Time to make courts Tech-Savvy!

Recently, the Law Minister of India, Mr. Kapil Sibal has brought about sparkling news in the media for the more extensive use of technology in the Indian Courts for imparting justice. This news has come within 4 weeks of his appointment as the Law Minister of India. He has conveyed to the media, changes which are proposed by him, for which, he would take the advice of the Chief Justice of India and the Chief Justices of all the 24 High Courts.

The changes which he wants to bring about for the better delivery of justice are:

1. Audio recording of the trial court.
2. Extensive use of technology for issuing summons and other necessary notices.
3. Possibility of discussions in the Union Cabinet to change the 20 year old collegium system of appointment of judges.

Apart from the above three mentioned possible reforms, Mr. Kapil Sibal who is even holding the charge of the Ministry of Communications and Information Technology, is checking the possibility and is working out the plan for a video-conferencing system to stay in touch with the law officers posted at the Supreme Court of India and at the 24 High Courts in India. He plans to have this system so that these law officers discuss the important issues with him, sitting in their own respective offices. This will reduce the travelling time, where the officers can communicate with the minister sitting in their own offices, instead of going all the way to New Delhi to meet the minister and will hence increase the efficiency of the department. This system is presently being enjoyed by the top bureaucrats of India.

The most awaited of all the above reforms, which will increase the efficiency of the courts in imparting justice, is the proposal for audio recording of the proceedings of the trial courts.

Before discussing the possibility, benefits and/or any defects in this proposal lets have it right from the mouth of Mr. Kapil Sibal.

“Why shouldn't there be audio recording of court proceedings? After all, the court is a public place. There may be some objection against video recording of court proceedings. But there can't be any objection to audio recording`.”

Mr. Kapil Sibal has rightly exclaimed in the above statement that there should indeed be audio recording of the court proceedings, as a court is generally open to the whole public and anyone can see and hear the court proceedings. Such right of observing the court proceedings is covered under the Article 19(1)(a) of the Constitution of India, which guarantees the Right of Freedom of Speech and Expression and under Article 21 which provides for liberty. Thus when observing the court proceedings can be enforced as a fundamental right, even recording that particular event in electronic form and listening to it later and refreshing your memory has been provided under these provisions of the constitution. Although there is no judicial interpretation for this provision, but it should be so.

As claimed by the Law Minister of India,

"This information (recordings) will really be meant for the appeals court. "So when the matter goes in appeal, you know exactly how the trial judge responded, what the witness said, how the witness statement was recorded... If all that is audio recorded, the appeals court will find it much easier to decide many issues. And most importantly, the litigant will be able to access this information because it will be with the court,"

The audio recording of the proceedings of the cases in the trial courts will improve the imparting of the justice when the case goes for an appeal. No doubt that the statements of the witnesses have already been recorded in the written form by the trial court, but there is indeed a difference between the recording in the written form and in the oral form. There is a possibility of bias on the part of the magistrate while recording the witnesses statement. There is even a possibility that the statement would have been false but understood as true at that point of time, vice-versa, but after listening to the audio recording it feels as if it was not meant to be as it was taken and it was the other way round. The recording of the proceedings of the trials is very beneficial. We will discuss with this later on in the article.

Well as rightly remarked by Mr. Kapil Sibal, this reform will not be a reality until and unless the move is ratified by the respective high courts under whose jurisdiction the trial courts come. He has already had some discussion on the topic with the present Chief Justice of India Altamas Kabir and a few other sitting judges. Since the present CJI Altamas Kabir is due to retire on 18th July 2013, it will not be possible to implement it by then, so Mr. Kapil Sibal has even taken the advice of the senior most judge (next after the CJI) in the Supreme Court of India, Justice P Sathasivam, who becomes the Chief Justice after the retirement of the present Chief Justice of India. He is yet to get the reply of the latter. Kapil Sibal is expecting the reply of Justice P Sathasivam to be positive.

Implementing such a programme without the consent of the High Courts under whose jurisdiction the trial courts come will be a dream and will not be possible. So Mr. Kapil Sibal has even sought for the advice of the Chief Justices of all the 24 High Courts. When Mr. Sibal was asked upon the question that will the magistrates of the trial court, support this move, he replied to the affirmative and has said that the magistrates who are younger always support the use of Information Technology in the courts as they know it will benefit them and also the general public. Such magistrates aren’t even having any problem with using the technology and mostly all of them are computer literates.

