Supreme Court demand to record HC trials is a good first step, but a lot depends on implementation

The demand for the televising or audio-visual recording of court proceedings has picked up momentum of late. Notwithstanding ill-conceived attempts by certain lawyers and litigants to surreptitiously record proceedings in court, there’s a genuine demand that in order to truly giving meaning to the principle of "open justice", court proceedings should be televised or at least recorded through audio-visual means. This is a practice that is followed in many courts in the world, including the United Kingdom Supreme Court, although the United States Supreme Court has firmly avoided video recording (even though it allows audio recording of hearings).

In the Indian context, the Supreme Court of India has just taken the first step towards making audio-visual recording of court proceedings the norm. In a public interest litigation filed by Pradyuman Bisht, the apex court has directed high courts across the country to ensure that at least two districts in each state have CCTVs installed in the courts. This has been ordered on an "experimental basis" and a report to be submitted by the registrar-generals of the high courts to the Supreme Court a month after they have been installed.

This could not have come any quicker. Audio-visual recordings are necessary not only to ensure transparency in the functioning of the courts (giving citizens a ringside view of the goings on), but also essential for the conduct of a fair trial. Two recent instances show why:

Supreme Court. Reuters

File image of the Supreme Court. Reuters

A recent judgment of the Allahabad High Court concerned a shocking incident — the prosecution colluded with the accused to impersonate the complainant and his family as "witnesses" during the trial. When the fake "witnesses" contradicted earlier statements, the trial court had to acquit the accused until the real complainants came to court and pointed out the fraud committed by the prosecution and the accused. This resulted in a retrial of the accused (upheld by the high court), but also shows the brazenness with which the justice system can be subverted. It is unclear if any consequences have followed for either the prosecution officers or the fake "witnesses", but the presence of CCTV cameras with footage might be a deterrent for future such abuses.

The other area where CCTVs in courts might help is in identifying and penalising lawyers who cause a disruption or disturbance in the proceedings, usually in high-profile cases. As we have seen in the Kanhaiya Kumar case and the recent Arun Jaitley defamation case, it is not unknown for lawyers to try and disrupt proceedings for collateral purposes. There are also instances when judges have been intimidated and threatened by lawyers, forcing the former to approach the high court to take contempt action against such lawyers. With CCTV footage available, it might be an easier task for the high court and the police to identify and take action against the lawyers.

Finally, the most important reason to have CCTVs is to be able to cross-check the record prepared in court during evidence or arguments. Appeals are filed on the basis that the judge did not record the testimony correctly or that an important argument made by the lawyers had not been addressed. This ensures that the fact finding work of a trial court is carried out properly and any errors, by way of inconsistencies or discrepancies can be checked in appeal.

That said, and while the Supreme Court’s order is a welcome first step, it does however leave much to be desired by way of implementation. While it is good that the Supreme Court has sought to try out CCTVs on an experimental basis, allowing for corrections and improvements later, there are a couple of concerns (as articulated in this statement from the Campaign for Judicial Accountability and Judicial Reforms) in the manner in which it has sought to undertake this exercise, which might limit its utility.

First, it has directed only visual recordings without audio. This defeats half the purpose of the exercise as anyone viewing the tape will not be able to discern what was said in court.

Second, and more worryingly, it has limited who will have access to these tapes and also excluded the entire Right to Information Act, 2005 from application to the recordings. The purpose of ensuring greater transparency is utterly defeated if these tapes are only going to be accessible to judges alone and not the ordinary litigant or member of the public. While there’s a small window for citizens who wish to seek a copy to approach the concerned high court, this still falls far short of the transparency a move like this was supposed to usher in.

Most worrying though is the almost casual way in which the Court has exempted the CCTV recordings from the RTI Act. There’s no reference to the provisions of the act or any law which allows the Supreme Court to declare, in an interim order, that a certain law which would otherwise be applicable will be "excluded" in such a manner. This may only be an interim order, but it could set a dangerous precedent for the RTI Act. Furthermore, given the judiciary’s reluctance to itself fully comply with the RTI Act, this does not bode well for transparency efforts in the judiciary.

There’s still time for the CCTV experiment to be put in place and one hopes that going ahead, the Supreme Court will address these concerns to ensure a transparent judiciary that delivers on its promises of a free and fair trial.

The author is an advocate based in Bengaluru and a member of the Executive Committee of the Campaign for Judicial Accountability and Judicial Reform. Views expressed here are personal.

Updated Date: Apr 03, 2017 10:58 AM

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