Possible Solutions to Remote Evidence in ADR



[This article is authored by Vivek Sharma, a final year law student at ILS Law College, Pune.]


Keywords: Video Conferencing, Covid- 19, Evidence Act, Seoul Protocol.


Introduction

The Indian judiciary has been impacted by the forced modernization brought by Covid-19. It has bolstered Alternate forms of Dispute Resolution ("ADR") to a further extent and has provided a good opportunity for ADR platforms to go fully online. ADR through video conferencing is an ideal product of the progressive attitude of all the advocates, arbitrators, judges, and judicial activists. Trial through video conferencing is a boon but often becomes an impediment at several stages of proceedings, out of which recording of witness testimony is very important. However, due to technical difficulties such as confidentiality, logistics, technical assistance, issues of right to be heard, etc., both parties find it difficult to trust and consent to the virtual examination of a witness. There is no strict or informed law, which recognizes and lays down any strict method for easy recording of testimony virtually. This article suggests reliable and right safeguarding solutions for such issues.


Role of Video Conferencing

Video Conferencing has been used to provide evidence for many years, dating back to the case of The State of Maharashtra v. Dr. Praful B. Desai, decided by the Supreme Court in 2003. In plenty of cases, the courts have laid down separate, exhaustive and strict guidelines to record testimony under a court-appointed person, strictly on the court premises [i]. Several High Courts, including Delhi High Court, Himachal Pradesh High Court and others, have laid down such guidelines.


In arbitration cases, the parties mutually agree to record testimony and evidence virtually, at different locations, which frequently raises the possibility of either party violating due process of law, causing the arbitrator’s decision to be challenged [ii] in court in the future. Witnesses are frequently tutored or pressured to conceal any fact while remotely testifying; secondly, a lack of cyber infrastructure in India creates numerous obstacles for witness examination due to network connectivity issues, cracking of video streaming, lack of awareness about the technology, and so on., depriving parties of a fair chance to present their case. Thirdly, Propecia is illegal in India. Order 18 Rule 12 of the Civil Procedure Code, 1908, says that the court may take into consideration remarks of the witnesses respecting the demeanour when under examination. Recording the demeanour of a person who is not physically present or is not perceived through naked eyes is impossible. Fourthly, as per Section 159 of the Indian Evidence Act, 1872, witnesses are allowed to refresh their memories of their or any other person’s writings during examination. With all such documents in front of him, a witness cannot be called; the purpose of the examination is defeated. Fifthly, cross-examination of witnesses is difficult through video conferencing as the essence of cross-examination lies in the pseudo pressure built upon the witness to extract the truth. It is one of the most viable options through which honest answers can be extracted from witnesses.


Video conferencing will not remain as a temporary measure after the Covid-19 impact; in fact, it has come to stay with the rest of the world for years to come. Hence, new technologies must be used to repair the cracked tube and cover loopholes in video conferencing to suit it to the justice delivery system. The use of the proctored method is prevalent now-a-days for student examinations. It is a method that keeps audio and face surveillance on the examinee through the camera of the examinee's computer, prevents him from leaving the single screen, and only allows viewing the examinee's computer screen. A proctored method coupled with a 360-degree view of the camera covering a reasonable part of the room or periphery of the room can assure judges and parties of fair and reliable testimony of the witnesses. Other technological standards of computers with proper camera, internet speed for smooth video and audio, proper microphone for clear and amplified audio so as to remove any ambiguity, visual standards of HD quality, etc. must be ensured.

Before all the technological requirements, and to support such technologies, basic logistics must also be available. Empty room, clear background, ample light in the room and no access to witnesses to communicate with any unauthorized persons while testifying, etc. are few requirements which are to be taken care of. With respect to referring documents, there could be the availability of a separate display screen, which will provide access to relevant documents to the witness during questioning.


To promote and expand access to ADR, we can establish a small separate "judicial evidencing studio" in each town or district level, equipped with all the logistics and technological advancements recognized by the Indian judiciary, for examination, ensuring due process, confidentiality, data security, and saving cost, time, and energy of witnesses who want to testify. Although we have video conferencing setup at every district court across India, they are rarely used. According to Order XVI Rule 2 of the Civil Procedure Code, 1908, a witness is always reimbursed for all travel and other expenses incurred while testifying in a case, but in practice, witnesses resist travelling and devoting their time to the time-consuming litigation process. Hence, a centre nearby, which is more accessible, encourages witnesses to voluntarily agree to take part in the proceedings as it is more convenient for both courts and parties. This studio can be utilized for several purposes by all the Public Courts as well as by the arbitrating parties. Just like music recording studios and photo studios, judicial evidence studios can facilitate the justice dispensing authorities and can be a boon to the Indian judiciary overall. However, partial difficulties remain intact with this advancement, but it will rule out the majority of the difficulties.


Remotely examining a witness is not impossible! Many institutions have drafted guidelines to facilitate private parties to adopt this change. The Australian Centre for International Commercial Arbitration ("ACICA"), recently introduced a guidance note, which also includes guidelines such as witnesses should not use “virtual backgrounds”. Singapore International Centre for Arbitration, ("SIAC"), released a note wherein few technical and logistical steps have been laid down before examining a witness. One of the best papers is Seoul Protocol on video conferencing in International commercial arbitration, which has included every possible point for seamless examination. The judiciary is always considered the last to adopt technology. It will be interesting to note if there is any standard legislation made to this effect. Legislations must be amended to incorporate suitable provisions for video conferencing because, in several instances, witnesses are mandatorily required to be physically present in the court. For example, Section 119 of the Indian Evidence Act, 1872, says where a witness is unable to communicate verbally, he can give his evidence in writing or by sign only in “open court”. The term "open court" usually refers to a physical form of hearing (Kehar Singh and Ors v. State (Delhi Admn) [iii]. Many provisions of the Civil Procedure Code, 1908, including O. 10 R. 2, contain provisions for parties to appear in person and others.


Conclusion

Hence, it is the best time to bring out any change in the system or law. To standardize and strengthen alternative forms of settlement, we must take responsibility as a caretaker of law for suggesting changes in the provisions of the Arbitration and Conciliation Act, 1996, Civil Procedure Code, 1908, and even the Indian Evidence Act, 1872, or any other laws currently in force, to accommodate changes such as the one before us today. After that, remotely testifying in a case will be very easy and justice will be more accessible, which is the end goal of a lawyer.


[i] Zaishu Xie and Another v. The Oriental Insurance Company Ltd. And Others, 2014 (207) DLT 289.

[ii] Sukhbir Singh v. Hindustan Petroleum Corporation Ltd, 2020 (266) DLT 612.

[iii] Kehar Singh and Ors v. State (Delhi Admn), 1988 SCC (3609).


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