The Author, Ashi Kaim is a 3rd Year, BBA.LLB student at University School of Law and Legal Studies, GGSIPU. She is currently interning with LatestLaws.com.
COVID-19’s impact on Crime and proceedings
Lock-Down and Pandemic
In Wuhan, China, the first ever Coronavirus epidemic was reported in December 2019 and was recognized by the World Health Organisation (WHO) on 11 March 2020 as a pandemic. Initially, India implemented a full lockdown in the country until the end of April. Lockdowns have a clear effect on illegal activity, but they have an ambiguous overall impact. On one hand, efforts have been redirected away from crime control and into lockout compliance. The police implement and track compliance with these measures in most nations, which brings more strain on certain structures that are still overburdened. On the other hand, the number of potential casualties is decreased with fewer persons on the streets. This increases a criminal’s burden of offending, and could, therefore, reduce the incidence of crime.
Theoretical consequences during the few hours led to the implementation of a legal stay-at-home order, and during the first few weeks that followed, there are some things which probably did not change. Their biological and physiological circumstances changed next to nothing when people around the world returned from frenzied and stress-filled journeys to load up on food and other necessities and started confining to the spaces of their homes. Nor did the stereotypes attached to them by culture, friends, or families change. Poverty and inequality didn't immediately disappear or improve. Many criminological explanations seemed unable to understand the sudden and sweeping shift, with crime falling at such a significant rate with many of the often-attributed circumstances affecting crime remaining constant or in some cases rising or decreasing in a way contrary to what many thinks causes crime. The legal stay-at-home directives (i.e., lock-down, shelter-in-place) enforced to delay the transmission of the epidemic by encouraging social distancing was the single most important factor of the steep decline in crime rates during the COVID-19 pandemic.
Most states imposed lockdown orders and constitutionally required residents to stay within their homes, with the exception of authorized activities. These activities usually involved obtaining health care, buying food and other supplies required, banking, and related activities. The orders either altogether closed or de-facto closed vast areas of the economy and effected schools, private social gatherings, religious activities, travel etc. In brief, these measures interrupted the everyday lives of entire nation and, mere days before the double-digit drops in violence around the world, became the only aspect that shifted suddenly.
Crime
With fewer people stepping out, crime has seen a dramatic drop across the world. In Delhi and Karanataka, where crime rates dropped by half after the 21-day lockdown was declared, the sharpest fall was seen. Although crimes such as robbery, murder and rape have declined, analysts warn that in the lockdown period, incidents of domestic violence and cybercrimes may have risen and many of them have not been reported.Over the past month, crime has seen a substantial decline after Delhi banned all public meetings, followed by the national lockdown that took effect on 25 March. From 3,416 in the previous year, the cumulative number of offences plummeted to 1,890 in 2020. Women's molestation reports fell to 72 this year from 144 in the previous year.
The number of kidnappings also reduced from 259 to 150, while the number of thefts dropped from 109 to 53. Thefts of motor vehicles to 1,243 from 1,982. A climb in vigilance throughout the national capital has taken effect. The sealing of the borders of Delhi has also proven effective in reducing the crime rate. The Delhi Police are cracking down on all unusual activities and drones have helped them keep track of even the slightest activity. Experts claim that the spike in unemployment due to COVID-19 is driving many individuals into illegal activity, especially younger people. In a recent case, two ex-restaurant managers and a salesman at a hardware store were found guilty of stealing cell phones and jewellery in New Delhi. Recently, there was an incident where a food delivery boy was robbed. In most cases, educated people with no criminal history have been found committing these acts. After interrogating them they told the police that they didn't have a job and were unable to make ends meet.
