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Thursday, April 04, 2013

Sunshine in the court room

by Pratik Datta.

In the functioning of liberal democracy, some of the strongest transparency provisions are required for the judiciary. Indeed, openness of trials is integral to the legitimacy of the judiciary. Secret trials are almost always rigged trials.

'Sunlight is said to be the best of disinfectants'. So observed Justice Brandeis in 1913. Almost a century later his observation would find use in naming a Bill in the US - the Sunshine in the Courtroom Act. This Bill paves the way for broadcasting of all federal court proceedings in the US. This is a big step forward for liberal democracy. With this, we step up from the traditional notion that any citizen can make himself present in the courtroom, to a new level of transparency where we are utilising computer technology so as to make courtrooms visible to all citizens. Currently the US Supreme Court website provides access to audio recordings of all oral arguments before it, which may be downloaded or heard online.

On a similar note, the Supreme Court of Canada provides a live feed of all appeals to the Canadian Parliamentary Press Gallery. The Supreme Court of Victoria in Australia permits audio webcasts of some judgements and sentences are streamed live and are available for listening to on demand. The hearings before the UK Supreme Court are televised live.

In comparison, no Indian Court has any facility to record transcripts of the oral arguments made by the counsels, nor are there any official records of remarks made by judges inside the Court room. The only source of these oral conversations are media reports which are not quite reliable. In one instance, the Supreme Court issued a suo moto contempt notice to a newspaper for misreporting court proceedings leading to an unconditional apology by the newspaper.

So does India need to legislate for sunshine in court rooms? Recent controversies suggest that it may be time for us to start thinking about audio-visual coverage of court proceedings:
  • A 54 year old Government school teacher was detained in a Delhi Court for video recording of the court proceedings of a CBI case in which his relative is an accused; (link)
  • An Indian origin law professor from the US sought permission to record court proceedings. The High Court hearing reportedly turned into an altercation between the Judge and the Professor, and security personnel confiscated the recorder; (link)
  • A businessman recorded a court proceeding without taking permission of the Court, prompting a Single Judge of the Delhi High Court to order a mental examination of the person. However, subsequently this order was set aside by a Division Bench of the Delhi High Court.

In all these incidents, the concerned individuals wanted to make audio-visual recordings of specific court proceedings but were denied the opportunity. In an era where Parliamentary debates are televised/streamed online, this judicial reluctance to permit recording of Court proceedings seems absurd and archaic. Two informative pieces (here and here) on this issue also conclude in favour of recording Court proceedings.

Judicial reluctance and legislative void


Whenever the Indian Courts had to pass a reasoned order explaining why an individual may not be permitted to make audio-visual recording of any judicial proceeding, the usual response has been the lack of any law or policy to permit the same. The usual trait of judicial activism in Indian judges is curiously missing in this regard.

In Deepak Khosla v. Union of India, 182 (2011) DLT 208, Deepak Khosla (the petitioner) approached the Delhi High Court to restrain the Registrar General and the Registrar of the Delhi High Court from preventing him from audio recording the Court proceedings. The matter first came up before a single judge, who referred it on to a larger bench. The larger bench observed that there is no specific provision of law mandating audio-visual recording of Court proceedings. Citing a catena of decisions on judicial restraint, the Court concluded that 'framing of a rule is a matter of policy'. Since there is no legislative policy allowing audio recording of Court proceedings, the Court refused to provide any relief to the petitioner. The Court further went on to refuse a certificate of appeal to the Supreme Court under Article 134A of the Constitution, since in its considered view, the case did not involve a 'substantial question of law of general importance'. However, reportedly in another matter, the Supreme Court has expressed willingness to examine the proposal of audio-visual recording of proceedings.

Treatment in the Indian Financial Code


In this backdrop of judicial reluctance coupled with a policy void regarding audio-visual coverage of court proceedings, the work of the Financial Sector Legislative Reforms Commission ('FSLRC') assumes special significance. FSLRC has delivered a draft law along with its report. This draft Indian Financial Code, 2013 ('IFC'), which forms Volume II of the Report of the FSLRC, has a path-breaking provision on the issue of recording and transmission of proceedings at the proposed Financial Sector Appellate Tribunal (FSAT). Section 431(2)(e) imposes a duty on the registry of the FSAT to enable public viewing of proceedings, including by way of transmission of hearings by electronic means. Section 438(4) of the IFC states: The Tribunal must ensure that the entire proceedings of the Tribunal are recorded and published. This is undoubtedly a great leap towards bringing transparency in judicial functioning in India.

However, the draft provision in its present form may not provide the nudge required to override the existing judicial reluctance towards audio-visual recording. Section 438(5) gives the Presiding Officer (that is, the Judge in the FSAT) the discretion to prevent 'publication' for reasons to be recorded in writing. In a departure from the usual principles-based drafting style adopted by FSLRC, section 438(5) does not specify what are the exact principles in accordance to which the Presiding Officer can prevent publication of recordings of the proceedings. The duties imposed on the Presiding Officer under section 428(2) are too general and might be counter-productive. For example, on the grounds of fair trial under section 428(2)(b)(i), the Presiding Officer may impose a blanket prohibition on publication. In other words, the law does not lay down any objective parameter which restricts the discretion of the Presiding Officer to prevent such publication. This leaves unfettered discretion in the hands of the Presiding Officer to refuse publication.

