11] (2011) 13 SCC 98.

[12] 2018 SCC OnLine P&H 637.

[13] Krishnakant Tamrakar v. The State of M.P. (2018) 17 SCC 27.

[14] Manju Devi v State of Rajasthan, (2019) 6 SCC 203.

[15] (2015) 1 GLH 566.

[16] (2018) 1 SCC 1.

[17] Som Prakash v. the State of Delhi, (1974) 4 SCC 84.