Delhi HC's VC Hearing Rules - Taking the Virtual Courts System Forward

Introduction

On 24^th March 2020, the Ministry of Home Affairs and the National Disaster Management Authority decided to take measures for ensuring social distancing in order to combat the threat posed by COVID-19. This threat and the stringency of the corresponding measures evoked an adaptive response from the entire country. Recognising this need, the Supreme Court of India (“SC”), on 6^th April 2020, via a suo-moto writ passed the ‘Guidelines for court functioning through video conferencing during COVID-19 pandemic’ [(LSI-208-SC-2020(NDEL)]. These guidelines provide a generic framework for functioning through video conferencing to lower courts and delegated the responsibility of making detailed guidelines for separate jurisdictions to the High Courts.  The SC also noted that the Indian judiciary has been proactive in embracing advancement in technology in judicial proceedings. The Delhi High Court took up the mantel and notified its video conferencing rules (“rules”) on 1^st June 2020. On the same day, for the first time in the history of the SC a bench of the top court had gone paperless.[1]

The challenges in drafting and implementing such rules would be to maintain the sanctity of proceedings by ensuring adherence to rules of evidence and principles of natural justice, securing access to internet and technology, overcoming technical hindrances to proceedings and laying down simple procedural requirements. An analysis of these rules suggests that the Delhi HC has succeeded in addressing these challenges.

Analysis of the rules

Procedural requirements and role of coordinator

The rules establish two key mechanisms – ‘Remote Point’ and ‘Coordinator’ for the functioning of virtual courtrooms. The Remote Point is the place where any person is required to appear through a video link. The rules provide establishment of Remote Points at Mediation Centre, Prison, Hospitals, and Institutional Facilities etc. effectively reducing the need for physical presence and cutting down time and cost in tendering evidence.

A Coordinator is a person who is available at the Court Point and the Remote Point to facilitate the video conference. It is imperative to note that while a coordinator is necessarily present at the Court Point in every type of hearing, Coordinators are required at the Remote Point only when a witness or an accused is to be examined.

The Coordinator plays an important role in ensuring that the proceedings are conducted fairly and are free from technical glitches. For instance, the Coordinators are responsible for ensuring that the equipment recommended by the rules such as laptops, internet, camera and power supply are functioning at the Court Point and the Remote Point. The Coordinators are also duty bound to ensure that social distancing is maintained and are required to regulate the number of persons present at a Remote Point.

The rules also establish a simple procedure for requesting video conferencing. In the interest of expediency any proposal to move a request for video conferencing should first be discussed with the other parties to the proceeding. Thereafter, any party to the proceeding or witness may move a request for video conferencing through the form that is annexed in Schedule II to the rules.

Sanctity of judicial proceedings

The primary purpose of these rules is to ensure that virtual courtrooms effectively replace physical courtrooms. The SC noted in 6^th April order that the term ‘evidence’ includes electronic evidence and that video conferencing may be used to record evidence. The rules explicitly clarify that proceedings conducted by video conferencing are judicial proceedings that attract all relevant statutory provisions including provisions of CPC, CrPC, Contempt of Courts Act, 1971, Evidence Act and IT Act.

The rules also seek to guarantee the protection of principles of natural justice. They require the Court to ensure that sufficient notice regarding the video conference is given to a person required to appear at a Remote Point. Further, they also mandate that the documents that are relied upon in the proceeding are available at the Remote Point in either softcopy or hardcopy. To this end, the Coordinator is also required to ensure that exigencies such as the need for a translator or an expert in sign language are catered to.

In proceedings involving the examination of a witness or the testimony of an accused, the Coordinator at the Remote Point is also responsible for ensuring that the person examined is not being tutored or coerced in any manner and is also not relying on any documents without the Courts permission. Further, where a witness or an accused is in custody, the Court is required to facilitate private communications between the person with their counsel before, during and after the hearing.

Considering that video conferencing has been envisaged to stand as a substitute for physical courtrooms, an important factor is public viewing of proceedings. For this purpose, the rules required courts to make available sufficient links depending on the availability of bandwidth for public viewership.

Access to internet and technology and overcoming technical hindrances

The biggest hindrance to the feasibility of this mechanism is access to technology and the inherent possibility of glitches while using this technology. The rules have foreseen these concerns to a large extent and addressed them sufficiently. The Coordinators are primarily responsible for ensuring seamless video conferencing. They are required to share the link for video conferencing with the relevant parties and any other documents that the parties may require. The Coordinators are also required to conduct trial video preferably 30 minutes before the commencement of the proceedings.  

Further, the rules require the Court to satisfy itself as to the clarity and connection quality of the video call. In the event that a remote user is aggrieved by poor video or audio quality, they are required to ‘immediately’ inform the Coordinator at the Court Point. The Coordinator will then relay this information to the Court. If the Court finds substance in the complaint, it can declare the hearing incomplete and ask the parties to reconnect or physically appear before the Court. This is crucial to ensure that principles of natural justice are adhered to in the event of poor video or audio quality.

Conclusion

In a period marked by uncertainty and the need to constantly adapt, the Delhi High Court’s rules provide a glimpse of what our new normal looks like. Balancing the requirement of minimising the sharing of physical spaces with the need to prevent over-burdening of the judiciary at the end of the pandemic is a delicate act. The rules seem to strike the right balance while not compromising on accessibility to justice and the sanctity of proceedings.

While the true success of the system can only be discerned by observing the efficacy in implementing this system, the early signs are positive. On 1^st June 2020, a division bench comprised of Justice Midha and Justice Sethi of Hon’ble Delhi High Court directed parties to submit a brief note of their submissions along with a 15-minute-long video clip of their arguments within a week of the order and an additional brief note along with a 10-minute-long video clip in rebuttal within a week thereafter.[2] The “extraordinary situation requires extraordinary solutions” has never been more true. However, the fact that the existing infrastructure to enable conducting seamless hearing via video conferencing at lower judiciary is not sufficient enough cannot be overlooked. The Hon’ble Delhi High Court vide an order dated 4^th June 2020 expressed concern over the lack of steps taken towards enhancement and upgradation of the existing lease lines from 34 MBPS to 1 GBPS as well as digitisation of the records in District Courts.[3] The Hon’ble Delhi HC while terming it “critical” has directed the Government of NCT of Delhi to file an affidavit indicating the time required for making the necessary provisions in that regard. This marks a new beginning and we hope that the other High Courts across the Country take similar approach in upgradation of judicial infrastructure in place in a time bound manner to make virtual hearing a success across India.