THE
CASE FOR TRANSPARENCY
Inderjit Badhwar
The legal community appears increasingly to support
the framing of rules to allow recording of court proceedings. But even though
it is not yet clear whether, at the moment, recording is legal or not, the
debate is legitimate and valid.
Proponents believe court proceedings should be
taped, at least in the high courts and Supreme Court to start with. They are in
many countries. In England, before taping, they used shorthand. Verbatim
records of old proceedings are, I believe, still available.
One of the most articulate champions of this cause
has been senior lawyer KV Dhananjay, who took up this cause with an evangelical
spirit more than four years ago in correspondence addressed to the chief
justice of the Delhi High Court.
The Indian Express picked up the story and reported:
“A young lawyer has provoked a new debate on transparency in the judiciary by
sending a letter to Delhi High Court Chief Justice AP Shah, seeking permission
to, ‘non-intrusively’ tape-record court proceedings.”
One section of the legal fraternity, however, feels
that audio recording of court proceedings also carries with it a possibility
that information could be manipulated, distorted, or used to embarrass, harass
or intimidate parties to court proceedings. But Dhananjay reasoned in the
letter that an audio record of court proceedings, especially interaction
between the judge and lawyer, would help his client accurately follow the case.
“The recording would be done by a tiny device, which, without any displacement,
can capture every sound generated in that specific court room. This device can
even be worn inside a pocket of a shirt or a trouser. This device makes no
sound or noise whatsoever as its mechanism and operation are electronic.”
Dhananjay argued that transcription is now an essential
part of judicial proceedings in most major democracies. Appellate courts in
many jurisdictions routinely remand matters back to the lower court and order
retrial in the event the previous trial was not captured in an official
transcript or if the official transcript is lost or destroyed.
In addition, intermediate and supreme courts
customarily see transcripts of proceedings to decide considerable questions of
law. Millions of transcripts of judicial proceedings from various parts of the
world are posted on the Internet and have fostered immense trust and faith in
the integrity of the judicial proceedings that are open for transcription.
Further, every judicial proceeding is invariably reconstructed on appeal and
the fairness of an appeal is directly determined by the degree of accuracy with
which the proceeding below is reconstructed.
Quoting from Dhananjay in a supportive blog, a
prominent lawyer, Hemant Batra, wrote: “The absence of a transcription greatly
burdens an appellate court with assumptions (about the proceeding below) that
may greatly vary from the actual proceeding. A transcript relieves an appellate
court of such enormous burden and in doing so, similarly relieves an appellant
of burden that is incompatible with the modern era.”
Dhananjay also argued that a party to a judicial
proceeding has an inherent right to information about such proceeding and the
consequent right to preserve such information. This right is not fully honored
as long as a party must reconstruct a judicial proceeding by employing his own
memory or that of his counsel. Further, given the possibility of a different
counsel appearing at different stages of the same judicial proceeding and of
different appellate counsel, it becomes absolutely essential that a party’s
need for an accurate reconstruction of a judicial proceeding is fully honored.
Batra, partner, Kaden Boriss, Legal LLP, India; Vice
President, SAARCLAW; and Chairperson, IICLAM, Singapore, makes these telling
observations in support of Dhananjay’s arguments:
*First and foremost, it will improve the discipline
and decorum inside the court rooms because everybody will be conscious of the
fact that they are being recorded.
*It will improve the standards of practice; each
lawyer would try to justify to his or her client about his or her best efforts.
*Likewise, it will also improve the justice delivery
system; cause the Judges would be under scanner.
*It will improve the judicial mechanism as a whole
because the data of judicial proceedings in any matter would be readily
available for scrutiny by the higher court.
*It will speed up justice because the appellate
courts need not hold actual detailed hearings; they can analyze video/audio and
if need be, circulate questionnaire to the parties.
*Globally, we are moving towards digitization and
electronic management system; everything should be available in composite data
form.
*It will cut costs, since proceedings could be
viewed through video conferencing mode; the litigants need not attend court
proceedings, they could have a password oriented long distance video access to
the proceedings.
*It will certainly bring about transparency in
judiciary and the legal system as a whole.
Batra ends his note on a powerful observation worth
recording: “I feel that one should always deal with a problem head on and not
by escapism. Hold the bull by its horns because otherwise you will have no
option but to be hit by it. The section of lawyers who are opposing the AV
recordings are according to me not opposed to the idea of AV but are either
scared of the risk of not being able to control the bull or are not confident
enough or want to tame the bull first and then solve the issue; let me advise
them that one cannot tame the wild bull. We in India are blessed with a
proactive and sensitive judiciary who has, by and large, upheld the rule of law
and sentiments of the society; I am sure that our judiciary will be open to the
idea of AV recording of the judicial proceedings; I have full faith in the
custodians of law; let us not lose hope. I wish all the very best to activist
lawyers like KV Dhananjay in their initiatives directed towards modernization
and transparency.”
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