Excerpt of: Topic 4 of Chapter 13 Computers, Technology and BPR 4 . Video Recording of Court Proceedings 1 Photography in the courtroom has traditionally been resisted. There appears to be no clear-cut answer as to why it was so, except that the Judges and lawyers of the nineteenth century felt uncomfortable being photographed while court proceedings were in progress. In any case, mere photographs would have served little purpose. 2 When motion picture (movie) cameras came into vogue, the cost of recording court proceedings was prohibitive and outweighed the utility. Moreover, the sheer size of the equipment, the glaring lights and the cables were a nuisance, and the objection of the Judges and lawyers (as to disturbance on that account) was justified. Many members of the legal community thought it would interfere with the decorum of court proceedings and would be distracting. This is how, till early 1990s, still cameras, microphones & tape recorders and motion picture & television cameras were kept out of courtrooms the world over. 1 . Generally 3 As technology improved and the size of the equipment shrunk, experi- mentation in some American courts led to a steady growth in the provision of cameras to make video recordings of court proceedings. Today, in America, video recording is common in most courts. In some places, even television broadcasts of court proceedings are allowed, though with restrictions and control. Effective 1.10.2009, the proceedings of the UK Supreme Court (as the judicial part of the House of Lords is now known) are not only video recorded, but are even open for television broadcast. Several other countries have also started video recording of court proceedings. 4 Back in India, despite the advantages that are inherent, the concept struggles to find recognition. We see video cameras everywhere, but not in courts. Video cameras installed in the courtrooms can create an accurate record of all court proceedings in an inexpensive digital format. It can be best utilised for recording evidence and hearing the final arguments, though its utility for other (miscellaneous) hearings would be no less. 5 At this stage, let us list the possible uses of video coverage and recording: 1 Use of excerpts from trials for news programming; 2 Televising the entire trial without editing and gavel to gavel; 3 Recording the court proceedings on videodisk, but using that only for the purposes of a record of the trial (as also for appellate proceedings) and as an aid to the judicial process; 4 Sending picture by closed circuit to another room where people can watch without causing disturbance in the courtroom; and 2 E xcerpt from : Justice, Courts and Delays C hp 13 5 Televising High Court and Supreme Court proceedings. Obviously, the journalists (press) are primarily interested only in the first of these possibilities, but it is the third which is of greater importance. 6 The two main objectives it will serve are: (1) be a more accurate and, therefore, useful record; and (2) prevent impropriety in conduct before our courts and waste of judicial resources. The second is in „urgent‟ need of attention today, for the situation in this regard is serious. Through much of this work, in Chapter 7-04 (Trial and Recording of Evidence), Chapter 7-05 (Final Arguments) and Chapter 10 (Criminal law), etc., there is reference to the need for video recording of court proceedings. 7 TV Broadcasting, and Webcasting,1 of court proceedings are different from mere video recording of court proceedings. This topic addresses only the latter, for the former (TV broadcast / Webcast) has something to be said on either side. See para 144 infra. Further, this topic attends to not only the need for, and the utility of, video recording, but also the technical issues involved in setting up such a system. Attention to the second was considered necessary because without the practical modalities being presented alongside, many might consider video recording of court proceedings as practically impossible of actual installation and working. 2 . The advent of digital technology 8 Apart from the industrial revolution of the eighteenth and nineteenth centuries, the twentieth century has seen fluid dynamics and solid state physics giving a new dimension to how we live and work. Life today is far more „digital‟ than it ever was. Be it the cell-phone, the office computer, the household appliances or the television we view, the convenience digital electronics has to offer makes one wonder how we were surviving without them. Video camera is just one facet of modern technology. 9 The last few years have seen proliferation of video cameras. Most social and other functions / events are covered by video cameras. In the upper middle class homes, a video camera has become a common feature. Most of the cell-phones that people carry also have an „eye‟, i.e., the electronic camera. The point is that when this (video recording) is readily available, Should we not use it as an aid to the justice system ? 1 A webcam, known for low manufacturing costs and flexibility, is a video capture device (camera ) connected to a computer, often using the USB port. The computer is then connected to the Internet. It enables a computer to act as a video conferencing station. Video surveillance is another application. A webcast is a video file distributed over the Internet using streaming media technology to distribute a single content source to many simultaneous viewers. A webcast may either be distributed live or on demand, i.e., continue to remain dormant (stored) on the server until it is specifically accessed by anyone wanting to view. Essentially, webcasting is „broadcasting‟ over the Internet. An example is of YouT ube, which is a video-sharing website on which users can upload, share, and view videos. It carries a wide variety and huge quantity of user-generated video content. Topic 4 3 Video Recording of Court Proceedings 10 Basic resistance to photography apart, television equipment, cameras, lights, recorder cables, at least till late 1980s, were heavy and their use, cumbersome, with the result that they were not convenient. Even the generated image had to be stored on magnetic tapes by large recorders. A „search and find‟ facility was not there and play for use by Judges or lawyers required professionally trained personnel to operate the equipment. This impracticability also contributed to the „non-use‟. The advent of digital cameras has, however, changed the scenario. Over the years, the cost (of generating and recording an electronic / digital image with sound) has drastically fallen, while the quality has improved manifold. If we compare the quality of the pictures that we see on television today with that which we saw in the 1970s, a marked difference can be noticed. 11 With advancement in technology, video recording is now perhaps more feasible with the use of small and inconspicuous cameras. They need no more lighting than that which is otherwise already there in the court- room. Cables have been replaced by wireless connections and recorders are small and versatile. Thus, with modern technology, filming (video recording) in Court can now be unobtrusive. No real concerns can now exist that the mere presence of cameras would disturb court proceedings. 12 Computer software and technology in the form of CD-ROM, DVD (Digital Video Disc)2 and MP3 format has made the processing and storage of bulk data fairly easy. Digital video recording and retrieval systems provide a number of tools that make the system versatile and easy to use. The State has an obligation to ensure that there is efficiency and effectiveness in justice dispensation. Modern technology enables a „more accurate‟ record to be maintained, and easy exercise of control, and therefore, its potential ought to be harnessed and not ignored. 3 . The Basic System 13 Since the discussion in this topic is on a novel subject, it is important to now describe how the equipment will be installed in the courtroom and how it will work. Sub-topic 6 – para 54 et seq – carries technical details. However, at this stage, it will be useful to briefly describe where in a typical courtroom the microphones and cameras will be placed. 14 A typical Court would need five microphone locations – for: (1) the Judge, (2) the lawyer on the right; (3) the lawyer on the left; (4) the witness box;3 and (5) the bench clerk. It will also need separate video cameras focused on the first four microphone locations while the fifth camera would be 2 These devices have an optical surface and higher storage capacity. As compared to magnetic discs, these discs ( DVDs) are sturdy, cheaper, easily reproduced and as such, the possibility of data loss / corruption is next to nil. These are being widely and successfully used for future reference, general office records, crime records, etc. in the developed world. 3 See para ~ for witness box design – two cameras and two microphones. 4 E xcerpt from : Justice, Courts and Delays C hp 13 taking wide-angle (70º) coverage of the whole courtroom from a top corner location behind the Judge and not focused only on the bench clerk.4 15 Video recording can commence 10 minutes before court hours, and continuing without break even during the recess, and till 10 minutes after the normal court hours are over or the Court has risen for the day. When the Court is not in session, only one (fifth) camera can work, but when the Court is in session, the other four cameras will also be operational, thus creating an electronic record of all that which transpires in the courtroom. 16 Video and audio recordings so made will be (ultimately) transferred to optical recording media and available (as part of the case record) for use of the Judge, the lawyers and the parties. A copy of this will also be available as part of the court proceedings that came to be conducted in that Court. 17 Courtroom apart, surveillance camera recordings for the entry / exit gates; the registry; the inspection room; the public dealing counters; and other public spaces, including corridors, will also be required. This, however, will be covered by general administration and premises security as distinct from video recording of court proceedings. See Topic 4 of Chapter 14. 18 Court proceedings recorded on a digital video recording system will serve as the official record of court proceedings and would prove to be an invaluable aid to the Judge and everyone concerned. Video recording will, however, not eliminate the need for written transcripts. The broader objective is only to create a high quality audio-cum-video recording of that which transpired in the Court so as to be of use for the purpose of justice dispensation and prevent many of the aberrations that are prevalent in the justice system. 4 . The present-day situation in our courts 19 Before we proceed to describe video recording in detail, it will be nece- ssary to address the present-day situation in our courts and the problems that exist.5 The discussion in this sub-topic 4 partly overlaps with that in sub-topics 5 and 7 (with technical details in sub-topic 6), but keeping in view the nature of the subject, a structure as this was preferred. 