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Analysis of Video Conferencing (Part 3)

Analysis of Video Conferencing (Part 3)

47B  Appearances or submissions by video link, audio link or other appropriate means

(1)  The Court or a Judge may, for the purposes of any proceeding, direct or allow a person:

(a)  to appear before the Court or the Judge; or

(b)  to make a submission to the Court or the Judge;

by way of video link, audio link or other appropriate means.

Note:      See also section 47C.

 (2)  The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a)  on the application of a party to the proceedings; or

(b)  on the Court’s or Judge’s own initiative.

(3)  This section applies whether the person appearing or making the submission is in or outside Australia, but does not apply if the person appearing or making the submission is in New Zealand.

Canada

– Check the current status

As per the order issued by the chief justice of Ontario; notwithstanding provisions in the Rules of Civil Procedure and the Family Law Rules, it is not necessary to obtain consent, or a court order, for a hearing to proceed by virtual means.

Guidelines 

The Superior Court of Justice in Ontario has issued guidelines for ‘Guidelines on Access to Hearings During the COVID-19 Pandemic’

The Advocates Society Paperless Trials Manual, the Manual’s focus is on ways of making trials paperless, other aspects of fully electronic trials (e.g. use of real time transcription; witness testimony via videoconference) are beyond the Manual’s scope but should be investigated by interested parties.

United Kingdom

England and Wales https://rm.coe.int/ceeli-institute-the-use-of-video-conferencing-in-courts-by-mr-stephen-/16809f2785 

The legal basis for video conferencing in courts in England and Wales Policing and Crime Act 2017, section 74 (regarding live links) Coronavirus Act 2020, sections 53 – 57; Schedules 25, 26, 27 Makes a range of modifications to courts and tribunal practice to permit and facilitate remote working in circumstances that would usually require physical attendance. Sections 53 to 56 make provision specifically in relation to the operation of courts and tribunals. Sections 53 – 56 provide for an expansion of the use of live links in criminal proceedings and, in relation to civil proceedings, for public participation in proceedings conducted remotely by video or audio. Schedule 25 provides detailed amendments to the Courts Act 2003 to enable the public to see and hear proceedings conducted wholly as audio or video proceedings and to regulate the recording of those proceedings. Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, S.I. No. 350.

Participation by persons outside the United Kingdom

5 (1) A direction under paragraph 2 may be given in respect of a person whether the person is in the United Kingdom or elsewhere.

(2) A statement made on oath by a person outside the United Kingdom and given in evidence through a live link in accordance with a direction under paragraph 2 is to be treated for the purposes of Article 3 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) as having been made in the proceedings in which it is given in evidence.

CIVIL JUSTICE IN ENGLAND and WALES PROTOCOL REGARDING REMOTE HEARINGS 

Case Law

Blackfriars Ltd, Re [2020] EWHC 845 (Ch) 

High Courts allowing trial via video conferencing in India

 

