By Aaj Sikri
“COVID-19 descended without a warning. We limited the number of lawyers, sanitised the courtrooms et al. However, access to justice cannot be suspended even if there is a lockdown”
-Justice D.Y. Chandrachud
INTRODUCTION:
COVID’19 being the most unprecedented situations of all time, has impacted not only country’s economy but the legal functioning as well. The problem lies with no statute, code, or ordinance being engrafted with an exception vis-à-vis a pandemic, which creates a state of conundrum that can only be solved by our limited jurisprudence, or by the Supreme Court itself. For e.g. the Code of Criminal Procedure, 1973 (hereafter as “The CrPC”) has not crafted any exceptional procedure in case of a pandemic, about the functioning of criminal trials, and different pre-trial stages. However, many courts across the country have appreciated the fact that the court cannot function in ordinary course amidst the lockdown. ‘In a recent order by the apex court, the court emphasized upon the need of social distancing and gave directions to adopt different measures to reduce the physical presence of litigants, clerks, judges, and paralegal personnel.’[1] The court further held that even though they are unprecedented challenges posed by COVID-19, access to justice is a fundamental right which in any situation cannot be denied.[2]
Since, justice in no way can be hindered, however, according to the current circumstances, the author argues that criminal trials are affected by the new guidelines and there are both negative and positive repercussions of the COVID-19 era. In this paper, with the help of recent judgments by different courts, especially concerning a paradigm shift to virtual trials, the author analyses different sections of the CrPC and their application in the new form of trials, with a special emphasis on the drawbacks. The author establishes that these form of trials are only a substitution and cannot be used as a replacement.
VIRTUAL TRIALS- UNANSWERED QUESTIONS:
Recently, an E-Committee of the Supreme Court led by J. Chandrachud, assured the legal fraternity that virtual courts would start functioning.[3] Subsequently, adjudicating upon the Suo-moto writ, the Supreme Court laid specific guidelines which included that the trial courts will shift their functioning to digital platforms. However, the manner in which the virtual trials were to be carried out was left with High Courts and in an event where no guidelines are prescribed, the proceedings would be restricted to the ‘arguments’ stage.[4] Various high courts such as Rajasthan, Kerala, Bombay, and Delhi have already laid out specific guidelines for the functioning of both the high courts and trial courts.[5] As far as matters listed before Supreme Court and High Courts are concerned, there are guidelines in place which would tackle the foremost problem of a stable internet connection.[6] Which would make the functioning of Supreme Court, High courts, smooth. However, the author argues that given the different stages involved in a criminal trial it is highly impractical for them to be conducted over digital platforms.
TECHNICAL ISSUES- A GENERAL VIEW
Before discussing the procedural impact, it is first pertinent to acknowledge the general problems that might occur. We must understand that there is a vast diversity in terms of infrastructure of different courts across the country; it logically flows that each high court will be setting up different guidelines for virtual trials keeping in mind the already existing infrastructure. To illustrate, Court X is directed to use a software ‘Microsoft teams.’ which is efficient in terms of conducting hearings. On the other side, Court Y mostly uses ‘Whatsapp’ to conduct hearing. Hence a lawyer practicing in Court X, who has acquainted himself with ‘Microsoft teams’ will have difficulties to adjust to the functioning of Court Y, because both the software are entirely different. For instance, they require different internet speeds, a proceeding can’t be recorded on ‘Whatsapp,’and the feature of video calling cannot be used over a laptop/pc.
VULNERABILITY OF THE WITNESS
Now, the question arises that what are the shortcomings with reference to the CrPC? We all know that prosecution and defence evidence involve the testimonies of the witnesses. To that effect, reliance must be placed on State of Kerala v. Rasheed.[7] While laying down specific guidelines for the deferment of cross examination of witnesses, the Supreme Court held that it should be ensured that the witness is free from undue influence and coercion of the accused/complainant/ prosecution.[8] Since the obligation is upon the judge to secure a free environment for the witness, how is such an obligation to be carried out during virtual trials? Not to mention that the practice of threatening, coercing the witness is pervasive in our country, which often helps a criminal to walk free or innocent to get convicted. Interestingly, the courts have not addressed this yet, which further aggravates the problem by leaving the witness vulnerable to any influence.
LAWYER-CLIENT MEETINGS
It is a well-settled principle of law that the accused has the right to access his/her counsel, and the confidentiality of such meetings is to be maintained.[9] Thus, such meetings usually become more relevant during the S. 167[10] and S. 309[11] stage, especially at the remand stage, it becomes imperative to have lawyer-client interactions to enable the lawyer to gain a factual understanding of the case and for several other factors. Now, since, lawyers are restricted to an interaction only through video-conferencing, it becomes problematic because it does not provide for a secured conversation and, it is uncertain whether the Police will not overhear. To illustrate this: X, who was charged for murder, and was represented by Y, her lawyer, in a meeting with her lawyer, X couldn’t communicate material facts, for instance, the status of her alibi, because of the fear that the communication is not secured, consequently Y failed to prove her innocence. It is pertinent to acknowledge that if the communication is not secured, any reference to the material facts can lead to their altercation, to an extent that the evidence can also be tampered with.
ADDUCING EVIDENCE (DOCUMENTARY)
S. 207[12] read with S.294[13] signifies that it is imperative for any documents held with the Police to be supplied to the accused, and the accused has to deny or admit the genuineness of each document. Further, in Shamsher Singh v. State of Haryana[14], while dealing with the S. 294, the Supreme Court held that it is essential to check the veracity of the documents either filed by the prosecution or defence. Now the question arises that whether such verification processes can be conducted over virtual proceedings which would mean the use of digital platforms to upload documents. However, softcopy documents still attract concerns of credibility because such documents can be easily tampered with without attracting an iota of doubt. Further, it becomes difficult to verify whether exculpatory documents have been seized and suppressed by the Police. In Nityananda v. State of Karnataka, the court held that the accused are entitled to get the exculpatory documents and can bring them for consideration at the stage of charge.[15] It is pertinent to mention that the inspection of original documents becomes essential, which requires physical presence for the reasons mentioned above.