Officials in Karnataka said it was only natural for crime rates to decline. "If not more, crime rates must have dropped to 20-25 percent," said Praveen Sood, director general and police inspector general of Karnataka. This is mainly because Bengaluru had only 2 percent of its real vehicle population on the streets with the lockdown in place, he added. However, there have been raids towards fraudulent sanitizers and racketeers seeking to benefit from the problem. The lockdown may have made much of an impact in many illegal businesses in Kerala, but some criminals are taking advantage of new opportunities, such as organized smuggling of people across closed borders.
The latest figures published by the Delhi Police would be a bit of hope for the national capital. The figures indicate that in the month of March, criminal offences in New Delhi have dropped by almost 50 percent compared to last year. To verify this, between March 15 and March 31, 2019, there were 109 burglary cases. However, only 53 robberies took place this year, as per Delhi Police records. Purse and smartphone snatching in urban areas has become a major concern. In 2019, there were 294 snatching cases, compared to just 181 between March 15 and March 31 this year. Last year, there were 126 burglaries. The number fell this year to 55.
Counterfeiting and fraud
Counterfeiting and fraud linked directly to the pandemic of COVID-19 have also been reported. In India, police confiscated thousands of fake N95 masks, raided stores selling highly priced masks and sanitizers, and filed a lawsuit against personal protective equipment hoarders.
Cybercrime
Cybercrime has increased, with more people spending so much time online during the lockdown. With work from home rising, more and more business knowledge is being obtained from homes that do not have the same degree of protection as office networks. A cyber protection warning was issued by the World Health Organization alerting individuals about scammers imitating WHO personnel.
After the onset of the pandemic, officials have also reported a surge in cybercrimes. Police officials in the state of Maharashtra have reported 400 cybercrime cases against offenders who used online hate speech and gave the pandemic a communal twist. Cyber fraudsters have been observed to have developed fake websites that mimic shops and home delivery systems to attract customers to make online purchases.
There has also been a spike in banking fraud with cyber criminals threatening people with fake reactivations of their debit and credit cards, online bookings, free coronavirus testing and international job offers following the relaxation of lockdown restrictions. During the pandemic, authorities confirmed the cases of "sextortion" have also escalated, with cybercriminals tampering women's pictures and blackmailing them. Akancha Srivastava, the founder of the organization Akancha Foundation, told DW that they have received many cyber abuse reports, ranging from exposure to obscene photos to threats and blackmailing online. The government has advised people to be vigilant of false text messages and emails and to disclose to authorities’ cases of online fraud, cyber-attacks and extortion.
Domestic Violence
A negative consequence of lockdown has been observed and it is Domestic Violence. In India, a number of domestic violence cases have been reported during the lockdown span. Although domestic abuse (DV) has escalated extensively across the globe since the implementation of the lockdown, very few researches have been carried out to determine the effect of lockdown on domestic abuse (DV). According to recent National Legal Service Authority (NLSA) reports, since lockdown, the rates of domestic violence (DV) have risen across the country. The National Commission for Women (NCW) received 257 complaints of various crimes against women at the beginning of the lockdown, out of which 69 incidents were identified as domestic abuse. According to the President of NCW, during lockdown, the highest number of cases of domestic violence (DV) were recorded from Punjab and all cases were complained by email. As everyone have no accessibility due to lockdown, the number of instances could be higher.
It has been documented in the capital city of India, Delhi, that about 2500 female calls were received from the emergency helpline number, out of which 600 calls were categorized as women's assault, 23 calls were registered as rapes, and most of the 1612 calls were identified as domestic violence. As per the NALSA survey, the highest number of cases of domestic violence (DV) is obtained from Uttarakhand (144) followed by Haryana (79), Delhi (63). Crimes against women have risen by 21% and domestic abuse has been recorded in 700 of these cases. Since March, crimes against women have increased from 4,709 to 5,695 and incidents of domestic abuse during the lockdown have increased from 3,287 to 3,993.
Since 24 March 2020, more than 600 cases of mental and physical torture have been registered against husbands (due to substance use and alcohol consumption) and family members, as per the special women's support desk. In addition to this, mental health has also had an enormous impact. The effect of domestic abuse on mental health is more dangerous than its effect on physical health. It brings immense sadness, nightmares and other social conditions.