S no.StateRules
Allahabadhttp://www.allahabadhighcourt.in/event/event_7403_11-04-2020.pdf 
Andhra Pradeshhttps://districts.ecourts.gov.in/sites/default/files/E-FILING%20AND%20VIDEO%20CONFERENCING%20GUIDELINES%20FOR%20THE%20SUBORDINATE%20COURTS%20IN%20THE%20STATE%20OF%20ANDHRA%20PRADESH.pdf 
Chattisgarhhttps://highcourt.cg.gov.in/rule/2020/vc_rule2020.pdf 
Delhi http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_CQ84SWB5.PDF 
Guwahatihttps://ghconline.gov.in/index.php/notification-dated-18-05-2020-regarding-gauhati-high-court-rules-for-video-conferencing-for-courts/ 
Himachal Pradeshhttps://hphighcourt.nic.in/pdf/VC%20_Guidelines_HP_HC.pdf 
Jharkhandhttps://www.jharkhandhighcourt.nic.in/sites/default/files/FinalRulesVideoCOnferencing_15062020.pdf 
Kerala https://indiankanoon.org/search/?formInput=recording%20evidence%20by%20video%20conferencing+doctypes:kerala 
Madhya Pradesh https://www.indialegallive.com/constitutional-law-news/courts-news/madhya-pradesh-high-court-issued-guidelines-for-video-conferencing-and-e-filing-in-view-of-exigency-caused-by-covid-19/#:~:text=Video%2DConferencing%3A&text=The%20link%20provided%20by%20the,the%20matter%20may%20be%20adjourned
Madrashttp://www.hcmadras.tn.nic.in/rules.html 
Manipurhttps://hcmimphal.nic.in/Documents/Guidelines%20for%20email%20filing%20and%20VC%20for%20HC%20and%20DC%20of%20Manipur%20during%20Covid-19.pdf 
Meghalayahttps://www.indialegallive.com/top-news-of-the-day/news/meghalaya-hc-issues-guidelines-e-filling-video-conferencing-covid-19-lockdown2/#:~:text=The%20participants%20shall%20refrain%20from,shall%20intervene%20in%20the%20proceedings
Orissahttps://www.orissahighcourt.nic.in/CorrectedNOTICE.pdf 
Patnahttp://patnahighcourt.gov.in/techcorona.aspx 
Rajasthanhttps://hcraj.nic.in/hcraj/hcraj_admin/uploadfile/latestupdates/notification23102060.pdf 
Sikkimhttps://districts.ecourts.gov.in/rules-video-conferencing-court2020 
Telanganahttps://tshc.gov.in/documents/admin_17_2020_10_27_13_24_46.pdf 
Tripurahttps://thc.nic.in/pdfs/video%20conferencing%20rules.pdf 
Uttrakhandhttps://highcourtofuttarakhand.gov.in/upload/contents/File-737.pdf 

 

High Courts not yet Acquainted with the process of video conferencing as on 16-06-2021

S no.State
Bombay
Calcutta
Jammu & Kashmir
Punjab & Haryana
Karnataka

 

Conclusion

In the present day and age where there is in fact an inevitable dependence on technology, there is a need for development of laws in a way so as to enable a more fluent transition to online mode. Recording of evidence through video conferencing, with proper law and procedure in place, will make the process more time and cost efficient. Further, it’ll become easier to record expert evidence. Supreme Court and various High Courts have repeatedly availed the aid of technology whenever the need and its possibility have coincided, hence a clear and elaborate rules and procedure for such processes is the need of the hour.

 

Written by – Prakhar Suryavanshi

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

Analysis of Video Conferencing (Part 2)

Analysis of Video Conferencing (Part 2)

E-courtroom video conferencing rules (Supreme Court)

Chapter-1 

Part (2) Definitions 

(iv) “Court” includes a physical court and a virtual Court or tribunal.

(v) “Court Point” means the courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.

(vi) “Court User” means a user participating in court proceedings through video conferencing at a Court Point.

(vii) “Designated Video Conferencing Software” means software provided by the High Court from time to time to conduct video conferencing. 

(viii) “Live Link” means and includes a live television link, audio-video electronic means or other arrangements whereby a witness, while physically absent from the courtroom is nevertheless virtually present in the courtroom by remote communication using technology to give evidence and be cross-examined. 

(ix) “Remote Point” is a place where any person or persons are required to be present or appear through a video link. 

(x) “Remote User” means a user participating in court proceedings through video conferencing at a Remote Point. 

(xi) “Required Person” includes: 

  1. the person whose deposition or statement is required to be recorded; or 
  2. person in whose presence certain proceedings are to be recorded or conducted; or 
  3. an Advocate who intends to examine a witness; or 
  4. any person who is required to make submissions before the Court; or 
  5. any other person who is permitted by the Court to appear through video conferencing

 

Courts to conduct hearings through video calls, says SC | Latest News India - Hindustan Times

 

Chapter 2

Part 4. Minimum Requisites for Video Conferencing 

The following equipment is recommended for conducting proceedings by video conferencing at the Court Point and at the Remote Point: 

(i) Desktop, laptop or smartphone with internet connectivity and printer; 

(ii) Device ensuring uninterrupted power supply;

(iii) Camera; 

(iv) Microphones and speakers; 

(v) Display unit; 

(vi) Document visualizer; 

(vii) Adequate seating arrangements ensuring privacy; 

(viii) Adequate lighting; 

(ix) Availability of a quiet and secure space; and 

(x) Provision of a firewall. 

