Vishal Mandal
To put it mildly, the pandemic has had an impact on everyone's life or way of life. This includes the administration of justice. Justice was sought to be done in a closed room and inside four walls of a building, however, the circumstances had closed these doors to justice.
The judiciary was compelled to digitize, which has been a long-term objective of this country. It had spent a long time attempting to achieve a virtual, hybrid, or at the very least paperless manner of operation. This pandemic has finally enforced all these changes to the judicial system.
COVID-19 has disrupted the functioning of all the courts, including the Supreme Court. However, that did not hamper the delivery of justice, as the Apex Court started hearing matters of immediate concern and directed the High Courts as well[1]. The courts heard matters concerning Fundamental rights[2], ongoing pandemic[3], the welfare of under trial prisoners[4] and extending the various orders and limitation period to reduce the hardships of the people[5], however, the adjudication of other regular matters had stopped. Considering that the pandemic has extended for over a year and the circumstances shall prevail for the foreseeable future, a way out of this situation has to be devised. The system must evolve with the times and move ahead with the help of the resources at its disposal.
The Complexity of the Criminal Trials
Virtual proceedings are not unprecedented in our judicial system. Private matters such as arbitration, mediation or other kinds of international disputes, were to some extent, already being performed virtually; making it easier for the same to shift to an online arrangement. However, one complex and challenging area that still raises questions is Criminal Trial because of the procedural difficulties and the nature of proceedings.
In a criminal trial, right from the case institution to the hearings, there are a number of nuances involved such as the vast volume of evidence that needs to be presented in the court, the exhibits in the applications, number of people involved including parties and witnesses.
Challenges in this virtual transition
It is clear that certain groups, particularly those who are already disadvantaged and vulnerable in society, have suffered disproportionately in many jurisdictions.[6] There cannot be a compromise on uninterrupted access to courts and justice. A major portion of our nation still lacks the technological infrastructure or mere access to electricity, data and devices.
Even if we were to aspire to achieve the same, more advanced challenges arise, in the form of privacy, unethical hacking, platform and the intermediaries that facilitate the conduction of e-courts. The platform has to provide a secure connection while adjudicating a matter.
Moreover, incidents that took place in the recent past of virtual courts in the form of creating disturbances[7] or following basic etiquettes can cause problems in the smooth functioning of the courts[8]. To safeguard and minimize such squandering of the courts' valuable time, there must be a clear separation in the duties and rights of the attendees in the room.
How technology can be used post-pandemic?
One of the foremost reasons for the backlog of cases is unfilled vacancies that aren’t filled and the physical infrastructures’ incapability to accommodate such a number of staff and benches. These issues can be resolved through the incorporation of virtual courts. The mechanism that needs to be developed will not only help get the backlog and undergoing cases but also help the future of criminal litigation.[9]
People were already facing difficulties accessing justice because of various reasons such as monetary, time and physical difficulties etc.[10] While using such developed methods of video conferencing, such complications and hassles can be eliminated and the time and expense of the parties, particularly of the witnesses, can be reduced.[11] The absence of infrastructure can be addressed by establishing centers in local areas from where people can appear with accessibility to technology and receive such assistance.
As the concerns raised by Justice Chandrachud, Head of E-Court Committee, virtual courts will ensure that significant hearings can be recorded and digitally stored.[12] The courts have already acknowledged the importance of live streaming of court proceedings as an extension of the principle of justice.[13] Moreover, access to courtrooms can be increased while physical courtrooms had limitations, virtual rooms will accommodate far more lawyers, students who want to witness the proceedings.[14] Some courts such as the Gujarat High Court, have already resorted to such modes and the response to virtual access to the hearings has been enthusiastic and valuable.
In the coming years, the government needs to set up committees that can look into the possibility of conducting criminal trials in an online format and the guidelines to ensure the smooth functioning of the same.