20 Hearing of a suit is not only recording of evidence and hearing of final arguments. There are very many miscellaneous postings. At these, uncalled for pass-overs are sought; adjournments are caused.6 A host of 4 This camera is best mounted on the rear wall near the ceiling, approximately one-third distance from one side and covering the most useful areas of the courtroom and, particularly, the entrance door. 5 The ensuing discussion does include an element of exaggeration so as to bring home the point. 6 See in Chapter 7-10 – Adjournment & Control at pp1736 supra. Topic 4 5 Video Recording of Court Proceedings other improprieties, too many and too varied to detail, occur. The many „defaults‟ and causes for adjournments do not get a correct portrayal on the court file. Further, the amount of errors and other discrepancies (though many of these are inconsequential) in the recording of daily orders is by no means small. 21 Topic 3 of Chapter 11 pointed out how there is impurity in the presentation to, and impropriety in the conduct before, the Court which drains away much of its productivity. The first, i.e., impurity in presentation refers to all those presentations and responses (other than pleadings or filing of documents) which are presented to the Court by a party either himself or through his lawyer. The second, „impropriety of conduct‟, occurs in a variety of forms – hundreds – some of which are by reason of incompetence or negligence, but most are carefully thought over and carried out with a view to place obstructions in the way of the other party and prevent him from receiving justice, and also slow down the Court in its task of dispensing justice. 22 One commonly observed example is of a lawyer making distorted presentation of what is on record, raising unnecessary arguments, raising irrelevant objections, etc. This takes place through the entire processing of the case. With such impurities, as also obstructions and hurdles the trial for the search of truth, becomes more of a bout to decide who can overcome the obstructions placed by the other. 23 Many of the daily goings-on that we see in our courts are those which are deliberately designed to reduce the productivity of the court. In order to achieve the best, these have to be prevented. Most of these are at the instance of the party who knows that he is in the wrong and he will lose, wherefore attention becomes important. There are also certain other dif- ficulties which have, over the years, cropped up and need to be remedied. 24 Besides these impurities, a lot of other improprieties occur at the very many miscellaneous hearing. For e.g. adjournments and pass-overs are sought on false and flimsy grounds and there is no way to record and verify. Besides this, there are a host of other improprieties, too many and too varied to detail, occur. The defaults and causes for adjournments do not get a correct portrayal on the court file either. Parties putting forward contentions, which range from irrelevant to bizarre, absurd to preposterous, and from ridiculous to outlandish, or simply causing waste of court time are also observed. 25 Such an approach / mindset (or tactics) manifests itself in a number of ways – too many and too varied to be catalogued here. The party in the wrong succeeds in causing an adjournment, including that caused by irritating the Judge who is then forced to adjourn, or by using other tactics, causes an error in the result that results in distortion of justice. 6 E xcerpt from : Justice, Courts and Delays C hp 13 26 The chart below seeks to demonstrate the extent of impurity and im- propriety. This chart is a variant of the charts at pp~ and ~ supra which sought to explain how abuse of judicial process takes place. In the illustration below, we assu- me that the left quadrant represents A or the party in the right while the right quadrant represents B or the party in the wrong. The tilt from the vertical (the theoretical proper) denotes the degree of deviation on the part of each. 27 It will be seen that party B (from what is ±0 or the correct) could make a contention (in order to generate the persuasive force) which could be tilted away from the correct and also conduct himself in a manner which is far from correct. The extent of such deviation is depicted by the degree of tilt, a tilt of, say, 10, is acceptable but a tilt of 60 – as is usually to be found – is not. It is wholly wrong. 28 In other words, while, in the adversarial system, each party must be allowed to present – and the court must decide – the sector of ±10 from the vertical but to call upon the Court to also „hear‟ and then „decide‟ the additional 50 sector shown as grey in the chart above, is not only improper, but positively wrong. By this, the judicial process is obstructed. The Court has to examine the problem over a much wider area – and put up with impurity in presentation and impropriety in conduct and other obstructionist tactics. The judicial process consumes greater time and also becomes prone to greater risks of error. 29 Such improprieties in presentation and conduct: (1) reduces productivity; and (2) undermines the respect and confidence of the citizens in the judicial system. The bulk of the judiciary‟s time and resources go waste. On an estimate, 75% of the Court‟s time is wasted (plus has corresponding „cost‟ to the other party, i.e., the party who is in the right) and is the main factor responsible for delays in justice delivery today. One has only to spend a few days (incognito) to notice the kind of impropriety and waste that takes place and then visualise that if constant video recording were in place, how much of it would still take place or how much could be prevented. 30 More serious than just impropriety, there is substantial component of conduct before courts which is plain contempt or hovers on the borderline of contempt, but the judicial officer tries to be patient and tactful. The courts normally asks the parties to keep quiet and continue – the damage has already been done. The reason is simple. No judicial officer ordinarily likes to get into controversies and, therefore, the Topic 4 7 Video Recording of Court Proceedings aberrations are simply ignored. The public gets a wrong impression. This has also contributed towards the tendency of some lawyers to be able to later try and „shout‟ more. 31 Then, witnesses readily tell lies. Prosecution for perjury remains difficult because the fact that: (1) he was the one; and (2) this is what he stated, have to be proved before the trial Court. So is it with many a Contempt. See paras 98, 114 & 115 infra. Then, there are a few lawyers, mostly out- siders who disrupt the court proceedings in the name of lawyers‟ strike. 32 Generally, and as noted throughout this work,7 of the two parties in the adversarial system, one who is in the wrong and likely to lose, therefore, does everything to: (1) obstruct and delay so as to tire out the other; and (2) create confusion so as to cause error in the result.8 5 . Some of the aberrations and improprieties that video recording could help control 33 Let us now take a few examples of some more improprieties that go on before our trial courts (civil and criminal), and which, if video recording were in progress, would be substantially, if not completely, prevented. The discussion here, in a way, overlaps with that in the previous sub- topic and also in sub-topic 7 infra. 34 Evidence of the witness including cross-examination being recorded by the bench clerk or by the stenographer while the Judge is doing some other work is a common sight.9 Further, the deposition as recorded is in different words than those spoken by the witness and the result is that it leaves scope to argue at a later date that what is recorded means this this this and not that that that . In a few cases (although very few, they are there), the deposition that is recorded is exactly opposite of what the witness actually stated. This is done either inadvertently or even mischievously for a consideration by the court staff – stenographer etc. If such a thing happens, the presumption that the court record is correct only plays havoc. 35 Whispering or gesticulating to the witness what to answer or not answer is also widely found. Another practice is of showing a witness a particular document or part of pleading in the file, and upon receiving the response, placing the Exhibit or an identification mark on something very different from that (document or portion) which was actually shown to the witness, more so be-cause by that time (when the mark is put) the file is back in the hands of the lawyer and not the witness. Even if the witness (or the opposing lawyer) objects, the lawyer insists that he had 7 approximately 5% is bonafide, 5% acceptable and 90% is avoidable litigation where one party is, and also knows that he is, in the wrong. 8 See Topic 5 (para ~) of Chapter 11 at pp~ to ~ supra. 9 See the discussion in Topic 10 ( paras 30-32 ) of Chapter 7-04 at pp1304 supra and also Topic 14.~ ( paras ~~) of Chapter 10 at pp ~. 8 E xcerpt from : Justice, Courts and Delays C hp 13 shown the witness page x and not page y and that the witness is changing his statement. The Presiding Officer may record one or both versions, but the damage has been done. 36 Creating a ruckus in the court the moment the witness deposes something adverse so as to distract the Presiding Officer (who may till then be busy with something else) and thereby directly as well as indirectly making the witness aware (of what he should or should not say) so that by the time the question is repeated by the Presiding Officer himself the witness has rectified his version. 37 This was recording of evidence in courts generally but coming then to the criminal courts particularly, the accuracy in recording the spoken word of the witness assumes greater importance. A simple illustration (from the criminal court) is when a prior statement is being attributed by the witness to the accused (or another person) is: “(he shouted) Roko, mat jane do”, which could be equally recorded as „Roko mat, jane do.’ The English equivalent of the former being „Stop him, don‟t let him go‟ and that of the latter being „Don‟t stop him, let him go.‟ The placement of the comma could make the difference between an erroneous acquittal or an erroneous conviction. 38 With so many matters listed, it is not possible for a defence lawyer to be present all the time for nobody knows when the matter will be called out. And when it is called out, the accused is asked to go and fetch his lawyer while the Judge asks the Assistant (naib court) if any witness is present – and if any witness is present – the court asks the accused to bring the counsel, meanwhile the public prosecutor takes the file and commences recording the examination-in-chief. Here, the witness may not be answering his question (or saying something else) but the public prosecutor gets recorded the statement that fits in with the prosecution case. By the time the defence lawyer comes, the recording is complete and which may not be correct version of that which the witness stated. Without having heard the statement, the cross-examination is more of a formality. The result could be miscarriage of justice. 