It would be undoubtedly trite to underscore the importance of implementing digital tools to the existing court infrastructure in the switch from traditional physical hearings to the more accessible virtual hearings. The significance of this shift cannot be undermined, especially in the context of the Covid-19 pandemic and the resulting burdening on the judicial system, already malaised with massive backlogs. Consequently, there is delay in the dispensation of justice, thereby vitiating the cause of justice itself for millions of undertrials, many of whom have languished far longer than the maximum prescribed punishment, particularly those accused of petty offences. Most of these undertrials, who are accused of petty offences, are under-resourced individuals belonging to poor, downtrodden, and marginalised communities.
The impetus on the adoption of technology in the judicial infrastructure may have been a result of the current crisis, however, this opportunity and its consequent benefits should be embraced because the traditional method of judicial functioning has failed to accommodate India’s enormous litigation demands.
The digital re-imagination of petty criminal trials
Criminal trials have largely remained under the radar of judicial overhaul and, therefore, have remained untouched by the technological revolution. The primary reason for this resistance to change can be attributed to the very nature of criminal proceedings, especially the sessions trial. They require heavy evidentiary hearings and voluminous documents that need to be examined for authenticity and validity by the judge and the parties owing to the severity of the crime. The witnesses are also required to depose and subject themselves to examination-in-chief and cross-examination. These aspects make lawyers and judges averse to conducting virtual hearings.
However, it would be pertinent to question whether any modality can be carved out to facilitate at least the petty criminal trials.
The answer becomes clear when we narrow down the scope of our query to specific types of criminal trials. These could include trials not necessarily bogged down by the challenges of a high degree of application of evidentiary laws and procedures (magisterial trials), offences attracting lesser punishment, and bailable and non-cognisable offences.
The undertrials are unable to secure a speedy and timely trial because of a plethora of reasons ranging from inadequacy of police force to transport them to court, inability of the government pleader or the defence counsel to appear/argue the matter, thereby inevitably causing an adjournment, and the unavailability of the judge as well on certain dates. However, these issues could be addressed by the effective utilisation of the digital aids installed as part of the prison infrastructure to allow the undertrial to attend and appear for the hearing at the assigned date and time through virtual appearance facilitated via digital platforms such as Cisco Webex or the Vidyo Software of NIC (National Informatics Centre) – all adequate tools that can be applied in all courts across India. These are already being used in the Supreme Court of India and in some of the high courts.
In the last two decades, efforts have been undertaken, owing to various compunctions, including the absconding of hardcore criminals, to set up and establish digital infrastructure in some of the important jails in the country such as Tihar Jail and other Model jails in many states. As per the Prison Statistics in India- 2019 report released by National Crime Records Bureau in 2020, out of the 1,350 jails, 808 were equipped with video conferencing facility. Out of these 808 jails, 352 were district jails, 136 were central jails and 264 were sub-jails (at sub-district level), where the undertrials are situated during the pendency of the trial.
In contrast to the earlier situation, where only some aspects of the criminal trial were conducted from jail precincts as an ad-hoc measure, time is now appropriate to ensure that petty criminal trials are conducted wholly from within jail precincts, considering the ongoing impetus in favour of the technological shift. However, in order to achieve this, appropriate amendments need to be made in the High Court Rules, Jail Manuals and Code of Criminal Procedure.
During the pre-Covid period, the video conferencing facilities were primarily used for conducting remand matters to prevent movement of prisoners between jails and courts. This was the result of the 2008 amendment to the Code of Criminal Procedure that allowed the use of such facilities for remand proceedings. However, building on the past experience, we should further augment the digital infrastructure in order to conduct the criminal cases directly from the jail precincts. This would allow the criminal a quick opportunity to record his statement, and the victim or the witness can also be examined and cross-examined either in the courts or through remote digital systems. The witness or the victim may not have to travel hundreds of kilometres. This would also enable the victim to attend the hearing at both low financial costs upon themselves and without jeopardising their regular duties.
Safety and privacy concerns
In criminal trials pertaining to sexual offences, the prosecutrix/victim is often subjected to heckling, in addition to the intimidation that they feel from being in proximity of the perpetrator/s coupled with the daunting ambience of the courtroom and, at times, also from the defence lawyers. However, an option can be provided — except for the mandatory appearances required for evidentiary purposes and identification of exhibits during examination and cross-examination — to the victim for appearing in the matter either from their home or their lawyer’s chamber. This would provide a certain degree of mental peace and security to them.
This proposition would also be in consonance 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] emphasising the significance of maintaining and protecting the privacy of the prosecutrix. Virtual hearings would allow a stricter quality control over the factors affecting their privacy.
It is also pertinent to note that matters relating to sexual offences or gender crimes committed against women or children are excused from live streaming in the recent Draft Model Rules for Live-Streaming and Recording of Court Proceedings released by the Supreme Court’s e-committee. However, the Draft Rules vide Rule 5.7 also provides that in the absence of live streaming of cases, video recording of the proceedings shall be maintained for the exclusive use of the courts. The Draft Rules vide Rule 5.8 further provides that the testimony of victims and witnesses, in criminal matters, will be maintained in the recordings via dummy names, face-masking, pixilation and/or electronic distortion of voice.
Presently, the facility of virtual hearing is being utilised at the discretion of the courts depending upon the circumstances and the consequent need. The option of ‘virtual hearing’ should be provided to the litigant, especially the victim, as a matter of statutory right by bringing in an appropriate amendment in the Code of Criminal Procedure of the concerned provisions. The ability to press for their statutory right to virtual hearing in the appropriate context will provide easier and timely access to justice.
Jaiyesh Bhoosreddy @j_bhoosreddy99 is studying law at University School of Law and Legal Studies, GGSIPU. Views are personal.
(Edited by Anurag Chaubey)