“Covid-19 descended without a warning. We limited the number of lawyers, sanitized the courtrooms et al. However, access to justice cannot be suspended even if there is a lockdown”, - Justice D.Y. Chandrachud.
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”. The court further noted: “Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India. The challenges occasioned by the outbreak of Covid-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it”.
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Since, justice in no way can be hindered, however, according to the current circumstances, the author argues that criminal trials will be directly affected by the new guidelines and there will be 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 forms 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. 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. 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. It is imperative to mention that it might be feasible for matters listed before the Supreme Court, High courts, and even civil matters before the trial courts, to function smoothly. However, the author argues that it is highly impractical for criminal trials to be conducted over digital platforms.
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 'M.A.G.', which is more efficient in terms of conducting hearings. Court Y is directed to use 'T.A.G.', which is inefficacious and issues like voice lag, low video quality are predominant. Hence a lawyer practicing in Court X will have problems to adjust to the functioning of Court Y vis-à-vis software mandates. Now, the question arises that what are the shortcomings with respect 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. 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. Now I argue that 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.
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. Thus, such meetings usually become more relevant during the S. 167 and S. 309 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, being charged for murder, is represented by Y, her lawyer. X had to communicate that Z was an alibi, to her lawyer, but couldn't because of the fear that the Police are recording the video-conference, consequently Y fails to prove her innocence.
S. 207 read with S.294 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, 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 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. It is pertinent to mention that the inspection of original documents becomes essential, which requires physical presence for the reasons mentioned above.
It is not to be disputed that the stage of 'evidence' remains the most significant part of a trial, which makes it significant to talk about s. 273. 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 adequately, wherein the magistrate is mandated to record the witness's demeanor 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 arises that how is 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 demeanor 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 analyzing the adverse impact of Covid-19 of criminal trials, it is imperative to analyze 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, this range of number leads to overcrowding of people (speaking from personal experience), which is directly against social-distancing measures. Further, 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 and are completed in time. Moreover, virtual trials will be 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 s.327.
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 WRT requirements for Internet connection, cameras, and wired earphones/headphones. 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.
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