Possible solutions to remote evidencing in ADR
Indian judiciary has been impacted by the forced modernization brought by Covid-19. It has bolstered alternate form of dispute resolution to a further extent and has provided 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 but due to technical difficulties such as confidentiality, logistics, technical assistance, issues of right to be heard, etc. both the parties find it difficult to trust and consent to virtual examination of witness. There is no strict and informed law which recognizes and lays down strict method for easy recording of testimony virtually, this article suggests a practical solution for reliable and rights safeguarding ways for such issues.
Evidence through video conferencing has been in continuance for many years, dating back to the case of The State of Maharashtra vs Dr. Praful B. Desa[i] that was 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 in the court premises.[ii] Several High Courts including Delhi High Court[iii], Himachal Pradesh High Court[iv] and others have laid down such guidelines.
In arbitration cases, parties mutually decide to record testimony and evidences virtually at different places that often creates suspicion of violation of due process of law by either of parties which causes the order passed by the arbitrators to be challenged in future before the court.[v] Often while remotely testifying, witnesses are found tutored or subjected to pressure to conceal any fact; secondly, lack of cyber infrastructure in India[vi] causes numerous obstructions for witness examination due to network connectivity issues, cracking of video streaming, lack of awareness about the technology, etc. which deprives parties of fair chance to present their case; thirdly, proper evaluation of witness becomes more difficult through video calls. O. 18 Rule 12 of Civil Procedure Code, 1908 says that the court may take into consideration remarks of the witnesses respecting the demeanor when under examination. Recording the demeanor of a person who is not physically present or is not perceived through naked eyes is impossible.[vii] Fourthly, as per the 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. A witness cannot be availed with all such documents before him; the purpose of the examination will be defeated. Fifthly, Cross-examination of witness is difficult through video conferencing as the essence of cross-examination lies in the pseudo pressure built upon the witness to extract the truth and it is one of the most [viii] 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 rest of the world for years to come. Hence, new technologies must be put to use to repair the cracked tube and cover loopholes in video conferencing to suit it to the justice delivery system. Use of proctored method is prevalent now-a-days for student examination.[ix] It is a method which keeps surveillance on audio and face of the examinee through the camera of the examinee’s computer, restricts him from leaving the single screen and allows viewing the computer screen of the examinee only.[x] Proctored method coupled with 360 degree view of the camera covering 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 computer 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[xi], etc. must be ensured.
Before all the technological requirements, and in order to support such technologies it is needless to say basic logistics must also be available. Empty room, clear background, ample light in the room and no access to witness to communicate to any unauthorized persons while testifying, etc. are few requirements which are to be taken care off. With respect to referring documents there could be availability for a separate display screen which will provide access to relevant documents to the witness during questioning.[xii]
To promote and create more accessibility to ADR we can setup small separate “judicial evidencing studio” equipped with all the logistics and technological advancements, recognized by the Judiciary of India, setup at every town or district level for examination away which will ensure due process, confidentiality, data security and save cost, time and energy of witnesses who wants to testify. Although, we have video conferencing setup at every district court across India but needless to say those are rarely put to use. As per O. XVI R. 2 of Civil Procedure Code, 1908 a witness is always defrayed for all travelling and other expenses which they do for in a case, but practically witnesses resist traveling and giving their time to cumbersome litigation process. Hence, a centre nearby which is more accessible, encourages witnesses to voluntarily agree for taking 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 evidencing studios can facilitate the justice dispensing authorities and can be a boon to Indian judiciary overall. However, partial difficulties still remain intact with this advancement, but it will rule out majority part of the difficulties.
Remotely examining a witness is not impossible.
! Many institutions have drafted guidelines to facilitate private parties to adopt this change. Australian Centre for International Commercial Arbitration (ACICA) recently introduced a guidance note which also includes guidelines such as witnesses should not use “virtual backgrounds”.[xiii] Singapore International Centre forArbitration (SIAC) released a note wherein few technical and logistical steps have been laid down before examining a witness.[xiv] One of the best papers is Seol Protocol on video conferencing in International commercial arbitration which has included every possible point for seamless examination.[xv] Judiciary is always considered 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 at several instances witnesses are mandatorily required to be physically present in the court. For example Section 119 of Indian Evidence Act, 1872, says where witness is unable to communicate verbally can give his evidence in writing or by Sign only in “Open Court”. Open court mostly implies physical form of hearing (Kehar Singh & Ors vs. State (Delhi Admn).[xvi] Many provisions of Civil Procedure Code, 1908’s including O. 10 R. 2 contain provisions for parties to appear in person and others.
Hence, it is the best time to bring out any change in the system or law. So as to standardize and bolster alternate form of settlement, we must as a caretaker of law take responsibility to suggest changes in the provisions of Arbitration and Conciliation Act, 1996, Civil Procedure Code, 1908 and even Indian Evidence Act, 1872 or any other laws currently prevailing, so as to accommodate with the changes such as the one before us today. After which remotely testifying in a case will be very easy and justice will be more accessible, which is the end goal of a lawyer.
[ii] Zaishu Xie & Another v. The Oriental Insurance Company Ltd. & Others, 2014 (207) DLT 289
[viii] Ratanlal and Dhirajlal, Law of Evidence, pg 827
[x] Carina S. González-González 1, Alfonso Infante-Moro and Juan C. Infante-Moro Implementation of E-Proctoring in Online Teaching: A Study about Motivational Factors Sustainability 2020, 12, 3488; doi:10.3390/su12083488; page 2
[xi] Seol Protocol Article 5