 

Part 5. Preparatory Arrangements

5.3 The Coordinator at the Remote Point may be any of the following

 

Sub RuleWhere the Advocate or Required Person is at the following Remote Point:-The Remote Point Coordinator shall be:-
5.3.1Overseas An official of an Indian Consulate / the relevant Indian Embassy / the relevant High Commission of India
5.3.9When a Required Person is at any of the Remote Points mentioned in Sub Rules 5.31 to 5.38 and video conferencing facilities are not available at any of these placesThe concerned Court will formally request the District Judge, in whose jurisdiction the Remote Point lies to appoint a Coordinator for and to provide a video conferencing facility from proximate and suitable court premises.

 

Chapter 3 – Procedure for Video Conferencing 

Part 6. Application for Appearance, Evidence and Submission by Video Conferencing

 

Part 11. Judicial remand, framing of charge, examination of accused and Proceedings under Section 164 of the Criminal Procedure, 1973. 

11.1 The Court may, at its discretion, authorize detention of an accused, frame charges in a criminal trial and examine the accused under Section 313 of the Criminal Procedure, 1973 by video conferencing. However, judicial remand in the first instance or police remand shall not be granted through video conferencing.

11.2 The Court may, at its discretion, examine a witness or an accused under Section 164 of the Criminal Procedure, 1973 by video conferencing. 

11.3 Wherever any proceeding is carried out by the Court under these Rules by taking recourse to video conferencing, this shall specifically be mentioned in the order sheet. Furthermore, it shall not be necessary to obtain the physical signature/thumb impression on any document, of any person who is not physically present before the Court

 

Guideline and rules regarding video conferencing in other sectors

 

  1.  Ministry of Corporate Affairs Regulations regarding extraordinary general meeting (EGM), 2020.

In the wake of the COVID-19 pandemic, the Ministry of Corporate Affairs (MCA) has allowed companies to conduct EGMs through video conferencing and other audio-visual means (OAVM). In furtherance of the requirement, the MCA laid down certain guidelines about the conduct of video conferencing and OAVM. 

 

  1. Office of the Controller General of Patents, Design and Trade Marks guide to video conferencing.

This set-up guide provides systemic requirements for carrying out video conferencing. The guide provides minimum requirements such as the need for a Windows operating system, web camera, microphone, speakers, internet speed of 256 kbps, etc. during the video conference. The guide suggests the use of InstaVC Desktop Sharing Extension for conducting video conferencing. Further, the guide provides screen-by-screen details of how the platform can be used by the user.

 

  1. Income Tax Appellate Tribunals (ITAT) Regulations regarding video conferencing, 2012.

The ITAT has passed detailed regulations prescribing the manner in which video conferencing should be conducted. As per the Regulations, the hearing of appeals has to be notified by the President of the tribunal from time to time. These regulations state that the hearing would proceed in the same manner as in a regular tribunal. Apart from hearing of appeals, video conferencing can also utilised for recording of evidence. Pronouncement of orders can be done via video conferencing and once the order is signed, it has to be uploaded on the website as is usually done in a regular hearing 

 

International Standards ( Regulations/Rules/Acts and Judgements)

 

India is in accession with United States on the Convention of  the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention) provides a framework that may be used to facilitate the taking of evidence via video conference in countries that have acceded to that Convention

 

The Evidence Convention establishes methods of co-operation for the taking of evidence abroad in civil or commercial matters, between States Parties. The Convention provides an effective means of overcoming the differences between civil law and common law systems with respect to the taking of evidence, via (i) Letters of Request, and (ii) diplomatic or consular agents and Commissioners

 

  1. UN Human Rights Council, in a resolution adopted by consensus in July 2020:

 

