RTI activists say the move will enhance transparency, but the legal fraternity is divided on the issue despite agreeing that the move is good for constitutional matters.
The observation of a two-judge bench of the Supreme Court on allowing video recording of court proceedings of the apex court and high courts, may have been welcomed by right to information (RTI) activists but the legal fraternity is divided on the suggestion and has urged caution in its implementation.
The Supreme Court had in mid-August favoured video recording of the high courts as well as its own proceedings, noting that “constitutional courts in other countries have audio and video recording.” It had also backed the provision for high courts allowing audio recording facility to the trial courts.
In March this year, the Supreme Court had directed that at least “two districts in every state/union territory, (with the exception of small states/union territories where it may be considered difficult to do so by the concerned high courts) CCTV cameras (without audio recording) may be installed inside the courts and at such important locations of the court complexes as may be considered appropriate.”
The latest observation of the apex court assumes significance, as some headway has already been made in the installation of such recording equipment. The court was informed by additional solicitor general Maninder Singh that 12 high courts have already installed cameras in two districts each.
The open approach of the apex court bench towards the issue is what RTI activists have been asking for a long time.
Former information commissioner Shailesh Gandhi had last year declared that there was no law to disallow recording of judicial proceedings in courts. Drawing a parity with the recording of parliament’s proceedings, he had wondered why courts do not record all their proceedings as it would “restore and strengthen the faith of the public” and “bring in transparency in the system”. Gandhi had also suggested that recordings of all judicial proceedings should be made available to the public through RTI.
Incidentally, while the Supreme Court has been quite open towards the idea of recording court proceedings, many high courts have been opposed to it. Prior to Gandhi’s observations last year, the Mumbai high court had dismissed two petitions seeking audio-video recordings of court proceedings, and their telecast.
The bench had cautioned that such a move would make court proceedings were a ‘spectacle’ or a ‘circus’ for public consumption. “Courts do not operate as star chambers, functioning in secret and behind closed doors, except in those exceptional circumstances where the law specifically allows as in camera proceedings,” the bench had said.
More recently, in July this year, the Delhi high court also dismissed a plea of a lawyer demanding audio and video recording of court proceedings. The lawyer had stated that the pleadings of the petitioner and his counsels were contrary to the facts on record and therefore the proceedings were required to be audio or video recorded. The court held that even if the contention was true, it does not make out a case for directing audio or video recording of the proceedings.
“It is always open to every litigant to produce all evidence available with her or him in rebuttal of the stand taken by the opposite party or to point out, on the basis thereof, the unfairness or even falsehood of such a stand. These are matters for argument and evidence and cannot be a basis to claim that the proceedings require to be audio or video recorded,” the court observed.
With judges taking such diametrically opposite views on the subject, the lawyers suggest a cautious approach so that the exercise is not misused and court proceedings are not reduced to a spectacle, as some judges had feared.
Improve public education and opinion formation
Senior advocate Indira Jaising is in favour of the idea of recording the court proceedings. “The proceedings of especially the constitutional courts should be video recorded. For example, the entire proceeding in triple talaq should have been video recorded and live-streamed. Similarly, the proceedings in the privacy and Aadhaar case should have been recorded and live-streamed,” she said.
This, according to her, would have led to public education helping in the formation of public opinion. “Apart from that it also stands at par with the fact that the proceedings of Lok Sabha and Rajya Sabha are also recorded. The Supreme Court is the co-equal of legislative power.”
‘Privacy is right of the litigant, not the judge’
On the issue of privacy, Jaising said: “Privacy is the right of the litigant and not of the judge. So, in maybe criminal matters and family law matter we may not record them but everything else of the constitutional nature should be video-graphed and live-streamed.”
On the other hand, senior lawyer Sanjay Hegde advocated caution in the matter, saying due to recording of proceedings “arguments might get more favoured for the cameras than for anything else”.
Recording may lead to reviews at every stage
Stating that India has a “system where the written word is everything, it is recorded,” he said, “if you have a video recording of everything, then it would lead to immediate demands in the superior courts for those records to be reviewed at every stage. It will not only delay the proceedings, it will be a sort of a hamper on independent judiciary. The constant thought of an appellate court reviewing everything that has happened does not make for a very independent judicial mind in a lower level judge.”
India not structured enough for the idea yet
On why India cannot have such recordings when other developed countries do, Hegde said: “It is in vogue in a lot of countries but those countries have a much more structured hearing. In a more developed jurisdiction you get a hearing date a few months ahead but that hearing date is adhered to. This is a good idea which would work in a structured environments, we are far away from that.”
However, he supported the ides of recording constitutional matters. “It would be a good idea provided its usage is seriously restricted. We cannot have a situation where today’s recording is uploaded and then becomes a matter of ridicule on the media. Recording should be used only for judicial purposes or for broadcast without comment.”