According to Section 327(1) of the Code of Criminal Procedure,

“(1) The place in which any Criminal Court is held for the purpose of inquiring into, or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain

them :

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.”

Thus according to the above stated section, the criminal courts are open to the whole public until and unless the presiding judge/magistrate abstains the public or a particular person from coming inside the court.

According to Section 153(B) of the Code of Civil Procedure,

“The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them :

Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally or any particular person, shall not have access to, or be or remain in, the room or building used by Court.”

Thus according to the above stated section, even the civil courts are open to the whole public until and unless the presiding judge/magistrate abstains the public or a particular person from coming inside the court.

It is a right of each person of the public to look at the court proceedings of any court in India until the presiding judge/magistrate has put certain restrictions. So, why is audio recording of the proceedings not a right? I can understand in some sensitive case where the court proceedings are in camera and the general public is not allowed to view any of the proceedings of the case, and even the media is stopped from reporting anything about such proceedings, audio recording should not be allowed, but in a normal courtroom when normal cases (in those cases where there are no restrictions imposed) are going on then there should be no bar on recording the cases.

As for now, there is no statutory provision or law which allows or disallows the audio recording of the trial court proceedings. There have been many petitions before the courts of India for the recording of the judicial proceedings.. But, all the petitions have been dismissed.

In the case of Deepak Khosla vs Union Of India & Ors. which was filed before the Delhi High Court, the petitioner Deepak Khosla a businessman based in noida had filed a petition before the Hon’ble High Court of Delhi to issue to the writ of mandamus, to be directed towards the Registrar General and the Registrar of that court, to not to interfere with the act of non-intrusive audio-recording by the petitioner or his advocate on record in respect of judicial proceedings that involve the petitioner as a party, or to either declare that the petitioner is entitled to non-intrusively audio-record the judicial proceedings, that involve his participation before that Court.

This case was initially listed before a single judge, Justice (now retired) S N Dhingra. The Hon’ble Judge giving an affirmative note, had observed the following,

1. The Hon’ble Judge had observed that such recording of the court proceedings for personal use will be dangerous and there should be some proper mechanism for the recording of the judicial proceedings.
2. Since the petition involved the audio recording in all the courts in which the petitioner is a party, the Hon’ble Judge observed that this decision will have to be taken by a larger bench of the court to check for both the administrative and legal aspects of this case, it must be referred to a larger bench.
3. Whereas, the Hon’ble Judge has remarked that he is in favour of such audio recording in the courts. He has even stated that the audio recording in the lower courts will help a lot, as it will discipline both the judges and the advocates regarding certain matters as they would then be aware that everything is being recorded and the magistrates of the lower courts who are not having the contempt power will not even tend to misuse it.

Thus this case was then referred to a Division Bench constituted by the Hon’ble Chief Justice of Delhi High Court Mr. Dipak Misra and Hon’ble Justice Mr. Sanjiv Khanna. They observed that,

"There is no cavil over the issue that there is no specific legislation, provision or any law regarding the field referring to which it can be said that there is a mandate of law that audio-video recording is to be done in respect of court proceedings,"

The Hon’ble Court also did not allow for an appeal to be made to the Supreme Court of India as there was no substantive law for the same.

In another instance, a law professor from the US had an argument with the judge of the Delhi High Court on the issue of recording of the trial court’s proceedings in which the NRI professor was a party. He had filed an appeal before the Hon’ble High Court of Delhi to allow him to record the court proceedings which would help a litigant "capture and preserve evidence of what happens inside the courtroom". He had previously applied for the same before the District Court but this application was dismissed, upon which he had filed an appeal before the High Court of Delhi. The NRI professor claimed that the litigants are having the right of recording the court’s proceedings as there is no provision under the common law banning it, and anything which is not expressly banned under the common law is deemed to be allowed. There was an argument between the judge and the NRI professor after which the judge ordered the security personnel to confiscate the recorder which the professor was carrying.

In another incident a government school teacher was detained in a Delhi Court when he was found video recording the court proceedings in a CBI case in which his relative was an accused.

So, thus it can be clearly seen that there is indeed a need for a statutory provision which either allows the recording of the court’s proceedings or disallows the recording. This move by Mr. Kapil Sibal is actually very timely as more and more people are demanding for the recording of the court’s proceedings. With the advent of such a law there will be a clear position with regard to this issue.