Terrorist attacks
ISIL recommended in its magazine, Al-Naba, that its members exploit the pandemic in order to commit acts of terrorism. Many extremists, both in the West and in Muslim nations, believe the virus a divine punishment for human sins. The International Crisis Organization said that international counterterrorism activities will be affected by the pandemic.
In India in April, a potential ISIL assault on police personnel in the field in the form of a lone wolf attack or "stabbing, firing or hitting by vehicles" was circulated among Delhi police personnel as an advice. Between January and May 2020, 27 counterterrorism operations were carried out by Indian security forces in Jammu and Kashmir, killing more than 64 terrorists. Of all, at least 18 were killed in India during the pandemic lockdown of COVID-19. Five Indian Army Special Forces Para Commandos were killed by terrorists in the first week of May. In his last audio message in April 2020, Riyaz Naikoo, leader of the terrorist group Hizb-ul-Mujahideen, advised his supporters to follow the directions for health protection shared by health experts during the COVID-19 pandemic.
PROCEEDINGS
Powers given under the Disaster Management Act, 2005 by the National Disaster Management Authority (NDMA) to the Central Government were invoked to enforce the lockdown. To a very significant degree, COVID-19 has impacted the Indian Judiciary. The functioning of the Indian courts has not returned to normal since the lockdown was implemented in the month of March. While the Courts operated at fraction of their full capacity, several measures have been taken by most Indian Courts to ensure that even in this pandemic, the justice delivery system is not hauled. District magistrates across the nation had already imposed curfews by exercising powers under Section 144 of the Code of Criminal Procedure (CrPC). On 26 March 2019, the Supreme Court of India directed the nation-wide Lockdown and take up only urgent matters and the same order was also passed on to other subordinate courts. Consequently, the Supreme Court's strong message was that the judiciary is not closed down and will continue to exercise its constitutional duties. And now the courts are steadily taking up their paces as the lockdown is lifted and have begun to take up other matters as well, such as new filed lawsuits and other supplementary matters.
As the most unprecedented situation of all time, COVID'19 has affected not just the economy of the world but also the legal functioning. The concern lies in the lack of an exception to a pandemic in statute, code or order, which creates a state of misunderstanding that can only be resolved by our restricted constitutional law or by the Supreme Court itself. For example, in the event of a pandemic, the Code of Civil Procedure (CPC) has not formulated any extraordinary procedures governing the functioning of judicial courts and the various pre-trial stages. The Apex court stressed the need for social distancing in its recent order and issued instructions to take various measures to reduce the physical presence of litigants, clerks, judges and paralegal staff. The court further held that, while COVID-19 raises extraordinary difficulties, access to justice is a constitutional right that cannot be deprived in any circumstance.
Criminal Justice System. How has the system been affected by the Covid-19?
The life style that has been practiced for a very long time has been blown up by the genetically mutated coronavirus and natural human interaction has been mostly replaced by intra-family contact and electronic means such as zoom, meet, skype, etc. The judiciary was also struck by a blow and used such technological media to conduct online pleadings of cases via video conferencing.
The Supreme Court announced on 23 March 2020, taking all such factors and conditions into account, that the hearings will be held by video conferencing as a step to limit the human interaction and further deterioration and spreading of the deadly virus.An even more essential trait of the collapse of India’s criminal justice system is its overcrowded prisons, which have turned into sites susceptible to the spread of COVID-19 disease.
India's jails have an annual occupancy rate of 114 percent, with under-trials(people in detention pending prosecution or trial) constituting almost 68 percent of the prison population, as per the National Crime Records Bureau (NCRB). While hearing a case relating to religious violence in the Indian capital in February 2020, the Delhi High Court stated that "prison is mainly for sentencing convicts, not for detaining sub-trials. It has now become clear that the outbreak of the pandemic has stalled and, to a certain degree, paralyzed the state's law enforcement machinery.
