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

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

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