Madhurima Dhanuka is the Programme Head of Prison Reforms, Access to Justice Programme at the Commonwealth Human Rights Initiative in India. Here, Madhurima discusses the impact of remote hearings on fair trials.
The pandemic is having profound impacts on access to justice and the rights of accused persons in India as in much of the world. Restrictions such as government-imposed lockdowns and curfews have led to court closures and difficulties in continuing with physical hearings. Judiciaries across the world were forced to reconsider the means to deliver justice and are increasingly depending on remote hearings to continue their functioning. Though hailed by many in the Indian judiciary, law fraternity and government as a stellar move, there has been less focus on the impact of remote hearings on the fair trial rights of accused persons.
Incremental moves towards remote hearings
In India, the use of remote hearings has been developing in an ad hoc fashion. In 2003, the Supreme Court of India for the first time permitted the deposition of witnesses remotely. The following year, an e-committee of the Supreme Court was constituted, which prepared a National Policy and Action Plan for the use of information, communication and technology in court. The legal basis for remote hearings in criminal proceedings was established in 2008. This restricted their use to remand hearings (hearings taking place between the first appearance before a magistrate and the formal filing of the charge).
In practice, courts have slowly extended the use of remote hearings to various stages of the trial proceedings. In 2020, the e-committee framed the Model Rules for Videoconferencing for Courts, which permitted the use of remote hearings for all stages of judicial proceedings. Surprisingly, these rules contain negligible reference to fair trial rights.
Prior to the pandemic, it was only the accused who would attend the proceedings remotely from the prison, while all other participants would be in the courtroom. Today, remote hearings have become even more remote with each participant potentially able to attend hearings from separate locations.
Accused disconnected from their rights
The implications of videoconference hearings on the rights of accused persons, especially for those who participate in these proceedings from prison, have been reviewed by the Commonwealth Human Rights Initiative (CHRI) in its recent report ‘Disconnected: Videoconferencing and Fair Trial Rights’. Through interviews conducted with 20 criminal lawyers and 10 judicial officers, the review highlights systemic deficiencies in remote hearings, both before and during the pandemic. The experiences of lawyers and judicial officers documented in the report have brought to the fore serious violations of fair trial rights during remote hearings. The rights infringed include: the right to effectively participate in one’s hearings; the right to counsel; the right to privileged communication; and the rights to effectively challenge illegal detention and custodial violence.
The CHRI study advises caution and restraint in the use of remote hearings for important criminal proceedings. First remand, police custody remand, framing of charge, recording evidence of key witnesses, and final arguments on conviction and sentencing should be conducted only as physical hearings. The study suggests that there is need for robust guidelines limiting the use of remote hearings to specific stages of criminal proceedings, and also outlines safeguards protecting rights of accused persons even during such limited remote hearings.
Advocating for the post-pandemic world
It is hoped that persistent advocacy with various stakeholders, on the basis of the report findings, will enable serious deliberation on concerns identified regarding remote hearings. The stakeholders include the Supreme Court of India’s e-committee, prison departments, the judiciary, bar associations, and legal practitioners, among others. The importance of raising the awareness of accused persons through posters or flyers or videos regarding remote hearings should be highlighted. Lawyers too must be encouraged to raise concerns where rights are violated and seek appropriate redress for their clients.
Convenience must never trump the realisation of rights, even in a global health emergency. There should be no balancing factors at play when it comes to upholding fair trial rights, especially those that can impact the life and liberty of a person. It is imperative that functionaries within the system acknowledge and uphold these rights. A guidance document issued recently by the International Commission of Jurists also emphasises that: "While state institutions, including the judiciary and court services, must adopt measures to protect the right to life and right to health during health emergencies, such measures must also respect the requirements of legality, non-discrimination, necessity and proportionality."
One would hope that, as we move into the post-pandemic world, we learn from these experiences and address emergent concerns about the use of remote hearings.