This Hero was a Villain Once

The recent on-going virtual hearings before the constitutional courts in the country is sure to go down in the history as a landmark. History will remain witness to the fact that the Indian judiciary, lead by the Supreme Court of India, has demonstrated a strong resolve to dispense justice against all odds even in times of humanity’s worst crisis. While judicial institution has never permitted technology to be the master, it put technology to its optimum use during the pandemic to ensure that access to justice is not denied to anyone even for a day.

In the process, however, one villain in the court room so far has metamorphosed itself into a hero. That is a tiny instrument called a mobile phone.

The presence of mobile phones has historically not been taken kindly by the courts. And for good reasons. Internationally, the use of this instrument in courts has even landed innocent people in jail. It is for this reason that Lord Justice Jacob, a judge in the Court of Appeal in the United Kingdom used to jokingly remind everyone that the consequence of being imprisoned for its presence in courtroom is the only reason why this tiny instrument is known as a "cell" phone.

Now, the courts permit arguments through mobile phones and interactions amongst the judges on the bench at times take place through their respective mobile phones, shows that the world has come to a full circle. The days are gone, and rightly, when even a hollow sound of this tiny instrument from any litigant or lawyer would turn the litigant and lawyer into a culprit with the only consequence of either being escorted out of the court room or this small instrument being confiscated temporarily or even permanently.

Now it seems that mobile phones act as saviors in the administration of justice. This technology is accepted by the judiciary as a slave and not as a master, at least for some time.

There are many heartening incidents one sees in courts nowadays giving confidence that nothing will come in the way of a common man getting access to justice. When the arguing lawyer is not properly connected through video conferencing, the courts require the Registry officials to connect him through his mobile phone and he has the option of arguing through the said instrument.

The history of this tiny instrument in courtroom has been very interesting. In 2004, when mobile phones rang in the courtroom, Justice Lawrence F Clark of Douphin County, Pennsylvania ordered the bailiff to drop the instrument out of the fifth-floor window. The presence of this instrument in the courtroom was considered to be an interference in the administration of justice.

When a cell phone went off in the court of US District Chief Judge Michael Lewis of Minneapolis in 2011, everyone became very anxious. The ringing was loud but it was hard to tell where it was coming from. Various people in the court nervously started rummaging through their pockets and bags in search of the offending article. In Minneapolis, court bailiffs have a reputation of zero tolerance for mobile phone ringing and the owners are immediately escorted out of the courtroom. Judge Davies was in the middle of questioning one Fawsiyo Farah, who was in court to enter a guilty plea in an identity theft case, when the ringing started. The judge was visibly disturbed. As the ringing went on, however, its source gradually became clear: the offending phone was sitting inside the judge's robes!

“I apologise”, he announced gravely, while trying to get through his robe to locate the phone. Unfortunately, the courtroom’s advanced sound system, where a microphone was placed right in front of the judge, amplified the phone rings. The judge was obviously not escorted out of the court by bailiffs.

Similar more unusual mobile interruptions. In October 2007, at the Magistrate’s Court in Ipswich, Queensland, a sensitive criminal trial was suddenly disrupted by the sound of a gazing female voice in an evident state of excitement and ecstasy. The sound coming from the Court gallery, was exclaiming “Oh yeah.. yeah…oh yeah… do it to me”. The pleasure expressed loudly clearly didn’t seem to be an appreciation of the way criminal justice was being administered in Queensland. It quickly became clear that the voice was the ringtone of a man in the public gallery. As the sounds of ecstasy became progressively louder, the court fell into silence and the man with the extraordinary ringtone fumbled desperately to turn off his phone. He was cautioned for contempt of court, but spared any sanction.

In 2007, Paul Fitton took mobile phone manners into a new territory of indifference. He was convicted of contempt because while standing in the dock facing a criminal hearing at the Blackpool Magistrate’s Court in England, he interrupted the District Judge to answer his phone and began a conversation with a loud salutation “Hello… I’m in court”.

Judges have occasionally condemned lawyers’ arguments as rubbish. Lord Justice Hardman once ruled that ‘these pleadings to go, not to the House of Lords, but to the waste paper basket”. It is unusual, though, for a judge to literally sling visitors’ belongings into the waste paper basket. That is what Judge Anthony Johnson did in Orange County, Florida in 2010.

Michelle McCoy was visiting a court with her young sister. While sitting in the courtroom, her phone rang with a clamorous musical jingle and the judge asked her why the phone wasn’t turned off in the court. She started to explain which the judge immediately ruled as contemptuous conduct, ordered the phone be surrendered, and then literally through the instrument directly into the waste bin near him and ordered that it be later destroyed by the sheriff’s department. McCoy later said of the judge, "he would not let me explain to him. He just went off”. She wanted to clarify that she had turned off the phone before entering the court, but had then lent it to her young sister who had popped out to make a call. Her sister, however, had forgotten to turn it off before returning it to the courtroom.