“Urges States to ensure that judiciaries have the necessary resources and capacity to help to maintain functionality, accountability, transparency and integrity, and to ensure due process and the continuity of judicial activities, including efficient access to justice consistent with the right to a fair trial and other fundamental rights and freedoms, during extraordinary situations, including the COVID-19 pandemic and other crisis situations;

 

Encourages States to make available to judiciaries current information and communications technology and innovative online solutions, enabling digital connectivity, to help to ensure access to justice and respect for the right to a fair trial and other procedural rights, including in extraordinary situations, such as the COVID19 pandemic and other crisis situations, and to ensure that judicial and any other relevant national authorities are able to elaborate the necessary procedural framework and technical solutions to this end;”

 

  1. The European Court of Human Rights 

 

The European Court of Human Rights has held that participation by videoconferencing may generally be acceptable in criminal appellate hearings and hearings in civil matters, if certain conditions and safeguards are in place (with a secure means of confidential communication between the affected person and his or her lawyer being particularly important in this regard, as will be described in a later section of this paper).

 

  1. International Covenant on Civil and Political Rights (ICCPR)

ICCPR, article 14(1) provides for the right to a “public hearing” in all determinations of criminal charges or of a person’s “rights and obligations in a suit at law.”

 

United States

 

Under the CARES Act (pdf), this finding allows chief district judges, under certain circumstances and with the consent of the defendant, to temporarily authorize the use of video or telephone conferencing for certain criminal proceedings during the COVID-19 national emergency.

 

Respective Court Guidelines

 

Despite the early developments, many states within the US still allow for judicial discretion in deciding whether a video conference is required. The debate in the US has evolved to include discussions on the best practices in terms of electronic usage of documents while looking into video conferences. For instance, automation is suggested to allow for judicial authorisation of documents. To address privacy concerns, certain courts like Florida, Pennsylvania, and Michigan are using automated redaction software facilities.These software options work in tandem with e-filing, case management, and document management software. Certain courts in the state of Michigan are advanced in their handling of the video conferences and allow for live streaming of the same. As regards the platforms used, courts are amenable to using networks like Zoom. Certain other courts specify other applications. For instance, in certain courts in the state of Montana, applications are specified to be downloaded by the participants of the video conferences. 


Section 15002(b)(1) of the CARES Act authorizes the federal courts, upon a proper finding by the Judicial Conference of the United States that the national COVID-19 emergency “will materially affect the functioning of either the Federal courts generally or a particular district court of the United States,” to conduct video teleconferencing, or telephone conferencing if video conferencing is not reasonably available, in a host of criminal proceedings, including detention hearings, initial appearances, preliminary hearings, waivers of indictment, arraignments, and misdemeanor pleas and sentences. The Act also contains a separate subsection, Sec. 15002(b)(2), which authorizes the federal courts, upon a proper finding of emergency by the Judicial Conference, a specific finding by the chief judge of the district court that pleas or sentencings “cannot be conducted in person without seriously jeopardizing public health and safety,” and a specific finding by the assigned district court judge that there are “specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice,” to conduct felony plea and sentencing hearings by video conference, or by telephonic conference if video proceedings are not reasonably available.

 

Australia – Overseas video conferencing rules

 

If you are seeking to examine a witness who is outside Australia via videoconference, you must first consider the relevant legislation and requirements in Australia, and the relevant legislation and laws in place in the country where the witness is to give his or her evidence.

Complementary legislation has been enacted in Australia and New Zealand[6] which enables courts in each country to take evidence via video conference from a witness in the other country. In addition, the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention) provides a framework that may be used to facilitate the taking of evidence via video conference in countries that have acceded to that Convention. However, prohibitions or restrictions may exist in some of these countries. Parties should also be familiar with the Court’s Overseas Service and Evidence Practice Note (GPN-EXPT) which provides guidance on evidence taken abroad generally.

1.12 If there is any doubt about this, information can be obtained by contacting the Private International Law Section of the Attorney-General’s Department.

