Trial through Video Conferencing duringCOVID-19
Anannya Jain( (B.A. LLB), Lovely Professional University
According to the National Judicial Data Grid, more than 4.4 crore cases are pending in India, from the trial court to the Supreme Court. In 2018, the strategy document of the NITI Aayog stated that it would take around 324 years to settle the existing record of pending cases. At that time, pendency was 2.9 Crore, but it rose 61% within two years. One of the reasons is the COVID-19 pandemic. In addition, due to the lockdown, the crimes were increasing, and the courts were closed. Therefore, the pendency of the cases increased.
To get out of this dilemma, the Supreme Court has been looking for an e-court project which will transform the Indian Courts into a Digital platform. However, this project will take time to implement. So, the Supreme court of India issued an order that all the courts will start trials via video conferencing. Hearings via video conferencing entail recording witness statements, evidence, interrogation of witnesses, and cross-examination, all of which will occur on a virtual platform.
Video Conferencing is a type of modern technology through which users can do face-to-face meetings even if they are at different places. This technology is user-friendly or convenient to everyone because it saves money, time, and travelling. Generally, it is using as informal chat but due to the COVID-19 pandemic, all the courts are using it for a formal discussion. The Court says that video conferencing is the development in the sector of science and technology. Through this feature, one can see, hear, talk to other people at any time or place. Although a person cannot touch the person during video conferencing, he can exchange thoughts and ideas at the same home.
With this opinion, the Supreme Court of India started using modern technology for their official work. Video conferencing assembles the recording of proceedings easily and does not create any problem at the broadcast time. Here, the term broadcast means transmitting the content for National and Constitutional purposes. This statement is the landmark judgment of the Supreme Court in the case Tripathi vs. Supreme Court of Indiai. In this case, the senior advocate Indira Jaising raised the issue that this method will ensure the public about justice done by the Court. Rajya Sabha TV telecast ICJ court proceedings for the Kulbhushan Jadhav case. This move can see as an example of where public participation has been implementing.
The Supreme Court of India recently issued the guidelines regarding the hearing of the cases via video conferencing. These guidelines will boost the use of modern technology in the judicial process. There are some facts of the guidelines issued by the Court:
1. The first fact is that establishing instructions by invoking Article 142 of the Indian Constitution lends credibility. Second, article 142 confers extraordinary power on the Supreme Court, in that any order issued in reliance on this article of the Constitution becomes the law of the nation and is enforceable across the country.
2. The second fact is the Supreme Court's acknowledgement of the independence of our country's high courts. Because the highest Court has intended to address only significant concerns in these recommendations, the High Courts have given the freedom to sort out the precise methods that are fit for embracing the usage of video conferencing technology. Video conferencing would allow the High Courts to customize the rules to procedures, which is practical in a country as varied as ours.
3. The Supreme Court's focus on the fact that it is just doing its job while drafting these guidelines is extraordinary. The country's apex court correctly disregarded the claim that it exercised discretion in establishing these broad legal limitations. In reality, the courts are obligating to interact with the public. This responsibility stems from the well-established notion of open justice, a very contemporary and ever-changing legal notion. This legal concept compels the courts to interact with the public.
In the previous decade, Indian courts have been vigilant in adopting technological progress. One such innovative move is the use of video conferencing for evidence recording. Indian Evidence Act of 1872 governs the collection of evidence in the Indian court system. Section 3 of the Indian Evidence Act, 1872 deals with the definition of "Evidence" and two types of evidence –– oral and documentary evidence. Section 3 (1) says that it will inquire all the statements made by the witnesses related to the matter under the Court. Section 3 (2) states that the Court should inspect all the documents, whether electronic or hard copy. In the criminal Proceedings, Sections 230-234 of the Code of Criminal Method (Cr PC), 1973 describes gathering evidence. The Court has the right to compel the witness to provide testimony. In civil cases, according to Section 30, Orders XVI and XVIII of the Code of Civil Procedure (CPC) 1908, the Court summons the witness to appear in front of the Court and provide evidence.
However, in the landmark judgment, State of Maharashtra v Dr Praful B Desaiii, the Supreme Court of India upheld video conferencing to collect the evidence from the witnesses. However, in those cases, the witness cannot appear in the Court or due to some reasonable issue. For example, in Alcatel India Ltd v Koshika Telecom Ltd & Orsiii, the Court allowed the witness's evidence via video conference because he was not healthy to appear in the Court.
Earlier, it collected online evidence only in exceptional cases. However, due to the COVID-19 pandemic, the Supreme Court of India accepted the collection of evidence via video conferencing and issued guidelines regarding collecting evidence through virtual mode. The motive behind the policies is to reduce the stress of lawyers, litigants, court staff, and the essential point, the presence of electronic and print media representatives for ensuring the administration of justice. However, if both parties give their consent to do so, then, they will record the evidence.
