Manan Daga & Siddharth Pankaj Tiwari
India is going through testing times due to the COVID-19 pandemic, and almost every industry, institution and sector has been adversely affected. However, the employment of videoconferencing in court proceedings is proving to be a boon for the Indian judiciary. The Supreme Court was able to hear over 15000 cases and dispose almost 4300 of them ever since the onset of the coronavirus pandemic forced it to stop in-person hearings. Video conferencing in courts enables the accused, witnesses and parties to the case, to appear in court proceedings using audio-visual communication, both in civil and criminal cases. Video conferencing is used in various stages of the adjudication process, such as bail proceedings, remand production and witness testimony.
The use of video conferencing in courts offers several benefits to the judiciary, witnesses and parties to the proceeding. However, as with everything unconventional, conducting court proceedings through video conferencing also has several benefits and drawbacks. This article discusses the benefits of virtual proceedings as well as the various issues that arise due to the usage of this technology in courts. Along with this, an examination of court cases and guidelines which established the foundation of video conferencing in court proceedings in India is included.
Recognising Video Conferencing
Before the COVID-19 pandemic, video conferencing in courts was considered to be a “new thing”. However, the foundations of video conferencing in courts was laid down in 2003 by the Supreme Court, in the landmark judgement of State of Maharashtra v. Dr Praful B. Desai. In this case, the Supreme Court allowed the use of video-conferencing for a witness residing in the USA, who refused to come to India to provide testimony. Moreover, the Court also held that the term “presence” in Section 273 of the Code of Criminal Procedure could not be strictly interpreted as actual physical presence in court. So long as the defendant and/or his pleader are present at the time of recording of evidence through video-conferencing, such evidence would fulfil the requirements of Section 273 of the Code of Criminal Procedure and would be as per “procedure established by law”. Recently, the Supreme Court also relied on this case, amidst the COVID-19 pandemic and released a set of guidelines to be followed by all the courts in a suo moto writ petition reaffirming the ratio of this case.
Furthermore, in 2004, the Karnataka High Court in Twentieth Century Fox Film Corporation and Another. v. NRI Film Production Associates (P) Ltd. laid down eleven-points as guidelines to provide sufficient safeguards in case of recording evidence through video-conferencing to ensure a fair trial. Similarly, other High Courts such as the Delhi High Court and the Himachal Pradesh High Court have also released a detailed set of guidelines for the conduct of court proceedings through video-conferencing in their states.
Thus, the cases of State of Maharashtra v. Praful Desai and Twentieth Century Fox Film Corporation v. NRI Film Production Associates (P) Ltd recognised and laid the foundation of video-conferencing in courtrooms, which is proving to be very beneficial for the judiciary.
Benefits of Videoconferencing
There are several benefits of using video-conferencing in criminal trials. It increases the efficiency of the judiciary in terms of saving costs and time as these are not involved in the transportation of the accused from jail to court, and the accused appears virtually from the prison itself. Further, the Supreme Court has also recognised that video-conferencing can provide “speedy disposal” of matrimonial disputes and thus ordered lower courts to use video-conferencing in these cases.
Virtual proceedings are also cost-effective and time-saving to witnesses in criminal as well as civil cases as witnesses are not required to travel to different states and countries to testify. The witnesses can use the time saved in video-conferencing for a more productive purpose, such as engaging in their occupation, and tending to other personal affairs. In this light, it is pertinent to note a recent decision of the Himachal Pradesh High Court wherein the Court preferred to take expert evidence of a doctor through video conferencing. It facilitated in minimising the doctor’s additional burden and ensured medical care for patients. The use of video-conferencing also takes care of security concerns arising out of the transportation of accused and witnesses in sensitive matters, like the case of Ajmal Kasab.
Shortcomings of Videoconferencing during COVID-19
The use of video-conferencing in these unprecedented times have helped in securing the ends of justice for many. However, there are some obstacles in this journey for justice through virtual proceedings. Firstly, the lack of infrastructure in courts, and similar limitations for lawyers is a big hurdle. There is a Sessions Court in each district, and each state has multiple such districts. The infrastructural costs for setting up video-conferencing facilities in every court is a significant issue. Additionally, as per the 103rd Report of the Parliamentary Standing Committee on Virtual Courts, fifty percent of advocates in the district and lower courts do not have adequate technical knowledge or the requisite digital infrastructure. It creates a significant digital divide amongst lawyers.
Secondly, in case of examination of accused or witnesses, courts may not be able to read the demeanour of the person being examined. These elements of demeanour and non-verbal cues play a vital role in the adjudication process. Moreover, in cases where the accused is being examined from jail, the absence of an open courtroom may affect the person’s statement significantly. In prison, the feeling of safety and security may not be felt since the accused is directly under the watch of the authorities, and may feel pressured. Moreover, there is a lack of effective medium for lawyers to communicate privately with their clients. This becomes a hindrance to the absolute maintenance of the attorney-client privilege since the accused is being denied the ability to have a private discussion with their attorney.
Thirdly, virtual proceedings do not encompass the hardships of people with disabilities. Lawyers or witnesses with certain disabilities may not be able to join virtual proceedings, let alone arguing or testifying respectively. Even if they manage to join such proceedings, the unfamiliarity of such a medium may startle and inhibit their normal ability to argue or testify. Such inhibitions may have a severe effect on the case. For instance, a person with visual impairment may face difficulty in e-filing of their petitions, and joining a video conference via a link. A person with hearing impairment may not know when their case is called out if that person lives alone. Furthermore, newly qualified lawyers are being deprived of an opportunity to witness the arguments of senior lawyers and learn from them.
Lastly, virtual proceedings may make specific provisions of the law redundant like Section 159 of the Indian Evidence Act, 1872. This provision allows witnesses to refresh their memory by looking through certain documents after asking permission from the court. During a proceeding through video-conferencing, the witness may refer to the said documents by arranging a copy of them and looking at them without the court knowing. They would not even be asking the court for such permission. This will essentially render Section 159 redundant, which may not have been intended by the drafters of the statute.
Suggestions and Conclusion
The prominent suggestion here is directed to the Criminal Law Reforms Committee. The Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 should be amended to incorporate provisions regarding virtual courts. Along with this, they should address the guidelines and establish procedures for people with disabilities. It will result in clarity as well as parity regarding the procedure of virtual courts across India. Moreover, attempts should be made to lessen the digital divide among lawyers, which could be done through workshops, and by introducing computer courses in law schools to improve digital literacy among future lawyers.
Virtual proceedings must be made secure from hacking and any other sort of privacy invasion. Some cases require in-camera proceedings, and hackers should not be able to access such sensitive matters. The problem of privacy in cyberspace is likely to persist; therefore, the courts should ensure adequate anti-hacking and anti-virus measures to supplement the video-conferencing technology. Lastly, the courts should account for technical snags and network fluctuations as it may impact the time available for adjudication by the courts.
COVID-19 has brought on unprecedented times and circumstances for all humankind. There can be no surety that such a pandemic may not occur again. Hence, it is time to learn from the shortcomings of the virtual proceedings experienced during these times, and take adequate measures to overcome the same. It is also a positive step in preparing for the future, because, if found viable, virtual proceedings may be instituted permanently in courts. These measures may also strengthen our judicial system, and would also be incorporated for video-conferencing in regular times.
The authors are students of the West Bengal National University of Juridical Sciences, Kolkata.