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Unless the courts contemplate complete stoppage of work till free travel without risk of being infected becomes possible, video conference hearings are inevitable.
As lawyers, we are already grappling with what we may call video conference vagaries since the beginning of the lockdown. At the same time, we are all aware that sooner rather than later, litigants will also have to start appearing in courts by video conference.
The story of the interface of a litigant with the court being mediated by a video link starts with the amendment of Section 167(2)(b) of the CrPC, which provides, among other things, that a magistrate may extend the detention of an accused in judicial custody. Such extension of judicial custody could only be done when the accused was produced in person before the magistrate.
Undivided Andhra Pradesh seems to have been the first to insert a state amendment to the CrPC way back in 2000, by inserting words at the end of that clause to the effect that such production before the Magistrate could be in person or by “electronic video linkage”. Similar amendments were made by various other states, and finally brought in at the all-India level in 2009.
In State of Maharashtra v. Praful Desai, the Supreme Court, while permitting recording of evidence by video conference, held that the principle of contemporanea expositio est optima est fortissima in lege (contemporaneous exposition is the best and strongest in law) does not apply to ongoing statutes like the Code of Criminal Procedure (CrPC). Hence, it cannot be interpreted to mean that presence of the accused under Section 273 should be understood only to mean what it meant a hundred years ago.
Despite these steps forward, as a general rule, courts not only took physical presence as a given in judicial proceedings, but also spent considerable time and judicial effort in securing the presence of persons in run-of-the-mill cases.
While we move towards adapting to video conferencing, it is crucial that safeguards such as production of an arrested person before a magistrate are not done away with. There should arise no occasion where a magistrate fails to identify, say, the custodial torture of an accused person because the person is produced through video conference. We may instead look at an area which would benefit from appearance of litigants by video conference.
One area where the need for introduction of video conferencing was recognized was with regard to transfer petitions in the Supreme Court seeking transfer of cases from one state to another and the problems it caused to litigants. A transfer petition seeking transfer of a case from one state to another is peculiar in that it permits a party to invoke the jurisdiction of the Supreme Court in the first instance on a fairly banal issue. The jurisdiction to hear these types of cases vests in the Supreme Court, owing more to its administrative centrality than to its judicial superiority.
In Krishna Veni Nagam v. Harish Nagam,the Court noted, not for the first time, that there are one too many transfer petitions being filed in the Supreme Court. With a view to lessen the burden on litigants who would be forced to travel as a result of the transfer of cases, the Court directed that wherever video conferencing facility is available, it ought to be fully utilized.
The Court also directed that in matrimonial matters where defendants reside outside the jurisdiction of the court, the court where proceedings are instituted can consider and make video. conference facilities available to the defendant, which would be sent along with the summons.
High Courts started facing some difficulties in the implementation of this judgment. For example, the Gauhati High Court in Subarna Bhattacharjee v. Siddhartha Biswas, noted that not only did the Court not have any rules for conducting trial by video conference, it also did not have any rules for sending documents by email. Even as regards documents sent by post, the Gauhati High Court noted that they did not have proper rules in place for accepting such documents, tagging them with the appropriate files and what is to be done if such documents are misplaced.
While some of these may seem relatively trivial administrative problems that could be overcome easily, it is clear that there was some discomfort on the part of the High Court to adapt to trials by video conference and to use it as a substitute for transferring of cases.
Then, a three-judge Bench of the Supreme Court in Santhini v. Vijaya Venketesh, per the majority comprising former CJI Dipak Misra and Justice AM Khanwilkar, jettisoned the new-fangled directions issued in Krishna Veni Nagam to use video conference facility in matrimonial matters. The culprit for the same is an antediluvian understanding of video conference technology.
The Court was of the opinion that the request of one party to conduct the proceedings vide video conference will violate the statutory right of the other party to demand ‘in-camera proceedings’ as provided in Section 11 of the Family Courts Act, 1984. This opinion is rooted in an assumption that video conference would violate a party’s privacy which the legislature wanted to protect by having a provision for in-camera proceedings.
The Court was of the opinion that the raison d'etre behind the enactment of the 1984 Act i.e. reconciliation between the parties, would be impossible if the same is allowed to happen by video conference. This assumption, as remarked by Justice DY Chandrachud in his minority judgment, has resulted in a hypothesis of desirability being elevated to a position of legal principle.
The COVID-19 pandemic and the lockdown necessitated by it changed the scenario completely. Lawyers routinely started addressing the court by video conference and e-filing became the norm. The Supreme Court took up the issue suo motu in In Re: Guidelines for court functioning through video conferencing during COVID-19 pandemic on April 6 and directed that the High Courts shall take all measures to reduce the presence of all stakeholders while at the same time maintaining the robust functioning of the judicial system through video conferencing.
The Supreme Court authorised the High Courts to work out the modalities of video conference and directed district courts to adopt the mode of video conferencing prescribed by the respective High Court. The Court also specified that the concerned court shall also make available video conferencing facilities for litigants who do not have means or access.
However, the Supreme Court also held that in no case shall evidence be recorded by video conference without the consent of the parties.
Looking back, going forward
Travel, for appearance in various matters before courts, was an inconvenience when the Court considered Krishna Veni Nagam and Santhini. As things stand today, travel is an immense burden and a risk to life. Unless the courts contemplate complete stoppage of work till free travel without risk of being quarantined, or worse, infected, becomes possible, conducting day to day proceedings by video conference is inevitable.
The comfort levels of courts and lawyers with video conference have increased manifold from the time of the decision in Santhini¸ though only a little more than two years have elapsed. Courts have framed fairly detailed rules for video conference and e-filing of pleadings and documents. Today’s videoconference facilities are secure and do not pose a threat to privacy. The appearance of members of the common public before the court through video conference is a necessity now, not a choice and accordingly, courts should no longer wait for consent of the parties for directing proceedings to take place by video conference. Courts should now move beyond the kind of reasoning adopted by the majority in Santhini and not be tied down by various other legislation.
Vikram Hegde is an Advocate on Record at the Supreme Court of India and Co-founder of VH Law Chambers. Shantanu Lakhotia is an Advocate with VH Law Chambers. They are based in Delhi.