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Video Conferencing: The fallout for Yasin Malik and the Indian criminal justice system
Trials through video conferences defeat the principles of justice even as they reduce backlog; the remedy lies in investing in the judiciary.
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
Ravi Nair
Ravi Nair
Published on:
25 Jan 2025, 12:09 am
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On 20 January 2025, the Supreme Court directed officials from the High Courts of Jammu and Delhi to ensure that Yasin Malik is provided foolproof video conferencing technology to cross-examine witnesses present in a Jammu court from Tihar Jail in Delhi during a trial on the killing of four Air Force personnel in 1989.
The prosecution of Malik, the leader of the Jammu and Kashmir Liberation Front (JKLF), raises more questions on the issue of due process and fair trial than it answers. It would require a legal tome to detail the labyrinthine workings of the Indian state in the various cases. However, as the present one is seeking the death penalty for him and edges forward there is discomfiture with video conferencing in a trial with possible capital punishment consequences.
Malik did himself no favours when he refused legal representation at crucial junctures in his tedious legal travails.
The Indian Supreme Court has concluded that the right to life and liberty contained in Article 21 of the Indian Constitution includes the right to a speedy trial. Yet the Indian criminal justice system has long been buckling under a massive backlog of cases. Most people in custody in India have not been convicted of any crime but rather are either awaiting trial or are being tried. One alleged technological fix for the criminal trial backlog is video conferencing.
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
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A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
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Cost effective and expeditious
The rationale behind the use of video conferencing is that it saves time, manpower and money that would otherwise be spent on shuttling prisoners between the prison and the courtroom, and perhaps even more importantly, it allows more undertrial prisoners to be processed more quickly.
State governments spend over Rs. 3.6 billion annually on undertrials at the rate of Rs. 55 per head per day. A Mumbai prison official claims that the savings in fuel, vehicle maintenance and salaries of police escorts for undertrials in transit more than pays for the cost of setting up and maintaining video conferencing facilities.
The Mumbai video conferencing system has apparently allowed for the reassignment of 700 officers who had previously been escorting prisoners from jail to court and back. In Delhi, authorities have allegedly saved as much as 45 million rupees annually due to video conferencing. Even in smaller jails, such as the Yerwada jail in Pune, Maharashtra, the video link system has been credited with helping to clear undertrial backlog.
Supreme Court Sanctions Witness Testimony by Video Conference
In the 2003 Praful Desai case, the Supreme Court concluded that, with respect to witness testimony “in a criminal trial, evidence can be recorded by video conferencing” so long as certain safeguards are maintained.
As long as the accused, or at least his or her lawyer, is present on one end of the video conference when evidence is recorded, that evidence is deemed to be recorded in the “presence” of the accused as required by the Indian Code of Criminal Procedure or as in the new tongue-twisting name it goes by. The Court was of the opinion that there was no prejudice to the accused in having a witness deposed by video conference rather than in person.
It is claimed that the accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact, the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Courtroom.
They can observe his or her demeanor. The facility to playback would enable better observation of demeanor. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better.
The facility of playback would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus, no prejudice, of whatsoever nature, is caused to the accused, so it was held.
In a later case, Sakshi v. Union of India, involving victims of rape or sexual abuse, the Court upheld the use of video conferencing to obtain the testimony of the victim because the sight of the accused may fill the victim with fear and inhibit testimony.
Though neither Praful Desai nor Sakshi, dealt with undertrials appearing in court via video conferencing or with the circumstance where the witness in question was also the accused, both cases would no doubt be highly influential in deciding any challenges to the legality of video conferencing schemes.
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
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Concerns regarding video conferencing
Appearances by undertrials via video conferencing may help reduce the troubling delay in their judicial proceedings. Video conferencing schemes may also save the government money. However, there are very real risks where police officers no longer have to physically produce a detainee before a magistrate and instead rely on technology.
Firstly, with due respect to the Court’s dicta in Praful Desai, a video image of an undertrial is no substitute for actually having a person in the courtroom. In particular, the Court’s contention that one can observe the “demeanor” of a person on video as well as, or even better than, in person is sheer speculation.
The human eye and ear, as well as other senses, can discern more information than a video camera and microphone, and there may well be cases where the totality of circumstances of the detainee’s demeanor may not be discernible via video conferencing.
Of particular concern is the fact that a camera only shows what appears before it—the court would not be able to see what is happening off-camera, such as intimidation or other undue influence by the police. These concerns are only magnified if the video conferencing hearing is not conducted “live” before a court, leaving open the possibility that a recording has been edited or otherwise altered before being presented.
Secondly, one of the benefits of the Indian Constitution’s Article 22(2) requirement that every arrestee must be produced before a magistrate within 24 hours of arrest is that arrestees are given a real physical and emotional respite from police custody. This physical production is vitally important given the already troubling high incidence of custodial deaths, torture, rape and other abuses in Indian detention facilities.
If the Article 22(2) production clause is diluted through video conferencing, a Magistrate may not be able to discern the physical condition of an undertrial and may overlook signs of custodial torture. What is more, the undertrial appearing by video conferencing will not be able to benefit from the moral and emotional support accruing from physical proximity to any friends and family in the courtroom.
Isolated and demoralized in conference room or a jail cell far away from an independent judicial officer, he or she may not be able to summon the courage to complain of real custodial abuses.
Thirdly, carrying on proceedings via video conferencing filmed with the undertrial already in prison may be prejudicial to the accused. Rather than appear in court in person in respectful attire, the accused may well be filmed in prison clothing, or even in his or her cell, images that could contribute to a bias in favour of a finding of guilt.
Lastly, as with any new process introduced into the courtroom, there are numerous logistical concerns that must be resolved in order to make sure a hearing via video conferencing is reasonably equivalent to a hearing in person.
In Praful Desai, the Court was dismissive of the potential for technical mishaps: “By now, science and technology has progressed enough to not worry about a video image/audio interruptions/distortion.” However, these are not trivial or far-fetched concerns, especially when the undertrial’s rights to life and liberty are at stake.
For example, the inauguration of the video conferencing system in Karnataka High Court was reportedly “not exactly a smooth launch as the audio facility failed to click, apparently due to an ISDN link failure.” Other important and legitimate logistical concerns have to do with the fairness of a trial conducted via videoconferencing and the ability of the accused to benefit from the right to counsel and to participate in his or her defense.
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
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The future of video conferencing in Indian Courts
Video conferencing usage in the Indian criminal justice system is growing rapidly. Despite concerns that the use of video conferencing could be unconstitutional, Indian courts have begun to embrace the use of video conferencing. India’s former Chief Justice K. G. Balakrishnan, had praised and recommended the use of video conferencing for remand of undertrials and for witness testimonies when necessary.
Even though video conferencing is undeniably reducing case backlog, it is no panacea for all that ails the Indian criminal justice system.
With only 14.7 judges for every million people, severe shortcomings in legal representation, and judicial and police corruption, the Indian criminal justice system is in desperate need of more prosaic investments in salaries, recruitment and training rather than relying primarily on video conferencing as a technological fix. If the savings from implementation of video conferencing arrangements are not illusory, perhaps the best way to spend them is to reinvest them in the judiciary.
In Praful Desai, the Supreme Court cautioned that video conferencing cannot be conducted indiscriminately but must respect rights of the accused. It is in this spirit that video conferencing hearings with undertrials must be conducted. The Yasin Malik case is not for experimentation in this regard.