The justice delivery system is experiencing a new phase, i.e., its enhanced brush with technology, mainly due to the coronavirus pandemic. The resultant necessity is to adhere to social distancing, which calls for resorting to remote production of accused. However, many are skeptical about the new experience, especially, those within the criminal justice system, which includes the police, courts, advocates and the under-trials.
The experiences that we have gained over the past few months will definitely help us to augment the system and mitigate the factors creating bottleneck for the change towards making the justice delivery system more efficient and technology friendly.
The reasons for the resistance to change is quite obvious and is part of human nature to oppose the unknown or the little known, for the fear of it, but the inevitable cannot be resisted. During this pandemic time the form of technology which seems to be in much use within the judiciary is, ‘video conferencing’ or ‘tele-presence’, which is both effective and dependable. The use of technology cannot be averse to the idea of justice or the procedure established by law.
In the words of the Delhi High Court, “The use of videoconferencing in any particular case must be consistent with furthering the interests of justice and should cause minimal disadvantage to the parties” and further went on to add that, “all statutory provisions applicable to such proceedings including that of Information Technology Act 2000 and Indian Evidence Act 1872 shall be applicable at par in such videoconference.”
But for optimum utilisation of technology, i.e., videoconferencing in the instant case, it is necessary to understand the issues that are pivotal for implementation of video conferencing protocols. One of the major concerns of the parties subject to the rigours of law is the absence of satisfaction while talking over camera, as it is far from the notion of a personal hearing and might potentially push into a state of paranoia, mainly because of the testing time one faces and also due to the difficulty in comprehending the onscreen discussion, which is multiplied owing to the often poor quality of video communication, slow speed internet and the resultant video/audio outages. Not only this, the perusal of documents and examination/ cross examination of witnesses which in itself is an elaborate task and requires a clear understanding and interpretation of a wide range of things shall suffer at the hands of under-prepared technological implementation. So, it is imperative that the quality of video communication between the magistrate/judge and accused be good and not merely manageable. Another concern that in any eventuality will arise, is regarding the serving of summons when the witness stays beyond the jurisdiction of a court and on the question of ‘how to establish the identity of the witness making deposition’.
Apart from what is discussed, we cannot ignore the abysmally poor infrastructure in terms of availability of adequate videoconferencing rooms, that is, at the disposal of the judiciary and correctional homes or jails to cater to a plethora of litigations conducted simultaneously every day. Far from aiding the process of justice this might as well delay the processes.
Besides, the social media activism possesses a threat to fair trial over videoconferencing as there might be unauthorised recording of conversations and proceedings which may be circulated in social media and shall definitely lead to an aggravated and ugly media trial, which shall be repugnant to the harmonious balancing of ‘free press, fair trial and judicial integrity’. In this connection the guidelines framed by the Delhi High Court are dependable and exhaustive in addressing many aspects elaborated above, like it has taken care of, application for appearance, evidence and submission by videoconferencing, exhaustive details of preparatory arrangement for video conferencing, service of summons, examination of witnesses, ensuring of seamless video conferencing, judicial remand, framing of charges, the examination of accused, etc., but it has denied the proceedings under Section 164 CrPc, to be made through videoconferencing.
Many technical issues relating to identification, internet speed, confidentiality and document presentation can be tided over by learning from the experience we have gained from education sector in terms of conducting online exams during the pandemic. The pattern of similar technologies can be adopted and designed to fulfil the necessities of the judicial institutions.
Videoconferencing is the appropriate step towards modernising the justice delivery system to function optimally, efficiently and faster than before to meet the ends of justice, however not without addressing the concerns of the judges, under-trials and police.
The propriety and legality of recording of deposition through video conferencing by a trial court in Maharastra has now been long upheld by the Supreme Court, way back in 2003. Besides, the Policy and Action Plan Document of the e-courts project has envisaged video conferencing and recording infrastructure for courts, correctional homes/jails. The Objectives Accomplishment Report, 2019 of the e-courts Project, has stated that, video-conferencing gadgets and utilities have been provided to 3,240 court complexes and 1,272 jails in India. This development speaks the mind of the policy makers and the incumbent regime to include video conferencing as an integral part of the justice delivery mechanism.
It is true that, the pandemic situation has made us to think fast and vigorously about adoption of video conferencing inside the Indian courtrooms but the deliberation, discourse over the issue has been long running. If we analyse the virtues of video conferencing, what comes out is, it is an efficient alternative to the existing cumbersome judicial processes and a blessing to the judiciary which is already facing a heavy backlog of cases by avoiding unnecessary travel, speeding up processes, by saving fuel and expenditure in manpower used in transportation and security of under-trials and thereby protecting the exchequer.
(The writer is a lawyer and a public policy expert. He can be reached at sjyotiranjan3@gmail.com)