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A Gimlet-Eyed Witness

Video-recording in courts can bring accountability and more, but judges have some reservations

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A Gimlet-Eyed Witness
Live streaming equipment at the Auckland High Court
Photograph by Getty Images
A Gimlet-Eyed Witness
outlookindia.com
2016-10-14T17:11:38+0530

The video recordings of the Oscar Pistorius trial—for the killing of his girlfriend—still attracts several hundred viewers every week, two years after it was telecast live from South Africa. A court had given special permission for live coverage and video-recording of most of the trial. This included some of the consenting witnesses’ cross-examinations. Some had criticised it as pandering to voyeurism, while others pointed out that it infringed on the court’s sanctity on sub-judice matters. Others, including the court which allowed the telecast, felt the public had a right to follow the trial till the final verdict.

The Bombay High Court recently disallowed a petition requesting video and audio recording of court proceedings. The petitioner, Navnit Khosla, stated that the position of lawyers changed from one hearing to another, creating delays and distortions in proceedings. His petition claimed that the media selectively reported proceedings in high-profile cases while they were being heard, leading to rumour-mongering.

The HC denied Khosla’s petition, citing one of its judgements from earlier this year. The judges had decided that recording cou­r­­troom proceedings was a matter of policy and that right to information was subject to the same reasonable restrictions set on fre­­­e­­dom of expression. Regarding live telecast of proceedings, the order noted that a courtroom should not be reduced to a reality TV show. Similar petitions have surfaced in different high courts, as also at the Sup­­reme Court. Video recording was offered as a solution to deal with the huge backlog in courts and delays in the justice system.

Globally, several countries have adopted the practice. However, courts there have always had a minute-by-minute recording of proceedings and the move to digital has been a matter of changing the medium. Indian courts do not work in the same way.

“When parliamentarians misbehave, it is there for the world to see. There is a lot that takes place in courts—behavioural issues that have nothing to do with the merits of the case. Why should the judiciary think it is a holy cow and not be questioned? Law­yers also browbeat judges and act in ways unb­ecoming of the robe. Why should they get away with that? With the pressure of recordings, it would keep a check on the parties and check arbitrariness of how proceedings are conducted,” says senior advocate Rebecca John.

In Indian courts, judges instruct court ste­­n­ographers about what can be recorded and it is stored in the form of an order, which may even be a cursory nod in the form of  ‘Matter heard, reserved’ or ‘Heard. List in four weeks’. That’s all. The Delhi HC has recently ruled that the steno’s notes are not covered under RTI, so changes in drafts of judicial orders will not be made public.

Now, the Centre’s reported proposal to com­pile a judge’s career of judgements and orders under a single electronic ID, can partly change the institutional paucity of record keeping till date. The data will be compiled using software which requires judges to make more specific notes on what transpired and note why an adjournment was granted. Currently, perfunctory daily orders do not mention who sought an adj­ournment on what grounds or what the lawyers said. They do not note the comments of the judge, which are reserved for the note sheets in his files.

“When final arguments are heard in a case, a judge keeps his own records and then res­erves the judgement for later. While he can refer to the written pleadings, a judge only has his own written notes to refer to and may not be able to recall all that was argued orally by the lawyers. It is often those arguments that can convince a lawyer that he/she has made a substantial point but does not always see it reflected in the order, bec­oming easy ground for an appeal, leading to further delays,” says lawyer Indira Unninayar, who had appeared in a PIL on judicial delays before the SC. But that ground may not stand in a higher court.

“During appeals, the SC has often stated that a lawyer may have written something in his pleadings but did not argue the point in court. Sometimes, witness statements are recorded wrongly. Sometimes, judges misbehave with parties or lawyers. Reco­rding proceedings will reduce these problems since they will be held accountable.Without a record, deniability is easy,” says senior advocate Prashant Bhushan.

