With the second wave of Coronavirus pushing the city into strict curbs and functioning of courts restricted to once again hearing only urgent matters, trials which had resumed to some extent when the first wave had receded, have come to a standstill. Conducting trials through the virtual mode is seen as a promising option, but lack of good infrastructure is an impediment.
In the virtual court, witnesses give their evidence through video-conferencing, remotely. One of the leading defence advocates in the city, Sudeep Pasbola says virtual trials are not possible as courts are not equipped with the infrastructure for it. One of the issues uniformly pointed out by advocates is that of lack of good broadband connectivity, causing technical glitches. Even if there is infrastructure at the end of the court, sometimes this may not be available at the end of the witness. Pasbola recalls how two days were wasted when he had tried to examine a witness from Kerala in a case, whose presence could not be secured physically. This was due to a lack of good internet connection at the witness’ end.
In September last year, after the pandemic hit, a parliamentary standing committee had submitted an interim report to the Rajya Sabha on the functioning of virtual courts or court proceedings through video conferencing. It mentioned that in the US many state courts have webcast equipment or virtual courtrooms. In Singapore similarly, it said, the Supreme Court has set up a ‘Technology Courtroom’ which allows the use of imaging, multimedia and video-conferencing. Its sophisticated audio visual system allows audio and video information to be presented in the case. Other countries like Canada and Italy have been using the virtual mode for civil trials. The report however noted issues such as poor audio and video quality and frequent loss of connection and opined that improving the quality of courtroom technology is a necessary precondition for virtualization of court proceedings. It had recommended that the Department of Justice step up efforts to provide broadband connectivity and superior quality video conferencing facilities to all court complexes in the country and rope in the private sector if needed.
For effective recording of evidence, the senior advocate Pasbola says at least five monitors are required - one for the court, one for the stenographer, two for the defence and the prosecution and another big one for the accused. Presently, all courts in the state have only one monitor.
The Parliamentary Standing Committee report had said it is constrained to note that district and subordinate courts lack basic infrastructure and are experiencing difficulties in adapting to the Virtual Courts system. It acknowledged that the basic infrastructure required to support virtual courts needed massive investment such as equipment to project documents and images, audio and video, tools to record hearings, videoconferencing and reliable WiFi and recommended a public-private partnership model for the financial resources for the same.
Defence advocates have also raised the concern that witnesses could be tutored or prompted if they are not physically present before the court and that cross-examination may not be effective, thus prejudicing the right of the accused to a fair trial. To prevent this a judicial officer may have to be present near the witness. They say that while the virtual mode could be used for technical witnesses or experts, important witnesses in a criminal trial cannot be examined virtually as their demeanour and physical gestures cannot be clear to the court or to the defence advocate, thus hindering proper judgment about the witness by the court and effective cross-examination.
Defence advocate Devanand Manerkar who has conducted many trials under stringent laws like the Maharashtra Control of Organized Crime Act (MCOCA) asks how identification of articles such as weapons can be done virtually. Senior prosecutor Pradip Gharat agrees and says that such processes require that the witness physically handle the weapon or identify the markings on it, something which may be compromised in a virtual mode.
Gharat also expressed apprehension that there could be miscommunication that can be avoided if the trial is conducted physically. He pointed out the technical issues that come with a virtual trial, such as not getting the video conference link, sound quality issues and erratic electricity. For connection issues on the end of the witness, he suggests that the police can take their own devices to facilitate smooth conduct of evidence.
More than a decade ago though, Gharat had conducted the trial in the multi-crore fake stamp paper scam case in which its kingpin Abdul Karim Telgi was sentenced to 10 years in prison. The trial was the first to be conducted entirely through video-conference, including deposition of witnesses and their cross-examination. The senior prosecutor is positive that if so many years ago if a trial could be conducted virtually, ways could be found for virtual trials now.