Covid 19 or the Corona virus as it is commonly called has not only played havoc in the lives of people all over the world but it is also going to have a profound effect and change the way how countries and communities conduct their lives and businesses hence forth.
Since, the virus spreads more rapidly amongst congregation of people and, nobody can predict where the virus is lurking around or who the carrier is, with many carriers having found to be asymptomatic, usage of masks and social distancing has become mandatory and a way of life.
The world has adapted to this new scenario and economic activities in the corporate world are being conducted by working from home, conducting meetings through Skype and conferences by Webinar and Zoom.
Even though the courts have stopped Advocates from coming to court, important matters effecting the life and liberty of citizens are being adjudicated by courts using video conferencing from virtual court rooms.
Some enthusiasts, policy makers and other influencers want court hearings to be conducted via video conferencing even after normalization of the situation due to availability of new technology and to provide access to justice for litigants staying in far flung areas.
Whereas there are others who are of the firm opinion that video conferencing cannot replace open court hearings since, the fundamental principle in the administration of justice is that courts must be open to the public.
Article 145(4) of the Constitution of India provides that no judgment shall be delivered by the Supreme Court other than in open court. It further, provides that no report shall be made under Article 143 other that in accordance with an opinion also delivered in open court. Section 327 of the Criminal Procedure Code and Section 153-B of Civil Procedure Code also mandates open court hearings in all criminal and civil cases.
The Black’s Law Dictionary defines an “open court” as a court to which the public have a right to be admitted. This term may mean either a court which has been formally convened and declared as open for the transaction of its proper judicial business or a court which is freely open to visitors.
The origin of the principle of open court hearing could be traced to the English Courts. The principle underlying open justice was formulated by Lord Chief Justice Hewart to mean justice should not only be done but should manifestly and undoubtedly be seen to be done.
In R. vs. Secy. of State for Foreign and Commonwealth Affairs Lord Judge, C.J. draws a link between open justice and democratic values holding that the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself.
In similar context Bentham, observed that in the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity.
Therefore, the idea of open courts is crucial to maintaining public confidence in the administration of justice. The public must be able to enter any court to see that justice is being done in that court, and Judges conscientiously doing its best to do justice according to law.
The Supreme Court way back in the late 60’s, in the case of Naresh Shridhar Mirajkar vs. State of Maharashtra, while adjudicating the issue of judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, a Nine Judges Bench of the Supreme Court held that it is well settled that in general, and it was a universal principle that all cases brought before the courts, whether civil, criminal or others, must be heard in open court.
The Court further, elaborated that public trial in open court is essential for the healthy, objective and fair administration of justice. The court held that trial under public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality in the administration of justice.
The court was of the opinion that public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the court-rooms.
In the same case while considering the submissions for in camera proceedings, the court held that decision to hold in camera proceedings, must be exercised with great caution and such an order may be passed only if the court is satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open court.
Therefore, the court while holding that there are exceptions to this universal rule of open court hearings, however, the Court laid down a very strict condition for digressing from this universal rule namely that the digression is permitted only to secure, the ends of Justice.
The principle of open court hearings and its nuances were adjudicated in various cases before the English courts. In the celebrated case of Scott vs. Scott, where the issue was of in camera hearing, it was held by the House of Lords that courts of justice have no power to hear cases in camera even by consent of the parties, except in special cases in which a hearing in open court might defeat the ends of justice.
Consequently, in Mc.Pherson v. Mc.Pherson, a decision in a case, proceedings held in camera, by consent of the parties, was held by the Judicial Committee as voidable.
Moosbrugger vs Moosbrugger is another case which followed the open court hearing principle. However, this case is significant to show that the principle of open court hearings are so sacrosanct that even though the court was satisfied that unless the witness was allowed to depose in camera, the witness would not be able to disclose the whole truth, the whole case was still tried and argued in public and only that portion of the recording of the witness’s statement was recorded in camera, which could not have been disclosed in public.
Thus, it has always been the glory of the English judicial system that all trials are held ostiis apertis, that is, with open doors. This principle is old and according to Hallam it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of justice and that in proportion as publicity had place, the checks on judicial injustice could be found.
Similar has been the view of the US Supreme Court. In Richmond Newspapers Inc. v. Virginia, Burger, C.J. observed that the early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. Further, it was also held that people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.
Recently, in 2018, the Supreme Court while hearing the case of Swapnil Tripathi v. Supreme Court of India, on the issue of live streaming of its proceeding held that that access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first hand. The Court also acknowledged that the principle of open court hearings would have to be adhered when Rules for live streaming of court proceedings are made.
The court also agreed that our legal system subscribes to the concept of universally accepted principle of open court hearings and that live streaming is an important facet of a responsive judiciary which accepts and acknowledges that it is accountable to the concerns of those who seek justice.
A court of justice is a public forum. Open courts foster public confidence and ensure that the Judges apply the law in a fair and impartial manner. It is through publicity that the citizens are convinced that the court renders even-handed justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the court proceedings.
Even though the country is under lock down, the Supreme Court and other courts in the country are still open to the citizens, the Courts are trying to provide justice to the citizens even under the present trying times in extremely urgent matters.
The court is providing access to Journalists in important cases to enable them report the proceedings. Thus the court is trying to implement the principle of open court hearings even under extreme limitations when there is a lock down and the proceedings are being conducted via video conferencing.
Now the question that arises for the court’s consideration is whether hearings in virtual court rooms with access being provided to Journalists in important matters would suffice the requirements of the principle of open court hearings or whether open court hearings necessarily means hearing in physically open, traditional courts of bricks and mortar where anyone can come and access and see the proceedings.
The other important question that also arises in this context is whether telecasting of important proceedings only from virtual courts would suffice the requirements of the principle of open court hearings or compliance of the principle of open court would require the telecasting of proceedings of all matters being heard in virtual courts.
Technological innovations and advancements have seeped into the lives of the people and similarly available technology will be utilized by the Judiciary for its functioning to reduce pendency of cases, faster disposal of cases and efficient management of cause lists.
However, the adoption of video conferencing technology in court hearings must be limited to the duration of the present crisis only. The virtual court rooms cannot replace the open court hearing system of justice administration. The inadequate infrastructure and inadequacies of the virtual court system has been experienced by all those who have appeared before virtual court rooms and problems encountered by Advocates have been widely reported.
Therefore, technological innovations in the administration of justice must be implemented in a progressive, structured and phased manner, with safeguards to ensure that the principle of open court hearings is achieved holistically and that it does not interfere with the administration of justice or the dignity and majesty of the open court hearing or impinge upon any rights of the litigants or witnesses.
The Author is Senior Advocate, Supreme Court of India.