39 Other instances are where Public Prosecutor, I.O. as well as counsel for the party producing witness or even the parties themselves pointing out to the witness by gestures and signals as to how he should answer the question. Threatening of parties and witness inside the courtroom, particularly in criminal matters, is also not uncommon. 40 Today, the quantum of the undesirable / irrelevant component that comes before the court is simply mind-boggling. This creates difficulties for the judge while separating the relevant matter from false and irrelevant one. These aberrations which are consciously brought about in any one or a combination of two or more of the following components: i Wrongly reading / portraying the record; Topic 4 9 Video Recording of Court Proceedings ii Arguing against settled principles or binding precedents; iii Arguing with repetition or simply wasting time; iv Arguing with no basis or making irrelevant / repetitive arguments; v Refusal to acknowledge one‟s own arguments; and vi Causing adjournment by putting forward all kind of excuses. This is not an exhaustive list, and there are many other wrongs or varying shades of these. 41 Another undesirable practice is of repeatedly interjecting when the other counsel is arguing with a view to: (1) derail the thought process of the arguing lawyer; and (2) prevent the judge from understanding. See discussion on deliberate interjection by the party in the wrong when the other is arguing, in Topic 2 of Chapter 7-05 at pp1317 infra. 42 It is also observed that at the time of preliminary (admission) hearing of revision-petitions and appeals, sometimes the lawyer makes a statement which is totally wrong or show some document (or its content) describing it as something else, and after the Court has passed a notice / admission order (i.e, later on) deny having said so. Lawyers’ conduct 43 Now, one reason, rather the main reason, why the party / lawyer can do so is because, apart from an oral expression of displeasure, there is no procedure or system for adjudicating the wrong conduct on his part – for in the absence of record, it is not practically feasible for the Judge to take up cudgels with the parties / lawyer on every aberration. Hence, such tactics succeed. Stated simply, tactics and occurrence as these are responsible for waste of half of the Court‟s time. The productivity is reduced. 44 True, the lawyer‟s brief is to win the case for his client by making the best possible presentation (or one with the greatest persuasive force) to the Court so as to have a decision in his client‟s favour. But he is also an Officer of the Court, and has a duty towards it. It is between the two that he has to strike a balance. To the question: ought he to mislead, confuse, speak untruth, conceal facts, wrongly read documents, wrongly state the law and generally cause distortions in the process? The answer is always an emphatic „No‟. But that is only an answer, maybe at a seminar. To discern the ground reality, one must „sit and watch‟ the goings-on in a typical Court, and do so with only this as the focus. The answer will be writ large. Nothing more need be said. 45 While an individual party may have one perception of his claim or de- fence (or his rights and obligations) before or just at the commencement of the litigation, however once that processing – or multi-stage filtering – has been carried out and the matter is put up for final arguments, the role of the party recedes into the background. It is now the lawyer for each party who presents his case to the Court. Here, he is not saying anything from his personal knowledge of the facts or the event/s, but representing from that which appears on the record (pleadings, documents, evidence 10 E xcerpt from : Justice, Courts and Delays C hp 13 on the file) as also his own understanding of the statutory and case law and the legal principles as applying to those facts. 46 It may be clarified here (as also partly noted in para~ supra) that there is a difference between a party‟s perception of fact or perception of his rights & obligations on the one hand, and how a lawyer for a party presents that case and otherwise conducts himself, on the other. A lawyer does so on the basis of that which is on record, combined with that which is other- wise the statute law and the case law – or his own understanding of law. Continuing, in a typical case, the lawyer of one party may resort to all kinds of wrong and false statements. Every reference to the material on record is with a twist or a dispute is created therefor. Some of these occurrences are amusing, some sad and some shocking. 47 Further, if the wrong is pointed out, the lawyer first says: “Don‟t disturb me. Let me proceed in my own way.” And, if the wrong (in the statement) is later established, he says: “I never said so.” Yet, an impression remains. It is not physically possible for the Judge to note every line as he has to concentrate on other nuances. Now, every wrong statement or conceal- ment cannot be interfered with. If interfered with, there is exchange of words or cross-shouting, and often, the Court adjourns the matter, which means that except in genuine cases, the party in the wrong succeeds in causing further delay. If there is no pointing out (interjection), then an adverse impression is slowly formed which is later on difficult to dispel and thus silently contributing to an error in the judgment. 48 Earlier, when the courts were few and so were the lawyers, the „reputation‟ effect operated as a controlling force. As numbers increased, that moderating (limiting in a good way) force ceased to work. Today, it is hardly of any use and with increasing numbers, it will be of almost no use in future. Stated differently, in a small size court set-up and with only a few lawyers, if a lawyer did not conduct himself properly, he soon lost his credibility. But today, more often than not, the wrong gets away as „success‟ and, on the few occasions when it is exposed, it receives no more than an oral admonition which is soon forgotten. It is here that technology (i.e., video recording as herein discussed) will help fill in the gap or restore that check. 49 The problem can be illustrated by a hypothetical example. A lawyer made all kinds of wrong and false statements. His habit was known to the opposite lawyer who made a secret tape recording of it. He (the latter) was also noting it on a paper with pen. When, on his turn, he pointed out the former‟s wrong statements, almost every statement was disowned with an answer: of, „I never said so‟. This was also tape- recorded. Continuing to object on the impropriety, he (the latter) then offered to play the tape recorder. At this, the lawyer (former) lost his Topic 4 11 Video Recording of Court Proceedings temper and said recording secretly was contempt of court10 for which punishment be meted out first. The other side (latter) simply answered: Whether it is contempt or not, is one thing, but making a false state- ments and later on disowning them, is perhaps a greater contempt. The Court only said: “Both of you keep quiet. Proceed with the case.” This was only a suppositional situation. But, let us ask ourselves how often wrong statements are first made before courts and when challenged (and the wrong established), disowned by the maker. 50 One illustration is the „wrong‟ submissions made at the time of seeking an ex parte injunction. As pointed out in Topic 3 (para 86) of Chapter 7-05 (final arguments) at pp1338 supra, even in the arguments that are addressed before the courts, there is substantial amount of impurity in presentation and impropriety in conduct, which, in the presence of video recording, would be curtailed. With a video camera continuously recording the pro ceedings, a lawyer would not ordinarily speak what he should not have been speaking. Video record will help improve the performance of lawyers. 51 Now, do all such „embellishments‟ (if one may respectfully call them so) con- tribute to justice or detract from it? There can be no denying that all such occurrences derail the thought process of the Judge and the other lawyer, thus reducing the productivity and also eroding on the accuracy. These obstructions and interjections by the lawyer for the party (who seeks to benefit from delays or is otherwise not likely to succeed) cause a consi- derable impediment and obstruction and therefore delays in the process. 52 Another problem is the use by the Judicial Officers (at few times) of the threat of prosecution for perjury or proceedings for contempt to force the opponent to enter into a compromise, make an admission or give some concession. While there is nothing wrong with the Court pointing out that the party must reconsider his stand and correct any apparent wrong / error in it, on occasions (though rare), such observations are not warranted or are not even bona fide. 53 It is problems as these, apparently insurmountable, which the video recording of court proceedings will help solve. Now that video is available – quite like the cellphone is also available for communication – there is no reason why we do not: (1) make a video recording; and then wherever there is more than an acceptable degree of shift from fact (truth) or from propriety, (2) impose appropriate costs and penalties. Impurity in presentation, and impropriety in conduct can thus be prevented. Stated simply, there is by reason of aberration substantial loss of productivity and waste of resources all of which contribute to the delays and frustrations that we see. All this needs to be controlled and 10 Incidentally, there is no law that prohibits tape recording, the proceedings are public and there is nothing for anyone to hide. However, propriety demands that the judge be apprised that the proceedings are sought to be recorded. 12 E xcerpt from : Justice, Courts and Delays C hp 13 video recording is meant for just that. See further discussion on the advantages in sub-topic 7 infra. 6 . Technical and working details 54 The basic system was described in para 13 et seq. Now, let us examine some of the technical and working details. Although it is a specialised field for engineers and technicians, details are included here primarily (rather, only) for the reason that going through these would help satisfy the readers that such a technology exists and that the concept can be implemented, and further, to understand how simple, easy and convenient its use will be. Core function -1 55 The core function of digital video recording systems is to convert the audio and video signals11 from various microphones and cameras into a digital format and store it as a computer file (the „video file‟). On the same lines, the system for video recording of court proceedings will create a computer file, usually on the computer‟s hard drive. However, the permanent (archive) file would be created by copying the file from the hard drive to some other, often external, medium, usually optical media such as DVDs. Camera Placements -2 56 Para 14 supra described the placement of microphones and cameras. Pro- ceeding further from there, the five cameras would have an approximate coverage angle (focus) as this: (1) the courtroom from rear top: 70;12 (2) the lawyer on the right: 25; (3) the lawyer on the left: 25; (4) the witness box: 25; and (5) the Judge: 40. A joystick under each of the second and third camera display (i.e. monitor) would allow both zoom-in and zoom-out as also panning of the cameras. The mounting of cameras and microphones would be unobtrusive. Digital recording: five channel -3 57 The recording would be done as „five separate channels‟ – one for each camera and microphone – in fact, 10 channels – but integrated as a single digital file. The advantage of separate (multi) channel video and sound recording is that it allows choice not only of the camera, but also of the microphone so that the voices of individual speakers can be isolated on playback. This would ensure that an accurate transcript is made even when two or more people are speaking at the same time.13 58 The system would be capable of playing back any portion of the recording while continuing to record. This would be achieved by creating a shadow file, which would be used for replay, and which would get deleted once the copy has been received in the master file. In fact, 11 with a continuous date and time stamp. See para~ infra. 