Court Proceedings Through Video Conferencing - The Way Forward
Author: LawSphereX
Category: International Law
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COURT PROCEEDINGS THROUGH VIDEO
CONFERENCING: THE WAY FORWARD?
Ayush Gairola, National Law School of India University, Bangalore
ABSTRACT
The incorporation of the technology of video conferencing in the legal system of India signifies an important step in the direction of the modernization of court proceedings, thereby providing time and cost benefits. However, the authorities need to be a bit cautious while adopting this technology to avoid any unintended repercussions. This paper contends that there is a need for the shift of the narrative which focuses predominantly on the efficiency arguments to a more nuanced examination of the broader socio-legal implications of such a technology. This may entail variations in recording of evidence, changes in perception of the judges, and the potential dehumanization of witnesses. To mitigate these concerns, it is essential to create a balance between the advantages of technological advancements and the preservation of core principles of justice.
This balance is essential to ascertain the extent to which video conferencing can effectively supplement traditional court procedures.
Introduction Technology is gradually transforming the legal system in India. In contemporary time, video conferencing as a tool enables virtual interactions between judges and witnesses, thereby allowing for remote conferences, and facilitating the production of under-trial prisoners before the court instead of summoning them physically. Frequently, various logistical challenges hinder the witnesses from attending the court proceedings, especially if they live abroad or come from away places. Moreover, some advocates exploit these challenges to seek unnecessary adjournments, thereby delaying the proceedings and hindering the goal of delivering speedy justice. Employing video conferencing can, thus, significantly save time and resources, thereby aiding in the pursuit of speedy justice.
However, it is essential to recognise that video conferencing cannot be applied in a straightjacket manner to all the situations, as its efficacy may differ depending on the witnesses involved and the nature of the proceedings. Considering this caveat, this paper seeks to answer the question of to what extent can video conferencing supplement physical court proceedings. To answer this, it would seek to determine the impact of such a technology on the crucial stages of a trial, such as evidence recording. Furthermore, it would also seek to understand the broader implications of switching to such a technology in the legal system.
Covid-19: A catalyst and further developments In light of the disruptions caused by the pandemic to the daily court proceedings, the Hon’ble Supreme Court of India with the aim of bringing about uniformity and standardization in the conduct of Video Conferencing, passed an overarching order which gave legal sanctity and validity to the court hearings done through Video Conferencing. 1 Although the rapid adoption of video conferencing, as a tool for court proceedings, took place amidst the Covid-19 pandemic, it is quite evident from the e-Courts initiatives in India that both the government and the judiciary are looking to increase the utilisation of video conferencing in various legal proceedings with the belief that it would increase efficiency in the Indian legal system2
1 The Ministry of Law and Justice, ‘Virtual Hearings in Courts’
https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1907543 (5 July 2024). 2 Priti Saxena, ‘Technological Innovations in India’s Legal Sector for Access to Justice During and Post Pandemic’ (2024) Law and Development Review (5 July 2024).
This rapid adoption of technology has led to alterations in the recording and presentation of evidence which now includes presentation of electronic evidence and the recording of evidence through video conferencing. 3 However, this incorporation of technology must be approached with some caution as it might have some unintended repercussions as well. Need for Caution Although the Supreme Court has rightly promoted video conferencing in cases of recording evidence of sensitive witnesses such as child victims/witnesses of human trafficking, etc. ,4 there is a need to be wary of implementing the same technology for all the cases. Several studies have pointed out that not only there is a need to be cautious in expanding the use of video conferencing for recording evidence but also there is a need for further research on its potential implications.
5 The existing scholarship creates a dominant discourse that views this technology only from the lens of efficiency thereby, merely focusing on the technical capacity of video conferencing to deliver cost and time savings. 6 However, other than the mere technicalities such as arguments regarding the video and sound quality, there are broader unintended implications such as procedural inconsistencies, changes in the perception of the judge as an authoritative figure, difficulties in cross-examination, dehumanisation of the witnesses, etc which need to be addressed. Thus, there is a need for a more nuanced examination of the broader socio-legal implications and the transformative potential of the technology of videoconferencing employed in conducting court proceedings.