Way forward
Unprecedented times like these did halt the functioning of the nation but not for long. Courts, workplaces, offices and even schools continued functioning by adapting to the situation. The legal education system is currently teaching in a virtual format including activities such as moots and mock trial advocacies are being seamlessly organized on the virtual platforms without any difficulties. The Bar is getting prepared to work in a virtual format right from their respective law schools and Judicial Academies are incorporating these changes too. Therefore, sooner or later, the legal fraternity will be ready to accept the shift and continue to function.
However, these changes are bound to create hindrances. When e-filing was initially rolled out, it faced various objections. However, it has proved to make the process of filing hassle-free. The responsibility of Bar Associations increases to update and educate lawyers on the working of virtual courts. In its entirety, the legal system needs to ensure that in any case the right to a fair trial under the criminal justice system is preserved and stays uncompromised while the present circumstance is used for the advantage so as to eliminate the present disabilities of the system.
[The author is a third year law student at Symbiosis Law School, Pune]
[1] In Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic, Suo Motu Writ (CIVIL) NO.5/2020. [2] In Re: Regarding Closure of Mid-Day Meal Scheme, Suo Motu Writ Petition (C) No(s). 2/2020; Harsh Mander & Anr v. Union of India, 2020 SCC OnLine SC 376. [3] Shashank Deo Sudhi v. Union of India & Ors., Writ Petition (CIVIL) Diary No(s). 10816/2020; Jerryl Banait vs Union of India, Writ Petition (CIVIL) Diary No(s). 10795/2020. [4] National Alliance for People’s Movements & Ors. v. The State of Maharashtra & Ors, Special Leave Petition (CRL) No.4116 of 2020. [5] In Re: Extension of Interim Orders, Suo Moto Writ Petition Urgent 2/2020; In Re: Cognizance for Extension of Limitation, Suo Motu Writ Petition (Civil) No.3 of 2020. [6] The functioning of courts in the Covid-19 pandemic, PRIMER (2020), https://www.osce.org/files/f/documents/5/5/469170.pdf. [7] Aditi, Fanboy sings Juhi Chawla movie songs during hearing of plea by Chawla against 5G rollout; Delhi High Court calls for contempt of court Bar and Bench - Indian Legal news (2021), https://www.barandbench.com/news/litigation/juhi-chawla-delhi-high-court-5g-fan-sings-songs (last visited Jun 18, 2021). [8] Meera Emmanuel, [COVID-19 Lockdown] Lawyer’s appearance in baniyan for video conference hearing prompts Rajasthan HC to adjourn bail proceedings (again) Bar and Bench - Indian Legal news (2020), https://www.barandbench.com/news/litigation/covid-19-lockdown-lawyers-appearance-in-baniyan-for-video-conference-hearing-prompts-rajasthan-hc-to-adjourn-bail-proceedings-again (last visited Jun 18, 2021). [9] André-M. Szesny, COVID-19 and Its Impact on Criminal Procedure and Criminal Law Mondaq.com (2020), https://www.mondaq.com/germany/operational-impacts-and-strategy/918528/covid-19-and-its-impact-on-criminal-procedure-and-criminal-law (last visited Jun 18, 2021). [10] Risha Kumari, COVID-19 Urges Courts in India to Go Online: Pros and Cons of Court Hearings via Video Conference Mondaq.com (2020), https://www.mondaq.com/india/operational-impacts-and-strategy/938322/covid-19-urges-courts-in-india-to-go-online-pros-and-cons-of-court-hearings-via-video-conference (last visited Jun 18, 2021). [11] Krishna Veni Nagam v. Harish Nagam, Transfer petition (Civil) No. 1912 OF 2014. [12] The Chief Election Commissioner of India v. MR Vijayabhaskar & Ors, Civil Appeal No. 1767 of 2021. [13] Indira Jaising v. Secretary General of Supreme Court & Ors, Writ Petition (C) No. 454 OF 2015. [14] M/S Meters and Instruments v. Kanchan Mehta, Criminal Appeal No. 1731 OF 2017.