The proliferation of COVID-19 has prompted legislative, judicial and administrative bodies worldwide to take steps that lead not just to safety directives but also to a common need for more autonomy and remote connectivity. Because of the increasing number of infections, social distancing has become an important aspect in our day to day life, thus, in this context the Indian Judiciary has resorted its physical functioning to video conferencing. In April, the Hon’ble Supreme Court decided to use the best of technology while directing the subordinate Courts to resort to e-functioning. The Apex Court and the High Courts in various States, issued circulars seeking litigants to approach the courts exclusively for urgent cases and not otherwise, that is, only cases requiring urgent hearing would be considered in the context of temporary relief. On 15 April 2020, the Apex Court provided a Standard Operating Protocol for the filing and listing of urgent matters and the execution of videoconferencing hearings to resolve the lockout.
Since the start of 21st century, the Indian Courts have been using video conferencing in certain kind of witnesses and testimonies. The courts are working with emerging technology as a solution to growing packed dockets. The same has also been implemented in certain tribunals like the Income Tax Appellate Tribunal and the National Green Tribunal. The latest guidelines issued by the Supreme Court is by the virtue of Article 142 of the Constitution which lays down that the law declared by the Supreme Court shall become the law of land. Autonomy was also given to the High Court to alter the guidelines as per their needs. This has also enabled the Courts to actively engage with the public.
Features of the Virtual Court
The landmark judgment of the Supreme Court, Tripathi vs. Supreme Court of India emphasized on the broadcasting of court proceedings relating to national and constitutional importance. This case consisted of a bunch of public interest litigations filed by various people including senior advocate Indira Jaising wherein she raised the contention that this method will give the public open access to justice and it ensures that justice is done. This can be based on the principle Ignorantia Juris Non-Excusat.This means that ignorance of the law is not an excuse. Rajya Sabha TV broadcasted the Court proceedings in ICJ for the Kulbhusan Jadhav case. This move can be seen as an instance where public participation has been enforced.
In the Indian scenario, video conferencing has been used in very few instances. No formal assessment was made to the effect of videoconferencing technologies on the judicial process. The effect of this development on judicial prosecutions on the attorney-client partnership and their confidential correspondence is of particular concern. The Court’s use of this technology must be utilized for the sole purpose of administering justice. This is an effective method to save time and cost in the time of a pandemic. Critics contend that the usage of video conferencing undermines the capacity of attorneys and clients to connect, thus weakening successful attorney support. This will also enable the digitization of the Judiciary. In the aftermath of the pandemic (which has been a fairly common term ‘in the midst of the pandemic!’) Indian courts address critical problems by video conferencing. The culture of remote work is swiftly taking over. Many vouch for their pros, such as flexible working hours, saving travel time and expenses, less strenuous days, saving office space and another office spending; while others are worried about their disadvantages, such as less control over the activities of employees or less interpersonal interactions between colleagues or clients.
The problem is, the same will relate to legal processes and the administration of justice. In a recent case at the High Court of Madras the proceedings were held through video conferencing. The Court, while considering a writ petition contesting a government order and the consequential works in the tender notification by Tamil Nadu, Department of Highways and Minor Ports ruled “To consider the respective pleadings and submissions of the respective parties, this Court is of the view that such final hearing cannot be done by way of Video-Conferencing mode.” Since bids and tenders had to follow their timeline and keeping the matter pending would not make that possible considering the dispute between the parties, the Court observed that “it is open to the respondents to open the technical bid and however, they shall not proceed any further with the process of the tender until further orders from this Court.“
Earlier, on 24th April, the Supreme Court Bar Association resolved to urge the Chief Justice of India to limit video conferencing to the time period of the lockdown, and resume open court hearings after the lockdown. There is no doubt great merit to the idea of courtroom hearings in the administration of justice.
Advantages of Video Conferencing
There are several benefits of hearing by video conferencing, including no personal appearance obligation because parties travel miles to be present in person before the courts and, at the same time, it can be cost-effective and time-effective with the benefit of the parties as well as the judiciary. It will most importantly reduce carbon footprint. Video conferencing will be made available on all sorts of issues at all courts around the world. Digitalization would reduce the humongous number of lawsuits remaining in the judiciary and would offer an effective remedy for delayed justice.
Facilities for video conferencing can be used in all matters including remand, bail applications, civil and criminal trials where a witness is intrastate, interstate, or overseas. These guidelines will not however apply to proceedings pursuant to Section 164 of the Criminal Procedure Code i.e. Recording of confessions and statements.