12 W hile the bench clerk would have a microphone (as the first microphone ), there would be no camera specially focused on him. This or the first camera would cover the entire courtroom in wide angle. It would show who all are present in Court. 13 Separate microphones would be assigned to each channel for high quality recording. Topic 4 13 Video Recording of Court Proceedings when it is being re-run as aforesaid, the main channel would also record that a re-run was carried out. 59 Stated simply, there would be five separate channels of audio and video, giving an option to the viewer to choose any one, though, by default, it would be the camera focussed on the microphone receiving the dominant sustaining sound that would be „full screen‟. A simple joystick – like in a television remote – would permit any of the five channels to be chosen. Further, as a special override, the picture from any one camera, but with sound from any one of the other four microphones, can also be opted for. 60 The signals received (from each of the five channels) and processed together as one computer file would be recorded on two separate hard drives. The second hard drive would serve the twin purposes of: (1) separate file for replay purposes; and (2) as an emergency backup should there be any technical problem with the main file. A computer check trailing (deferred live) by 30 seconds would provide visual indication / system check / functioning. 61 To ensure uninterrupted recording, even in the event of failure of a storage device, the system would have the facility of storing the signal at two separate storage devices simultaneously (separate hard disks), for example, recording to the computer in the courtroom and simultaneously storing in a remote server in the court complex. One of them might be used as the emergency backup. Operation by the Bench Clerk -4 62 No additional staff would be necessary to operate the system, for the bench clerk (under the supervision of the Judge) would do the needful. However, a special officer (who would be more of an engineer covering several courts) would be charged with the responsibility of ensuring through routine checks, that the video-recording system is operating in keeping with the specifications. The bench clerks would be bound to assist him. The control of the camera operations would be automatic with a manual override by the bench clerk, and a final override by the Judge. 63 The main control panel would allow the user to switch the power on / off, start one, start all, stop all, set camera focus, etc. It would also carry controls to „send‟ files to the Court‟s main computer from where they would be sent to other recorders for being recorded on optical media. The system could be designed to offer a secondary control panel specifically for the Judge‟s use, having functions with camera lock-on / lock-off, audio mute, as well as playback. 64 Where there are likely to be two or more Judges on the bench, the micro- phone before the judges would normally be off with a manual switch for the „on‟, and it is the microphone of the bench clerk which would pick-up (though somewhat faintly) the sound (voice of the judges) – to prevent the conferring between the two Judges from being recorded. Alternatively, a control button on the desk would enable the Judges to completely shut 14 E xcerpt from : Justice, Courts and Delays C hp 13 off all sound recording while they discuss amongst themselves. Inasmuch the time stamp would be automatic, a „continuous shut off by the Judge‟ would show up as no recording, which can then be considered by the District Judge or by the High Court on the administrative side. Display systems and monitor – Multiple screen viewing -5 65 As far as the „viewing‟ or replay is concerned, there would be a monitor before the Judge and a monitor with the bench clerk in which either one picture or all the five pictures could be seen. The sound-activated automatic switching system would activate whichever camera-channel is focused on the microphone receiving the dominant, sustaining sound, and that one would appear by default over the full screen. The remaining four would appear as small windows in the four corners or as a band on one side. The system would be integrated with the computer before the Judge (which would itself have two monitors) where the selected picture could even be displayed in full frame on the monitor of that system, thus allowing for multiple screen viewing. 66 The sound picked up by each of the five microphones would (in default mode) be mixed together during replay, with slight weightage towards the microphone receiving the dominant, sustaining sound, yet it would be open to choose any one of the five microphones and play the sound recorded or picked up by that one alone. This would preserve its utility even when there is cross-talk or an attempt to shout more so as to drown the voice of the other, i.e., an attempt to „out-shout‟ the other. 67 The control system would be able to access a digital recording (whether on the computer hard disk or on the DVD) using rewind, fast forward, extra fast forward, search by date and time stamp, search by case number / item number and other direct access methods to enable a system operator / bench clerk to quickly locate the required passages. In addition to these functions, the system would also offer playback (replay) facility to enable reviewing specific portions of the files when desired. 68 The playback mechanism would allow the joystick to choose between the cameras, and also control sound reception of the related (or any other desired) microphone/s. It would even enable viewing the picture from one camera position, while hearing the microphone placed on a different location. If any doubt persists and calls for a replay, the bench clerk‟s monitor could be used by the two lawyers for the purpose while the Judge views it on his. The replay can also be in zoom, slow motion, (allowing reverse and forward), and even „freeze frame‟ – like that before the third umpire at a cricket match. Playback (replay) facility -6 69 Except at the time of final arguments, or deliberating for judgment, the need to replay would not frequently arise. It will, however, be used almost daily by replaying it for checking the transcript of the evidence before appending signatures thereto. In any case, the fact that all persons present in the Court know that proceedings are being „video recorded‟ – Topic 4 15 Video Recording of Court Proceedings and if any one chooses to say something contrary to that which actually transpired or otherwise misconducts himself, knowing that he would not get away with it – would, by itself, ensure that the bulk of the purpose is served. See para ~ infra for rules and for costs & fines. Switching on and Switching off the ‘System -7 70 The system would be switched on 10 minutes before the court hours, when only the first camera would record the wide-angle picture of the courtroom while the second view window would display the cause list of the day. Two minutes before the scheduled time, the other four cameras would be switched on. When the Court will rise for the lunch recess, the first camera would remain on while all the others would be switched off. After recess, the other four cameras would be switched on, and would continue without break till the Court rises for the day. The first camera, however, would continue till 10 minutes thereafter, or till the courtroom is locked for the day. 71 The digital clock (date & time) would appear on the bottom right while the Court Code (see Topic 2 of this chapter) would be displayed on the bottom left with the camera number appearing just above that to indicate which one of the five channels is currently being viewed. See para ~ infra. The system would continuously monitor the operation and provide visual indication to the bench clerk (and also to the engineer in the central con- trol room) that the audio and the video signals are being generated and recorded. Various warning signals and alarms to indicate things such as: microphone mute on, or system problems, would also be provided. Integration with Case & litigation Management -8 72 The bench clerks have already started using an LED display in which they punch in the item number from the day‟s cause list. The next few years would see a computer keyboard being operated by the bench clerk where the item number, the case number and case name would appear on an LCD / Plasma display including the 24-hour clock. 73 Integrated with the Court‟s Case and litigation Management system discussed in Chapter 12 supra (as also Topic 6 of this chapter) from where the necessary information would be retrieved, correlated and cross-referenced and entered at both places. The item number (as the bench clerk‟s LCD / LED displays) would be recorded and from that the suit number would be converted. Upon the case being called out, the bench clerk would punch the marker. Time Log -9 74 For each case, as it is taken up, the Court‟s computer would generate an „entry‟ (of time, etc.) and make an automatic entry on the computer file of the case (whenever that case is called out or taken up), noting the date and the time of commencement of the hearing, and the length of the hearing (including with it other data as may be considered proper). This will be something like the itemised call statement that comes with the 16 E xcerpt from : Justice, Courts and Delays C hp 13 mobile telephone bill, and can be either viewed on the screen or printed out. See discussion on Case and litigation Management in Chapter 12. 75 A log would be kept as part of the videodisk data to enable specific sites (track / sectors) to be found on the videodisk based on the case, date, and time of the day, and the computer would prepare the printout electronically. A time-specific log would also be maintained for each courtroom containing the Judge‟s name, the bench clerk‟s name, case name, file number, and additional notes, such as date of next hearing. The daily cause list would also find itself on the electronic file, together with information regarding the times when the case was taken up, or the different times in case there were successive pass-overs. 