Introduction
In the Indian judicial system, the adversarial structure has long been the bedrock for uncovering the truth. The central element of this framework is the principle of orality, where witnesses present their testimonies directly before the judge and are subsequently subjected to cross-examination by the opposing counsel. Sections 59 and 60 of the Indian Evidence Act (“IEA”) govern the provisions relating to oral evidence. However, with the advent of technology in court proceedings, innovative methods, such as video conferencing, have been introduced to accommodate vulnerable witnesses, defined under Sections 118 and 119 of the IEA. This shift sparked significant debate, with concerns that such measures could undermine the principle of orality, and, consequently, the pursuit of justice itself.
This paper will begin by examining the principle of orality and Fineman’s Vulnerability Theory. It will then argue that the implementation of Special Measures (SMs) for vulnerable witnesses does not undermine the principle of orality. Finally, through an analysis of Indian jurisprudence, the paper will explore the courts’ position on the recording of evidence via video conferencing.
The Principle of Orality and the Vulnerability Theory
The Indian legal system, operating within the adversarial framework, adheres to the principle of orality. This fundamental tenet, as addressed by Samantha Fairclough, stipulates that witness testimony must be delivered orally in an open courtroom, directly before the accused and the judge. The emphasis on oral evidence presented at a single hearing underscores the adversarial system’s reliance on a direct confrontation between the prosecution and the accused. It assumes that the reliability of evidence increases when a witness testifies within the formality of the open court and in the presence of the accused and the public. These values are engrained in the ECHR and the broader principles and values of the developing jurisprudence in India. However, the question remains unresolved regarding the extent to which this significantly jeopardizes the rights of vulnerable witnesses.
The issue of vulnerable witnesses can be critically examined through an exploration of the theoretical framework underpinning vulnerability theory. The vulnerability theory devised by Martha Fineman argues that vulnerability is “inherent in the human condition” and is “universal.” To simplify, this is not a special characteristic attributed to some, but everyone is vulnerable. Some of these embodiments and differences are based on the spectrum of life experiences and journeys of people which are reflected in the courtroom setting.
Examining the Role of Vulnerability in the Courtroom
When witnesses are presented in court, they undergo vigorous cross-examination in public, facing direct confrontation and scrutiny of their demeanour by the judge. During this process, their individual characteristics, including age and any learning disabilities, can significantly influence their performance and the perception of their credibility. Fineman’s framework of vertical and horizontal vulnerability highlights the unique challenges faced by individuals with age-related or learning disabilities within the legal system. Graine Mckeever highlights that imposing architecture, hierarchical courtroom structure, and formal proceedings can create a daunting atmosphere for witnesses, especially those unfamiliar with legal terminology or procedures. This spatial context may intensify the stress experienced by vulnerable individuals, potentially compromising the quality and reliability of their testimony. The necessity for vulnerable witnesses and defendants to deliver oral evidence in a live courtroom setting can weaken their resilience and undermine the credibility of their testimony.
In Fineman’s words, these witnesses should be permitted to give evidence from behind a screen through a video link with the assistance of an intermediary in a courtroom closed to the public. Sections 59 and 60 of IEA outline who all are to be considered vulnerable witnesses. However, the introduction of SMs evidence has faced opposition due to concerns about its reliability compared to direct testimony. Indeed, some legal scholars argue that the use of SMs enables witnesses to hide behind a screen which acts as “cotton wool” insulating them from rigorous and stringent “cross-examination” and thereby hindering the pursuit of truth. Further, removing the witnesses from the public courtroom and the inherently stressful environment it generates, and the consequential loss of “rapport, direct eye contact, customary control, and humanness” may hinder the ability to effectively evaluate their credibility and uncover potential falsehoods.. The effectiveness of virtual testimonies in supporting vulnerable witnesses continues to be a subject of debate, in light of significant opposition to their implementation.
The Actual Impact of SMs
I argue here that by making witnesses more comfortable and consequently improving the quality of evidence, SMs actually strengthen the principle of oral evidence. This is attributable to the improved treatment of witnesses, facilitated by the absence of a stressful courtroom environment—characterized by the presence of the public, law enforcement personnel, and the accused—which can have a traumatizing effect on witnesses and directly impact the reliability of their testimony. From Fineman’s lens, these are the special assets that build resilience thereby causing minimal harm to their well-being. The state’s commitment towards orality is better defended when SMs are executed. Doubts persist regarding the ability of witnesses to provide accurate testimony in the courtroom setting, the interpretability of demeanour, and the jurors’ overconfidence in their ability to accurately assess credibility. In other words, the principle of orality has itself been compromised. Further, the major opposition to SMs is based on the demeanour of the person which has no such foundational link. Research has found no link between confidence and reliability, inconsistency and inaccuracy, or nervousness and falsehood. Thus, in reality, the assessment of many confident witnesses may not be accurate.
Further, the explicit signs of deceit cannot be defined with certainty. Consequently, the demeanour may not be a reliable indicator of truth.
As per Fineman, this could be just an indication of embarrassment, cultural background, or stress.