Measures taken up by the different Courts to address the issues
Supreme Court of India:
Exercising inherent powers under Article 141 and 142 of the Constitution of India, a full bench of the Supreme Court has, vide its order dated 23rd March 2020, extended the limitation for filing petitions/applications/suits/ appeals/all other proceedings before all Courts, Tribunals and authorities across the country. The Supreme Court of India, heard a Suo moto case pertaining to lapses in care of COVID-19 patients at different hospitals in the National Capital Territory of Delhi and other States. The three-judge bench comprising Justices Ashok Bhushan, Sanjay Kishan Kaul, and M.R. Shah issued certain directions to redeem the sad plight of patients and the public that needs medical care.
High Court of Allahabad:
The High Court of Allahabad, in the exercise of its powers under Article 226 and 227 of the Constitution of India, passed the following directions:
- All interim orders given by the High Court, all District Courts, Civil Courts and all other State Tribunals which have expired or are due to expire on or after 19 March 2020 or within a period of one month from 26 March 2020, shall be in force until 26 April 2020.
- All bail/anticipatory bail orders due to expire in one month from 26 March 2020 were extended for a one-month duration.
- For a period of one month, all eviction, dispossession or demolition orders already passed by the High Court, District or Civil Courts will remain in abeyance.
The criminal justice system forms the foundation of our country, and because of this pandemic, it is significantly lagging behind. It must adapt and adopt modern innovations only if it is to develop and survive possible ill-fated events. Hopefully, this pandemic would carve out the need for systemic reform that is in desperate need of this structure to make a change in the direction where justice is served.
At a time when executive dominance and majority rule are at an all-time high in the nation, in the midst of the breakdown of almost all autonomous institutions, the judiciary remains the divine hope of people.
Virtual trials
When the lockdown was implemented, a Supreme Court E-Committee headed by J. Chandrachud assured the legal fraternity that virtual courts would begin operating shortly. Subsequently, the Supreme Court set strict rules that included transferring the functioning of the trial courts to online technology. However, the way in which the simulated trials were to be held was left to the High Courts and the hearings would be confined to the 'arguments' level in a case where no rules are prescribed. Different high courts, such as Rajasthan, Kerala, Bombay, and Delhi, have already laid down clear rules for both high courts and trial courts to operate. As far as matters before the Supreme Court and the High Courts are concerned, guidelines are in effect to resolve the critical question of a secure internet connection. It is claimed, however, that it is particularly undesirable for them to be performed over digital platforms, considering the multiple stages involved in a criminal trial.
Technical issues
First of all, it is necessary to consider the general concerns that can exist. It is a known fact that there is a huge diversity of various courts around the country in terms of infrastructure; it is reasonable that each high court would set up different virtual trial guidelines taking into account the current infrastructure. To demonstrate, Court Y is guided to use 'Microsoft teams' application, which is useful in holding hearings. Court Z, on the other hand, uses 'Skype' mainly to hold proceedings. Therefore, a lawyer working in Court Y who has been familiar with 'Microsoft teams' would have problems adjusting to the functioning of Court Y, since the program is totally different from both. I For example, they need distinct internet speed, a proceeding cannot be recorded on 'WhatsApp,' and a laptop/pc cannot use the video calling function.
Vulnerability of the witness
The testimonials of the witnesses provide prosecution and the defence evidence. In the State of Kerala v. Rasheed, the Supreme Court ruled, while setting strict rules for the deferment of cross-examination of witnesses, that it should be assured that the witness is free from the accused/complainant/ prosecution's influence and coercion. As the burden is on the judge to secure a free atmosphere for the witness, it would be an obstacle during virtual trials to perform such a responsibility. And not to mention that in our country, the tradition of threatening, coercing the witness is prevalent, sometimes enabling a suspect to walk free or innocent to be convicted. This has not yet been clearly resolved by the judiciary, which only aggravates the issue by making the witness prone to any influence.