76 The day‟s recording will give reference to the computer file coding where the day‟s video recording (in electronic form) and the cause list (in text form) is filed. The cause list for the day (this is the copy on which the bench clerk records the next date and also, in a word or two, as to what happened and purpose of next hearing) would, at the end of the day, also contain reference to the recording number. 77 A printout of the daily log would be stored with each master copy inside the disk jacket. A copy of the daily cause list would also be stored with the disk inside the disk jacket. Thus all the pertinent information from the docket has been transferred to the log. The computer index details would be written on the disk. The Court record -10 78 At the end of the day, the bench clerk would, by a command on his console, send the electronic file (of the portion/s of the day‟s court procee- dings) to each of the concerned case files. To explain, if in a five-hour working day, 10 cases were scheduled to be heard, and of these, three were taken up in the pre-lunch session, but passed over for the post-lunch session, there would be two long files from 10 o‟clock in the morning to 1 o‟clock and then from 2 o‟clock to 4:15 pm. These two files would contain the complete data of court proceedings for the day. In fact, it could be a single file. From this main file, portions (along with time stamps) would be sent as 13 separate files to the ten cases that were on board – to be placed as the next sequential file on that particular case‟s electronic file together with a self-generated start and end announcement or display. 79 The number of files would be „13‟, and not 10, because if a case was passed over, it would have to be sent as two electronic files (or patches) to its (that case‟s) computer file. For instance, if a pass over was sought at 11:05 and if the case was taken up later at 12:15 for 20 minutes, one would be that 15 seconds‟ clip and the other would be that 20 minutes‟ clip. Therefore, there will be two electronic files. If it is passed over twice and spills over after lunch / recess, it would go as three files. 80 Cases which were posted, but not taken up (say, no time left, or adjourned, or a letter circulated earlier) would also have their Topic 4 17 Video Recording of Court Proceedings „appearance‟ on the video, if at all, by only having a computer-generated text image on the screen to the effect that it was not taken up for hearing and was adjourned to such and such date. The recording of the day‟s proceedings would then be transferred from the hard disc to DVDs, and thereafter placed in a central repository of the Court. 81 The days‟ file would carry an electronic „marker‟ to indicate the momentary hiatus between the end of one case and commencement of the next. At the commencement of a case, the case number would be automatically inserted as a „text‟ on the computer file and would appear on the screen for 5 seconds. A computer software programme would check the recorded DVD for being a true and authentic copy before deleting the original from the hard disk. The Case record -11 82 The portion in relation to each suit / appeal (case) would also be copied electronically from the day‟s master record to that particular case‟s computer file. A separate DVD in relation to that suit or case file would be prepared. This DVD would be kept as part of the case record by the file-clerk. It could also be kept in a directory (for that case) in the Court‟s computer. Thus, there would be two video records: (1) record of the particular Court; and (2) record of the particular case. 83 The proceedings at every hearing of the case would (on the case files‟ video record) appear as „chapters‟ or „tracks‟ with a date stamp, while on the concerned Court‟s video record, it would be arranged by the date and time, which then would be the criteria to conduct a search for the file. There would also be search capacity based on the case number, which would take it to the time(s) when that case was being heard. It would be something like the menu which arranges the „Chapters‟ or tracks on a DVD and allows selection, jump to or play all. 84 Should the occasion arise, in the written arguments or in an application, lawyers (and even courts in their orders) would find it easy to refer to the video recording – instead of the present practice of citing the volume and the page numbers – in the following mode: (1) date; (2) time (from ….. to ….. ); and (if necessary); (3) camera number; (4) microphone number; and / or (5) (if necessary) the Court. Multiple backups -12 85 Backup to non-rewriteable optical media would be performed daily. An additional backup may be made for offsite storage purposes. At least two video recordings, recorded simultaneously, would constitute part of the original record in the case. One videodisk would be retained by the bench clerk to be forwarded to the Court‟s central repository. The other video- disk would be stored off the court premises in a location to be designated by the District Judge. Recordings would have a compression rate to allow, at a minimum, three hours of recording to fit on a single non- rewriteable optical media (DVD). The future would soon see higher and higher compression rates and terrabyte capacity optical recording media. 18 E xcerpt from : Justice, Courts and Delays C hp 13 Searchable relational database -13 86 The disk(s) now ready, the next question is of reaching (if required) the relevant portion. In commercial DVDs (from the entertainment world), the search is by the „track‟ and a chapter / track list (or even a menu) appears on the screen. Here, it would have to be a little different. 87 The system would use a relational database. All captured information must be indexed and searchable through a common interface. The system would enable search from a variety of parameters such as: (1) Court; (2) date & time; (3) case number; or (4) parties‟ names, etc. Modern computer and DVD Video file management tools make this a simple task. S teno’s (written ) text -14 88 Court stenographers (called „court reporters‟) in the West capture the words spoken by everyone during the proceedings, and prepare a verbatim transcript, either in real time or after the event. In India, however, they restrict the recording only to what the Judge desires – the familiar „ Take down‟ – and, of course, what the witness says in his statement, the lawyer‟s „Question‟ being recorded only when specifically asked for and ordered. 89 Stenographic text of the proceedings „taken down‟ by the Court stenographer could be translated by real-time transcription and fed as a data stream through a smart encoder that puts it into an integrated format so that the text-testimony appears alongside, or below the video record of what takes place in the courtroom. Like the running captions at the bottom of the TV screen or the sub-titles of a film, an internal clock in the video camera or equipment, connected and synchronised with the Court stenographer‟s computer, would ensure that the video record and text record of trial proceedings match. 90 Stated simply, Court stenographers can use stenography and computer software speech recognition software to transcribe the spoken words into text, achieving thereby working speeds of up to 200 words per minute with next to no error. The transcript can then be synchronised to the digital video. This would not only provide a reliable record, but also be a safety mechanism. 91 Talking about safety, fool-proof security of the system is a must. Since digital video recording systems are based on computers, security becomes an issue. Courts can rely on their computer security policies and apply them to digital video recording systems. The Witness Box -15 92 For the witness, the party or the accused whose statement is being recorded, the traditional ornamental witness box made of wood needs to be replaced by a modern one (which can be of moulded plastic / fibre glass / PVC in a metal frame), where the person can take his seat, have a small table in front, and have two video cameras focusing on him from the top right and the top left. There would also be two diffused lights on him. Topic 4 19 Video Recording of Court Proceedings The microphones (two independent channels) would pick up his speech and make the audio / video record. Whatever one lawyer may prompt, or the other may object to, or the Judge observes, it would be recorded on separate channels which can be played back.14 93 The witness box can be a combination of Aluminium, HDPL, PVC or fibre glass, so that there is no audio or light reflection on the two cameras and the lights focus correctly. The extra microphone on the outside of the witness chair (for the interrogating lawyer) would make sure that the question is correctly and separately recorded, and so are any interjections / interruptions. The witness box would kept at least 1.25 metres away from the lawyers. With a properly-placed directional microphone and a separate microphone each for the lawyer and the witness, any prompting for creating confusion (which is quite a menace) would be readily picked up. Generally -16 94 Taking into account the „e-courts‟ of the future, any computer or multimedia display by any lawyer would also be available by a direct hook-up on one of the channels. Once courts are equipped with the equipment that would enable the Court to create a video record of the proceedings, all concerned would need to be conscious of the placement of microphones and one‟s proximity to them while speaking. 95 A progressive culture, keeping in mind the solemnity of the proceedings, would slowly come about: speak clearly and intelligibly; and speak one at a time. Upon speaking for the first time, the lawyer would identify him- self for the record, and state the name of the party/ies whom he repre- sents. All witnesses would be required to clearly state their names, age and indicate the proper spelling for the record prior to giving evidence. 96 These were some technical and working details, but it must be remem- bered that technology in this field is ever-evolving, wherefore to get the very best of it and at the least cost, it would need a special Technical Wing at the CCRI. They can not only keep abreast of the latest development in the field from the world over – as also a desk (e-mail line) for receiving inputs from those operating the video systems in the courts – but also would evolve the very best through their own Research & Development laboratories and then make such technology available for use of the courts in the country. It may also be noted that the details above are for a sophisticated high-end model, though in the initial period, we can well do (at least for some years) with a simpler single-channel system. 7 . The Advantages 97 The problems having been addressed in sub-topics 4 & 5 and the technical details stated in sub-topic 6, let us now consider some of the advantages 14 If it is played back during court hours (occasions for which would be few, but there alright), the request for the playback, the order of the Judge and the actual playback would also be recorded on the main tracks. 