Opinion

How To Open Up Our Courts

We should publish transcripts of judicial proceedings. This will make the working of the courts and the positions of the state transparent to all citizens.

In the past few weeks and months, the Indian Supreme Court has been in the public consciousness more than at any other moment in recent memory. Part of this attention is due to the sheer number of landmark cases, some decided and some to be decided in the near future, that have kept the judges busy. This includes cases on a right to privacy, the validity of Aadhaar, religious practices, etc. Then there was the unprecedented press conference that raised questions about the integrity of the institution itself.

The insular nature of the Supreme Court does not help at a time when it is faced with such increased scrutiny. Unlike the executive and the legislature, which are far more relatable to the wider public, either through persistent coverage in the media or personal interaction, the judiciary feels a step removed. This distance is a necessary aspect of what makes it independent and impartial. However, there is scope to make the institution more transparent without compromising on its functioning.

One such measure is to make the day-to-day proceedings of the judiciary, in particular the Constitutional courts of the Supreme Court and the High Courts, more accessible to the general public. This can be achieved by publication of transcripts that set out, without embellishments, the proceedings from a courtroom. SCOTUSblog, the official blog of the Supreme Court in the United States, is a good example of how this can be implemented in practice.

There are several positive effects that can be anticipated from such a move. One, it will help provide an unvarnished account of judicial proceedings. Two, it will provide a valuable insight into the way judges perform. Three, it will shed light on the positions that the State is adopting in various cases. And four, it would be a great tool to educate the general public about judicial processes.

At present, a layperson who wants to know what’s happening in a courtroom has limited sources of information. These could include live tweets put out by lawyers present in the courtroom or reporting by conventional media sources. While these are useful sources and must continue to exist, they are not without limitations. One, such reporting is restricted to cases that capture the wider public attention. The privacy judgment is a case in point, where one was never short of sources that provided in-depth coverage of what was said in the courtroom. It is likely that several cases that are of material importance, but not necessarily controversial, might fly under the radar. Two, live tweets and conventional media reports may not present unbiased accounts of what occurs in the courtroom. An independent source that is tasked with the publication of the transcripts of all judicial proceedings will help address these lacunae.

The official transcripts will also showcase how the judges perform on a day-to-day basis. They will give the public an avenue other than the text of the judgments by which to see how judges are performing. It will be possible to see how well the judges engage with the arguments being made in front of them. Given the massive responsibility that judges are vested with, this increased level of scrutiny must be welcomed.

A third benefit that one can expect is greater clarity on positions that the State adopts. The State is a party to several cases, particularly those that are of Constitutional importance. Given that the State also owes a measure of responsibility to the citizens, it is only right that citizens have the right to know what the State is representing on their behalf. In the long run, the presence of a more enlightened populace could foster greater accountability from the State.

A final benefit, which addresses a point made initially, is that the official transcripts of proceedings will be a useful educational tool to inform the general public of how the courts function. The processes being followed at present are obscure to almost everyone but practicing lawyers. Having a ready source of information on judicial processes will go a long way towards making the judiciary a more relatable institution.

A push for greater transparency in the proceedings of the judiciary is not a novel concept. In fact, a recent petition in the Supreme Court seeks the live streaming and video recording of judicial proceedings, akin to the television channels dedicated to the two houses of Parliament. A move towards greater transparency is unlikely to address all the structural shortcomings of the judiciary. However, it is a step in the right direction and must be encouraged.

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About the author

Ajay Patri

Ajay Patri is an Associate Fellow at the Takshashila Institution. He is a graduate of National Law School of India University, Bangalore and has worked at a corporate law firm in the past.