Australia lower courts usage of video conferencing rules

 

In appropriate cases and subject to any conditions or procedures that must or may apply, the Court may direct or allow for testimony being given and appearances and submissions being made to the Court by video (see ss 47A to 47F of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) for video link in Australia; see also s 47 to 54 of the Trans–Tasman Proceedings Act 2010 (Cth) (“TTPA”) for video link from New Zealand.

 

The Court may make a direction or order in relation to taking evidence or receiving a submission by video link as it considers appropriate[2] at any time on the application of a party or on its own initiative. Such a direction or order can be made in open court or in Chambers.[3] For any hearing by video link from New Zealand, provisions of Division 34.4 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules“) apply.

Relevant Provisions from Federal Court of Australia Act 1976 No. 156, 1976

47  Oral, video link, telephone and affidavit evidence

Civil proceedings other than trials of causes

(1)  In a civil proceeding, not being the trial of a cause, testimony shall be given by affidavit or as otherwise directed or allowed by the Court or a Judge.

Note:      For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

Civil trials of causes

(2)  At the trial of a cause, proof may be given by affidavit of the service of a document in or incidental to the proceedings in the cause or of the signature of a party to the cause or of his or her solicitor to such a document.

(3)  The Court or a Judge may at any time, for sufficient reason and on such conditions (if any) as the Court or Judge thinks necessary in the interests of justice, direct or allow proof by affidavit at the trial of a cause to such extent as the Court or Judge thinks fit.

(4)  Notwithstanding any order under subsection (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in subsection (2)) proposed to be used in the cause be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for such cross‑examination or the Court, in its discretion, permits the affidavit to be used without the person so appearing.

(5)  If the parties to a cause so agree and the Court does not otherwise order, testimony at the trial of the cause may be given by affidavit.

(6)  Subject to this section and section 47A and without prejudice to any other law that would, if this subsection had not been enacted, expressly permit any testimony to be otherwise given, testimony at the trial of causes shall be given orally in court.

Note:      For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

(7)  Subsections (1) to (6) do not apply in relation to criminal proceedings.

Criminal proceedings

(8)  Testimony in criminal proceedings must be given orally unless:

(a)  the testimony is given in another form:

(i)  agreed to between the parties; and

(ii)  to which the Court does not object; or

(b)  the testimony is given in accordance with this or any other Act, or with any law applying under subsection 68(1) of the Judiciary Act 1903 in relation to the proceedings.

Note:      For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

47A  Testimony by video link, audio link or other appropriate means

(1)  The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.

Note:      See also section 47C.

(2)  The testimony must be given on oath or affirmation unless:

 (a)  the person giving the testimony is in a foreign country; and

(b)  either:

(i)  the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

(ii)  the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c)  the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3)  If the testimony is given:

(a)  otherwise than on oath or affirmation; and

 (b)  in proceedings where there is not a jury;

the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.

Note:      In proceedings where there is a jury, the Judge may warn the jury about the testimony (see section 165 of the Evidence Act 1995).

(4)  The power conferred on the Court or a Judge by subsection (1) may be exercised:

 (a)  on the application of a party to the proceedings; or

(b)  on the Court’s or Judge’s own initiative.

(5)  This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

Note:      See Part 6 of the Trans‑Tasman Proceedings Act 2010.

 

Written by – Prakhar Suryavanshi

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

Analysis of Video Conferencing

Analysis of Video Conferencing

INTRODUCTION

Videoconferencing is “the holding of a conference among people at remote locations by means of transmitted audio and video signals.”

Through these conferences, individuals meet one another in a real-time virtual manner as if they “were in the same room” without the hassle and the expense of traveling.

While slight limitations remain “depending on the quality of the equipment” employed by courts, the general facial and physical expressions communicated by witnesses are rarely inhibited by the use of such technology.