A notification by the Delhi HC claimed that all related legislative requirements applicable to judicial trials, including the requirements of the Information Technology Act, 2000 and the Indian Evidence Act 1872, shall extend to the production of proof by videoconference. Using video conferencing in Indian courts has the potential to minimize the workload of prosecutors and judges as well as serving as a cost-effective option for jurors who are expected to fly to trial from another region. Proof can be brought to court by video conferencing or other electronic means. The key advantages of video-conferencing are:
Video Conferencing is one of the biggest blessings of technology. It enables audio and visual communication of people from two different locations. Three main advantages of e-Court proceedings:
1. Cost-effective – This is probably the most important advantage, and also the easiest to show. This method enables a witness to testify from their own geographical locations. Thereby ensuring the safety and security of the individual. Everyone wants to save money, even on those advocates who are extremely critical of increasing the use of technology in court. Flight expenses are mostly paid directly by the client, and it not only requires some time to arrange for the airfare and a room but winds up saving the consumer. Many see this technology as too expensive, but it’s a huge tool to save on costs in the long run video conference.
Further, as highlighted by Justice Chandrachud, apart from facilitating access to justice from remote areas, video conferencing is cost-effective, reduces carbon footprint, and substantially reduces the attempt of employment of dilatory tactics by parties.
2. Reduces the workload of the Police Force – There is a lot of risks associated with transporting a criminal from prison to the Court. There are many chances that these criminals will find a way to escape. Through E-Functioning the workload of the Police Officials will be reduced to a large extent. Also, there has been a growing trend of Encounters in India. These kinds of situations can also be reduced.
However, there are a few disadvantages associated with this, which include:
- Safety Concerns of the Under-Trial in Prison – One of the main disadvantages of the Video Conferencing is that the Judges will not be able to understand the body language of the persons appearing. This makes it difficult to assess the case. For instance, if a person is appearing from the prison, he might not be able to reveal the torture he might have gone through while in the custody. Privacy cannot be ensured due to the multiple viewers of this form of communication. India has a huge number of police brutality; this form of communication can also be misused. Also, it is to be noted that this communication system is completely controlled by the State. In Maharashtra, a precedent is established by the Bombay High Court to prevent such misuse. In Rajendra S. Bidkar vs. the State of Maharashtra, the Hon’ble Court held that there should two advocates from Maharashtra State Legal Services Authority to be present in the jails when the remands are being produced before the Court. In order to maintain attorney-client privilege, there should be a separate platform for the lawyers and clients for their discussions.
- Difficulty in the use of technology – In India not everyone has access to technology, this can be a serious threat to the litigants and the lawyers. This can even cause anxiety for the persons appearing before the Court. In case a person is not comfortable with cross-examination through video conferencing, they should be given the opportunity for physical appearance.
India, to deter the spread of the virus, mandated the effective implementation of steps to ensure social distancing. The Supreme Court of India and the High Courts have taken action to minimize the physical presence of attorneys, litigants, court employees, para-legal staff, and online and print media members in courts throughout the nation, and to ensure continued judicial dispensation. Looking into the India Legal Structure, the provisions of criminal law and civil law emphasis on the physical appearance before the Court. Sections 230 to 234 of Code of Criminal Procedure (CrPC), lays down the procedure to be followed while collecting the evidence and also gives the power to compel the witnesses to appear before the Court. In Civil law Section 30 Order XVI and XVIII of the Code of Civil Procedure (CPC) lays down that the witness can be summoned before the Court.
It can be understood that the India Law doesn’t lay down any provision for video conferencing. Judiciary through its various judgments laid down the various guidelines. In Amitabh Bagchi vs. Ena Bhagchi,the Hon’ble Court held that the term ‘presence’ doesn’t actually mean the actual physical presence. It was further held that video conferencing is a cost-effective method and saves time.
Section 65A and 65B of the Indian Evidence Act lays down the special provision for producing electronic evidence and their admissibility before the Court. Through its various judgments, Courts have interpreted that video conferencing can be included in these provisions. One of the important judgments in the area of video conferencing is the State of Maharashtra vs. Praful B Desai. Through this judgment, the Indian Courts have embraced the concept of Video Conferencing.
In Alcatel India Limited and Anr. vs. Koshika Telecom Ltd and Ors, the Court allowed the witness to appear through video conferencing because of his health. In Sakshi vs. Union of India and in Sheeba Abidi vs. State and Anr, the victims of sexual exploitation were given the opportunity to appear through video conferencing due to the post-traumatic stress suffered by them. This method was also used by subordinate courts for under trial prisoners because of security reasons. In Liverpool and London Steamship Protection and Indemnity Association Limited vs. M.V. “Sea Success I” and Another, the witness was staying in the UK with her minor children and was unable to travel. The Hon’ble allowed her to appear through video conferencing. A similar view was expressed by Andhra Pradesh High Court in Bodala Murali Krishna vs. Smt Badola Prathima.
Dr. Kunal Saha vs. Dr. Sukumar Mukhurjee was a case relating to medical negligence. Hon’ble Supreme Court allowed Foreign Experts to appear through video conferencing.
