The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Pandemic- The Novel Coronavirus Pandemic has taken a significant toll on all major institutions across the world. Each community has been affected differently, health systems have been shaken to the core, economies are dwindling and legal systems across the world are faced with unprecedented challenges. Criminal trials in India are no exception to this. This article is an attempt to analyze the impact of the pandemic on the pre-trial and trial stages of criminal trials in India, the steps taken by the state and judiciary to combat these impacts, and suggestions to remedy any shortcomings these steps could have.
Contents hide
1 The Pre-Trial Stage and Impacts thereon
5 Impact on the Main Trial Procedure
5.1 On 2 June 2020, the Supreme Court in a notice said that –
6 Remedies for efficient Re-opening
The pre-trial stage consists of the commission of an offense, registration of the offense with the police, either as First Information Report or Non-cognizable report, in cases of non-cognizable offenses; or directly with the magistrate in the form of a complaint.[1] This is followed by investigation, consisting of several steps – a collection of evidence, witness statements, and interrogation of the accused, the accused can be taken into custody at the discretion of the investigating authority during/after this step.[2] If an accused is arrested at this stage, he must be produced before a magistrate within 24 hours of arrest to plead his case.[3]
If the investigation cannot be completed within 24 hours of the arrest of an accused, an application for judicial remand is presented before the court for the extension of arrest, which is followed by a bail hearing of the accused,
if applicable.[4] The next step marks the completion of the investigation. Where the investigating authority is convinced there is a valid prima facie case, a charge-sheet is filed in court through a state prosecutor, and where no case is prima
facie made, a final report is submitted by the investigating authority in court.[5]
The pre-trial stage of a criminal trial faces a variety of unique challenges in the backdrop of a pandemic. In a country like India which is still in the process of pulling its populace out of poverty, Covid-19 has presented itself as a stalemate in this already challenging situation. Unemployment rates are expected to hit an all-time high at 35%, whereas approximately 160 million Indians are expected to be pushed below the poverty line.[6] These trends have been
pointed out to highlight the lack of access to resources which a large part of the Country faces.
Though the right to a fair trial is enshrined in Article 21 of The Constitution of India, this right is currently being denied to many Indians due to COVID-19 Pandemic restrictions. In light of the Pandemic, Courts have shifted to an online mode. However, access to resources such as technology and the Internet remains a major issue for a large stratum of society. These underlying conditions have forced people to partake in legal proceedings in-person. This raises serious concerns about exposure to disease and highlights the inherent inequality of Indian society.
There is also a shocking absence of witnesses in complaints filed about offenses that occurred during the national
lockdown, which further complicates things. Another cause for concern is the arrest of the accused during this distressing time. Presumption of innocence is one of the key features of Indian morality, and hence, imprisoning an
accused in an overcrowded prison without the assurance of his guilt is a serious concern. This also poses risks of the spread of disease.
Another interesting effect of the pandemic was seen in a judgment of the Supreme Court, when it took a new and unique approach on pre-trial principles contained in the Code of Criminal Procedure, surpassing them to a large extent. This change arose when the former DGP of Uttar Pradesh filed a PIL to get more than 75,000 pending FIRs quashed using established principles of procedural law.[7]
These FIRs were registered against individuals who had violated lockdown orders issued by the state. However, such offenses cannot be registered in FIRs according to section 195 of The Code of Criminal Procedure, as per this section, only a magistrate has the authority to take cognizance of these offenses, only after an officer specifically addresses them to him. It was argued by the petitioner that this was a clear question of law. However, the court held that it was imperative that these cases go to trial, as this was the only way to
ensure that the public follows the lockdown directions issued by the government.
The trial stage begins with a hearing to record all charges against the accused, after which both the public prosecutor and the defense counsel present their respective arguments, evidence, and witnesses, and cross-examine the other’s witnesses.[8] Based on these proceedings, the Court instructs the investigating agency to do conduct further investigation, if necessary.[9] This process is repeated until the Court is satisfied and passes a judgment. Throughout
this process, the accused has the right to present a bail application if the offense commit is bailable in law.[10]
At the beginning of the trial stage, when an aggrieve directly approach a magistrate to register his complaint or a charge-sheet is present by the state prosecutor before a magistrate. The magistrate takes cognizance of the offense under section 190 of the Code of Criminal Procedure. ‘Taking cognizance’ as defined in the case of R.R. Chari vs the State of UP is not a “formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to
the suspected commission of an offense.”[11]
Then the magistrate has the option of either discharging the accused if his defense is satisfactory or registering the charge and proceeding to trial. This step faces challenges as a hearing regarding a charge not only exposes the accused and the prosecutor but also the magistrate to a risk of infection. When this process is take online,
there are risks of network connections dropping, web-conferencing being hack into, or videos of the hearing being record and
share, which would result in a mockery of the legal process.