7 The e-Courts initiative in India has undergone three broad phases: firstly, prior to COVID-19 (2011-15) which involved the computerization of District and Subordinate Courts and the advent of centralized case information software and video conferencing facilities; secondly, during the COVID-19 pandemic (2015-23), which saw the expansion of virtual courts and the utilization of video conferencing for various legal proceedings; and thirdly, post-COVID-19 phase (2023-27), where the focus seems to be on enhancing access to justice and bridging the digital divide. 3 Jef Aresty, Daniel Rainey, James Cormie, ‘State Courts and the Transformation to Virtual Courts’ , 39 ABA 50 (2013).
4 In Re Children in Street Situations [2022] SCC OnLine Sc 189.
5 Alicia Bannon and Janna Adelstein, ‘The impact of video proceedings on fairness and access to justice in court’ Brennan Center for Justice, 9 (2020). 6 Amy Salyzyn, ‘A New Lens: Refraining the Conversation about the Use of Video Conferencing in Civil Trials in Ontario’ OHLJ 15 (2013).
7 ibid 34.
Implications on Evidence Recording: A Closer Scrutiny The efficacy of recording evidence through video conferencing may vary depending upon the types of witnesses, such as expert witnesses, witnesses of fact, accused, child witnesses or any other vulnerable witness. The evidence of expert witnesses such as doctors, scientists, engineers, etc. could be recorded through video conferencing, as it generally entails objective, professional opinions without any underlying motive. Furthermore, it has been noted that many times medical professionals have been a bit hesitant to operate on cases with potential claims or litigation in the courts. 8 The general hesitation among such experts, whenever they are called as witnesses to provide expert opinion, arises as they have to cancel all their appointments or clear their schedules and rush to the court.
9 On reaching the court premises, they often have to wait for hours before the evidence is recorded. 10 Hence, the problems related to travel, excessive time consumption, frequent adjournments due to the absence of the opposing advocate or the accused, problems in getting reimbursed, etc. accentuate the need for evidence recording through video-conferencing. According to a survey, every evidence recording via video conferencing saves Rs. 2620 on average, prevents 181 km of travel, and saves around 4 hours and 12 minutes of time. 11 However, this promising nature of video conferencing being used as a tool for conducting court proceedings does not create a definitive solution. In cases involving contentious depositions, complicated issues, document-intensive hearings, and trials, the balance is likely to tip against employing video conferencing for conducting court proceedings.
12 There is a need to create a balance between efficiency and cost benefits with the need to achieve justice. 13 Thus, it is essential to ascertain that in the pursuit of achieving time and cost efficiency and disposing of the cases swiftly, there is no compromise or negative alteration in the judicial proceedings, administration of justice, or an individual’s access to justice. 14 One way to assess the 8 Akash Deep Aggarwal ‘Court evidence via video conferencing by doctors: Savings of time, money and energy’ (2020) 33 The National Medical Journal of India 265-269 267.
9 Id.
10 Id.
11 Aggarwal, supra note 8, at 267.
12 Scott Dodson, Lee Rosenthal, Christopher Dodson, ‘The Zooming of Federal Civil Litigation’ (2020) 104 Judicature 13-19 14.
13 Id.
14 H Yamagata, ‘Evaluating the Use of Videoconferencing Technology in Domestic Violence Ex Parte Hearings: Assessing Procedural Consistency’ (2017) 38 JSJ 135-147 136.
implications of the use of video conferencing in courts is to examine the framework of procedural justice. Procedural Justice? One of the crucial aspects of the framework of procedural justice is ensuring that procedural consistency is maintained between the different methods of conducting court proceedings, which entails achieving fair procedures by treating like case alike. 15 This should not only include uniform application of rules or dedicating sufficient time for processing the case but also other aspects, such as allowing sufficient time for the witness or the accused to consult with the lawyer.
Since India follows a system of proceedings that resonates with the adversarial system where the witness is subjected to cross-examination by the opposing counsel, it becomes essential for a witness, especially in the cases of child or vulnerable witnesses, to be prepared thoroughly to ensure that they understand the legal issues and the types of questions they may be asked. This would help them to answer the questions clearly and with consistency without any contradictions. Some of the courts have tried to ensure consistency in the procedure by providing these opportunities to the witnesses whose statements are being recorded through video conferencing.
