Transparency in court proceedings boosts democracy

Openness has transformed judiciaries across the globe. Though some prefer more guardrails on judicial reportage in India, the common people have a right to know more about the proceedings
Representational image.
Representational image.Express Illustrations| Sourav Roy
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Certain comments made by Justice Vedavyasachar Srishananda of the Karnataka High Court led to a five-judge bench of the Supreme Court taking cognisance of the issue. The visuals of the judge’s remarks were widely circulated in social media. The high court judge termed a certain part of Bengaluru as ‘Pakistan’ and allegedly made inappropriate comments against a woman lawyer. Subsequently, the judge apologised for his behaviour; the SC accepted it and closed the case. The matter ended there. 

But, after the episode, many have demanded that live streaming of court proceedings should be stopped to avoid such embarrassing situations. They also suggested that YouTube and other social media/media outlets should be prevented from circulating video clips of court proceedings. This opinion, shared by many in the legal fraternity and outside, on the face of it, is undemocratic. 

English jurist Jeremy Bentham famously said “publicity is the very soul of justice”. In the era of online courts and globalised media environment, transparency of court proceedings is technologically guaranteed. A transnational conversation on the affairs of the court happens.

The SC in Chief Election Commissioner vs M R Vijayabhaskar (2021) said “public discussion and criticism may work as a restraint on the conduct of a judge”. It went on to say “courts must also take the aid of technology to enhance the principle of open courts by moving beyond physical accessibility to virtual accessibility.” 

Pertinently, in this case the SC refused to interfere with the oral comments made by the Madras high court against the Election Commission during a hearing, which the EC wanted to expunge. The court also rejected the prayer of the EC for restraining the media from reporting court proceedings.

The digital visibility of courts has further expanded the idea of open court, which intrinsically resulted in democratisation of the judicial institution and improved access to justice for common people. That it also exposed certain aberrations from the bench underlines the significance of transparency and not otherwise. 

Recently, the president of the All India Bar Association wrote to the Chief Justice of India calling for guidelines on the conduct of judges on the bench. This call for “a new protocol” arose out of certain derogatory comments allegedly made by a judge in the Madurai bench of the Madras HC against a lawyer. The Bar Council of India also reportedly wrote to the Chief Justice on the issue. This again happened based on material available online.

The conduct of lawyers and the way in which they perform in court also are now placed in public domain. Court manners, preparedness, style of articulation, content of submission, etc, are no longer remaining within the court walls. A client in any remote part of India or the world can directly see how her cause is agitated before the judicial forum. 

This digital openness has radically transformed the judiciary across the globe, as British author Richard Susskind explains in his seminal work on online courts. Therefore the SC rightly said in the EC’s case that the “virtual extension of the open court” is “not a cause of apprehension, but a celebration of our constitutional ethos”. The CJI also opined that the remedy is to “have more sunlight” and not “suppress what happened in court”. 

Recently, a division bench of the Punjab and Haryana High Court in the Bar Association’s case said “the fair reporting of court verdicts are an insegregable part of the administration of justice”. The court emphasised that media could act as a guard against judicial aberrations, as they can “ensure (judges) do not breach the ordained processes, established procedures, and established laws”.

Yet, the media should abstain from the trial of cases pending before the court, which clearly falls under the category of sub judice. In a criminal trial, not only the complainant and the accused but also the state and its officers have certain cardinal rights that require protection. A media trial invariably meddles with these crucial rights, which amounts to interference with court proceedings. 

Often, the media reports about crimes by identifying and labelling culprits, as if guilt is established even before the trial. This results in glaring injustice. On the other hand, the vigilance shown by the media can activate probe agencies. It is therefore challenging to be on the right track of reporting and balance the two cardinal requirements of the job: enable the public to know what they are entitled to and at the same time not interfere with the streams of investigation or prosecution.

Even before digitalisation, the Bangalore Principles of Judicial Conduct—internationally acknowledged in 2002 at a round table conference at The Hague—governed the field. They, among other things, call for dignified judicial behaviour on and off the bench. The current scenario of total digital visibility requires judges and lawyers to be more cautious. It only ensures the ‘protocol’ already laid down in the Bangalore Principles .

In Kaushal Kishor (2023), the SC said there cannot be further restrictions on freedom of expression than what has been already provided for under Article 19(2) of the Constitution. This applies to the media as well. This would mean that under our constitutional scheme, the court will not put additional restrictions on the media other than what has been already imposed on them by existing rules.

Online courts in India demonstrate the biggest revolution in the system after independence. Now a lawyer from any nook and corner of the country can address the SC and high courts. This kind of democratisation coupled with live streaming of the procedures has radicalised judicial democracy to a considerable extent. 

Neither the SC nor the HCs are the privilege of the rich anymore, at least in ‘technical’ terms. Lawyers across the country and the people at large are yet to fully exploit the benefit of this modernisation. The process should meaningfully integrate itself with the demands for equality and fraternity within the institution of judiciary, replacing the present feudalist traits. It is time for a people’s manifesto against monopolisation of Indian courts by a few legal elites.

(Views are personal)

Kaleeswaram Raj

Lawyer, Supreme Court of India

(kaleeswaramraj@gmail.com)

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