The problems that Covid-19 poses to the process of taking bail are the same as the problems it poses to the pre-trial procedure and the rest of the trial procedure – there are infrastructural issues such as lack of electricity and connectivity in the form of the internet. While the major cities in India do have stable electricity and internet to hold proceedings over video calls, the rural parts of India do not have the same privilege. Another issue is that considering that most economical activities were shut down in the country to minimize the spread of the virus, people can find it
difficult to afford to pay for their bail bonds in the present time.
While these bail bonds can be pay for by others in the form of security, such generosity might be difficult to come by because most people might be facing financial difficulty. What comes as a relief during this pandemic is the fact that
even though the legal framework has faced several challenges, the provision of bail and anticipatory bail stands unchanged. During the lockdown in the case of Arnab Ranjan Goswami v. Union of India & Ors, the Supreme Court of India held that –
“The petitioner would, within the above period of three weeks, be at liberty to move an application for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 and to pursue such remedies as are available in accordance with the law.”[12]
The main trial procedure, while facing the usual issues of infrastructure and connectivity, also faces several other issues. On 13 March 2020, the Supreme Court had issued a notice stating that only two representatives from both sides could be present in the Courtroom for the proceedings.[13] However, taking the gravity of the situation at hand into consideration, the Supreme Court has issue a notice on 15 April 2020 stating that standard protocol to be follow for hearing matters of extreme urgency during the lockdown and
that cases were to be heard using webcam video conferencing technology over Vidyo desktop app which is a government of India undertaking.[14]
However, this poses a variety of security threats. Taking into consideration that all the proceedings was to be hear over video calls, we cannot discount the possibility of hacking into the network and leaking the recording of court proceedings. Further, we cannot disregard that the police are the primary investigating agency and that currently they are otherwise occupied in trying to ensure that the spread of Covid-19 remains minimal. Therefore, it is difficult for
them to do any investigation and the findings from the investigation contribute heavily to the trial procedure.
“In order to explore the feasibility of physical appearance of the advocates in the court, while adhering to social distancing norms, it is hereby notified to all the advocates and party-in-person to give their joint consent with regard to a willingness
for physically appearing and arguing in the court. Only on receipt of the consent of all
the parties to that effect, the matter will be considered for listing before the hon’ble court.”[15]
The issue here is that it allows the advocates and parties concerned to decide whether the trial will take place and
we need to remind ourselves of the legal maxim of ‘Justice delayed is justice denied’.
However, in Brajesh Singh & Ors v. State of Uttar Pradesh & Anr, the Supreme Court of India held that –
“We grant fifteen days’ further time to the petitioners appear before the concerned Court. In case the petitioners do not appear within the time stipulated, it shall be open to the concerned
authorities to take appropriate measures including coercive methods.”[16]
Also, in Indrajeet Singh & Anr v State of Uttar Pradesh and Anr, the Court gave a two-week adjournment to the petitioners who were seeking the same “on the grounds of personal difficulties”[17] under Section 482 of the Code of Criminal Procedure, 1973. This shows how the Court is trying to move towards the normalcy it had before the pandemic hit the country.
Considering that the Country is currently in unlock phase, with the economy opening up again and attempts at reopening educational institutions and other institutions such as gyms, parks, movie theatres, etcetera, which were
temporarily on hold in the face of the pandemic; it is sensible that the judiciary also revives to its full capacity. The Supreme Court’s notice dated June 2, 2020, seems to be a commendable effort towards this. However, the risk of the pandemic cannot and should not be overlook and measures of social distancing and scheduling different time slots
to achieve the same are desire.
Further, screening booths should be set-up at the entrance of Court premises with a log of visitors recording their temperatures and contact information. Guidelines should be an issue and subsidize COVID-19 Pandemic testing booths should be set up outside Court premises for those people who may have their cases schedule in the following week. All persons entering the court premises, inclusive of advocates and other litigants, judges and parties concerned but not
limited to these, should pass through full-body disinfectant showers, parties to cases should mandatorily present negative COVID-19 Pandemic reports issued within a timeframe of 48 hours before their visit. Entry should be denied to anyone not wearing a facemask, and a penalty imposed on those found flouting COVID-19 norms. This log of visitors must maintain and cross-check with identity proof and preserve for later reference in case one of the visitor’s
tests positive for Covid-19 after their visit.