20 E xcerpt from : Justice, Courts and Delays C hp 13 video recording will offer. In a way, the discussion is a continuation of that in sub-topics 4 and 5, but from another angle. Accuracy of record -1 98 While the official court record will still be the printed paper, video records would ultimately be a valuable resource for those events, conduct and nuances which paper cannot record for instance. False claims for adjournment or pass over on the ground of being busy in another court would stand curtailed for now the presence in „that other court‟ would be verifiable. The accuracy in the record of the proceedings15 and the availability of material to impose costs and fines, and material to more effectively order prosecution of the wrongdoer (and, therefore, prevent wrongs) are two important benefits. Better prepared -2 99 Parties, lawyers, as also Judges, will be better prepared if they are going to be recorded on video – and prior preparation means lesser time con- sumption and more circumspect presentation. Lawyers (a few) putting forward contentions, which range from irrelevant to bizarre; absurd to pre-posterous; and from ridiculous to outlandish, or simply causing waste of court time, will be prevented. The presence of continuous video recor- ding will drastically reduce the amount of chaff that is presented to our courts today. The quantum of misstatements and misleading submis- sions will drastically fall. The Judge will: (1) be able to achieve a quicker grasp and uptake;16 and (2) achieve greater accuracy and speed in terms of being able to adjudicate and dispose of the matter in lesser time. Improved conduct -3 100 Apart from ensuring accuracy of the record and of the end result, we should examine video recording for propriety of conduct from the angle of: (1) parties; (2) witnesses; (3) court staff; (4) lawyers; and (5) Judges. It is human nature that when a person knows that his utterances are being recorded, he will be careful in what he says and for an error or a wrong, he would rather say a sorry and continue gracefully rather than take a stance, “I never said so. He is telling a lie”. The human voice level will also remain within decibels that are acceptable. 101 At the subordinate level, particularly the Mofussil courts, most litigants, though present, are not able to fully understand what is going on in the Court. Their main criteria is how loud, vocal, and vociferous the lawyer is. The utility of the arguments addressed, their relevance, their finer parts, and the ability to be slow and steady, is considered by them irrelevant, or even a sign of „incompetence‟. Inasmuch as presence of the video record will dissuade the lawyer from all such improprieties, he will no longer be able to sway from the right conduct in trying to „impress‟ his client. The trend – try and out shout the other – will reverse. Moreover, a commu- 15 which ultimately even reflects in the accuracy of the verdict 16 because: (1) his attention will not be distracted; and (2) be more likely that which he receives will be more „filtered‟ for the fear which video recording will generate. Topic 4 21 Video Recording of Court Proceedings nication by the lawyer to his client, which, at times, is at variance from that which actually transpired in Court, will no longer be possible. Control by the court -4 102 Controlling the proceedings, particularly the Trial17 – especially tackling the obstructions and impediments placed by one of the two parties – is presently a daunting task. Even many a „Contempt‟ is ignored. Knowing that the proceedings are being video recorded, many „uncontrollable‟ lawyers of today will come to conduct themselves differently. With video recording, the court can more readily, and effectively, take action against the errant parties / lawyers, and thus serve the purpose of main- taining propriety and removing of obstructions in the flow of court work. Once video recording takes place, what is the notional aberration (in quantum) of 100 today, will come down to, say, 10. These 10 will, by and large, be due to two factors: (1) old habits die hard; and (2) genuine error of thought by the person concerned. Witness behaviour -5 103 Witnesses who might be inclined to exaggerate or distort their testimony will stick more closely to the truth once they know that they are being video recorded. They will be less prone to tell lies. Moreover, the fear of being prosecuted for perjury (Topic 2 of Chapter 11 supra) will now be seen by them in a different light. 104 Particularly in criminal courts there will be two more advantages. The tutoring by the IO of the witness just before his testimony is to be recor- ded will stand curbed. It will be easy for the Judge to identify which of the witnesses cited are genuine and which of them do not know the facts. Even the defence lawyers will then know who are the stock witnesses; as are usually cited as eye witnesses in many cases, particularly road acci- dents. The very possibility of somebody impersonating another – party, witness or lawyer – will be eliminated. Greater accuracy in the judgment -6 105 Video recording of proceedings will ensure accuracy of the record. Further, by preserving (and making available) matters which are not apparent from the written record, such as demeanours, voice inflections, body language and the like the judges can form a better view of the witnesses and that would lead to better conclusion. While deliberating on a judgment, the Judge will be able to re-play for himself the recorded proceedings of any hearing from day one right up to the final arguments. The Judge can also re-examine the demeanour of the witnesses while they gave evidence, and can come to a more accurate conclusion. The Judge can even focus on a close-up of the witnesses‟ face in order to better observe facial expressions. These can be re-run and replayed with ease. 106 In fact having prepared the penultimate draft for the judgment, the Judge, while giving it the final touches, could run through the video disk 17 See Topic 10 of Chapter 7-04 (civil) at pp1298 and Topic 14.~ of Chapter 10 (criminal) at pp~. 22 E xcerpt from : Justice, Courts and Delays C hp 13 (of the proceedings of that case). He could do so in his chamber or at his home, by using the conventional DVD player and a remote control with its jump to next chapter (next date); fast-forward; slow motion; freeze frame; or rewind / reverse to a previous date, and like features. 107 A little time on running through the video disk before pronouncing the judgment will give unprecedented accuracy to the judgment which, in turn, will mean lesser need for appeals and, above all, a greater degree of party satisfaction – in fact, of public confidence and trust in the system. Moreover, when a particular point is addressed and the Judge ultimately finds that it was a case of misleading / misguiding the court, he can re-run that portion and satisfy himself before imposing costs and fines for having made a contention that was against the record or against the law. In addition to aiding greater accuracy in making the right decision – quite like the third umpire in a cricket match – it will also ensure easier reference for judicial scrutiny in an appeal. Time-log -7 108 With video recording in place, the Court will also have before it an accu- rate picture of how much court time was consumed by the case – i.e. how much was properly „consumed‟ and how much simply wasted – no matter what the spread may be, say, a few seconds at one hearing and two hours at another. The date and time stamp feature of the video recording system – in conjunction with and routed through the Court‟s mainframe computer (which also carries Case and litigation Management software) – will enable, by a few strokes on the keyboard, at any point of time,18 a printout in a form something like this. 109 The very little time in the fourth column shows that nothing useful would have been done. For instance, the entries of 9.07.2007, 30.05.2008 and 24.11.2008 on the printout show that the matter was passed over before it was taken up. Not only that, at the bottom, it will also depict 18 whether the suit is being withdrawn, or the parties are settling, or it is being finally decided Topic 4 23 Video Recording of Court Proceedings the total amount of court time consumed by the case. In fact, the Court‟s computer can go further and calculate what would be the „cost‟ of such court time19 and also calculate (automatically) interest from that date at the notified rate with half-yearly rests, till date (of the printout). Costs & fines -8 110 Once again, of the two parties, (in 90% cases) one party places obstruct- ions, to prevent which the effective tool is costs and fines, but many times, this cannot be wielded – and so for want of undisputable record of the wrongdoing. This is where video recording will show its worth. 111 With a printout as this, the Court will be in a position to pass accurate orders for: (1) recovery of costs of court time against the parties;20 (2) the costs that ought to be awarded to the successful party; (3) determining who should ultimately bear the brunt of that „cost‟; and in addition thereto (4) what fines payable to the State ought to be imposed. Of course, the case file will give sufficient indication of who (of the two parties) should bear the brunt of such costs, to what extent, and also face any additional imposition (fine), but should the Court want to run through the video for the purposes of deciding the said questions, it can well do so. 112 Stated simply, the imposition of costs & fines for impropriety in conduct – so very essential if our justice system has to function to its full efficiency – cannot, in practical terms, be fully carried out unless court proceedings are video recorded. Thus with video recording, the court can more readily, and effectively, take action against the errant, and thus serve the purpose of maintaining propriety and removing of obstructions in the flow of the stream of justice. 340 Cr.P.C. – 9 113 Topics 2 to 18 of Chapter 11 supra pointed out to Perjury and the various forms of abuse of process, details whereof need not be reiterated here. Suffice it to say that video recording in place procedural details argued for there can be effective in bringing about discipline and preventing perjury, as also abuse of process of court. 114 If prosecution of a particular witness is to be ordered for giving false evidence, it will be very easy to establish the identity of that particular person and what he had stated. In as much as a complaint under Section 340 Cr.P.C. can, along with other copies of papers, also attach a copy of the video (on a CD) and the transcript. 115 In the event of „Contempt‟ during court proceedings the truth or other- wise of a complaint can be determined by going through the recorded version to ascertain what exactly were the utterances or gestures as a question of fact, for deciding the question whether it constituted Contempt or not. 19 on the date it was consumed, depending on the notified rates for that period 20 The Court Fees Act, 1870, is outdated. See Chapter 5 supra. 