The COVID-19 pandemic pushed the entire nation into a prolonged lockdown. The judiciary, especially lower courts, also had to shut its doors for litigants and lawyers. Yet the dispensation of justice could not come to a standstill. This forced the judiciary to embrace technology and move to hear cases virtually.
Video-conferencing is not a new concept for judicial proceedings. In 2008, section 167(2) of the Criminal Procedure Code was amended to allow the use of video-conferencing for remand proceedings – hearings where an arrested person is produced before a magistrate on camera.
But the legal fraternity’s legacy issue of resistance to change ensured little to no implementation of this innovative technique. Only the worst health crisis of this century could force the judiciary to finally take video-conferencing seriously.
However, from the outset, virtual hearings exposed other faults in India’s judicial system. Fractured digitisation, deep-rooted inequalities in access to technology and resources, and inadequate training and empathy of judges, exposed the worst of the penal system. What had been envisaged as a “revolutionary step”, ended up aggravating the vulnerabilities of those subjected to a discriminatory criminal justice system.
Technology in A Crippling System
Recently, Commonwealth Human Rights Initiative, a policy think-tank based in New Delhi, published a report highlighting the impact of virtual hearings on the right of accused persons to fair trials.
Based on interviews conducted with prison officers, lawyers, and judicial officers, the report stated that there are significant gaps to fill – whether in terms of infrastructure or the rules applicable for the use of video-conferencing.
The rights of the accused are compromised at the very first stage itself. The absence of physical presence of the accused before the magistrate made it difficult for the judge to identify signs of torture, coercion or intimidation by the police. The accused cannot talk freely about the condition of his/her arrest or other grievances concerning his/her treatment.
Lawyers expressed their dissatisfaction with such video-conferencing hearings as it did not create the necessary neutrality required for the accused to speak without fear, nor was it possible to assert the physical well-being of the accused as mobile phones of police officers would often be used for such a hearing, and this would not provide sufficient view of the body of the accused, or the ability to see the accused walk, or offer a chance to ask the police officer to step outside the room.CHRI Report
The poor internet connection and the reduction of the entire courtroom to a small cellphone screen have resulted in the accused being unable to properly comprehend the proceedings in their own cases.
The report claims that both lawyers and judges complained about poor audio-visual quality of the virtual hearings. The accused were often unable to see or hear the proceedings clearly and they rarely had the opportunity to speak with their counsel or address the court.
Alienating the Accused From His Rights
The entire practice of virtual hearings took the most fundamental rights of the accused for granted. The complications and limitations of video-conferencing alienated accused persons, from their own narratives, made them mute and ‘dispensable’ and jeopardised the protection of their right to have confidential communication with their lawyers.
The virtual hearings also made the entire process of a court hearing very “mechanical”. The report highlights that many lawyers felt that the human aspects of a physical hearing – observing the demeanour of witnesses, reading the mood of the judge, consulting with their clients during the hearing, and the ability to make persuasive and complex arguments – could not be replicated in virtual hearings.
This led many lawyers and judges to believe that India’s criminal justice system is not ready for a complete shift to 'virtual mode'. They argued that video-conferencing is not a quick-fix solution to reducing the length of criminal proceedings, which is especially true for persons who are not used to the highly technical nature of judicial processes and those who are already vulnerable in the social fabric.
Vital stages of a criminal proceeding – first remand, police custody remand, framing of charge, recording of evidence of key witnesses, final arguments on conviction and sentencing in complex cases – are not replicable in a video-conferencing hearing, regardless of the efficiency of the technology used. Thus, existing rules and guidelines must restrict the use of video conferencing for these hearings, and affirm the mandate for physical hearings in each of these crucial stages.CHRI Report
Is There a Way Forward?
Talking to The Quint, advocate, researcher, and author of the CHRI report Sahana Manjesh said that the legal fraternity is at the stage of decoding the next phase of the digitisation process. So, it's necessary to address something as fundamental as fair trial rights. She further said that we cannot ensure the best of connectivity and technology at every corner, at every magistrate's court in the country.
While technology is welcome for digitising courts that, in turn, enables cause lists and daily orders to be available online, it is not welcome when liberty and life of the accused is at stake. We cannot supplant video-conferencing in the trial stages, especially when we’ve seen how efficient they have been at the appellate stage.Sahana Manjesh
The report, however, proposes certain safeguards within the existing practice of virtual hearings. For instance, it recommends that the production of the accused must not be from inside the police station but from a video-conferencing facility at the court.
It further recommends having a legal aid lawyer or a paralegal volunteer to be assigned at the prison-end of the system, who can assist the accused to understand the ongoing proceedings and to liaison with the remand lawyer at the court-end.
Specialised measures may be taken by the prison authorities, the district legal services authorities, and the lawyers or the court to inform an accused with special needs about the procedures in a video-conference hearing. This must be explained in a language and manner relatable to them. Interpreters and special educators, wherever necessary, must be provided during video-conference hearings.CHRI Report
However, as Sahana Manjesh puts it, the rigour and richness of a criminal trial that requires all parties to be in each other's presence are very dynamic processes and cannot be done on a virtual hearing.
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