The idea of open courts, where access to proceedings is in the public domain, is inclusive to true and fair trials

 

~Justice K Sreedhar Rao

 

Transparency in the conduct of judicial proceedings is what gives it the greatest credibility. In the UK, from where India inherited its judicial system and practices, the tradition of open courts ensures transparency. The concept of open court proceedings is an invaluable contribution by the common law tradition of England. In common law, the “open court” means either a court that has been formerly convened and declared open for the transaction of its proper judicial business or a court that is freely open to spectators, including the media. This is popularly called a public trial.

There is one theory that the Magna Carta, a charter signed by King John in 1215, is the harbinger of the concept of the open court. However the Magna Carta does not expressly refer to the concept of open courts. Clause 40 merely declares that “to no one will we sell, to no one deny or delay right or justice” and this has inspired the constitutions of the other democratic countries to adopt public trial as a constitutional right.

The horrendous experience of Star Chamber Courts constituted under Star Chamber Act of 1487 which sat at the royal palace in Westminster reveals the shortcomings of secretive proceedings the defendant in criminal trials was examined by the official of the court in the absence of his counsel and co-defendant. The judicial arbitrariness and tyranny of the Star Chamber Courts ultimately led to its repeal in the year 1641. In England in the past, the parties and probably their witnesses were admitted freely in the courts, but all other persons were required to pay in order to obtain admittance. Sir William Black Stone, in his commentaries, advocates that “the open examination of witnesses viva voce in presence of all mankind is much more conducive to the clearing up of truth”.

The Washington State Supreme Court has waxed poetic about what it believes to be a history of public access to legal proceedings: For centuries, it says, publicity has been a check on the misuse of both political and judicial power. As a leading theorist of the Enlightenment Movement wrote: “Let the verdicts and proofs of guilt be made public, so that opinion, which is, perhaps, the sole cement of society, may serve to restrain power and passions; so that the people may say, we are not slaves, and we are protected—a sentiment which inspires courage and which is the equivalent of a tribute to a sovereign who knows his own true interests.”

In England, all proceedings of the Supreme Court and the Appeal Court are filmed and broadcast. Some of the crown courts in England were chosen as pilot projects for digital experiment. The House of Commons is contemplating to initiate legislation in this regard. In the USA, the 1994th session of the Judicial Conference after consideration of the report and recommendation of the court case management committee approved recording, telecast and broadcasting of civil proceedings in federal trial and appellate courts.

The US Supreme Court website provides access to audio recordings of all oral arguments before it which may be downloaded or heard online by the public. The recordings are maintained by the National Archive Records and Administration.

After incessant crusades and churning, the present concept of open courts emerged as a fundamental facet of human rights. In India, ancient and medieval history has no record of the practice of open courts. Section 327 of CrPC 1973 is substantially a replica of Section 352 of CrPC 1898 which incorporated the general rule of open courts, with reasonable restrictions for public attendance like availability of accommodation and in-camera trials for rape and other sexual offences against women. The concept of open courts is not confined to criminal trials but extends to all civil proceedings in all courts. However, in some high courts and the Supreme Court, only the counsel and the litigants are permitted attendance for security reasons.

The demand for public accountability of the performance of the executive is secured in Right to Information Act. The live telecast of the proceedings of the assembly and parliament is in place. There has been a constant campaign for video recording and telecast of court proceedings for achieving greater transparency and access for larger public gaze. That justice is not only to be done but seen to be done, is one of the commandments of democratic governance. The concept of Open Court should not only give right to all the litigants to be present in the Court but also the public in general should have right of access for observing the court proceedings to assure the public about the fairness, the quality and integrity of the judicial functioning.

The division bench of the Madras High Court presided by Justice S Tamilvanan and Justice CT Selvam  heralded the beginning of live telecast of the contempt proceedings initiated against two lawyers of the Madurai District bar association in September, 2015. The Calcutta High Court deviated from the conservative approach on July 15, 2015 and directed the recording of courtroom proceedings in a particular case.

The Supreme Court of India in the Pradyuman Bisht case recently passed an interim order directing installation of CCTV cameras in court halls of Gurugram without the facility of audio recording. The Additional Solicitor General and R Venkatramani, senior counsel, are appointed as Amicus Curie in implementing the order and to report about the feasibility of the experiment. The order further states that after receipt of the report of the learned counsels, installation of CCTV cameras in one district in every state under the direction of the concerned high court would be considered. The order of the apex court although is inchoate, but is a laudable historic step in the process of digitalisation of the court room proceedings.

The Article 227 of the Constitution invests the power of superintendence over the all courts and tribunals throughout the territories in relation to which its jurisdiction. The Article 235 of the Constitution invests the High Court the control over the subordinate courts. The order of the Supreme Court would have been in sync with the constitutional jurisdiction of the High Court had the order directed the Chief Justice of the Allahabad High Court to carry out the said exercise instead of appointing the advocates as amicus in implementing the order.

The perception that videographing and telecasting of court proceedings will have an intimidating impact on justice dispensation and impinges the independence of judiciary is flawed logic. A litigant who wants to know the conduct of his case by his counsel in the courtroom through digital technology instead of his personal presence in the court cannot be rejected as an untenable demand.

The aspiration and the right of general public to have access to courtroom proceedings in cases of national and public importance could be ensured through digital technology. The litigants and the public in all democratic countries like the USA, the UK, Australia and South Africa have access to courtroom proceedings through digital technology.  It is a settled proposition of law by the apex court that freedom of speech and expression guaranteed under Article 19 of the Constitution imbibes the right to have proper and authentic information. In that sense, the holistic purpose of open courts is better served when the litigant and the public have the benefit of video graphing and telecasting of courtroom proceedings.

—The author is former acting chief justice of Gauhati High Court