Lawyer and client interaction
The concept that the accused has the right to contact his/her lawyers is a well-settled theory of law, and the confidentiality of those interactions is to be kept. Thus, at the stage of S.167(Procedure when investigation cannot be completed in twenty-four hours) and S.309(Power to postpone or adjourn proceedings), certain meetings normally become more important. And particularly at the remand stage, it becomes necessary to provide interactions between lawyer and client to encourage the lawyer to obtain a factual understanding of the case and for many other considerations. Now, because attorneys are limited to contact only by video conferencing, since it does not allow for a safe communication, it becomes risky because it is questionable whether the police will not overhear. For demonstration, take X, who was accused of murder, and was represented by B, her counsel, X was unable to share material facts in a meeting with her lawyer, like the status of her alibi, because of the concern that the communication was not safe, so B refused to prove her innocence. It is relevant to agree that any connection to the material facts could contribute to their dispute if the communication is not secure, to the degree that the proof may also be tampered with.
Documentary evidence
Section 207 read with Section 294 ensures that it is imperative for the defendant to be presented with all records kept by the prosecution, and the defendant must deny or accept the genuineness of each record. While dealing with Section 294, in Shamsher Singh v. State of Haryana, the Supreme Court held that it is necessary to verify the veracity of the documents either submitted by the prosecution or the defence. The question now emerges whether such authentication processes can be done over virtual proceedings, which would indicate the use of digital record upload mechanisms. Softcopy documents, however, often attract credibility issues because those records can be quickly corrupted without attracting an iota of uncertainty. In comparison, it is impossible to check whether the police have confiscated and deleted exculpatory records. The court held in Nityananda v. State of Karnataka that the accused was entitled to receive the exculpatory papers and should bring them at the stage of charge for consideration. It should be noted that it is necessary to examine the original documentation which, for the above reasons, involve physical presence.
The role of witnesses
Section 273 of CrPC mandates that the evidence must be recorded in the presence of the accused/defence counsel. The reasoning for such a mandate is to have a proper arrangement between the prosecuting counsel and the witness or to decide if the witness behaves appropriately. An interaction of this nature lets the magistrate assess the operation of Section 28. Properly, in which the magistrate is expected to report the witness's demeanor during the evidence process. For eg, if the witness sweats heavily, then in accordance with those material facts, the magistrate will adjudicate on the proof or testimony. Now, the question that rises is how to administer such a process during a virtual trial. If during a virtual courtroom, a person Y (prosecution witness) is lying about particular evidence and is thus sweating and stammering, The magistrate will basically be unable to record Y's demeanor as he can conveniently disappear behind the excuse of 'voice delay' or 'connectivity problems.'
Virtual trials- A positive view
While in the long-run, virtual trials are not possible, in the short-run, there are a few benefits. Naturally, in a criminal court, there are mostly clerks, legal professionals, judge(s), prosecutors, suspects, witnesses, police, and citizens watching the trial. The biggest benefit lies in the fact that the new policy guarantees' de-congestion of courts.' This collection of numbers contributes to overcrowding of people in Delhi district courts like Tis Hazari and Karkardooma, which have weak infrastructure, which is directly against social-distancing initiatives. Also, we normally witness that in a single day, most senior advocates have various matters in different courts and it is difficult for them to travel. Virtual trials would thus, mean that lawyers and even expert witnesses do not face scheduling and travel issues, which would also guarantee the proceedings are conducted in a time-bound way that not only reduces time expenditure, but also improves the productivity of both judges and lawyers. In comparison, for law students and junior advocates, virtual trials are more advantageous as they can watch various cases in different courts all over the country. In addition, this would lead to a better implementation of the 'open court principle' which requires the court to be accessible so that it is available to the public and the media. The aim of this section is to ensure openness and the non-arbitrary delivery of justice.
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