24 E xcerpt from : Justice, Courts and Delays C hp 13 Appellate court – 10 116 If an appeal is taken from an action which has been video-recorded, a transcript of the proceedings will be forwarded to the appellate court, though here, except in a rare case, it may not be necessary to rerun it. The appellate Judges too will be able to both „see‟ and „hear‟ the trial court proceedings. This way, they will have the opportunity to evaluate the witness‟s credibility, just like trial judges, because written trial records do not show the demeanour of the witnesses. The appellate or the revisional court will also be able to more clearly appraise any procedural impropriety by the court below. 117 It will enable the court (whether original or appellate) to impose proper sanctions on whoever was in the wrong. The arguments, particularly at the preliminary hearing of Appeals or Writs will find itself a different form – of thorough, in-depth, preparation greater circumspection, responsibility, accuracy and precision. Improved Productivity – Prevent waste – 11 118 As of today, in proceedings before subordinate courts, for one reason or another, inefficiency and waste drain away almost 60% of the court‟s time and energies (resources). With a video recording system in place, this „loss‟ can be brought down to, say, 15% i.e. a net saving of 45% on this count alone. To explain, first, (with video cameras recording) a typical civil suit which takes a total of, say 20 hours of court time over a 100 hearings, plus 70 pass-overs, would take, say, seven hours over no more than 40 hearings thus saving valuable court time.21 119 We may conduct a small experiment. We take one courtroom (say, X) where proceedings are conducted the way they are in a typical court today and we take another courtroom (say, Y) having video recording facilities and, therefore, many of the improprieties pointed out in this topic are minimal or even absent.22 Now we „measure‟ the productivity of each of the two courts.23 The result will show that the output of Court Y is several times more as compared to court X and the accuracy of the judgments delivered by Court Y is also better than that delivered by Court X. The reason as to why this happens lies in a feature fundamental to the human mind‟s working – i.e. the importance of the right ambience and the need to banish all distractions, thereby enabling full concentration for best results. 120 There will be some more benefits. Video recording will be a very powerful tool for court, case and litigation management. The camera in 21 These figures do not include the savings that the other procedural tools argued for in this work will enable. 22 In actual practice, it will be some time before it takes effect, but for discussion purposes, we are assuming it has taken effect. 23 See Topic 17 of Chapter 14 infra – Measurement Performance for this experiment we assume that the rating of two judicial officers is similar. Topic 4 25 Video Recording of Court Proceedings the courtroom (as also the surveillance cameras) will ensure less „fear‟ be it a party or witness or even a lawyer, or simply greater security. As noted in Topic 14 of Chapter 10 (at pp~ ), if the statements of the witnesses were video recorded before a Magistrate (under an amended Section 164 Cr.P.C.) within a few days (or weeks) of the incident / offence, it could give our criminal justice system a new face altogether. The result of many a trial would be wholly different. It will mean enhanced protection of an accused‟s rights to a public trial. Miscellaneous – 12 121 With video recording of the court proceedings and surveillance cameras in corridors and common areas, the general ambience will find marked improvement. This would not only bring about vast improvement in the conduct and speech, it would also bring about punctuality in the Court proceedings, particularly in the lower courts. The upkeep and main- tenance of the premises will also see improvement. The general noise level in the courtroom,24 chattering by the parties and also conduct of those present, and other disturbance causing factors will be prevented. Even the dress code would find greater adherence, which, in turn, will contribute to enhancement of the public confidence in the judicial system. 122 Petty corruption25 with the support staff much of which takes place within the court-room – the prevalence and the extent of which is left to the reader‟s own perception – and the Presiding Officer personally being unable to afford to take cudgels would also stand controlled if not eliminated. Similar would be the effect of surveillance cameras in the other accommodation and corridors. It is the mere presence of these devices which will make all the difference to the ease and the readiness with which the witnesses and parties are today willing to make all kinds of statements – as also the promptings and suggestions that they receive. Judicial Performance Evaluation – 13 123 It is not only the conduct of the parties and the lawyers, but also that of the judicial officers that will then be part of the record. Some times the questions or observations that fall from the Judge also carry a question mark on their relevance, or propriety. The calibre of the judicial officer in posing the right questions and his ability to control the proceedings, without denying a proper hearing, will be clearly visible. It will also reveal the home work, if any done by him on the previous day. His per- formance level and competence will be easy to assess. The collegium in the High Court would know – and know accurately – the real performance level (of the subordinate judiciary) for promotion or even elevation. 124 The video record will clearly indicate (to the High Court) whether a particular judicial officer is slow or quick, and whether he conducts the 24 See Topic 4 of Chapter 14 infra. 25 usually under the label „tips‟ (or bakshish) which the litigants can ill afford to not pay. 26 E xcerpt from : Justice, Courts and Delays C hp 13 proceedings in a proper way. With video records in place26 the High Court can more accurately assess the performance of a particular officer for promotion or other superintendence and control purposes. 125 Superintendence and control over the subordinate judiciary of the State is with the High Court. See Article 227 etc. of the Constitution of India. To enable better insight into what goes on and exercise control, there has been the traditional „inspection,‟ but over the last 100 years, the number of subordinate courts has increased manifold, and will only increase in the future, with the result that the system of inspection is not as effective as it used to be. Developments in IT and multimedia have also not trickled down to the system of inspections by the High Court. The feasibility of linking the recording to monitors in a special viewing room in the High Court could be explored as this would constitute a good tab upon the lower judiciary. In the Overall – 14 126 The larger purpose is that impurity in presentation to, and impropriety in conduct before, the Court will not get away with a „profit‟ (for the wrongdoer) as it did in the past. The Court is now in a position to pass appropriate orders, the correctness whereof – by reason of the accurate records – will hardly be open to challenge. Once that message goes out, we can well visualise what will be the thought process of a typical litigant (and his lawyer) while making any presentation to, or conducting himself before, the Court. 127 It may come as a surprise that the entire proceedings in a suit / prosecution can be recorded on a single, (or a few), DVDs. And, this would help identify the areas where wrong exists and also provide the foundation for punishment to the one who deserves it, i.e., the wrongdoer. More importantly, the find and search facility on the video recording would be with reference to the calendar date – with each hearing being recorded as the next chapter on the video file. Further, video file search, indexing, management, retrieval, archiving systems can all be tailored for convenience of use by the Judges and lawyers. 128 Once video recording is in place, many of the aberrations in the system presently found, would stand controlled. As we become more familiar with the operation of the digital recording system, it will be increasingly apparent that it provides many capabilities beyond serving as an alternative means to make the record. Above all, the perception of the common man or the typical litigant – rather his trust and faith in the system – will find marked increase. 8 . The Cost considerations 129 The need for, and the utility of, video recording court proceedings having been detailed let us now examine: What will it cost? Where will the 26 as also electronic collection of judgments passed and other tables and statistics Topic 4 27 Video Recording of Court Proceedings funds come from? Or, are we dreaming of a luxury that we can ill- afford? The true question really is: Will the advantages and the resultant savings in costs justify the effort and the expense? The objective is to demonstrate that it (video recording) is not something that we cannot afford, and that the cost far outweighs the benefits. 130 In a large-sized court complex having, say, 50 courtrooms, installing such equipment in each courtroom (with a central control room), recording the day‟s proceedings on unalterable DVDs with date, time and court number imprint, would involve an expenditure of about Rupees three lakhs per courtroom. The operating cost (i.e., running costs, including consumables, maintenance, personnel and replacements) would also be about Rupees two lakhs per year for one courtroom. This is comparable to the overall cost of hiring a steno-secretary for one year, but without the advantages of video recording. 131 Stated simply, the cost of providing video-recording facility for a Court would be a little less than the cost of installing (and operating) air- conditioning for that Court and providing other related services. Then, except initially, it is not that an additional burden will fall on the State. Of the two parties, the one in the right will be willing to contribute towards the cost. So much so that he will prefer to „pay‟ for this rather than (indirectly) pay for the air-conditioning in the courtroom. Of course, the cost may be charged as additional court-fees, but the parties will be willing to contribute such cost, for by doing so, they save several times that which they today lose in the form of: (1) actual expenses incurred; and (2) (indirect) cost of delayed or imperfect justice. See also Topic 2 of Chapter 14 infra. Given the choice, parties will opt for video recording instead of air-conditioning. 132 While there may be some problems in getting used to the applications, the costs of putting a system in place are nominal when compared to the overall increase in productivity, which will more than justify the cost. The cost of this will be only a fraction in terms of the court time saved. With video recording in place, the productivity of each Court will increase with the result that lesser number of courts will be able to meet the needs. Therefore, the value per hour of court time (see pp301 supra) saved will be many times more. The parties‟ time would also be saved. 