The Financial Sector Legislative Reforms Commission (FSLRC) in its report has drafted a law, Indian Financial Code, 2013, in which under section 431(2)(e), imposes a duty on the registry of the Financial Sector Administrative Tribunal(FSAT) to enable public viewing of proceedings, including by way of transmission of hearings by electronic means.

Section 438(4) states that, ‘The Tribunal must ensure that the entire proceedings of the Tribunal are recorded and published’. The introduction of these two provisions in the draft law of the act, which enables the recording of the act, is a big leap for bringing transparency in the judiciary of India.

If audio recording of proceedings in the trial courts is allowed, then there will be many benefits in the function of imparting justice. The benefits are:

1. The reaction of the witness will be recorded word to word and if he is asked a question then even whether the witness is fumbling or whether he is not replying properly or whether he is taking time to respond, all will be noted, which will give a better view while analyzing the proceedings in the appellate court. All these expressions which are otherwise not recorded in the written judgement (and only the final reaction is noted) will now be available for the benefit of all.
2. While recording the witnesses’ statements, the magistrate / judge does not record it word to word and its not in first person. Rather what is recorded is the judge’s interpretation, which is taken down in his words. This alleviates the problem as there may be some amount of bias or misunderstanding in what the witness has actually said. The noting down of statements by the judge is subject to his comprehension, as to what he understands from the former’s statement. If at all there is any such wrong reporting even if it is unintentional, one single sentence may spoil the whole case.
3. Sometimes the judges make certain statements which are not recorded but actually they mention the biased nature of the judges. The judges will not make any such statements and will instead say something with caution as then, they will be aware that the superior court’s judge may listen to these recordings.
4. Since there will be audio recording of the entire proceedings of the court, everyone including the lawyers and judges / magistrates, etc. will be vigilant enough and will not do anything as such which is not allowed by the law. Thus it should be made mandatory as it will increase the discipline in the court.
5. Sometimes it so happens that the judges / magistrates may start asking the questions to the witnesses just by reading the written statements. When they do so, they step into the shoes of the public prosecutor which is not their job and thus shows their biased mind. This should not be the conduct of an ideal judge. The lawyers may not point this out as they feel that the judge may get annoyed. This can be only stopped by the audio recording.
6. I not only support the audio recording, but video recording also. Instead of audio recording, there is a greater need for the video recording as it will capture the facial reactions of the witnesses also. Sometimes words may be deceptive but the facial reactions may depict something else.

I do not only push for video / audio recording to be done in the trial courts, but even in the High Courts and the Supreme Court. These courtrooms are also open to the general public and the general public have a right to view these court proceedings also.

When the proceedings of the parliament are being shown live on national television, then why cannot the proceedings of the higher courts be recorded? The courts are open to the whole public and it so happens sometimes, that the whole country may want to know what is happening in one particular case, so everyone wants to go and look at the court’s proceedings.To take a recent example, the people wanted to know about the proceedings of the Coalgate scam case before the Supreme Court of India. The courtroom in which these proceedings were being held was full jammed packed and lnot only the courtroom even the corridor leading to that courtroom was full of people. Even the lawyers of that case and of the other cases in the list of that courtroom were not able to get inside the court. If the telecast of the courts proceedings is done, then so much of crowd will not be there. I agree that it is tough to make 13 channels for the 13 different courtrooms of the Supreme Court of India, so the authorities may telecast it live on YouTube channel which is free of cost. This telecasting of the video recording will also enable the law students and budding lawyers to learn a lot and even learn the court craft. Today if you want to observe the arguments of any senior advocate, you will have to apply under him and then assist him. But if this system of telecast is done, then you may just sit in front of your computer and look at the arguments!

If the government feels that it will be too costly to implement any such scheme, be it the telecasting of the video recording or audio recording on a public domain or even if the government feels that the recording infrastructure will be too costly and it cannot afford such a system, then the government can at least allow the litigants and their lawyers to record the courts proceedings.

Whether the recording can be taken as an evidence is a later question, first the government shall implement such a system and allow the audio recording.

This system of recording the judicial proceedings is prevalent in many countries. In the case of Deepak Khosla vs Union Of India & Ors., the Hon’ble Judge was provided paper cuttings which depicted that in United Kingdom, the Supreme Court proceedings are being televised where Justices are seated at eye level with the lawyers and the visiting public in the courtrooms.

This system of audio and video recording has been followed in many countries across the world! If at all this system is adopted, then this would be a landmark for the transparency in the judicial system of India! I strongly support Mr. Sibal’s endeavour.