In addition to this, overcrowding of courts must be avoid at all costs – a minimum number of litigants should be allow to appear in hearings. Advocates and other litigants should be allow in Court premises only if they have a hearing
pending for that day, and only those should be allow within the Courtrooms whose case is currently being heard. Those who are waiting for their hearing should wait outside the Courtroom following principles of social distancing. In addition to this, a specific time gap must be provided between two hearings in a particular Courtroom, during
which it could be sanitize and disinfected for the next case.
Arnab Ranjan Goswami v. Union of India & Ors [2020] (Supreme Court of India).
Brajesh Singh & Ors v. State of Uttar Pradesh & Anr [2020] (Supreme Court of India).
Indrajeet Singh & Anr v State of Uttar Pradesh and Anr [2020] (Supreme Court of India).
Mahajan, Shruti. “[COVID-19] Supreme Court dismisses petition seeking quashing of FIRs filed under Section 188 for lockdown violations”.Bar and Bench, May 5, 2020, URL: https://www.barandbench.com/news/litigation/covid-19-supreme-court-dismisses-petition-seeking-quashing-of-firs-filed-under-section-188-for-lockdown-violations. Accessed: 20th May 2020.
R. R. Chari v. State of UP. AIR 1951 SC 207.
Supreme Court of India Notice, 13th March 2020, URL: https://main.sci.gov.in/pdf/Notification/13032020_120544.pdf, Accessed: 20th May 2020.
Court of India Notice, 15th April 2020, URL: https://main.sci.gov.in/pdf/LU/15042020_134922.pdf, Accessed: 20th May 2020.
Supreme Court of India Notice, 16th May 2020, URL: https://main.sci.gov.in/pdf/LU/16052020_123951.pdf, Accessed: 20th May 2020.
Court of India Notice, 2nd June 2020, URL: https://main.sci.gov.in/pdf/Notice/02062020_121526.pdf, Accessed: 8th June 2020.
[1] The Code of Criminal Procedure, 1973 (2 of 1974).
[2] Id.
[3] d.
[4] Id.
[5] D.
[6] Statista Research Department, Impact of the coronavirus (COVID-19) on the Indian economy – statistics & facts. Statista (Jan. 4, 2021 1:37 pm), https://www.statista.com/topics/6304/covid-19-economic-impact-on-india/. See also, Barnik Chitran Maitra, India: Surmounting the economic challenges posed by COVID-19:
A 10-point program to revive and power India’s post-COVID economy, Arthur D Little GLOBAL. (Jan. 4, 2021 1:50 pm), https://www.adlittle.com/en/india-surmounting-economic-challenges-covid-19.
[7] Shruti Mahajan, [COVID-19] Supreme Court dismisses petition seeking quashing of FIRs filed under Section 188 for lockdown violations, Bar And Bench (Jan. 4, 2021, 1:59 pm), https://www.barandbench.com/news/litigation/covid-19-supreme-court-dismisses-petition-seeking-quashing-of-firs-filed-under-section-188-for-lockdown-violations.
[8] Supra note 1.
[9] Id.
[10] Id.
[11] R. R. Chari v. State of UP. AIR 1951 SC 207.
[12] Arnab Ranjan Goswami v. Union of India & Ors [2020] (Supreme Court of India).
[13] Supreme Court of India Notice, 13th March 2020, (Jan. 4, 2021, 2.42 pm), URL: https://main.sci.gov.in/pdf/Notification/13032020_120544.pdf,
[14] Supreme Court of India Notice, 15th April 2020, (Jan. 4, 2021, 2.42 pm), URL: https://main.sci.gov.in/pdf/LU/15042020_134922.pdf,
[15] Supreme Court of India Notice, 2nd June 2020, (Jan. 4, 2021, 2.42 pm) URL: https://main.sci.gov.in/pdf/Notice/02062020_121526.pdf,
[16] Brajesh Singh & Ors v. State of Uttar Pradesh & Anr [2020] (Supreme Court of India).
[17] Indrajeet Singh & Anr v State of Uttar Pradesh and Anr [2020] (Supreme Court of India).
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