Legal Briefing

Video conferencing in India

The In-House Lawyer Logo

India | 01 September 2012

Indian courts in the last decade have been proactive in embracing advancement in technology.

One such pioneering step is the use of video conferencing for recording of evidence.

INDIAN LAW ON RECORDING EVIDENCE

In the Indian legal system, evidence is collected under the Indian Evidence Act 1872.

  • In criminal proceedings, ss230-234 of the Code of Criminal Procedure (Cr PC) 1973 specify the procedure of collecting evidence and the Court has the power to compel the witness to appear before it to give evidence.
  • In civil matters, the witnesses are summoned to appear before the court and adduce evidence under the provisions of s30, Order XVI and Order XVIII of the Code of Civil Procedure (CPC) 1908.

DISPENSING WITH PHYSICAL PRESENCE OF THE WITNESS

Indian statutes do not have specific provisions for recording evidence via video conference and it is the Indian judiciary that has, through various landmark decisions, laid down the framework and parameters for the use of video conferencing facilities to record evidence.

Mindful of the circumstances in which physical presence of a person cannot be obtained, Indian courts have held that physical presence of person can be dispensed with. In a number of cases, such as Amitabh Bagchi v Ena Bagchi [2005] it was held that ‘presence’ does not necessarily mean actual physical presence in the court.1

VIDEOCONFERENCE: AN EMERGING CONCEPT

By virtue of the amendment in the Evidence Act and insertion of ss65A and 65B, a special provision as to evidence relating to electronic record and admissibility of electronic records had been introduced.2 Courts have interpreted this provision to include video conferencing.3

This position had been consolidated in 2003, in the landmark judgment of State of Maharashtra v Dr Praful B Desai [2003], when the Supreme Court upheld video conferencing as a vital tool for collecting evidence where the witness may not be conveniently or necessarily be examined in court.

Since Praful B Desai, there has been a significant rise in the trend to resort to video conferencing in civil proceedings, especially as a tool for collecting evidence from a witness who resides abroad.4

Video conferencing has been used in several cases where the witness has been unable to attend the court proceedings, for instance in Alcatel India Ltd v Koshika Telecom Ltd & ors [2004] the Court allowed the witness to give evidence through video conferencing, as the witness was unhealthy.

In Amitabh Bagchi, the High Court of Calcutta opined that a practical outlook ought to be taken by a court in allowing electronic video conferencing as it is a cost-effective facility and avoids delay of justice.

The courts have on several occasions also resorted to using this technology, based on compelling facts and circumstances. For instance, examination of a victim who had been sexually exploited and/or was suffering from post-traumatic stress disorder was allowed to be done via video conferencing5.

The facility has also been used by the subordinate courts, where the judicial officer needs to record evidence of under-trial prisoners for security reasons.

In the matter of Liverpool and London Steamship Protection and Indemnity Association Ltd v MV ‘Sea Success I’ & anor [2005], the Bombay High Court allowed the plea of the plaintiff to depose using video conferencing, as the witness was staying in UK with her two minor children and was unable to come to India. In the case of Bodala Murali Krishna v Smt Badola Prathima [2007], the Andhra Pradesh High Court similarly allowed diposition of a USA resident witness via video conferencing. The Court was of the view that there should not be any plausible objection for resorting to video conferencing in civil cases as long as the necessary facilities along with assured accuracy co-exist.

In fact, recently, the Supreme Court in Dr Kumar Saha v Dr Sukumar Mukherjee [2011] (medical negligence case), went a step further and ordered recording of testimonies and cross-examination of the foreign expert witnesses through internet conferencing instead of video conferencing.

