HP High Court Orders Video Conferencing For Recording Evidence

Much before the current pandemic situation, the courts were making orders for video-conferencing for recording evidences in special circumstances.

The Order that is particularly important in this context was passed by the Hon’ble High Court of Himachal Pradesh. Hon’ble Justice Tarlok Chauhan while dealing with a issue which required recording of evidence of a doctor, directed that;

‘evidence shall be taken through video conferencing, rather than having the physical presence of the doctor in the Courtroom

The order was thoughtful and is important because doctors often have to appear in courts as expert witnesses to give their testimony in various legal cases, this leads to the neglect of the patients and also consumes precious time and resources required by the hospitals. To meet such contingencies where the attendance of witnesses cannot be procured without an amount of delay, expense or inconvenience, the Courts have been bestowed with ample discretion to dispense with such attendance and order videoconferencing for taking evidence. In exercise of this discretions, Courts are expected to adopt procedures which facilitate dispensing speedier and convenient justice.

However this practice is fairly alien to the state of H.P and is remotely practised in our country too, the reason being lack of infrastructure and a lack of initiative.

In a recent study, it was found that video conferencing as a substitute for physical presence in courts led to 43% drop in the monthly mileage of vehicles, 49% reduction in the fuel cost per month, and 28% savings in terms of time consumed for court duties. Satisfaction score for parameters of time consumed, physical strain, mental strain, communication with Honorable Judges, and overall experience was 87% through tele-evidence as compared to 31% with physical appearance. (Journal of Med. (2018). Tele-evidence 64(4), 206–211. doi:10.4103/jpgm.JPGM_243_17)

We have had very few instances where studies such as above have been utilised to undertake judicial reforms. Its only through efforts of innovative judges and lawyers that such practices have been adopted. For example in a similar case the apex court in 2003, in State Vs Doctor Praful B Desai, permitted recording of evidence of witness (doctor) staying abroad through video conferencing. The court stated;

“The Constitution and existing laws have to be looked into for discerning challenges thrown up due to emerging technological innovations. They have to be interpreted keeping this dynamic in mind”

Various guidelines are given from time to time by superior courts regarding the recording of evidence through video conferencing. Law applicable to such evidence recorded in courts includes 272 to 283 Cr.P.C. and Order 16, 18 etc. C.P.C. with some changes to avoid some technical issues.

By amendment in Cr.P.C in 2009, a proviso was added to subsection (1) of section 275 Cr.P.C. which states as follows:

“Provided that evidence of a witness under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence”.

Video conferencing is extremely useful in criminal cases as the burden on the police significantly reduces, the task of ensuring safety and providing security to the accused and witnesses is a challenge when at the same time the force is required elsewhere for doing various routine functions. In the most infamous case of Md. Ajmal Kasab the court permitted Kasab to appear through video conferencing, as the issues of security and convenience weighed heavy on its head.

In another case, Bombay High Court taking suo-motu cognizance of a letter written by Shaikh Abdul Naeem, who was one of the accused in the Aurangabad Arms Haul case had directed the Maharashtra government to install video conferencing facilities in all courts in the state by the end of March 2017.

Last year in February 2018, it was reported that Jammu bench of Jammu and Kashmir High court for the first time heard 11 cases listed before Srinagar wing of High court through video conferencing.

The Division Bench of Madras High Court created history when it conducted the court proceedings over Skype from Chennai for the first time in a case related to 89 inmates of an unauthorized private children’s Home for girls run by Mose Ministries in Turuchi. In this case, girls rescued from the brothels in Delhi were repatriated and rehabilitated in their hometowns in several parts of India. To avoid any discomfort to them the court decided to take evidence through video conferencing.

Apart from India, there is a body of jurisprudence that has emerged in England through Roman Polanski’s case where the test of convenience, affordability and reliability of video conferencing has been accepted and is being routinely used by the courts. (Polanski v Condé Nast Publications Ltd [2005] 1 WLR 637.).

The order of the H.P high Court is hopefully the start for the building of infrastructure for this purpose in the State Courts and taking such an approach more often.

The great J.Bhagwati had once stated ;

“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind”

Note: The order has been passed in an individual case and may not be construed to be a regular practice of the Hon’ble Court, the same depends upon case to case basis.