Killing Many Birds with One Stone–Curing the Trials in India.

By Ansh Karnawat

Introduction:

Trials in India suffer from many flaws, but at the root of it all is the failure of foresight, easily visible from the growing divide between the intentions of lawmakers and their results, between their policies and the ground realities. The fundamental right to speedy trial under Article 21 of the Constitution of India remains a distant dream.

The procedural laws that make trials time-bound are arbitrary, outdated, and not to forget, naïve! Finishing trials in 60 days, which section 309 of the Code of Criminal Procedure, 1973 directs in certain cases, grossly overestimates the speed of our judiciary, an approximation based on another arbitrary and implausible direction that trials should be conducted on a daily basis, with only exceptional adjournments. The result of having such impractical deadlines is that the judiciary has turned a blind eye to these sanction-less obligations; the Supreme Court of India, through its judgment in the case of A.R. Antulay vs. R.S. Nayak and then in many other cases, had to manage the expectation of the Parliament and hold that there cannot be a rigid timeline for finishing trials. Virtually, it is as if such punctuality provisions do not exist at all.

When in 1987, the Law Commission said we needed 50 judges per 10 lakh citizens (the ratio) for effectively processing the caseload, India’s population was little over 80 crores. Our population is at an excess of 135 crores today, and we have become more litigious than ever, yet our ratio stands at a compromising number even by 1987 standards; as per documents of Lok Sabha, we stood at 20 judges per 10 lakh citizens in 2018—much short of the mark, a failure in any case.

Put the system-failure of the judiciary on lethargy, analysis-paralysis, red-tapism, corruption or any of the reasons ascribed to this backlog and lack of reformation, but the most important step in the solution is still unambiguous: we need more judges, and we need judges to use their time well. In doing so, one-off measures like reducing holidays for the judiciary or getting the Executive to sanction more judges, will not alone suffice. Every possible step has to be taken together and in synchrony.

Understanding the problem: detecting the leeches.

In all cases of system failure, there are two broad types of reasons which are at play: first are the easy to spot factors like lack of better planning, strategic placement of resources, targeted intervention and such. The second type consists of the hard to see factors that are by themselves so small to notice that while conducting a trial, they’re often overlooked, but they add up to be gravely injurious to the productivity and efficiency of trials. An example of this, while choosing the following adjectives carefully, is the un-evolving, stringent, technologically-challenged procedure that courts follow; procedures are not limited to only those written in books like Code of Criminal Procedure but include the customary practices that Courts adopt or are afraid to give up. While laws require trials to be fast, these procedures have an effect of subverting that goal.  

Instances:

1. There are multiple times in a trial when the accused is required to be escorted to the Court for a routine appearance. At times, the police are on administrative/organisational duties, colloquially also called“bandobast ( ˈbʌndəʊbəst/बंदोबस्त’ ), wherein the police force is tasked with ensuring safety and order at high-density events such as local or state elections, during visit of dignitaries, and even during popular festivals. The result is that the police would seek adjournment due to their predisposition caused by the administrative duty of ensuring law and order in such events of bandobust. Such requests are bound to be entertained by the courts and therefore they typically result in adjournments. Even in trials that run at speed considered above-average, dates are spaced many weeks apart, except when its a crucial stage, and therefore, an event such as “bandobast” would most often lead to an adjournment that pushes the trial by another few weeks, if not months.  Many times, the Investigating Officers (I.O.) are preoccupied and cannot make themselves available for the hearing, leading to another adjournment.
2. The Criminal procedures are not very compatible with India’s demography either. Trials in cases of sexual offences are required to be adjudicated by female judges. In certain States, the strength of female judges is slim, Which coupled with the fact that crimes against women are rising year after year,indicates that there is requirement of a lot more female judges.
3. A day in trial courts will immediately reveal many short-comings to a careful observer. In many courts, it is customary that matters of the day are called out at the beginning of the day, and the presence is marked. They will be called out again when each matters’ turn comes, and attendance can be marked again at this time. Absence of a party or their lawyer means quite a few minutes were taken up in calling out cases (twice) that won’t proceed for the day. Many efficient lower court judges write one judgment (not order) a day. Saving those few minutes of calling out dud cases of the day adds up to a significant time by the end of the month and year, meaning more time for Courts to dedicate to writing judgments, i.e., increased disposal rate.
4. Another thing that compromises swift justice is a sub-par Witness Protection Program; threatened witnesses means a denial of fair trial. In such cases, the prosecution and court are left picking up pieces to make a complete picture—which tends to be of unproved guilt rather than innocence of the accused.
5. Appointing more judges is one of the solutions, but it requires collaboration between the judiciary and the Executive—a most-unreliable and time-consuming cocktail. In the meantime, Judiciary must do best with the judges it has, and give them the tools and training to be efficient.
   The Law Commission in 2014,in its 245^th Report, said that recruiting former judges and respected lawyers on an ad-hoc basis for clearing backlog was a good idea, but difficult to implement because the infrastructure was lacking enough Court premises to accommodate these ad-hoc recruits. This opinion could have held merit in the year 2014. Fortunately, the requirements of infrastructure have now become quite relaxed, as explained below in Solution.