Videoconferencing systems contain four key components: a 

  1. transmission system, 
  2. camera/microphone, 
  3. CODEC (encoder/decoder), and 
  4. compression/decompression hardware and software

More advanced systems commonly used in courtrooms also include remote controls with “zooming, panning, and tilting functions,” and varying screen options, such as “multiple split-window displays.” Split-window displays present images of several individuals, physically separated by distance, together on one screen. One of the newest and most innovative forms of VCT uses cameras that track a specific type of badge. While wearing these unique badges, courtroom participants are followed by cameras as they move, thus allowing a more dynamic interaction to take place. As with most technology, each feature is “expected to become more refined and less expensive over time.”

Courts to conduct hearings through video calls, says SC | Latest News India - Hindustan Times

Reason due to which video conferencing can be granted as a method for criminal proceedings

  1. Threat to life
  2. Unknown expenses
  3. Delay in procedure (time constraint)
  4. Due to job creating impossibility 
  5. Health constraints
  6. Family issues

 

Indian Provisions Related to video conferencing

Section 273 CrPC

  1. Evidence to be taken in presence of accused.—Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.

[Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.]

Explanation.—In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.

 

Gujarat STATE AMENDMENTS- [Vide Guj. Act 31 of 2017, S. 2, dt. 8-9-2017]

Gujarat.—In Section 273, after the words “in the presence of his pleader”, the words “or, as the case may be, through the medium of Electronic Video Linkage when the court on its own motion or on an application so directs in the interests of justice” shall be added. 

 

Section 285(3) CrPC

(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission as the Central Government may, by notification, prescribed in this behalf.

 

Section 3 Indian Evidence Act (Interpretation Clause)

“Evidence.”— “Evidence” means and includes–

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2)6[all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.

Case Laws In which video conferencing was allowed

The fast changing speed of technology in the modern 21st century, requires us to keep pace with it. Not only do our needs change but our ability to adapt to these requirements matter a lot. At this stage the words of Justice Bhagwati in the case of National Textile Workers’ Union v. P.R. Ramakrishnan, at page 256, need to be set out. They are:

“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree. It will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the more adapting itself to the fast changing society and not lag behind.”

The Salem Advocate Bar Association, Tamil Nadu v. Union of India was one of the first cases that broadly interpreted the provisions of the Civil Procedure Code, 1908 (C.P.C) and allowed for the use of electronic media during the evidence stage. The Supreme Court while interpreting order 18 of the Civil Procedure Code ‘Hearing of the suit and Examination of witnesses, held that the word mechanically indicates that evidence can be recorded with the help of electronic media including audio or audio-visual apparatus.

Recently in another civil proceedings, in the case of Krishna Veni Nagam vs. Harish Nagam MANU/SC/0273/2017, the court held that it may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. The court in para 14 stated;

“One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available, In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.”

This subject matter has been previously dealt with by the Indian Courts briefly in terms of criminal trials as well. Below is the summary of their holdings and ratio relevant to the case at hand. 

The interpretation of the term Physical Presence as prescribed in Section 273 of the Code of Criminal Procedure, 1973 has been liberalised through consecutive supreme court judgments. 

The most landmark holding on this subject matter has been by the Supreme Court in the year 2003 in the case of State of Maharashtra v. Dr. Prafull B. Mehta, 2003 4 SCC 601. Where the issue of validity of video conferencing was challenged and upheld. It was held the recording of such evidence would be as per ‘procedure established by law’.  The court held that Section 273 contemplates constructive presence. This shows that actual physical presence is not a must. This indicates that the term “presence”, as used in this section, is not used in the sense of actual physical presence. Further the court held that Further, evidence can be both oral and documentary and electronic records can be produced. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video-conferencing. The court in this judgment clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence.  

The court reaffirmed this judgment and the permissibility of recording of evidence by way of video conferencing vis-a-vis Section 273 Cr.P.C in the case of in Sakshi and Ors. vs. Union of India, AIR 2004 SC 3566

In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan and Ors; AIR 2005 SC 972 the court acknowledged the possibility of video conferencing trial and stated in para 43

“It is true that in a normal trial the Criminal Procedure Code requires the accused to be present at the trial but in the peculiar circumstances of this case a procedure will have have to be evolved, which will not be contrary to the rights given to an accused under the Criminal Procedure Code but at the same time protect the administration of justice.”