133 If we were to be conduct an experiment and provide video recording in a few courts of a court complex, and make it obligatory for those who request for video recording to also pay the cost of video recording (as per hour of court time), calculated after factoring-in all costs and multiplying by three (i.e. charge 200% premium), we will find that in a large number of cases, at least one party of the two would be willing to pay that extra. Who that party will be, is a matter of plain common sense. 28 E xcerpt from : Justice, Courts and Delays C hp 13 134 Apart from recovering directly as aforesaid or indirectly through court- fees, courts may also charge reasonable fees for copies of video recordings of court proceedings. In any case, the savings in costs of court time alone – by reason of increased productivity – will be several times more than the cost incurred on video recording. 9 . ‘Response’ to the proposal or the resistance expected 135 The proposal to install video equipment and make a continuous recording of the court proceedings is bound to find resistance from many corners. It is not something – like air-conditioning in courtrooms – that every one, without exception, would welcome. Let us examine this issue as well. The problems which are being faced today – and which the video recording is intended to overcome – have been detailed earlier. Stated in one word, it is those who will lose out (on what is presently their gain by the very many improprieties) who will be the main force behind the resistance or opposition to video recording. 136 Most lawyers will welcome it. It is only a few lawyers who specialise in a particular type of practice – obstruct and delay – that are likely to oppose. There will also be those who may not readily appreciate the benefits, and a few who, depending on the kind of their practice, will oppose the move. 137 Judicial officers who are confident of their calibre, hard work, and integrity, will welcome it, for now there will be a more accurate record of their performance. They will be motivated to work harder for early promotion and, hopefully, elevation. See para 123 supra. A few judicial officers may, however, oppose it, and so for reasons which are best left undiscussed. Some (or many) of the support staff in the Court will also oppose it, for it will expose their lethargy and other mal-practices.27 138 On the whole, there is no rationale behind any reluctance on the part of Judges, lawyers and court staff to have the court proceedings video recorded. It is time that this concept is recognised and put in place. 139 After leaving aside the court officials and lawyers, of which again there are varying types, let us now examine it from the point of view of court users, i.e., the parties. A little less than half the parties will welcome it while the rest will oppose. In fact, the ones who are in the right (i.e., whose claims / defences are correct) will even offer to pay extra court-fees towards the cost of video recording as by doing so not only will they have justice sooner, but also more accurate results, and at lesser overall cost. 140 If an opinion poll of the parties – on video recording of court proceedings – were conducted, one would think that 42% will say „Yes‟; 48% will say „No‟; and 10% will say „Don‟t know‟. This looks as if video recording has lost the battle. But if we pick up and segregate the case files – 50 case 27 which occur tens of times a day in every courtroom and are too well known to require description Topic 4 29 Video Recording of Court Proceedings files for every 100 parties who polled – and examine these files, it will make an interesting revelation. The 42 who said „Yes‟ would be those whose claims / defences are correct and will ultimately succeed. The 48 who said „No‟ will be those whose claims / defence are wrong or untenable, and will ultimately fail. And the 10 who said „don‟t know‟ will be the ones who either did not understand the implication of the poll (effect of video recording), or who were under an erroneous impression of the strength of their case. Such will be the polarisation. 141 In fact, those who stand to lose their ability to continue with their wrongs will be the ones who will manoeuvre such „objections‟ and resistance. It must also be noted that, as compared to those supporting video recording, those opposing will be more vociferous because then their ability to create success out of a wrong will stand diminished. 142 It requires no discussion that our judicial system is reeling under an overload. All it calls for is for us to conceive and put in place every system that helps prevent waste and improve efficiencies. And it is here that alongside reform in procedures, video recording of court proceedings will have an important role to play. Stated simply, if video recording enables greater productivity as also greater public confidence and trust, should it be opposed – or even delayed? 143 The importance to a society of open justice is considerable. A trial is a public event.28 The more open and public a trial is, the more likely that justice will prevail. It is said that what transpires in the courtroom is public property. The fact that the technology exists which could bring about greater public confidence and trust in the judicial process should not be ignored. The so-called bar to video recording (if any is said to exist) of court proceedings needs to be removed. 144 However, the issues surrounding broadcasting the court proceedings are complex and further studies are required.29 Whether to allow television and other electronic coverage of Supreme Court, High Court and other criminal court proceedings is a debate that essentially balances the 28 See also the discussion regarding „ Trial in Open Court‟ in Naresh Shridhar Mirajkar vs State of Maharashtra AIR 1967 SC 1 = 1966-3 SCR 744; and Kehar Singh vs State ( Delhi Administration) 1988-3 SCC 609 = AIR 1988 SC 1883. 29 How many citizens would actually view the telecast of court proceedings? The numbers will be so few that it would not justify the cost. Further, can we really broadcast 12 channels for the Supreme Court; 500 for the H igh Courts, 100 for the Tribunals; and 12,000 channels for the subordinate courts? It will be neither feasible nor practical, and also not worth it. To release, a few days later, such part of the video recording of the proceedings as the Court might think fit, and which is accessible on the court‟s website, may perhaps strike the right balance. All these issues will require debate. What we really need is video recording of the hearings of a particular case, excerpted, sorted and arranged sequentially – just like it is on the paper file – and not simply what transpires in each courtroom from morning to evening, day after day. 30 E xcerpt from : Justice, Courts and Delays C hp 13 concerns about the adverse impact televising could have on the justice system with those about greater public access to judicial proceedings. That issue, as noted in para 7 above, is not being addressed. 145 Whichever way one looks at it, it is difficult to fathom what realistic objection could be raised with regard to video recording of court proceedings. Any objection is greatly outweighed by the advantages involved – and these are too many to be ignored. Video recording of court proceedings is imperative if efficiency in the justice system is to be ensured. Like many other traditions of the past, any objection to video recording must also be reviewed in the light of technological advances. 10 . Miscellaneous matters 146 Some other issues may also be addressed. It is not only the cameras, microphones, and recorders that will have to be provided, but we will also need to establish an infrastructure and introduce procedures for archiving and managing electronic records of court proceedings. 147 In addition to the technological set-up, it will need development of comprehensive rules for implementing video recording and also for main- taining records and issuing copies. These rules are best developed at the CCRI and then formally framed by the High Court. Rules with regard to referencing, indexing, and recall for viewing, will also have to be framed. 148 Since lawyers and parties may be able to purchase videodisk copies and have transcripts prepared from those copies, it is imperative that rules are framed which provide how it will be recorded, how copies will be issued and the limits to the use of those copies. They will include rules for use of electronic copies. Necessary alongside will be statutes which place restrictions and obligations on the use of the copies and provide stringent penalties for breach. 149 Access to the videodisk record of court proceedings shall be limited to the lawyers / parties involved in the events recorded on the disk. The Judge will have the sole discretion to allow other individuals access to a videodisk record. Further, discretionary authority would allow the Judges to exercise their discretion as to whether or not video recording would harm the proceedings or the participants in a particular case. 150 Upon request, and special orders, a witness (or even a party to the case) could have his face obscured during testimony. For the „in-camera‟ cases, special care has to be taken. Therefore, distribution of copies of images generated / records of court proceedings are to be strictly restricted from any access or circulation except when they are for the bonafide use of lawyers or the parties. A separate statute in this regard with sufficient teeth to prevent and punish breach is necessary. 151 The need to ensure fairness and justice in our courts must remain paramount, and while stressing the need for caution in this whole area, neither of those supreme interests would be imperilled if video recording Topic 4 31 Video Recording of Court Proceedings were subject to strict rules of coverage and to the supervisory discretion of the trial judge to exclude the camera whenever it was necessary in the interest of justice. 152 In the same strain, a word of caution. While video recording of court proceedings is desirable, the publication of these, rather use by anyone other than the Judge, the lawyers or the parties, is to be strictly prohibited. There should even be a check on the parties‟ usage of such recordings. Already, the role of the media, which strongly shapes public perceptions, is, in some ways, affecting public confidence in the system. Airing such recordings on the television will have to be prohibited, till the „televising‟ issues have been sorted out. 153 At the end, it must be noted that technologies which support the making of a court record will evolve at a rapid pace. Due to the changing nature of technology, the standards will need to be set and periodically reviewed by the technology wing at the CCRI. Conclusion 154 To conclude, video recording of proceedings is likely to be opposed initially, but in the long term, it will prove extremely useful, and in a number of ways. In any case, the advantages more than make out a case for installing video cameras in courts. When everything else has gone, and is going more and more, high-tech, why should our courts lag behind?