Form of words:
IIt would undoubtedly do great to underscore the importance of implementing digital tools in the existing court infrastructure to switch from traditional physical hearings to more accessible virtual hearings. The importance of this change cannot be underestimated, especially in the context of the COVID-19 pandemic and resulting in a burden on the judicial system, already unwell massive backlog. As a result, the delivery of justice is delayed, eroding the cause of justice for millions of undertrials, many of whom have been serving longer than the maximum prescribed sentence, especially those accused of petty offences. Most of these undertrials, who are accused of minor offences, are poor, downtrodden and under-resourced persons belonging to marginalized communities.
The impetus on adoption of technology in judicial infrastructure may be a result of the current crisis, however, this opportunity and its consequent benefits should be embraced as the traditional method of judicial functioning has failed to accommodate India’s heavy litigation demands.
Read also: As Supreme Court contemplates live telecast of hearing, Gujarat HC has long been leading the way
Digital re-imagining of petty criminal cases
Criminal trials have largely remained on the radar of judicial reform and, therefore, remained untouched by the technological revolution. The primary reason for this resistance to change can be attributed to the nature of the criminal proceedings, particularly the Sessions trial. They require heavy evidence hearings and heavy documents that need to be examined for authenticity and validity by the judge and the parties due to the gravity of the crime. Witnesses are also required to testify and subject themselves to main examination and cross-examination. These aspects prevent lawyers and judges from conducting virtual hearings.
However, it is pertinent to question whether a modus operandi can be devised to facilitate at least petty criminal trials.
The answer becomes clear when we narrow the scope of our question to specific types of criminal trials. These may include trials that are not necessarily affected by the challenges of application of evidence laws and procedures (magistrial trials), offenses attracting lesser punishment, and higher levels of bailable and non-cognizable offences.
Undertrials are unable to secure speedy and timely trial because of the inadequacy of the police force to take them to court, to the inability of a public prosecutor or defense counsel to appear/argue in the case, thereby essentially causes adjournment. , and the unavailability of the judge as well on certain dates. However, these issues can be addressed by the effective use of digital aids installed as part of the prison infrastructure so that the person in question can attend the hearing on the scheduled date and time through virtual presence through digital platforms such as Cisco Webex. be allowed to attend. Or Vidya Software of NIC (National Informatics Center) – All enough tools that can be implemented in all courts across India. These are already being used in the Supreme Court of India and some High Courts.
In the last two decades, efforts have been made to try and set up digital infrastructure in some of the important prisons of the country such as Tihar Jail and other model prisons in several states due to various complexities including absconding of hardcore criminals. . According to Prison Statistics in India- 2019 In the 2020 report released by the National Crime Records Bureau, 808 out of 1,350 prisons were equipped with video conferencing facilities. Out of these 808 jails, 352 were district jails, 136 were central jails and 264 were sub-jails (at sub-district level) where undertrials are located during the pendency of trial.
In contrast to the earlier situation, where only certain aspects of the criminal trial were conducted from the prison premises as an ad hoc measure, it is now appropriate to ensure that petty criminal trials are conducted entirely from within the prison premises. Those who are currently considering the ongoing incentives. In favor of technological change however, in order to achieve this, appropriate amendments need to be made in High Court Rules, Prison Manual and Code of Criminal Procedure.
During the pre-Covid period, video conferencing facilities were mainly used for conducting remand cases to prevent movement of prisoners between jails and courts. This was the result of a 2008 amendment to the Code of Criminal Procedure that allowed the use of such facilities for remand proceedings. However, based on past experience, we should further enhance the digital infrastructure to conduct criminal cases directly from the prison premises. This will give the offender an instant opportunity to record his statement, and the victim or witness can also be examined and cross-examined in courts or through remote digital systems. The witness or the victim may not have to travel hundreds of kilometers. This will enable the victim to attend the hearing at lower financial costs without jeopardizing himself and his routine duties.
Read also: Virtual courts to continue after pandemic, they are safer and faster, says parliamentary panel
Security and privacy concerns
In criminal prosecutions involving sexual offenses, the accuser/victims often experience intimidation in addition to the challenging environment of the courtroom in close proximity to the offender/s and, occasionally, the victim of intimidation. Advocate for the party. However, an option may be provided – excluding mandatory attendance for purposes of evidence and identification of demonstrations during examination and cross-examination – for the victim to appear in the case from their home or their lawyer’s chamber. It will provide them some degree of mental peace and security.
This proposal will also be in line with judicial precedents. [Nipun Saxena v. Union of India, (2019) 2 SCC 703 and Bijoy v. State of W.B., 2017 SCC Online Cal 417] Emphasizing the importance of maintaining and protecting the confidentiality of the prosecutor. virtual hearing Will allow strict quality control over factors affecting their privacy.
It is also worth noting that cases relating to sexual offenses or sexual offenses committed against women or children have recently been exempted from live streaming. Draft Model Rules for Live-streaming and Recording of Court Proceedings Issued by e-Committee of Supreme Court. However, the draft rule under Rule 5.7 also provides that in the absence of live streaming of the cases, the video recording of the proceedings shall be retained for the exclusive use of the courts. The draft rule under Rule 5.8 further provides that the testimony of victims and witnesses in criminal cases shall be kept in recording by means of dummy names, face-masking, pixilation and/or electronic distortion of voice.
Presently, the facility of virtual hearing is being used at the discretion of the Courts depending upon the circumstances and consequent need. The option of ‘virtual hearing’ should be provided to the litigant, especially the victim, as a statutory right by bringing appropriate amendments to the Code of Criminal Procedure of the relevant provisions. The ability to press for their statutory right to a virtual hearing in the proper context will provide easy and timely access to justice.
Jaiyesh Bhoosreddy @j_bhoosreddy99 is studying Law at University School of Law and Legal Studies, GGSIPU. Thoughts are personal.
(Edited by Anurag Choubey)
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