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INTRODUCTION TO ELEMENTS OF A FAIR TRIAL
The concept of fair and speedy trial is built on the premise that it is the responsibility of the State to try the accused for the acts committed. However, in a democratic country, even the rights that are conferred to an accused are sacred and inviolable. Lives of human beings are precious and a person can be convicted of a crime, only if the prosecution is able to prove the accused’s actions, beyond reasonable doubt.
In the case of Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court held that “each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused, as it is to the victim and to the society”.
Below are the broad categories of Principles of a fair trial:
- Presumption of innocence
- Independent, impartial and competent judges
- Right to open trial
- Right to legal aid
- Right to a speedy trial
- Protection against illegal arrest
- Venue of the trial
- Right to bail
- Prohibition on double jeopardy
- Right against self-incrimination
TRANSFORMATION TO DIGITISATION IN THE ERA OF COVID-19
Keeping these determining categories of a fair trial in mind, let us fast forward to the years of 2020 and 2021 where the COVID-19 crisis is rampant and flourishing. Focus has traditionally been on physical courts at the District, State and National level. However, the COVID-19 crisis struck India when emphasis was being laid on E-courts and digitisation of justice. Moreover, the National e-Governance Plan (NeGP) was introduced to facilitate online initiatives via E-courts, amongst others. The advent of such an era was marked by the Information Technology Act, 2000.
There has been a massive transformation of court administration in this era of COVID-19. However, some critics in this field have criticised the method of conducting online court proceedings, as that poses a threat to the principle of “Open Courts”. Other critics have taken an opposing view and have viewed this as a catalyst to unleash the depths of technology, to enhance the judicial system, thereby making it speedy.
To achieve a speedy trial, usage of technology is certainly a boon to reduce the backlog of cases.
ANALYSIS OF SPEEDY TRIAL IN LIGHT OF COVID-19
Emphasis will be laid down in a two-fold manner:
- Negative impact of COVID-19 on the effect of a speedy trial
- Recognised efforts to promote technology, thereby making access to justice speedy
- NEGATIVE IMPACT OF COVID-19 ON THE EFFECT OF A SPEEDY TRIAL
Undoubtedly, virtual hearings have certainly contributed towards the promotion of a speedy trial. However, there are other deterrents which have surfaced in virtual hearings, capable to act as an impediment in such hearings. Below are few of the deliberations discussed by the Parliamentary Standing Committee (PSC), based on their report titled “Functioning of Virtual Courts and Digitisation of Justice Delivery in Parliament”.
- Issue of accessibility:
Many representatives of the Bar Council affirmed that a substantial number of advocates and litigants do not have access to a stable internet connection to support such hearings. Without which, the process of delivering justice cannot be kickstarted. These issues would most likely be felt by courts at the District and Subordinate level.
To tackle this issue, the PSC suggested that the Ministry of Communication must take immediate measures to fast-track the National Broadband Mission. This is in furtherance of attaining reliable and continuous internet to the lower courts.
- Technological Backwardness:
Assuming that the issue of accessibility is solved, another underrated yet prevalent problem, is not being technological savvy to varied modes of justice delivery. Moreover, the digital divide can particularly be felt in the rural areas.
To cater to this problem, the Department of Justice remarked that each of the 25 High Courts have a designated ‘Master Trainer’ who in turn will be entrusted to train 461 individuals. These 461 individuals would then be tasked of training individuals in lower courts.
Additionally, the Bar Council is cognizant of the technological handicap and has introduced a course in computers in three and five year law programs to remove such a barrier.
- Open Courts as a tool:
The Bar Council of India has explicitly mentioned that, virtual courts have the ability to weaken the constitutional tenets of physical court proceedings, thereby disregarding rule of law and the basic structure doctrine.
The PSC further relied on the case of Naresh Shridhar Mirajkar & Ors v. State of Maharashtra & Ors, where the Supreme Court held that “Public trial in open Court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.”
In another case of Indira Jaising v. Secretary General of Supreme Court & Ors, the PSC laid emphasis to the importance of live streaming of proceedings as an appendage to justice.
- Data Security and Privacy:
A trending occurrence, more so in today’s times are events of intrusion or violation of privacy and security matters. The PSC was proactive in its approach of recommending to the Ministry of Law and Justice and the Ministry of Electronics and Information Technology to introduce a software, sustainable to handle such hearings. Additionally, blockchain can be utilised to better secure the transactions. This is a better alternative to using third-party software on platforms which do not provide paramount safety.