Solution:

To the many problems that have been listed above, in addition to many undiscussed issues that continue to plague trials in India, digitalisation can offer a reliable  and promising solution.Following is a list of ways in which digitalisation can reform trials—the suggestions are not exhaustive because, on every step of the way, digitisation can make things efficient and to prepare such a list would be an evolving, long-lasting process.

With digitisation, specifically through video conferencing:

1. Police officers retained in jails during bandobust, for general peace-keeping, can make the accused remain present ‘before’ the court, every time physical appearance is not of importance. Trials will not be held up due to bandobust or several other factors that keep the accused from reaching the jail. In fact, a report of National Crime Records Bureau in 2016 observed that the “extension of remand of the under trial prisoners through Video Conferencing System helps not only to prevent untoward incidents such as escape of prisoners and assault on the prisoners during transit, but also to cut down the expenditure on Police escorts and transportation.”
2. Investigating Officers can appear before courts more often, without having to always compromise their other preoccupations. In fact, the Fourth Report of the National Police Commission reports on its fifth page that a sample survey made at our instance in six States in different parts of the country has revealed that an average investigating officer is able to devote only 37 per cent of his time to investigational work while the rest of his time is taken up by other duties connected with maintenance of public order, VIP bandobust, petition inquiries, preventive patrol and surveillance, court attendance, collection of intelligence and other administrative work.
3. Without needing much infrastructure, with some decentralised freedom and allowance to hire assistance, retired judges and advocates can perform their ad-hoc duties as judges, over video conferencing. Non-critical and mechanical cases, or at least such parts of cases, can be presided over and decided by such ad-hoc judges.
4. Demographically concentrated female judges of one state can adjudicate female-relief oriented cases in areas of their state that have fewer female judges. Digital records are easier (and cheaper) to share, and this interoperability can be very enabling and empowering for such states, granting access to justice in letter and spirit.
5. Witness protection scheme, which requires concealment of the witness’s identity and keeping witnesses away from the accused, will find a ready solution in the event that the Witness/Accused is examined through video-conferencing.

Competing reality:

Of course, there are easily identifiable problems with the proposed solution of digitalisation that anyone with knowledge or experience in trial court matters will point out immediately. The process is not so secure or advanced at present, and the scalability of this idea is in doubt. Judges and many lawyers are still unsure of how the technology works. Conduct of witness/accused is of import and not always perceivable clearly on video-conferencing. Not all appearances of accused before Court can be or should be digital.

But necessity, once perceived, is the mother of all inventions and the pandemic out break has shown us how. For the many problems that we foresee with digitising trials, it must be realised that digitisation is inevitable. It can be made more so by using digitisation not everywhere, but everywhere we can.

Digital platforms can become more secure, just like digital payments have, over time. Waiting for technology to become completely secure before we move to use it would not a practical approach. Using technological foresight and anticipation in creating a secure, accessible system will only take us so far; it is only with regular use that the problems in digitalisation will be identified and corrected. Slowly but surely, digitalised trials will be as secure as needed.

Moreover and most importantly, digitisation is not in derogation of the solutions such as more appointments, presented by various authorities to combat backlog; it is in support, or at least independent of such reformations. It is to maximise the efficiency without compromising the credibility of trials.

Parting words:

The judiciary has many times observed and directed certain actions, such as producing accused before courts, to be done through video-conferencing. But these directions do not represent a growing trend, perhaps because of the fact that most judges are still sceptical and therefore aversive to digitalised trials.  This is a mindset problem, one that can be cured with training and maybe with some strict enforcement.

Observing the growth of digitalization and its wide and growing application,  the author firmly believes that significant success in terms of faster disposal of cases, lowering cost of litigation, increased access to economically weaker section et al, lies ahead if the judiciary aligns itself with technology.  The opportunity cost of not doing so is just as significant.

[ The author is a lawyer practising in Mumbai.]