Further, criminal trials involve high stakes and consequences, complex orchestration of interpersonal and structural power balances, and necessary engagement with trauma reactions. Therefore, the skills of observation based on demeanour require a lot of expertise. The claim that online testimonies reduce the credibility of truth has also been weakened by psychological research. People with conditions such as ADHD or autism cannot be made standing against the principle of orality as the multiple stimuli in crowd creates distraction. For some people, the stress is too much which could even lead to anxiety attacks. Furthermore, taking evidence through video conference will be just an extension of already existing measures such as concealment of identity by referring to the witness by a pseudonym or anonymising the visuals and audio of such witnesses or the holding of in-camera trials. The sole question here should not be of legitimate fact-finding as a procedural formality that takes place within the four walls of the court that primarily serves the interest of the more powerful party. Instead, the emphasis must be on accurate fact-finding that ensures justice for all parties involved and upholds the principles of the adversarial process.
When we apply Fineman’s Vulnerability Theory and various other arguments in support of SMs to Sections of IEA, we see that section 118 is exhaustive. The phrase “or any other cause of the same kind” only refers to physical or mental disabilities of people that are caused by specific diseases. This does not encapsulate the idea of horizontal and vertical differences which was discussed earlier. This leaves many vulnerable witnesses outside the scope of protection of the act. It is evident that pre-established categories of vulnerability within the context of special measures can unintentionally exclude individuals who may require such support. Fineman’s approach, which assumes that all witnesses are potentially vulnerable, effectively safeguards against this limitation.
The other argument put forth by legal experts against the introduction of SMs is that it infringes the rights of the accused in the garb of favouring vulnerable witnesses. The potential disadvantage to the accused can be mitigated in situations where confrontation could compromise the witness’s dignity, jeopardizing their well-being, particularly for vulnerable individuals. Additionally, the consent of the accused should be taken into consideration for reasons. This idea of consent was upheld in the case of Vinod Kumar v. State (NCT of Delhi) where the court took into consideration the implied consent of the accused. Even when the party is not satisfied with virtual cross-examination, they have the right to request a physical cross-examination based on the discretion of the judge. Therefore, the rights of the accused and the witnesses can be balanced.
The Indian Jurisprudence around Virtual Testimonies
The courts in India have held a strong stance on the acceptance of virtual testimonies. I argue here that the implementation of Special Measures (SMs) to facilitate virtual testimonies has been critically supported and reflected in the judgments of various courts. Courts have not only recognized the practical benefits of virtual testimonies in protecting vulnerable witnesses but have also emphasized their alignment with broader principles of justice. Moreover, the courts have critically engaged with the tension between traditional notions of oral evidence and the evolving need to accommodate vulnerable individuals, suggesting that the legal system’s flexibility in adopting SMs does not undermine, but rather supports, the integrity of the judicial process.
The seminal case in the area of virtual testimony was the State of Maharashtra v. Dr. Praful B. Desai where the court held that virtual testimonies also satisfy the criteria of oral evidence. It further held that the pleader is very clearly able to see the witness as if the witness is sitting in front of him. In Twentieth Century Fox Film v. NRI Film Production Associates, the court held that presence not only means physical presence but can also extend to video conferencing when the witness cannot be continentally examined in the court. In Amit Bagchi v. Ena Bagchi, the court issued comprehensive guidelines for virtual testimonies and also held that courts should adopt electronic methods, including video conferencing, to provide accessible and efficient services to the people which can also be done by way of issuing a commission. Thus, virtual testimonies can be ordered in cases where the attendance of the witness cannot be ensured because of expense, inconvenience, and delay. The case of State of Maharashtra v. Bandu issued directions for setting up of special courts for recording the evidence of vulnerable witnesses to provide them with a facilitative environment which was inspired by such centres set up in Delhi. The same was suggested in case of sexual offence. In case of Smruti Tukaram Badade v. State of Maharashtra, the court expanded the definition of vulnerable witnesses and held that such individuals should not be subjected to a hostile environment or insensitive procedures.. Further in Vinod Kumar, it was also held that truthfulness of the statement does not entirely depend on demeanour which can otherwise be noted through video conferencing. In International Planned Parenthood v. Madhu Bala Nath, held that the facility of recording and play back while cross-examination will give a better option for judging demeanour of the witness.
Thus, the cases discussed above clearly demonstrate that the courts have authorized video conferencing without prioritizing the factor of demeanour, instead giving precedence to the protection of vulnerable witnesses.
Conclusion
The Indian judicial system’s integration of virtual testimonies, particularly through special measures for vulnerable witnesses, reflects a balance between tradition and modernity. While the principle of orality has historically been central to ensuring justice, the inclusion of video conferencing and other technological advancements strengthens witness resilience and upholds fairness. Though concerns about diminished credibility and the rights of the accused persist, judicial precedents and Fineman’s vulnerability theory support the necessity of evolving court practices to better serve justice.
This blog is written by Suhani Chhaperwal, 3rd Year B.A. LL.B. (Hons.) Student at National Law School of India University, Bangalore.