One of the significant boons of technology is video conferencing. It allows individuals to communicate via audio and video even if they are in two distinct locations. There are the following benefits of doing the trial in virtual mode:
1. Cost-efficient: This method is one of the best advantages and the easiest way to trial via video conferencing. With the help of this method, a witness can give their testimony within his location. He need not appear in Court. This online mode saves the lives of the witnesses. As we know, primarily in criminal cases, witnesses get killed on the way to Court. There is no need to arrange the time or schedule whenever the Court wants to start proceedings in this mode. Apart from this, the Supreme Court Judge, Justice Chandrachud, highlighted the advantages of the trial via virtual methods such as eco-friendly, cost-effective, saves time for parties, litigants, judges.
2. Save time: In virtual mode, parties will not require to go to Court, find parking, or go through security. This process takes too much time to complete. Moreover, this process is excluding from the court proceedings. If the parties and advocates are not from the exact location of the Court, they have to travel much, their lots of time gets wasted. Time is money. If one can save time through the virtual mode then, he can save money as well.
3. Convenient: Everyone such as witnesses, advocates, judges, court staff can attend the trial conveniently via virtual mode. It becomes hectic or challenging in the courtroom because
of too much crowd of the public and media. Due to this, the defendant may seem nervous and "guilty," but, on video conferencing, he becomes relaxed and feels free from the stress and anxiety.
4. Control the COVID-19: The whole and sole motive of trial via video conferencing are to decrease the spread of the COVID-19. Ultimately, this method is saving the lives of people.
The courts have applauded the technology of video conferencing and taken it into use. However, although it has been using for exceptional cases, more than 50% of judges and lawyers are unaware of this technology.
1. Lack of infrastructure: As we learn earlier that due to the COVID-19, the Supreme Court started trial through video conferencing. However, there is a need for stable WiFi gadgets (Laptop, computer, web camera, microphone). Without these types of equipment, the trial is not possible via virtual mode. Buying such types of equipment and providing it to all over the Indian Court becomes too costly, and such a facility is not available in India.
2. Technical Issues: During the trial, there is the possibility of low bandwidth, unstable wifi, default in the recording system that causes delay, distraction, irritation, and interruption in the proceedings. These technical issues give birth to different drawbacks of the trial via video conferencing, such as:
A. Evaluation of Witnesses: Due to these reasons, during the trial, Judges are not able to hear the testimony of witnesses clearly, and maybe judges do not recognize the vital part of the testimony.
B. Cross-Examination: The process of cross-examination has two types, i.e., verbal and non-verbal communication. Due to the default of the audio function, the advocate cannot hear the examination.
3. Independence of the Judiciary: A virtual courtroom may be more difficult for a judge to control than an actual courtroom. Judges are unable to see what is going on behind the camera lens. So, there is a risk of transmission of content. Hacking is also one of the reasons behind the independence of the Judiciary. So, many accounts get hacked by the hacker, which can create difficulty to the Nation's security. Sometimes, parties may share their trial ID with others.
• For example, In the recent case, Juhi Chawla and Ors. vs Science and Engineering research board and Ors,iv she filed a petition against the radiation of the 5g technology. One day before the hearing, she posted a video on Instagram in which she was saying, "whoever wants to hear the judgment can connect with us in tomorrow's hearing and the link of the meeting is in the bio." The next day, during the hearing, one person joined the meeting and started singing the song from Juhi Chawla's famous movie. The judge removed him so many times, but he joined again and again. After that, the court adjourned the case at that moment. Here, the independence of the Judiciary or the confidentiality of the court has harmed.
4. Violation of Constitutional Rights: According to article 19 of the Indian constitution, a person has a right to freedom of media that includes court proceedings. In video conferencing, the court may not allow the media to join and access the hearing of court proceedings. This way violates the fundamental right and constitutional right of the public.
Video conferencing is a tremendous boon of technology. Due to this, all the courts are hearing the cases in a virtual model. This way can be the best to clear the backlog of the cases. The supreme court of India issued an order to hear all the cases via Video conferencing with some guidelines. Earlier, in exceptional circumstances, could take the testimony of the witness through Video conferencing. But pandemic replaces the word exceptional in every case. Trial through Video conferencing has pros like it is cost-efficient, time manageable, saves travel time and is put away from stress and anxiety. But it has cons as well, such as Lack of infrastructure, Technical issues, Confidentiality, Independence of the judiciary, a threat to the Nation’s security, and it can violate the constitutional right of the public.
A) Primary Sources:
(i) Bare Act of the Indian Evidence Act, 1872.
(ii) Bare Act of the Constitution of India, 1949.
B) Secondary Sources:
(i) Batuk Lal, Indian Evidence Act, 1872.
(ii) Dr B. R. Ambedkar, The Constitution of India, 1949
i [(2018) 10 SCC 628]
ii [(1973) 4 SCC 23]
iii 2004 (3) ARBLR 107 Delhi, 2004 (76) DRJ 524
iv [2021 SCC ONLINE DEL 1060]