 

Safeguards provided by multiple Courts

Indian Courts have also provided the need for safeguard to be in place for such virtual video conferencing proceedings. 

In 2003, the high court of Karnataka provided safeguards for Audio-Video Link in light of Civil Procedure Code amendments. 

10. In the light of these two judgments and in the light of the amendment to CPC, the observation of the learned trial Judge requires my interference. At the same time this Court is of the view that sufficient safeguards have to be provided for the purpose of recording evidence through Audio-Video I Link. The safeguards are :

  1. Before a witness is examined in terms of the Audio-Video Link, 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 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 USA.
  5. Before examination of the witness, a set of 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 Judge must note the objections raised during recording of witness 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 certificate to this effect.
  10. The learned Judge may also impose such other conditions as are necessary in a given set of facts.
  11. The expenses and the arrangements are to be borne by the applicant who wants this facility.”

In the case of State of Maharashtra v. Dr. Prafull B. Mehta, 2003 4 SCC 601, the court stated that;

“an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/ prompted.’

The Calcutta High Courts in the case of Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal. 11, provided elaborative requirements of safeguards necessary for proceeding matters on virtual platforms. The court in para 10 stated 

“10. In addition to the above I fully agree with Supreme Court and Karnataka High Court at least to such extent that if the Law Courts do not permit technology development in the Court proceedings it would be bagging behind compared to other sectors. Technology is definitely a tool. But the following safe guards are to be taken for purpose of recording evidence through Audio-Video Link : 

(1) Before action of the witness under Audio-Video Link starts the witness will have to file an affidavit or an undertaking duly verified before a Judge or a Magistrate or a Notary that the person who is shown as the witness is the same person as who is going to depose on the screen with a copy of such identification affidavit to the other side. 

(2) The person who wishes to examine the witness on the screen will also file an affidavit or an undertaking in the similar manner before examining the witness with a copy of the other side with regard to identification before hand. 

(3) As soon as identification part is complete, oath will be administered through the media as per the Oaths Act, 1969 of India. 

(4) The witness will be examined during working hours of Indian Courts. Plea of any inconvenience on account of time difference between India and other country will not be allowed. 

(5) The witness action, as far as practicable, be proceeded without any interruption without granting unnecessary adjournments. However, discretion of the Court or the Commissioner will be respected. 

(6) Witness includes parties to the proceedings. 

(7) In case of non-party witness, a set of plaint, written statement and/or other papers relating to proceeding and disclosed documents should be sent to the witness for his acquaintance and an acknowledgement in this regard will be filed before the Court. 

(8) Court or Commissioner must record any remark as is material regarding the demur of the witness while on the screen and shall note the objections raised during recording of witness either manually or mechanically. 

(9) Depositions of the witness either in the question answer form or in the narrative form will have to sign as early as possible before a Magistrate or Notary Public and thereafter it will form part of the record of the proceedings. 

(10) Mode of digital signature, if can be adopted in this process, such signature will be obtained immediately after day’s deposition. 

(11) The visual is to be recorded at both the ends. The witness alone can be present at the time of video conference, Magistrate and Notary is to certify to this effect.

(12) In case of perjury Court will be able to take cognizance not only about the witness gave evidence but who induced to give such evidence. 

(13) The expenses and the arrangements are to be borne by the applicant who wants to this facility. 

(14) Court is empowered to put condition/s necessary for the purpose.

In the current case at hand, the petitioner is both willing to cooperate and seek presence before the courts. Certain factors as briefly discussed do not allow him to travel to India from his place of stay in order to present himself before this court. Therefore the court must in the interest of justice provide the petitioner the right to present himself in court virtually

 

Supreme Court and High Court Guidelines

Below is the relevant portion of the guidelines including necessary definitions, minimum requisites of video conferencing, preparatory arrangements (for overseas and remote point). 

The video conferencing guidelines provided by Gujarat High Court and Delhi high court are in the lines of the guidelines provided by Hon’ble Supreme court of India. 

 

Written by – Prakhar Suryavanshi

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate