WHITE PAPER ON VIRTUAL COURTS AT ALL LEVELS OF THE JUDICIARY

PERSPECTIVES OF DISPUTE RESOLUTION PRACTITIONERS

INDIAN DISPUTES RESOLUTION FORUM [IDRF]

E.: team@idrf.law
 TABLE OF CONTENTS

PREFACE 1–2
1. E-FILING PROCEDURES
1.1 Affidavits and Vakalatnamas 3
1.2 Petitions and Annexures 4
1.3 Subsequent Filings 4–5
1.4 Notification & Clearing of Defects 5
2. LISTING
2.1 Listing Timeline 5–6
2.2 Mentioning for Urgent Listing 6
3. SERVICE AND MODE OF FILING PROOF OF SERVICE
3.1 Advance / Regular Service 6–7
3.2 Proof of Service 7
4. VIRTUAL HEARINGS
4.1 Cause Lists 7
4.2 Logistics of Virtual Court Rooms 7–8
4.3 Hearings 8–9
4.4 Appearance of Administrative Officials / Police Officials (Investigation 9
Officers etc.)
4.5 Passovers 9 – 10
4.6 Recording of Appearance 10
4.7 Certified Copies of Orders / Pleadings 10
4.8 Transcripts of Hearings 10 – 11
4.9 Production of Documents / Marking of Exhibits 11
4.10 Inspection of Court Records 12
4.11 Procedure and modalities of conducting client / accused based 12 – 13
processes like furnishing of bail / personal bonds, appearance of
accused, testimonies, cross examination, admission & denials of
documents, statements etc.
4.12 During Cross Examination 13 – 14
4.13 Outsourced Virtual Trial 14 – 15
4.14 Conducting hearings before Registrar / Asst. Registrar / Chamber 15
Judge
4.15 Confidentiality and Privacy Concerns 15
 PREFACE

India is facing an unprecedented challenge of COVID-19 pandemic, one of the worst global
pandemics in recent history. We are living in extraordinary times and combating the COVID-19
pandemic. The scale and impact of the tragedy has caused a sense of helplessness. The COVID-
19 pandemic has been called a 'Global Black Swan Event'.

A lot has changed over the past few months. We now continue to be in the middle of a nation-wide
lockdown. This is a situation that none of us have confronted before. Large swathes of our nation
are now at a standstill.

Social distancing mandates / directives have been issued by the central & state governments as
well as local authorities. The 1918 flu, also known as the Spanish flu, lasted almost two years till
1920 and is widely regarded as one of the deadliest pandemics in modern history. The response
to the Spanish flu was not dissimilar, in principle, to stay-at-home and follow social distancing
directives that have been issued now in 2020 with respect to COVID-19 pandemic.

The legal profession, across the world, has not been immune either. It will not be an
overstatement that the justice delivery system, and the services being rendered by the members
of the legal fraternity have been, and continue to remain, essential. All Constitutional Courts have
repeatedly held that access to justice and consequently the justice delivery system, is a
fundamental right.

The Courts in India, for some time now, have been at the cusp of bringing about revolutionary
changes to the justice delivery system with the use of information technology. However, the
progress, although consistent, has been relatively slow, with most of the developments taking
place in the field of access to information.

As the COVID-19 pandemic unpredictably alters the course of 2020 and our way of life, questions
arise regarding the viability of physical hearings – how can they be conducted? under what
circumstances? and at what cost and risk to human health?

It is heartening to note that in the wake of the COVID-19 pandemic, the legal system in India,
including the Courts, Judges, Advocates and Court Registries, have shown great adaptability to
the use of technology, be it for the purposes of e-filing or for conducting Court hearings through
virtual platforms.

Often extraordinary changes find their inception and acceptance during challenging times. It is in
that background that a group of dispute resolution practitioners cutting across fora got together as

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Indian Disputes Resolution Forum [IDRF] for exchange of knowledge and ideas, be it judgments,
important developments in law or challenges being faced by the legal system.

The White Paper is a product of such deliberations held by the members of the IDRF from across
the country, with an endeavour to make constructive and comprehensive suggestions on various
aspects of e-filing and conduct of Court proceedings through virtual hearings.

The White Paper endeavors to put forward recommendations based on practical understanding /
experiences of dispute resolution practitioners. It also aims to supplement the present Court
systems that have been rolled out and the guidelines / SOPs issued by the Hon'ble Supreme
Court of India as well as various Hon'ble High Courts and other Courts / Tribunals across India,
solely with an intent to contribute to the evolving justice delivery system, with a strong focus on
remote processes through use of information technology at every stage.

The White Paper is intended as a constructive bundle of suggestions for the assistance of Courts
across the country and not a critique to the exceptional initiatives and efforts by all Courts to
seamless adapt to virtual hearings, which initiatives and efforts are most appreciated. It may also
be viewed as a useful guiding tool to lay down a stage-wise model for executing e-filing
procedures and conduct of virtual hearings across all Courts in India as well as ensuring actual
participation of the person who knocks at the doors of justice.

Kunal Vajani Adit S. Pujari

Head of Chambers, BlackRobe Chambers Advocate
Court Member (India), ICC International Court of Arbitration

Malak Bhatt Roshan Santhalia

Advocate-on-Record, Supreme Court of India Advocate-on-Record, Supreme Court of India

Dr. Shashwat Bajpai Sanyat Lodha

Partner, DRSB Law Chambers Advocate-on-Record, Supreme Court of India

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1. E-FILING PROCEDURES
1.1 Affidavits and Vakalatnamas
1.1.1 Affidavits attested by the Advocate under his / her digital signature should be allowed
without any requirement for a notarized affidavit or an affidavit sworn before an oath
commissioner. Alternatively, the Courts may grant exemption to the Advocate from filing
affidavits during the period of the lockdown and the same may be filed at a later stage once,
the lockdown is over and the Courts start functioning in normal course.

1.1.2 Vakalatnamas and affirmations should be allowed in any format as received from the client
and uploaded by the Advocate as long as the fundamental aspects such as the identity of
the party, the Advocate and the concerned case are clearly discernible. Vakalatnama and
the affidavits (with digital signatures of the client) can be sent by the client to the Advocate.
While ideally, signed and scanned vakalatnama should be uploaded, however, if the same
is not possible then an authority letter to the Advocate to represent the client should be
allowed in any electronic form such as email, WhatsApp or text message. This may be sent
by the Advocate to the Registry / Reader of the concerned Court.

1.1.3 Along with the vakalatnama / affidavit in every matter, the following requirements maybe
considered as compulsory:-
(a) A photo of the person holding the newspaper for the day;
(b) A photo / scan of an ID cards with the number of such card clearly visible.

1.1.4 Alternatively, a duly signed scanned copy of the affidavit may be permitted to be filed. This
scanned copy may be authenticated through one of the following modes:-
(a) Through the offices of the local executive authority available at the Panchayat, Block,
Tehsil or District level, as the case may be.
(b) Through the offices of a designated officer of the District Court concerned as part of
an integrated network.

1.1.5 For the aforementioned purpose, a fail-safe verification mechanism along with technical
support to clients in the rural sector, including but not limited to the following options, is
suggested:-
(a) The scanned copy of the above to be sent from the local executive authority
concerned or the designated officer of the District Court concerned.
(b) The said authority or officer may further send a self-attested and verified copy of the
Aadhar Card and / or such other ID proof of the deponent as may be prescribed.
(c) No separate affidavit should be required for each application / pleading.
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1.2 Petitions and Annexures
1.2.1 Standard form of petitions to be drafted and uploaded on the Court websites which can be
used as sample formats by Advocates. The filing format need not contain registry / office
related formalities like Office Report / Limitation Notes / Listing Proformas etc.

1.2.2 The filing should be allowed by uploading each petition, application and annexure
separately without the need for manual / running pagination. If this is not possible, then
bookmarked PDF files should be allowed to be uploaded for filing purposes. In this regard,
it is suggested that the present features on the e-filing portals may be further enhanced to
include the feature of petition compilation and numbering of pages within the portal itself.
The same could be provided through a separate tab for each part of the file, which can be
separately filled in or uploaded as individual documents. The same could then be compiled
together through compilation option in the portal itself, thereby obviating the need for a
complete scan being uploaded at any stage.

1.2.3 There should be no insistence on the signature of the clients / Advocates at every page of
the petition, annexures or documents. In case there is technical difficulty in e-filing process,
an email address should be provided where the complete scanned copy of the petition can
be sent for filing purposes. A helpline may be created in this regard for assistance /
troubleshooting in the process of filing.

1.2.4 In the case of appeals, revisions and petitions challenging orders / awards passed by
judicial or quasi-judicial authorities, the requirement to necessarily file the entire record
should be done away with. Instead an undertaking may be obtained from the Advocate that
no crucial or relevant document forming part of the record has been suppressed or omitted
to be filed along with the appeal, revision or petition. The Hon’ble Supreme Court / Hon’ble
High Courts / Ld. District Courts can seek the mandatory production of the entire record
within 30 (thirty) days after the lifting of the lockdown.
1.3 Subsequent Filings
1.3.1 The main petition / filing should generate a diary number / receipt number which should be
used to upload subsequent documents / applications / affidavits. Each subsequent filing
should also generate a separate diary number which should be linked to the diary number
of the main matter.

For example, if the diary number for the main petition is D. No. 1234, the diary number of
the subsequent filing may be in the nomenclature of D. No. 1234-1, 1234-2 and so on and
so forth.
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1.3.2 In District Court, subsequent filing can be sent through email / WhatsApp to the Reader /
Ahlmad of the concerned Court. In all such emails / WhatsApp messages, the Advocate for
the opposite party should also be marked / copied and a default in the same should be
deemed to be an incomplete submission. A complete list of the email / WhatsApp Numbers
of the Reader / Ahlmad of the concerned Court should be published on the official website
of the concerned Court as well as the Jurisdictional High Court.

1.3.3 Any documents, case laws, compendiums, convenience volumes etc. which are required at
the time of virtual hearing, should be uploaded on the e-filing portal as “Additional
Documents” at least 12 (twelve) hours prior to the hearing.
1.4 Notification & Clearing of Defects
1.4.1 Once the e-filing process is completed, the concerned Advocate should be notified with the
name and contact number of the person who has been assigned for notifying and clearing
defects for the particular filing. The defects should be notified through an online system by
either uploading the defect sheet online or by sending an email to the Advocate.

1.4.2 Considering the peculiarities of e-filing procedures and uploading of PDFs and keeping in
mind the system available with the Registry – the defects should be allowed to be cleared
by any of the following ways:-
(a) Re-uploading the entire petition as a PDF file after clearing defects.
(b) Uploading a particular page or set of pages which are found defective.
(c) Uploading a particular document / annexure which is found defective.
(d) Necessary directions may be issued to the concerned defect clearing department /
section to be sensitized regarding the peculiarities of e-filing. Minor defects such as
errors in numbering, mismatch of dates between index and documents etc. can be
overlooked.

1.4.3 The time permitted for re-filing, which is 30 days at present as per the DHC Rules as also
before the SC and DCs, may be extended to 45 days or 60 days till the lifting of the
lockdown so as to ensure a reduced rush of filings and the consequent load on the system
in the initial days.

2. LISTING
2.1 Listing Timeline
2.1.1 In the regular course of matters, once the defects are cleared and the petition number is
generated, matter should be listed as per the regular practice followed by the concerned
Court for physical filings. Courts should encourage and ensure that advance lists are
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 uploaded in a regular and timely manner. For matters which are already filed and pending,
advance cause lists should be prepared and published, preferably 5 days prior, listing out
the matters to be taken up on each date.

2.1.2 Advocates should be permitted to make a mutual request to the concerned Court-Master for
a change in the given date in a matter which may have been already given by the Court, or
an adjournment, at least 3 (three) days before the date of listing.
2.2 Mentioning for Urgent Listing
2.2.1 Once the e-filing diary number / receipt number has been generated, Advocates pressing
for urgent listing should be allowed to upload / send through e-mail a 1 (one) page urgency
application listing out the urgency. The Courts must set-out a procedure for such urgent
listing, such that matters for which urgency applications are allowed should be listed within
2 (two) days.

2.2.2 For matters of extreme urgency (category of such matters to be notified), a procedure for
allowing oral mentioning simultaneously with the filing of an urgency application should be
permitted. In case the urgency application is not allowed, a window for oral mentioning
before a designated officer (Registrar or Judge) should be allowed / provided. In this
regard, a list of such rejected matters should be uploaded which may then be mentioned
before the concerned Judge within a fixed time period, preferably within the day or on the
next day.

3. SERVICE AND MODE OF FILING PROOF OF SERVICE

3.1 Advance / Regular Service
3.1.1 Advance or Regular Service should be allowed by serving the other parties / their Advocate
/ nominated Counsel through email.

3.1.2 Where email address is not available, service through WhatsApp or any such electronic
means should be allowed which allows for sending of PDF files.

3.1.3 In addition to the aforesaid, the respective Courts ought to publish an updated list of contact
details on the official website of the Court specifying the name of the Advocate, enrolment
number, email address and the personal telephonic numbers of all Advocates practicing in
that particular Court to ensure that service may be effected after filing the matter [this data
is always available with the respective Bar Associations]. This would be beneficial in
matters where the respondent(s)’ vakalatnamas have already been filed and / or for service
upon Advocates who are empaneled.

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3.1.4 Additionally, the Courts must direct their registry to create a specific email address for
service on the State and its arms so that whenever matters are being filed where the State
(in any capacity) is a respondent, service may be properly and swiftly effected.
3.2 Proof of Service
3.2.1 Emails should be accepted as proof of service with an undertaking from the Advocate that
the pleading has been served through email.

3.2.2 If the service is effected through WhatsApp or any such electronic means, screen shot of
the service be accepted as proof of service with an undertaking from the Advocate that the
pleading has been served through WhatsApp / electronic means.

4. VIRTUAL HEARINGS
4.1 Cause Lists
4.1.1 The schedule of publication of cause list, as far as possible should be made uniform across
all Courts as under:-
Day of the publication of cause list Day for which cause list will be published
Thursday Monday
Friday Tuesday
Saturday Wednesday
Monday Thursday
Tuesday Friday

4.1.2 The supplementary cause list for the subsequent day should be notified and uploaded by
the Registry of the Court at least 16 (sixteen) hours prior to the hearing.
4.2 Logistics of Virtual Court Rooms
4.2.1 At the outset, there is a fervent need for a uniform online platform for virtual hearing by
Courts across the country. In this regard, a common app / platform should be identified to
standardize the process of hearings across the country.

4.2.2 A dedicated Virtual Court department may be set-up at each Court under a Chief
Technology Officer, which department shall monitor the Virtual Court hearings and guide
and assist the Judges as well as the Advocates / Party in Person / Counsel during the
course of the Virtual Court hearings with regards to the technical aspects of the same. This
department shall monitor these hearings and ensure that no technical glitches disrupt the
hearings and in case of any disruptions or any difficulties faced by any party involved, the
department (or the concerned person from the department) should assist in removing the
disruptions to ensure smooth and uninterrupted virtual hearings.

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4.2.3 A mandatory minimum of 3 (three) weblinks of the Virtual Court to be emailed and sent by
WhatsApp on the verified email address and phone number of the Advocate.

4.2.4 2 (two) of the weblinks maybe used for Advocates and 1 (one) maybe used by the client.
This supply of weblinks should be a routine and automated process without the Advocate
having to email a request for the same.

4.2.5 A WhatsApp group be created a day prior with all the Advocates whose names are
reflected in the cause list. The link can be shared on the said group in addition to being sent
on the registered email address / phone number.

4.2.6 In case any Advocate is facing difficulty in joining the hearing or gets abruptly disconnected
from the hearing, an urgency helpline should be created or the concerned control room /
Virtual Court assisting team’s details should be provided to provide urgent and immediate
assistance. In the alternative, in case an Advocate is unable to join, a VOIP call can be
used by the Court master who can dial the Advocate’s number and connect him in the
virtual hearing in audio mode.

4.2.7 In case any Advocate is still not able to join, the matter should be adjourned to the next day
and matters should not be dismissed for default or without hearing the Advocate concerned.
4.3 Hearings
4.3.1 All relevant statutory provisions applicable to judicial proceedings including provisions of the
Code of Civil Procedure, 1908, Code of Criminal Procedure, 1973, Contempt of Courts Act,
1971, Indian Evidence Act, 1872, and Information & Technology Act, 2000, shall apply to
the proceedings conducted through virtual hearings.

4.3.2 Advocates should join the Virtual Court at least 10-15 minutes before the bench is
scheduled to commence the hearings. A virtual Courtroom experience would be
encouraged wherein the Advocates would be able to view (but on disabled video and muted
audio mode) all other matters for the day.

4.3.3 All remands to police custody or judicial custody should be made through video-
conferencing to minimize physical interaction with the judicial officer on one hand, and the
detainee and police officials on the other. Case diaries and remand applications should be
emailed to the judicial officer and such email should be responded to by the judicial officer
as token of having seen such diaries. The remand application should also be forwarded to

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 Advocate of the detainee or to the legal aid counsel, so that it can be appropriately
defended at the time of production through video conferencing.

4.3.4 Recording of a virtual Court session, in any form, should be made a punishable offence by
appropriately amending the Information & Technology Act, 2000, and the Contempt of
Courts Act, 1971. As a procedure, during the course of any virtual hearing in any matter,
the Advocate in the particular matter should not be disconnected or removed from the
Virtual Court room till the final orders are pronounced by the Court in that hearing with
respect to their matter.

4.3.5 The Judges and the Advocates may be provided access to Online Legal Databases such
as SCC Online / Manupatra, etc. so that during the course of arguments the Advocate may
directly provide the SCC or Manu citations and the Judges may directly access the
judgments on their systems. If any Judgment which is to be cited by the Advocate is not
available on these Online Legal Databases, then the same may be scanned and emailed to
a designated email address which may be provided by the Courts for immediate access.

4.3.6 Advocates are to ensure that they sit in an environment with minimum background noise,
and use the requisite equipment which ensures clear and crisp audio and video
transmission.
4.4 Appearance of Administrative Officials / Police Officials (Investigation Officers etc.)
4.4.1 At the High Courts, the Advocates appearing on behalf of the State / Government rely
heavily upon the instructions provided by the administrative / police officials who are more
often than not present in Court. Additionally, their presence helps the Court to ascertain
certain facts or procedure or course / status of investigation to which they are privy. In order
to facilitate such communication during hearings, the Advocate General’s office as well as
the Additional Solicitor General’s office may be directed to have a virtual link with the public
prosecutors’ or the district attorneys’ offices across districts in the state. The instructions
may be provided to the office of the Advocate General or to the office of the Additional
Solicitor General a day prior to the listing of the case. Additionally, the office of the district
attorney or public prosecutor may further link their communication systems with the local
police stations.
4.5 Passovers
4.5.1 Within the system of virtual Court hearings, as the volume of cases increase, there may be
a need to address the issue of Passovers, particularly for miscellaneous day hearings, short
hearings etc. The said need shall be further felt for standing / panel Advocates of States /

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 UTs / Central Government and for Senior Advocates / Arguing Counsel who are very often
appearing in multiple matters on a given day. The said need is further felt on account of the
present virtual hearing platforms not being able to cater to multiple links at the same time.

4.5.2 In such event, a system of online request for Passovers may be devised, wherein at a time
when the matter is called out and / or prior thereto, the Advocates concerned can update
their status on the said online platform as waiting for their turn or seeking a Passover. The
default position could be present as waiting for the turn, and it shall require an active step
on the part of the Advocate to switch the same to a request for Passover.

4.5.3 In the alternative, the Advocate should be able to take a Passover by informing the Court
master on the WhatsApp group created prior to the hearing date. As is prevalent in the
physical Court hearings, in the event of a Passover, the matter may be taken up at the end
of the batch of matters in a given block of time, say 10:30 to 11:30 matters or in the
alternative, where no block system of hearing is in operation, at the end of the board. The
number of Passovers may at the highest be restricted to 2 (two), with 1 (one) Passover,
when sought, being the usual norm.
4.6 Recording of Appearance
4.6.1 A platform (ideally the chat room of the Virtual Court app / tool being used) to be provided
for enabling Advocates to send their appearances. In the alternative, the contact details of
the concerned Court master can be shared on the cause list / website for providing the
same in a format as may be prescribed in this behalf by each Court concerned.
4.7 Certified Copies of Orders / Pleadings
4.7.1 An online system shall be required wherein Advocates can select the orders / pleadings for
which certified copy is required and can obtain the same upon paying the requisite fee.
Since the Virtual Court experience would be completely paper – free, hence, certified
copies maybe provided by digitally printing Court seal on all the copies which after such
printing could be provided as “certified copies”. The Court may charge an appropriate fees
amount for the same. In the interim, an email ID can be created for sending requests for
certified copy. Moreover, in the interest of justice, it would be expedient to ensure that
certified copies be provided within 3 (three) working days from the date of such request
since the need for physical signing and collating would have been done away with, thereby
ensuring a seamless and time-saving mechanism.
4.8 Transcripts of Hearings
4.8.1 The stenographers are employed to take down minutes of the hearing. Recording of
hearings are done by the Court staff except in sensitive matters or where the bench

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 prohibits the same. The same may be made available to Advocate concerned upon request
for the benefit of the parties and against payment as may be prescribed. The usage of the
same should also be regulated and misuse should be made a punishable offence by
appropriately amending the Information & Technology Act, 2000, and the Contempt of
Courts Act, 1971. (This allows the parties greater accessibility to the debate and also
safeguards Advocates from accusations by clients, yet keeping a check on their conduct
and performance in Court).

4.8.2 The possible distortions in the audio - feed during the course of hearing may make a real
time transcript generated by human, intervention a difficult endeavour. Therefore, in the
alternative, the proceedings can be recorded and subsequently transcribed if necessary.
However, this shall raise issues relating to confidentiality and storage which needs to be
appropriately dealt with.
4.9 Production of Documents / Marking of Exhibits
4.9.1 Documents may be marked as exhibits by “screenshare” facility, and simultaneous digital
signature affixation by the registrar / Judge who is presiding;

4.9.2 Electronic documents may be emailed to a designated email ID (official Email ID) of Court,
to obviate the need for a 65B certificate (emails etc. would be in electronic form, and would
be available on the server of the official email ID), so they don’t need to be printed out.

(a) Photos;
(b) Videos;
(c) Sound recordings;

also can be annexed to an email, and the body of the email can be treated as the Section
65B (Indian Evidence Act, 1872) certificate for the attached photos or videos or sound
recording.

4.9.3 In criminal investigations, the same process as followed in inspection by Court

commissioners in civil cases can be followed by the police for the purpose of seizure of
hard disks / electronic record / mobile phone, where the entire record can be

(a) stored in a cloud space;

(b) Or emailed to the official ID of the Court of the Metropolitan Magistrate / Special
Judge,

which can be accessible for the purpose of Section 102 CrPC.

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4.10 Inspection of Court Records
4.10.1 Directions should be passed and necessary systems need to be put in place to ensure that
the Court record is regularly scanned and uploaded on the case management system. This
will facilitate the virtual inspection of the Court record by the Advocates who may be
allowed to inspect the E-Court record at a designated place in the Court premises.
4.11 Procedure and modalities of conducting client / accused based processes like furnishing of
bail / personal bonds, appearance of accused, testimonies, cross examination, admission &
denials of documents, statement etc.
4.11.1 In the regular process of examination of witnesses, the Judge, Court room staffs, the
witness and the Advocates all gather in a single room for recording of testimony and
conducting of the trial. The purpose of such witness examination is to ensure sanctity of
statements on oath and Court monitoring to prevent adulteration thereof by prompting /
tutoring. Conduct of trials virtually (that physically removes the trial from a Court complex)
thus throws up a unique challenge.

4.11.2 Direct monitoring by the Judge being integral to recording of statements, examination of
witnesses may therefore be conducted with the witness physically presenting himself /
herself before the Judge in the Court room. Advocates can participate in the trial virtually.
This shall allay fears / apprehensions inter alia with respect to witness tutoring / prompting
and inadequate monitoring as also ensure optimum environs while maintaining physical /
social distancing. All technology related glitches too can be monitored and shall not be to
any party’s advantage or disadvantage. To prevent crowding of Court premises, only the
witness may be permitted into the Court complex and case load may be managed to
conduct only a fixed number of trials / witness examinations per day.

4.11.3 If deemed necessary, further social distancing can be ensured by physically separating the
witness from the Judge / Court room. In this regard, the Supreme Court / High Court /
District Courts may designate rooms within the Court complex but outside the Court room
premises. This shall ensure the limiting of the possibility of witness tutoring / prompting.

4.11.4 In Criminal Trials, the bail / personal bonds can be furnished by the surety / accused
through deposit of original FDR receipt / original car RC / any other valuable security by
physically sending the same to the Reader / Court Master of the concerned District Court.

4.11.5 The accused that have been granted bail can appear on all dates of proceedings through a
Virtual Court link which would be sent by e-mail / WhatsApp by the Reader / Ahlmad / Court
Master of the concerned District Court. The accused who are still in Judicial Custody can
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 appear before the Court through an appropriate facility setup within the Jail Premises which
allows for live streaming. Similarly, the statement under Section 313 CrPC can be recorded
in a similar manner by announcing the question to the accused and recording his answer
through the live streaming.

4.11.6 The admission / denial of documents can take place by the Reader / Court Master
producing the document (in seriatim) over the screen of the Virtual Court. The Advocate for
the defendant shall admit or deny the plaintiff document accordingly and vice versa. On the
basis of the admission / denial it will be the responsibility of the Reader / Court Master to
mark exhibits (or not mark them if denied) on the relevant document.

4.11.7 In Civil Trials, the examination in chief can be commenced by submitting of the PDF of the
Evidence by way of Affidavit by the concerned witness. The party introducing the witness
would need to email the PDF of the Evidence by way of Affidavit to the verified email
address / WhatsApp Number of the Registry of the Court in the cases of Supreme Court /
High Court and to the verified email address / WhatsApp Number of the Reader / Ahlmad /
Court Master of the concerned District Court. In all such e-mails / WhatsApp, the opposite
party`s Advocate`s verified email address / WhatsApp number should also be marked and a
default in the same shall deemed to be incomplete submission. In cases of summoned
witnesses, the oral deposition of the concerned witness can be recorded by the Virtual
Court through extending a link to such witness and also receive documents from such
witness over email / WhatsApp.

4.11.8 In Criminal Investigations & Trials, the oral deposition of the witness under Section 164
CrPC or during trial, can be recorded by the Virtual Court through extending a link to such
witness and also receiving documents from such witness over e-mail / WhatsApp. For cross
examination in both civil and criminal trials, the Advocate for the opposite party may do the
same over the Virtual Court and the Stenographer of the Court may record the same in the
Court record.
4.12 During Cross Examination
4.12.1 Recording of evidence by video-conferencing in a criminal trial has been upheld by the
Supreme Court over 17 years ago [State of Maharashtra v. Praful b. Desai (2003) 4 SCC
601, followed most recently in Atma Ram, AIR 2019 SC 1961].

4.12.2 Any time when a witness is to be confronted with documents during cross examination,
which document is not a part of the Court record, the same can be done using
“screenshare”, with a condition that such document be emailed to the presiding officer (on
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 the official email ID / designated email ID) forthwith and no later than 1 hour after the
conclusion of evidence for the day for the particular witness, for the purpose of marking this
document as part of the record.

4.12.3 For articles seized during investigation, a process under section 102 (3) CrPC be followed
rigorously, to obviate the need for physical production of such articles subsequently during
trial, and the same may be marked as evidence when they are in the maalkhana itself. At
times, the production of the same may be insisted by close-up camera in the maalkhaana
area itself, so witnesses can correctly identify the article (blood stained knife / shirt etc.)
during deposition.

4.12.4 As a test-project, cases under section 138 of the Negotiable Instruments Act, 1881 may be
taken up for recording of evidence at the very outset. This is so because:-
(a) All evidence-in-chief is in the form of an affidavit;
(b) Most of the evidence is in the form of documentary evidence;
(c) The complainant usually does not list more then 2-3 witnesses;
(d) Cross Examination can be conducted at a designated time every day (say 2-4 in the
afternoon), so that witnesses are not made to physically wait outside the Court Room
/ third party room designated for recording evidence;
(e) Such examination of witness also ensures that the witness is sterile, and is not
influenced by the physical presence of the accused (who should be patched in on
video-conference);
(f) Moreover, accused and her Advocate can adequately interact with each other, to
elicit responses in cross examination without the witness hearing the interaction, as
the Court sound system can be muted during such interaction between the accused
and Advocate.
4.13 Outsourced Virtual Trial
4.13.1 In the alternative, physical monitoring of the witness by a Court may be outsourced to
empanelled third party agencies that can be identified and authorized to provide neutral and
tamper proof facilities for recording of witness testimonies and examinations while
maintaining social distancing norms. This shall be akin to witness testimony being recorded
in designated areas (outside the Court Room) within the larger Court Complex. This shall
prevent exposing the Court to the witnesses and vice versa, as also help the Courts to
function at full strength without facing the problem of crowding. Reputed arbitral institutions
and / or various ADR Centers providing such facilities can be empanelled within a short
period of time for this purpose. A system of grading of such institutions / facilities similar to

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 the system as introduced by the Arbitration and Conciliation (Amendment) Act, 2019 may
be adopted. All parties to the trial – the Judge, the Advocates and the witness can thus be
physically distanced from one another. Witness travel too can be limited if an adequate
number of institutions / facilities are empanelled.

4.13.2 Where the witness / accused resides in Tier 2 or Tier 3 cities, towns or villages, the District
Court concerned can provide the necessary infrastructure for conducting testimonies and
examinations. The witness need not travel to the relevant Court which is conducting the
trial.

4.13.3 Appointment of Court Commissioners for conduct of trials may be encouraged in civil /
commercial matters. This shall reduce crowding of Court Rooms / Court Complexes as
these trials need not be conducted in any one physical place / premises. Courts may
consider issuing directions to this effect.

4.13.4 The physical hard copy of the original documents can be sent to the Court Master along
with all other details within 30 days from the date of completion of the tendering of the
evidence in examination in chief.

4.13.5 Witness may be confronted with a document with permission of the Court or Court
Commissioner, as the case may be, by use of screen sharing function available in most
virtual conferencing / hearing applications. If permitted, a scanned copy of the original can
be e-mailed to the Court Master simultaneously. The original of the same may be sent to
the Court within a stipulated period of time.
4.14 Conducting hearings before Registrar / Asst. Registrar / Chamber Judge
4.14.1 The same methods and procedure for conducting virtual hearing before the Court should be
used for such hearings. The office report should be made available at least 2 (two) days
prior to the hearing.
4.15 Confidentiality and Privacy Concerns
4.15.1 It is imperative to ensure that the technology used allows all participants to feel secure
about the confidentiality of the information they disclose in a remote / virtual hearing.
Access to all virtual hearing rooms should be strictly limited to their allocated participants.
Requests from the media and others to observe a hearing remotely should be made to the
Court in advance to allow for inclusion during the hearing set-up. Any party or interested
person maybe allowed to request a transcript. Judges may direct that the transcript be
made available at public expense where appropriate.

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INDIAN DISPUTES RESOLUTION FORUM [IDRF]

WIHTE PAPER TEAM

Abhilaksh Grover
Adit S. Pujari
Aditya Giri
Dr. Amit George
Bhargavi Chandrashekharan
Joshua Abhay Patnigere
Kunal Vajani
Malak Bhatt
Manan Mathur
Pallavi Pratap
Rajat Malhotra
Rishabh Jetley
Rohit Das
Roshan Santhalia
Sanyat Lodha
Dr. Shashwat Bajpai

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