McCoy, who did not want a contempt conviction on her record, appealed. The fifth District Court of Appeal in Daytona Beach ruled in her favour. It decided that judge wasn’t justified in finding her in contempt. The trial judge’s order read simply, "Michelle McCoy was found guilty of contempt of court. Cell phone is forfeited and to be destroyed by the Orange County Sheriff’s office”. It was held that this was not enough, and it should have given a fuller recital of facts that led to the finding, not just the judge’s conclusion.

There are many interesting previous instances of judges being irritated by mobile phones ringing in court but they’re not all the same. In 2008, during a trial in a Crown Court in London, a mobile phone of judge John Tilly rang out but as the judge’s staff started to locate and reprimand the thoughtless culprit, they realised that ringing was coming from inside the judge’s red crucial robes. ‘I didn’t think I had it with me today”, he told his court. No further questions asked by anyone, obviously.

The most bizarre case is of Judge Restaino, who was sitting in the Niagara Falls City Court in March 2005, hearing a large docket of domestic violence cases. A mobile phone rang at the back of the courtroom. The judge told those present, "every single person is going to jail in this courtroom unless I get that instrument now". Security staff attempted, unsuccessfully, to find the phone. The judge then asked the defendant whose case was being heard if he knew whose phone it was. He replied, not unreasonably, "No, I was up here". Nevertheless, the judge committed him into custody as a punishment.

The judge then proceeded to ask every defendant in court if they knew whose mobile phone had rung. On being told they had no idea, the judge ordered each of them (there were 46) to be placed in custody unless and until bail could be provided. The judge ignored statements by defendants that their jobs would be at risk if they were to be detained. Someone had an urgent doctor’s appointment. Someone had to pick up her daughter. Judge Restiano, curiously, questioned only the defendants about the ringing phone. He did not take action against any of the prosecutors, defence attorneys, court personnel or others present in courtroom.

When one defendant told the judge, "I know this ain’t right", Judge Restaino responded, "You are right, it ain’t right. Ain’t right at all". Of the 46 detailed defendants, 14 were unable to post bail immediately. They were taken to the county jail in handcuffs and shackles, and placed in cells. Many of the defendants were returning to court as required after previous release. That afternoon, the press contacted the judge’s clerk asking about the details of the morning's events. The judge then organised a further court hearing to order the defendants’ release. He insisted that he had already decided on this prior to being informed about the press interest. The defendants were allowed to leave the jail at about 5 PM, after six or seven hours in custody.

The Commission on Judicial Conduct was understandably critical of judge Restaino. It was held that he had committed "an egregious and unprecedented abuse of judicial power’ by a ‘bizarre’, ‘shocking’ and ‘arbitrary’ course of conduct ‘without any semblance of a lawful basis" over a period of two hours in court and thereafter.

In the disciplinary proceedings, Judge Restaino acknowledged that when committing the defendants into custody, he knew that he had no legal basis for doing so. The Commission stated that his behavior “caused irreparable damage to public confidence in the fair and proper restoration of justice in his court”. Even if his ‘disproportionate and improper’ conduct had been a justified reaction to the disruption of this courtroom, “his extreme response was far more disruptive than a ringing phone”, held the Commission. In court, Judge Restaino had berated the ‘selfish’ and ‘self-absorbed’ individual who ‘put their interests above everybody else’s’, without recognising that he was describing his own actions.

Judge Restaino sought to mitigate his conduct as being the consequence of “certain stresses in his personal life”. The Commission was unimpressed. It held that a judge is “obliged to set aside his or her personal problems upon entering the courtroom”.

One member of the Commission, Raoul Felder, however, dissented from the decision to dismiss judge Restaino. He took the view that the episode was entirely out of character for an otherwise excellent judge who had a previously unblemished career record. Moreover, "his therapist has stated that insofar as we can ever be certain about the future, such an aberrational act will likely not recur", Felder noted. The reasoning of the other nine members of the Commission is much more convincing: removal from office was an inevitable sanction for a judge who caused 46 individuals to be deprived of their liberty ‘out of pique and frustration’, acting as a ‘petty tyrant’ who sought to place himself above the law which he swore to administer. The New York Court of Appeals later dismissed an appeal by Judge Restaino against his removal from the bench.

Indian courts have also held ringing of mobile phones in the courtroom to be contemptuous.

It is the majesty of our judiciary that this very villain (whose voice in the courtroom itself is treated as a contempt) has now been summoned for aiding the administration of justice in these trying times. Our courts have shown that Fiat Justitia Raut Caelum is not just a latin maxim couched in dead letters, but that they believe that “let justice be done even if the heavens fall”.

The author is the Solicitor General for India.