The unwarranted reluctance of the judiciary


Before trying to hunt for an alternative formulation of the law on this point, it is necessary to understand the reasons for judicial reluctance towards audio-visual coverage of court proceedings. The classic conundrum quis custodiet ipsos custodes? (who will guard the guards themselves?) is squarely applicable to judges. The judiciary which pro-actively passes judgments mandating complusory audio-visual recording of legislative proceedings, takes recourse to absence of any legislative policy to prevent individuals from recording judicial proceedings. This contradiction is not unique to Indian judges, but has happened in other advanced common law jurisdictions too. Daniel Stepniak in his treatise Audio-Visual Coverage of Court: A Comparative Analysis tells us how judges who had otherwise been vigilant in promoting transparency and freedom of speech, somehow do not seem very inclined to open up their Courts to media coverage and the consequent public scrutiny.

Judges of the US Supreme Court are vocal about their uneasiness in front of the camera. For example, Justice Souter (US Supreme Court) was clearly not amused at the idea of having a camera in his Court as is evident from his remark before a congressional committee in 1996: the day you see a camera come into our courtroom its going to roll over my dead body. Chief Justice Rehnquist (US Supreme Court) was more concerned about the loss of mystique and moral authority that might result from camera exposure. An interesting piece in the New York Times reports that Justice Sonia Sotomayor and Justice Elena Kagan have turned against audio-visual recording of Court proceedings after their elevation to the US Supreme Court.

The judicial reluctance on audio-visual coverage of the court room stems from the fact that judges, left to themselves, do not have much incentive in permitting the camera into the court room to enhance transparency. The world over, there has been a tripatite tussle among the rights of the press to report court proceedings, the litigant's right to a fair trial and judicial reluctance towards having a camera in the court. Stepniak shows how this judicial reluctance is slowly yielding to demands for more open justice.

The way forward for us in India


There are two lessons to be learnt. First, public choice theory applies to judges as much as it applies to any bureaucrat. The law must not presume that the judge will permit audio-visual coverage of his court to enhance transparency. Therefore, the default rule should be to compulsorily record and publish (as has been correctly hardwired into section 438(4) of the IFC). However, the law must clarify that such recording must be done officially by the FSAT's administrative staff only and it must not allow private persons or media personnels to use their own devices in the Court room. Otherwise it may lead to administrative problems in managing court rooms. Everyone must be permitted free and easy access to such official audio-visual recordings of the Court proceedings and such recordings should be published.

Second, any provision that gives power to the judge to restrict coverage must mention the conditions subject to which such restriction may be imposed. Otherwise, untrammelled power will be a potential tool for pepetuating the existing judicial reluctance towards cameras in court-rooms. Drafting these conditions into the law will entail a survey of similar legal provisions in other jurisdictions. For example, section 218(3)(c) of Judiciary Law of New York instructs the judge to evaluate:
  • The type of case involved;
  • Whether the coverage would cause harm to any participant in the case or otherwise interfere with the fair administration of justice, the advancement of a fair trial, or the rights of the parties;
  • Whether any order directing the exclusion of witnesses from the court-room prior to their testimony could be rendered substantially ineffective by allowing audio-visual coverage that could be viewed by such witness to the detriment of any party;
  • Whether such coverage would interfere with any law enforcement activity;
  • Whether such coverage would involve lewd or scandalous matters.

Such an enumerated list of principles in the statute would be of much assistance to a judge in deciding whether an application for restricting audio-visual coverage of a particular proceeding or part of it should be allowed or not.

Conclusion


The IFC is the first draft statute mandating audio-visual recording of proceedings before a Tribunal in India. Considering the growing interest and demand for audio-visual coverage of court proceedings here, this feature of the FSAT could be emulated for other Indian Courts and Tribunals. Laws like the Code of Civil Procedure (1908), Criminal Procedure Code (1973), the Indian Evidence Act (1872), the Contempt of Courts Act (1971), the Indian Copyright Act (1957), the Supreme Court Rules (1966) and the respective High Court Rules may also need to be reviewed. This list is not exhaustive. It is also necessary to fine tune the present draft IFC provision on restictions to audio-visual coverage of court proceedings, as argued above.

The author is grateful to Sumathi Chandrashekaran, Smriti Parsheera and Ambarish Mohanty for useful conversations.

3 comments:

  1. why not? re-engineering a man-made institution is no sin and a must. read Justice Krishna Iyers' "Of justice, justices and justicing".

    ReplyDelete
  2. Transparency is the hall mark of propriety, probity and integrity of judiciary...

    ReplyDelete
  3. If LS n RS who formulated laws are recorded and telecast live, then why courts who are just expected to abide by the laws are afraid of being video recording of court proceedings.
    is there something illegal being done in courts which the recording will reveal?

    ReplyDelete

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