ADDUCING EVIDENCE (THE ROLE OF WITNESS)
It is not disputed that the stage of ‘evidence’ remains the most significant part of a trial, which makes it significant to talk about S. 273.[16] This provision mandates that the evidence must be taken in the presence of the accused/defence lawyer. The rationale behind such a mandate is to have a proper interplay between the accused/defence lawyer and the witness or to determine how the witness is proceeding to act accordingly. Such an interplay helps the magistrate to determine the application of S. 280[17] adequately, wherein the magistrate is mandated to record the witness’s demeanour during the evidence stage. E.g., if the witness is sweating excessively, then the magistrate will adjudicate upon the evidence or the testimony in consonance with such material facts. Now the question that arises is how such a procedure to be carried out during a virtual trial. To illustrate this: X, (prosecution witness) during a virtual trial is lying about individual facts; thus, he is shaking and stammering. It is practically impossible for the magistrate to record such demeanour of X because he can easily hide behind the defence of ‘voice delay’ or ‘connectivity issues.’
These are some of the questions which are yet to be answered. Virtual proceedings will be successful only once the Supreme Court is called upon to answer such questions. After analysing the adverse impact of COVID’19 of criminal trials, it is imperative to analyse some of the positive aspects of COVID-19 vis-à-vis virtual trials.
VIRTUAL TRIALS- POSITIVE ASPECTS
Even though virtual trials are not feasible in the long-run, there are a few advantages in the short-run. The foremost advantage lies in the fact that the current policy ensures ‘de-congestion of courts.’ Illustration; in a trial court, primarily there are clerks, court staff, judge(s), lawyers, accused, witnesses, Police, and people witnessing the trial. In district courts in Delhi like Tis Hazari and, Karkardooma, which have poor infrastructure[18], this range of number leads to overcrowding of people, which is directly against social-distancing measures. Further, since there is a wide range of workers, virtual trials also ensure that there is reduction in manual work. We usually witness that most of the senior lawyers have different matters in different courts in a single day. For reasons such as traffic congestion, extensive queues for filing, adjournments are more often witnessed. Thus, virtual trials ensure that lawyers and even expert witnesses do not face problems with scheduling and traveling, which further will ensure that proceedings are heard in a time-bound manner, which not only will reduce the time consumption but also will increase the efficiency of both the judges and the lawyers. Moreover, virtual trials are more beneficial to law students and junior advocates because they can observe different proceedings in different courts all around the country. This in effect will result in a better application of the ‘open court principle’ that requires the court to be open so it is accessible to the public and media, the object of this section is to ensure transparency and that the justice is delivered in a non-arbitrary manner.[19]
CONCLUSION:
It can be reasonably concluded that indeed criminal system is being drastically impacted by COVID-19. When it comes to virtual criminal trials, proper proceeding through video-conferencing at the evidence stage can be conducted if the technical and procedural requirements are met. In effect, the courts can set up minimal requirements with reference to internet connection, cameras, and wired earphones/headphones. For lawyers, victims, accused, who are unable to meet the requirements, the court can use advocate welfare fund to set up resources for them. In a situation where it is inevitable, the court can adjourn the matter. Further, it is imperative to have secured connections over which witnesses can testify, and the accused can have proper meetings with their lawyers. Ideally, the courts should have conducted mock virtual trials to identify the issues beforehand; now, in any circumstance, there is an obligation upon the Judiciary to address primary issues and proceed with the hearings. From the arguments put forth, it is evident that there is an urgent need to craft better policies in place. Therefore, the priority to deal with such circumstances should be to formulate a draft law which will provide new rules to be followed during a specific criminal trial stage. Since we need a uniform law throughout the country, the duty lies upon the parliament to set up a law commission which can address the issues and give recommendations, based upon which the parliament shall draft a law.
[1] SUO MOTO WRIT (CIVIL), “Guidelines for court functioning through video conferencing during COVID-19 Pandemic” No.5/2020.
[2] Id.
[3] [COVID 19] SC To Introduce Court Proceedings Through Video Conferencing, E-Filing Will Be Available 24/7, LIVE LAW (15th March, 2020, 11:04 p.m.),
[4] Id.
[5] After Kerala HC, now Bombay HC to live stream court hearings from tomorrow on trial basis, LIVE LAW (8th apr, 2020, 8:53 pm.)
[6] Id.
[7] State of Kerala v. Rasheed 2019 (13) SCC 297.
[8] Id.
[9] Francis Coralie Mullin v Union Territory of Delhi (AIR 1981 SC 746).
[10] The Code of Criminal Procedure § 167.
[11] The Code of Criminal Procedure § 309.
[12] The Code of Criminal Procedure § 207.
[13] The Code of Criminal Procedure § 294.
[14] Shamsher Singh v. State of Haryana (2016) 15 SCC 485.
[15] N v. S of Karnataka, CRL.P. No. 6920/2018 (Karnataka).
[16] The Code of Criminal Procedure § 273.
[17] The Code of Criminal Procedure § 280.
[18] Amrita Pillai, Unsafe, Unhygienic and Inaccessible: The Sorry State of Delhi’s District Court, THE WIRE. (20th Jul, 2020)
[19] The Code of Criminal Procedure § 327.
[ The author is a 3rd year law student at Jindal Global Law School.]
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