- Violation of Attorney- Client Privilege:
During the COVID-19 pandemic, the Supreme Court issued a notification that the lawyer and client would not be permitted to interact physically, and all communication must be made virtually. In the case of Francis Coralie Mullin v. Union Territory of Delhi, it was held that all accused individuals must have access to a lawyer, where confidentiality is maintained at all times.
However, in the digital platform, confidentiality and secrecy cannot be assumed. For instance, from 23rd March 2020 to 1st October 2020, physical meetings between lawyers and their clients were not permitted. So, prisons organised for virtual meetings in unsecured lines. This increased the chances of eavesdropping by the police to a manifold extent. Thus, the fear of such violation of attorney- client privilege can create a sense of fear thereby hampering a speedy trial.
- Providing Material evidence virtually:
According to Section 207 of the Code of Criminal Procedure (CrPC), documents which are crucial for evidence during the course of investigation must be produced to the Magistrate.
However, due to COVID-19, the standard operating procedure is to scan documents and courier them. Thus, here the practise of verification, double checking for accuracy of documents is lost.
- Providing Witnesses to substantiate evidence:
According to Section 273 of the CrPC, evidence must be carried with the lawyer, when he along with the client are in a physical set up. However, in this virtual set up, there are high chances of witnesses being coerced or tampered. Coercion can occur during occurrences such as a shaky internet connection, issues in the microphone and camera. In such a period, witnesses can be tampered with no chance of being proven.
- Decrease in the number of Prisoners:
According to the World Prison Brief, India stands at 4th position for the maximum number of prisoners. Once the lockdown was instituted during the first wave of COVID-19, the largest jail in India- Tihar jail released 3,000 prisoners either on a parole basis or on an interim bail basis, provided such individuals had not committed white collar or heinous crimes.
The Apex Court laid down the following grounds on March 23rd, 2020 to determine what kind of prisoners can be released:
- “If a prisoner has been charged for offences where punishment is less than 7 years, then they can be granted interim bail or parole.
- If a prisoner is under remand or under trial, and have been in the prison for a period of 3 months, then they can avail bail.
- If a prisoner has already served a year in prison, they can avail parole or bail, based on the gravity of the crime committed”.
- EFFORTS MADE IN THE COVID-19 ERA IN FURTHERANCE OF SPEEDY TRIAL
- E-courts Mission Mode Project:
Setting up and functioning of E-courts, at a District and State level was always one of the main aims of E-courts. The E-courts project when introduced, fell within the ambit of “National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary in 2005”. This project was already given the go-ahead in 2010.
Thus, during COVID-19, this mode proved to be extremely useful. The electronic version of summons, issuing notices and warrants, electronic cause lists were accessible on the official websites of different Courts. Moreover, information was publicly available pertaining to case status, online filing of forms, and retrieving the PDF versions of judgements.
- Supreme Court App:
At the outset of the COVID-19 crisis, the former Chief Justice of India- Sharad Arvind Bobde, introduced such a platform where Artificial Intelligence (AI) would fuel the justice delivery system. This application has the potential of translating judgements delivered by various courts into nine languages. Previously, manual translation posed to be time-consuming causing an unnecessary delay, thereby hampering the right to a speedy trial.
- E-Court Services App:
This mobile application was first launched in 2017, and can be used for courts at the District and State level. This application proves to be beneficial in the most paramount way, as litigants can personally be assisted by lawyers. Moreover, this application is connected with “18,000 District and Subordinate Courts and 21 High Courts with more than 3.2 crore case statutes available.”
- Virtual Lok Adalat:
There has been a shift to virtual hearings in the instantaneous mode of hearing, via Lok Adalat. Acknowledging the impact of this deadly virus, the Punjab State Legal Services Authority was the first state to organise such a hearing virtually, setting a benchmark for other states alike.
To curtail the spread of COVID-19 and adhere to norms of social distancing, we are witnessing an era from E-courts to E-judiciary.
Some of the solutions to aid the process of speedy trial in COVID-19 times, or otherwise are as follows:
- In the CrPC, there are no provisions explicitly mentioned towards the attainment of a right to a speedy trial. Such provisions should be expressly provided as that would enable the State authorities to give serious consideration and direct fruitful efforts towards ensuring such a right.
