Open Justice: Court of Recordings

While addressing a press conference on May 13, 2021, Chief Justice of India NV Ramana explained that the Supreme Court of India is actively considering live streaming of Court proceedings in India.

Over the last 12 months or so, most constitutional courts have employed virtual hearings to overcome the restrictions due to the COVID-19 lockdown. However, as the country encounters a second wave and continued social distancing measures, a push for greater access, in real time, to court proceedings would ensure uninterrupted judicial functioning and redefine the practice of open justice in India.

Open Justice

At present, the issue of live streaming of court proceedings has been the subject of a consultative and review exercise led by Justice DY Chandrachud, head of the E-Committee of the Supreme Court. He also indicated that he was in the process of finalizing the rules for live-streaming and implementing a process of modernisation of courts under the Phase III of eCourts Project.

In an altogether different matter, on May 6, in The Chief Election Commissioner of India v. MR Vijayabhaskar & Ors, Justice Chandrachud again addressed the issue of live streaming of court proceedings and stated that "unless live-streaming and archival of court proceedings sees the light of the day, the absence of records of oral proceedings would continue to bedevil the system.”

In this case, the Court was concerned with comments made during oral proceedings and the import of such comments in a broader sense. This has again highlighted the importance of access to judicial proceedings.

Open justice is a long-standing and fundamental principle prevalent in many common law countries. In 1924, Viscount Hewart, then Lord Chief Justice of England, uttered the now-famous words: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” In the seminal case of Scott v Scott [1913], which is one of the most important authorities on the issues relating to public hearings, Lord Atkinson stated:

“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses… but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means of winning for it public confidence and respect."

Need for recording of proceedings

In some ways, restrictions designed to control COVID-19 have resulted in revolutionising the use of technology in judicial proceedings. While most courts and tribunals have transitioned to virtual hearings and e-filing procedures, some High Courts, such as the High Court of Gujarat have gone as far as live streaming their proceedings.

In many international cases, when foreign courts are considering Indian law or Indian judicial proceedings, they are constrained by the fact that there are no audio or video recordings of court proceedings; only orders and/or judgments which are publicly available. By way of comparison in the United Kingdom (UK), all court proceedings are the subject of audio recording except in the Magistrate’s Courts. This enables any litigant who wishes to obtain a copy of the Court proceedings to do so online through the concerned government website.

The recording of the court hearing enables any Appellate Court to decide upon the conduct of the parties before the lower court and the arguments advanced, especially in considering issues such as procedural bias, unclean conduct, apparent bias and actual bias. Recently, in England, in the case of Jan Tomasz Serafin v. Grzegorz Malkiewicz, the Court of Appeal, while considering the conduct of a High Court judge, held that he had showed hostility and rudeness to the claimant, and their Lordships stated they were “driven to the conclusion that the nature, tenor and frequency of the Judge’s interventions were such as to render this libel trial unfair” and subsequently allowed the appeal.

In terms of the broadcasting of court proceedings, at present, in the UK, there is a prohibition against recording and/or broadcasting either live streaming or delayed streaming except in the Supreme Court and selected cases of public importance in the Courts of Appeal both in civil and criminal cases pursuant to Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981 respectively. The Supreme Court of the UK has been broadcasting live since 2009. Similarly, other international legal forums such as the European Court of Human Rights, the European Court of Justice and the Permanent Court of Arbitration also provide live streaming.

As such, the Indian legal system has historically been reluctant to embrace technological change and has partly been forced to adopt video-conferencing to stay active through the COVID-19 lockdown. There is also a significant digital inequality that exists across the country, with only 50% of the population holding internet access. Nevertheless, initiatives by the Chief Justice of India, Justice Chandrachud and the e-Committee of the Supreme Court are highly important, most relevant and enable the principle of open justice to be truly ingrained in the Indian legal system and to achieve international fair standards in judicial processes.

The authors are Advocates at Chennai-based law firm Ganesan and Manuraj Legal LLP.