PROCEDURE AND SAFEGUARDS

While the courts have held that recording of evidence through video conferencing is permissible in law, they have also cautioned that necessary precautions must be taken, both as to the identity of the witnesses and accuracy of the equipment used for the purpose6. Certain guidelines have been indicated in the judgments discussed above, which are summarised below:

  1. 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 and who will ensure that there is no other person in the room where the witness is sitting while the evidence is being recorded7.
  2. Fixing the time for recording evidence is always the duty of the officer who has been deputed to record evidence8.
  3. The witness would be examined during working hours of Indian courts. A plea of any inconvenience on account of the time difference between India and another country would not be allowed9.
  4. If it is found that the witness is not attending at the time(s) fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video conferencing10.
  5. The respondent and their counsel would have to make it convenient to attend at the time fixed by the officer concerned. If they do not attend, the Magistrate would take action as provided in law, to compel attendance11.
  6. In case of non-party witnesses, a set of plaint, written statement and/or other papers relating to proceeding and disclosed documents must be sent to the witness for their acquaintance and an acknowledgement in this regard must be filed12.
  7. Before action of the witness under audio-video link starts, the witness would have to file an affidavit/undertaking duly verified before a judge/magistrate/notary that the person shown as witness is the same person as who is going to depose with a copy of such affidavit to the other side13.
  8. The person who wishes to examine the witness on the screen would have to file an affidavit/undertaking14.
  9. As soon as identification is complete, oath would be administered as per the Oaths Act 1969 of India15, by an officer duly authorised to administer an oath16.
  10. The officer would ensure that the witness is not coached/tutored/prompted. The officer deputed will ensure that the respondent, their counsel and one assistant are allowed in the studio when the evidence is being recorded. The officer will also ensure that witness is not prevented from bringing into the studio the papers/documents which may be required by their counsel17. The visual is to be recorded at both ends. The witness alone can be present at the time of video conference.
  11. Magistrate and notary are to certify to this effect18.
  12. The officer concerned will ensure that once video conferencing commences, as far as practicable, it is proceeded without any interruption and without any adjournments.
  13. If the officer finds that the witness is not answering the questions, the officer will make a memo of the same. When the evidence is read in court, this is an aspect that will be taken into consideration19.
  14. The court/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 the recording of the witness either manually or mechanically20.
  15. Depositions of the witness, either in the question-answer form or in the narrative form, will have to be signed as early as possible before a magistrate or notary public and will thereafter form part of the record of the proceedings. Digital signature can be adopted in this process, and such a signature will be obtained immediately after day’s deposition21.
  16. The expenses and the arrangements are to be borne by the applicant who wants to avail the facility of video conferencing22.

CONCLUSION

The Indian legal system has recognised and embraced video conferencing as an extremely effective instrument to collect evidence as it aids in avoiding unnecessary adjournments of cases and also saves the parties from costs borne on transportation and other inconveniences that may arise.

It has been witnessed that the advanced facilities available today have reduced conventional impediments and legal uncertainties surrounding the use of information technology, such as cost on procuring equipments, other technological issues involving data protection, confidentiality of the documents and evidence adduced during the proceedings and privacy of the parties.

Given its viability and the favorable response in the legal fraternity, the use of video conferencing in Indian dispute resolution is expected to escalate tremendously in times to come. It has already given a new dimension to international commercial arbitration and brought consistency in proceedings, especially in the institutionalised form of arbitration.

Notes

  1. Also see Basavaraj R Patil v State of Karnataka [2000].
  2. In effect since 17 October 2000.
  3. Amitabh Bagchi v Ena Bagchi, para 8.
  4. See Alcatel India Ltd v Koshika Telecom Ltd [2004]; Tuncay Alankus v CBI [2010]; Neelalohitha-dasan Nadar v State of Kerala [2005] (1) Ker LT 481; Amitabh Bagchi v Ena Bagchi [2005].
  5. See Sakshi v Union of India [2004]; Sheeba Abidi v State & anor [2004].
  6. Twentieth Century Fox Film Corporation v NRI Film Production Associates (P) Ltd [2003] and Amitabh Bagchi v Ena Bagchi.
  7. State of Maharashtra v Dr Praful B Desai, para 24.
  8. Ibid.
  9. Supra note 3 at para 10.
  10. State of Maharashtra v Dr Praful B Desai, para 24.
  11. Ibid.
  12. Supra note 3 at para 10.
  13. Supra note 3 at para 10.
  14. Ibid.
  15. Ibid.
  16. State of Maharashtra v Dr Praful B Desai, para 24.
  17. Supra note 3 at para 8.
  18. Supra note 3 at para 10.
  19. State of Maharashtra v Dr Praful B Desai, para 24.
  20. Supra note 3 at para 10.
  21. Ibid.
  22. Supra note 3 at para 10.