- There must be an approximate time-limitset (if not a fixed limit), at all stages of the investigation (“inquiry, trial, appeal, revision, review”), as having an approximate time limit would help pinpoint the blame and accountability on the concerned authorities.
- The concept of plea bargaining, proves to be an incredible boost in ensuring the right to an expeditious trial and in turn, reduces the backlog of cases.
- More often than not, the accused is unaware about their rights. Especially for a facet like speedy trial, it needs to be brought to their attention that this too is of paramount importance. Legal awareness schemes and programs must be organised by Welfare officers to educate them, so they are in-the-know if there is any infringement of their right taking place.
- In case the State fails in its duty in conducting expeditious trials, they are obligated to monetary compensate the victims for the damage faced. However, such provisions relating to compensation must be expressly stated, in order to provide for a clear and direct mechanism in case of such a violation.
THE WAY FORWARD
The pandemic is certainly going to have a long term effect on the way legal hearings take place and the mechanism of delivering justice. The virtual way of rendering justice is a foreign arena to not only lay men, but also to scholars in the legal fraternity. The role of information technology has ensured that justice has not been hampered, even in such unprecedented times. Despite all the above challenges mentioned above, virtual technology can truly facilitate the justice dispensing system. However, efforts must be directed towards eradicating such apprehensions and negative impacts of virtual technology.
The instantaneous decision to organise virtual court proceedings is indeed a laudable move. For urgent matters at hand, there is a speedy mechanism available at the litigants disposal. Such a practice will aid in decongestion of courts, and most importantly increase accessibility. However, there lies a bigger issue beyond the tenets of a speedy trial. In the virtual form of hearing, it is only the parties that have access to a proceeding. This is a huge violation to the core principle of “fairness of proceedings”. This principle of fairness can only be propagated by open courts. With frequent signs that the COVID-19 is here to stay, it means that virtual hearings too will be prevalent. Efforts must be directed to consider keeping such proceedings open.
With this transformation of the justice delivery system, there is a chance of AI to fill in the lacunae that have existed in traditional courts since time immemorial, thereby promoting a speedy trial. Additionally, online dispute resolution mechanisms are coming to the forefront in a manifold extent. Taking cognisance of the severity of the pandemic, the Apex Court has suspended the limitation period under Section 29A of the Arbitration and Conciliation (Amendment Act) until further orders.
The access to justice must be achieved by overcoming the digital divide. An evil which has crept in, is the ability of influential people to receive priority in their hearing or getting their matter adjourned. This is certainly a violation of the principle of ‘first-in-first-out’.
To combat such an evil, the introduction and designing of an algorithm must be followed with due consideration, at the time of listing of cases and adjournment. This in turn would give rise to a speedy trial, particularly for litigants belonging to the lower strata of society.
 (2004) 4 SCC 158.
 The Information Technology Act, 2000 (Act 21 of 2000).
 “Virtual Courts: A sustainable option? ” Bar and Bench, April 12, 2020.
 1 1966 SCR (3) 744.
 (2017) 2 SCC 362.
 “Challenges in Setting up Virtual and Online Courts in India”, The Leaflet, Oct. 23, 2020.
 1981 AIR 746.
 The Code of Criminal Procedure, 1973 (Act 2 of 1973), s.207.
 The Code of Criminal Procedure, 1973 (Act 2 of 1973), s.273.
 “Constitution of High-Powered Committee in each State/Union territory for release of prisoners on parole or interim bail”, Bar and Bench, March 23, 2020.
 “Evaluation Study of e-Courts Integrated Mission Mode Project”, National Council of Applied Economic Research, 2015.
 “SC proposes to introduce system of artificial intelligence, says CJI”, The Economic Times, Nov. 26, 2019.
 “E-Courts app brings reforms in justice delivery system”, The Times of India, March 4, 2019.
 “Trial in the time of Coronavirus Lockdown and beyond”, Bar and Bench, April 5, 2020.
 “India: COVID-19 and Indian Courts”, Mondaq, April 2, 2020.
 Arbitration and Conciliation (Amendment) Act, 2021 (Act 3 of 2021), s.29A.
 “India: Extension of Limitation Period in Arbitration”, Mondaq, May 13, 2020.
 “India’s huge backlog of Court cases is a disgrace- but COVID-19 has provided solutions”, Scroll.in, June 28, 2021.
Author: Lara Joanna Macedo Borges, Symbiosis Law School, Pune
Editor: Kanishka Vaish, Senior Editor, LexLife India.