For instance, the rules issued by the Karnataka High Court for video conferencing direct the courts to provide sufficient opportunity to the accused or the person being examined, if under custody, to consult their counsel in private “before, during and after the video conferencing. ”16 However, there is a disparity in such rules between different High Courts since the SC has given leeway to them to create rules after considering the local context. 17 For instance, the guidelines issued by the Punjab and Haryana High Court mention that “where a party or a lawyer requests.... in the course of video conferencing some privileged communication may have to take place, court will pass appropriate directions in this regard. ”18 While the courts in
15 Yamagata supra note 17, at 136.
16 High Court of Karnataka, ‘Rules For Video Conferencing For Courts’
17 The Ministry of Law and Justice, ‘Virtual Hearings in Courts’
accessed 5 July 2024. 18 Punjab and Haryana High Court, ‘Video Conferencing Guidelines Issued by the High Court of Punjab and Haryana’ rule 6.8.
Karnataka are directed to allow private communication at multiple stages, the courts in Punjab and Haryana have the discretion to allow such conversations and that too only during the course of video conferencing. Such subtle variations in the rules can have a strong impact on the tenacity of the statement of the witness and at times can affect the result of the case. In the absence of any consultation, prior to the recording of evidence, the witness or the accused might be nervous and lack clarity which may lead them to contradict themselves. This is just one of the discrepancies, and there are likely to be many others. Therefore, courts need to be mindful of the subtle inconsistencies that may arise between the traditional and new methods.
Recording of Evidence: A Collaborative Process Furthermore, using video conferencing for recording the evidence may transform the process, shifting it from an activity thoroughly monitored by the judges to a more collaborative process, presenting both advantages and disadvantages. This shift has necessitated greater reliance on remote court officers, who now play a crucial role in maintaining the integrity of the process. The coordinators situated at the remote point with the witness are the closest to witnesses and can detect distress signals even earlier than judges, and potentially playing a role in supporting vulnerable witnesses like children, thereby demonstrating their vital role. 19 This excessive reliance on such coordinators, however, introduces certain vulnerabilities in the process, as now it would rely heavily on the coordinators’ integrity and efficiency.
Even Judges have expressed concerns about their limited visibility and control over the remote witness facility, raising doubts about the tenacity of the evidence if witnesses are influenced by offcamera individuals. 20 Ensuring compliance and instilling trust within the judiciary would be the primary challenges that require addressing through clear protocols, regular training, and perhaps technological solutions to enhance transparency. For instance, in Dublin, Ireland, remote court officers swear an oath to ensure they do not coerce witnesses, highlighting the collaborative efforts to uphold court standards.
21 Challenge of Cross-Examining Once the statement of the witness is recorded, they are generally subjected to cross- 19 Emma Rowden and Anne Wallace, ‘Remote Judging: the impact of video links on the image and the role of the judge’ (2018) 14 International Journal of Law in Context 504-524 513.
20 Id, at 512.
21 Id.
examination. This process entails the counsel of the opposing party posing questions to the witness with the intention of creating doubt within the minds of the court with respect to the credibility and accuracy of the evidence recorded by showing contradictions or inconsistencies in the testimony of the witness. 22 The process of an effective cross-examination is considered to be an art that does not merely encompass the assertions of the witness. 23 It entails a physical element as well wherein other factors like the demeanour of the witness, their confidence, their reluctance while speaking, and many other nuances in their conduct are noticed. 24 However, cross-examination through video-conferencing poses certain challenges that may affect the effective implementation of this essential aspect of the trial process.
The various nuances of the witness’s physical conduct may go unnoticed over video conferencing. Various High Courts have formulated in their guidelines that the judge shall take note of the demeanour of the witness. 25 However, it is difficult to detect any sign that can create a doubt as the presentday video conferencing technology may not provide such high-resolution video necessary to notice even the minute details of the witness’s conduct. Even if such a technology is developed, the courts do not have the bandwidth in terms of the time and personnel required to analyse the video and repeatedly review it to ascertain subtle cues such as facial expressions, shifty eyes, and hesitancy in speech. Furthermore, technical issues like poor network connectivity which may often lead to video and audio lagging can lead to the arising of several misunderstandings.