The apex court had appointed Unni­nayar to make sense of data from var­ious courts during the PIL. It led to a report on massive judicial vacancies, a staggering backlog and other det­ails that are discussed till date. The sheer weight of a court’s caseload is unnerving. Judges may have to handle 70-200 cases within four to five hours in a day. Thus, a court may itself be prepared to adjourn many matters. Reco­rding would clarify why a court granted the adjournment.

Video recordings would also end verbose, deviating arguments and help the court’s registry to figure out how long certain matters take, enabling it to devise the court’s dockets more efficiently.

The apex court eve­ntually backed out from making a positive change. Unn­­­inayar says that the very issue they were pointing out to the court—lack of records—may have cost them their petition.

The US conducted a three-year pilot project of video rec­ording court proceedings, with  a provision to live-stream certain cases (such as the O.J. Sim­pson murder trial). The US Supreme Court also publ­ishes transcripts of oral arguments in court. The UK  rec­­­­ords everything, even the proceedings at its highest court. The same goes for Australia and New Zealand. With the sheer bulk of litigation in Ind­ian courts, video recordings may prove easier.

The media’s job too may bec­ome a lot easier, with legal reporters gaining access to a hearing without straining their ears for judges’ comments. In 2014, when the pol­ice produced Subrata Roy in the SC, scuffles broke out between lawyers as they tried to edge into the courtroom. Roy’s lawyer, veteran Ram Jeth­ma­lani, had to shout out his name to push past security personnel who had blocked entry to the packed room. That day, only a few journalists, who had perhaps stitched themselves to the curtains by the courtroom door since 10 am, were able to scrawl a few notes.

Lawyers agree that it would take a single administrative order from the Sup­reme Court to set the ball rolling.

Khosla’s petition claims that, then Chief Justice of India, Justice (retd) R.M. Lodha, had showed an interest in recording court proceedings to a group of advocates who had proposed it. However, Justice Lodha had informed them that other apex court judges were wary of it. Justice Lodha’s successor, Justice Dattu, while dismissing a similar petition, said that not only did chamber discussions sneak outside, the issues in the collegium itself often found its way into public domain.

A delegation with a similar request had also met Union law minister Ravi Shankar Prasad, with the government pushing the proposal to the SC. However, the apex court’s e-committee had shelved the idea for the time being.

Of course, technology is res­orted to in extreme situations. Last year, the unruly conduct of some lawyers during a previous hearing forced the Madras High Court to telecast the court’s proceedings to a crowd outside the courtroom, which could accommodate 200 lawyers. The court was hearing a contempt proceeding against two leaders of the Madurai bar association.

Senior advocate and president of the Supreme Court Bar Association Dushyant Dave added a word of caution. “Recording proceedings might bring about sobriety, create transparency and make arguments measured.... But, sometimes, judges make undiplomatic comments. That’s part of the courtroom process and it  may be misunderstood by the public. It’s a difficult choice but, in the long run, it will have to be done to improve professional standards,” he says.

A former SC judge adds that making video recordings available runs the risk of possible misuse, especially in this age of social media outrages caused by spliced and morphed videos. Again, live telecast of proceedings could also influence witnesses, as they could plot their action after seeing the course of the trial. That could be solved by ensuring that free consent is sought

before video-taping any witness testimony and publishing the recordings only along with the final verdict.

It has often been argued, as it was during the Pistorius trial, that the media’s inalienable right to expression cannot outweigh the right of an accused to a fair trial. A recent SC ruling also clarified that a person’s right to reputation is far gre­ater than the freedom of expression. Cle­­arly, the issue awaits a balanced judgement.

***

Camera In The Docks

Why Record?

  • Constitutional and other public interest cases require transparency
  • Circumvent rumours
  • Ending frivolous waste of time by lawyers
  • Create accurate record for judges
  • Pre-empt perjury
  • Judges’ conduct can be scrutinised
  • Will help reduce load on judges’ cause list.

Why Not?

  • Disrupts sub-judice rules
  • Can influence witness testimony
  • Can impede right to fair trial
  • Can restrain judge from taking radical decisions
  • Written records seen as more imp­ortant than oral submissions
  • Expunged remarks may end up rem­aining on video

 

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