Courts have also given certain precautionary measures in this regard:
- When the evidence is being recorded from a foreign country through video conferencing, an officer of the Indian or an officer from the Foreign Country’s Embassy must be present.
- The Examination should happen within the working hours of Indian Courts. An excuse for time difference will not be permitted.
- If the witness is not present the Magistrate has the liberty to disallow video conferencing.
- Affidavit of Undertaking should be authorized by the lawyer conducting the cross-examination.
- The proceedings should be uninterrupted. This should be ensured by the officer-in-charge.
It is expected that every individual and organization should cooperate in adopting interventions designed to minimize the transmission of the virus. Scaling down traditional activities within court precincts is a move in that direction. Access to justice is necessary to uphold the rule of law in the state envisioned by the Indian constitution. The problems raised by the COVID-19 epidemic must be resolved, thus, maintaining the fundamental dedication to ensure that those pursuing redress are administered and exposed to justice.
Impact of Virtual proceedings on Lawyers and Litigants
The Chairman of the Bar Council of India had earlier this year addressed a letter to the CJI opposing the virtual hearing post-lockout time citing the yawning disparity in tools available for video conferencing and e-filing with lawyers of modest heritage from small towns opposed to that of the privileged class of big towns. He urged to introduce a virtual court system in a phased manner. The council, however, welcomed the concept of holding “virtual hearings,” in particularly the Apex Court and the High Courts, for exceptional urgent matters, but the above-mentioned letter highlights the reality that “90 percent of the advocates and judges are unaware of the technology and its complexities.
Many advocates have expressed concerns over the non-public monitoring of the simulated trial case because the service is open only to the judges and representatives for the group. In Naresh Shridhar Mirajkar & Ors vs. Maharashtra State & Anr., it was held that “Public hearing of cases before courts is as central to our democracy and justice system as any other nation” In current conditions, while modern technological innovations such as the interactive court are the need for the hour, the accessible court concept should not be violated.
In addition to the current condition caused by COVID-19, in which there was a desperate need for the judicial fraternity to remain available, the judiciary should also address the post-COVID-19 virtual court project. Unfortunately, long during this epidemic, owing to a number of factors like a shortage of financial resources, physical conditions and many unfair situations, numerous individuals encounter challenges in obtaining justice via courts.
Judicial precedents in relation to virtual courts
A two-judge Bench in Krishna Veni Nagam vs. Harish Nagam, when dealing with the transfer petition requesting transfer of a case brought pursuant to Section 13 of the Hindu Marriage Act 1955, since both the parties were not under the jurisdiction of the same court directed the parties to engage in matrimonial conflict proceedings through video conferencing. While allowing the abovementioned transfer petition, the Hon’ble Apex Court acknowledged the difficulties faced by the litigants living beyond the local jurisdiction while stating that “it is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the parties. Proceedings maybe conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties make a request for use of videoconferencing.”
Subsequently, in Santini vs. Vijaya Venketesh, the Supreme Court of India overruled Veni Nigam’s case by a vote of 2:1 majority. The then Chief Justice of India, Dipak Mishra and Justice AK Khanwilkar stated that “video conferencing cannot be guided in the transition case.” Justice DY Chandrachud, though, wrote the decision promoting the usage of digital technologies and video conferencing. Justice Chandrachud in the dissenting opinion highlighted the pros of video conferencing which are laid down below:
- “The Family Courts Act, 1984 was enacted at a point in time when modern technology which enabled persons separated by spatial distances to communicate with each other face to face was not fully developed. There is no reason for the court which sets precedent for the nation to exclude the application of technology to facilitate the judicial process.”
- “Imposing an unwavering requirement of personal and physical presence (and exclusion of facilitative technological tools such as video conferencing) will result in a denial of justice.”
The pandemic has increased our reliance on technology. This new concept of E-Court should be followed even after the pandemic for the best use of technology. However, the threat still remains because India still doesn’t have legislation for Data Protection. This legislation is important to ensure privacy to its citizens. Also, the applications used should have an end to end encryption to ensure safety. India follows an adversarial system where the presence of litigants and lawyers in the Court forms an integral part. Even if the procedures are made online the parties should be given a fair chance. CJI Shard Bobde while issuing the guidelines rightly pointed out that “This cannot be seen as a temporary issue. Technology is here to stay.”
- Writ Petition (Civil) NO 1232 of 2017
- Criminal Writ Petition No. 386 of 2004
- AIR 2005 Cal 11
- (2003) 4 SCC 601
- 2004 (3) ARBLR 107 Delhi
- Writ Petition (Crl) No33, 1997
- Criminal Writ Petition No.356 of 2003
- (2005) 6 BOM CR 278
- AIR 2007 AP 43
- Original Petition No. 240 of 1999
- (2003) 4 SCC 601
This article has been written and submitted by Ms. Navya Sony during her course of internship at B&B Associates LLP. Ms. Navya is a final year law student of Symbiosis Law School, Pune.