For instance, at times audio lagging or getting disconnected may complicate the recording of omissions and contradictions. This can, thereby, raise a doubt with respect to the credibility of the witness’s testimony as the judge may find it difficult to ascertain whether there was any actual misunderstanding or it was a strategic evasion of the question by the witness. Whichever way it is, the end result would hamper the goal of achieving justice as the credibility of the witness would not be unquestionable due to such instances. 22 John G. Douglass, ‘Virtual Cross Examination: The Art of Impeaching Hearsay’ (2003) 34 J. Mar. L. & Com 149-157, 151.
23 Id.
24 Id, at 154.
25 High Court of Karnataka, ‘Rules For Video Conferencing For Courts’
Rule 8.6- The Court would be at liberty to record the demeanour of the person being examined.
Broader Implications The employment of video conferencing as a tool to conduct court proceedings not only brings subtle changes as pointed out previously, but also has the potential to bring in extensive changes. These may include the alterations in the relationship between the judges and the witnesses and the transformation in the way the witnesses are viewed. Conduction of court proceedings through video conferencing may lead a judge to face tensions between her and the defendant, especially in situations of sentencing the latter. The notion of sentencing frequently involves depriving the defendant of his personal liberty and is done on behalf of the community or the state by the judge. 26 However, the remote nature of proceedings through video conferencing may affect the conduct of the defendant and may affect the relationship between the judge and the former.
Several Judges have reported the defendants being more emotional and agitated about how they are being treated, in a court proceeding via video conference, perhaps because they are situated far away from the court premises. 27 This creates a dilemma for the judges who are required to maintain the decorum in the courtroom. They certainly have the option of muting the defendant to restore the order in the proceedings. 28 However, such an overt use of technology to suppress the outburst of a disgruntled defendant receiving a sentence may evoke comparisons to past instances of courtroom censorship, thereby, undermining the legitimacy and the authority of the court in the eyes of the public. 29 Thus, dealing with the new dynamics between the judge and the defendants is another challenge for the judiciary.
However, such an outburst may not be likely in sensitive cases which involve a child or any other vulnerable witnesses or the accused himself and there is sufficient plausibility of a gap developing between the Indian legal system and the former due to the use of video conferencing. This might further aggravate in case of an under-trial prisoner appearing from the prison as they frequently feel “doubly trapped” as they are not only confined within the prison but also in the virtual space of the video conferencing system, thereby alienating and disempowering their experience. 30 One instance of such disempowerment was visible in a 2005
26 Rowden and Wallace supra note 22, at 518.
27 Id.
28 Id.
29 Id.
30 Carolyn Mckay, ‘Video Links from Prison Court “Appearance” within Carceral Space’, (2015) Law, Culture and Humanities 1-21, 17.
report on video conferencing for detained immigrants which reported the callous attitude of the lawyers and the judges as they stapled exhibits and passed papers while ignoring the sobbing immigrant’s side of the story. 31 Such indifference leads to the risk of rendering the remote participants merely as information points instead of perceiving them as human beings with rights and emotions. The notion must be that justice must not only be done but must be seen to be done. Access to justice should not comprise mere mechanical recording of statements; the role of the witnesses should be expanded to encompass meaningful engagement and participation in the judicial process. 32 Thus, there is also a need to humanize the virtual court proceedings to avoid risking the witnesses or the accused to become mere data points.
Conclusion To conclude, the adoption of video conferencing technology into the Indian legal system is an important step towards modernizing court proceedings. While the technology is promising as it has the potential to provide cost and time benefits, there is a need to approach the integration process of this technology into our legal system with some caution as it might have some unintended consequences. To do this, there is a need to shift from the dominant efficiency narrative to a more nuanced examination of not only the broader social and legal implications but also the subtle variations in the court proceedings which may, in turn, affect the course of justice. This may entail how evidence recording may vary depending on the nature of the witness and the complexity of issues, the change in how judges are perceived, the potential dehumanisation of the witnesses, etc.
To mitigate these issues, there is a need to strike a balance between the benefits of technological advancements and the core principles of justice in order to actually understand the scope or the extent to which video conferencing can supplement the traditional methods of court proceedings.
31 Salyzyn supra note 8, at 447.
32 Rowden and Wallace supra note 22.
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