Monday, Jan 24, 2022
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70 Years Of Indian Judiciary | Opinion: Resistance To Transparency Makes Our Courts Mysterious Institutions

Even after 70 years of India as a Republic, the Supreme Court is yet to launch even the modest pilot project of webcasting constitutionally important cases, write Prashant reddy and Vaidehi Misra

70 Years Of Indian Judiciary | Opinion: Resistance To Transparency Makes Our Courts Mysterious Institutions
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In the early 1980s, the Supreme Court famously grounded the concept of an ‘open government’ within the ambit of fundamental rights, as flowing from the right to free speech in Article 19(1)(a). The logic was that the right to free speech against the government could not really be exercised without knowledge of its workings. With the Right to Information Act in 2005, the walls of opacity crumbled slowly as eager citizens filed millions of RTI applications. Governments may have striven to put the genie back in the bottle a bit, but it is striking that no push for formal transparency was ever initiated within the Indian judiciary itself. The judiciary has two sides to it: the courtroom, where proceedings are conducted; and the massive bureaucratic complex that runs courts. It kept both its windows shut firm.

Courtroom proceedings have traditionally been open: a protocol critical to ensuring public faith. The philosopher Jeremy Bentham wrote some eloquent words on this: “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.” Over the last decade, if anything, this principle has been under even more assault. To list:

  • The practice—followed by many high courts and the SC—of restricting entry of common people into courtrooms on the grounds of security. (The need to apply for passes, with identity documents,  complicates life for litigants and commoners.)
  • The trend towards gag orders, prohibiting media rep­orting on proceedings in ‘sensitive’ cases. For example, the Allahabad High Court forbade reporting on cases involving a hate speech given by Ajay Singh Bisht, chief minister of UP. In the Sohrabuddin murder trial, the Bombay HC set aside a similar gag order after a media outrage.
  • The ongoing trend of the SC entertaining sealed env­elopes from the government in high-profile litigation, e.g. the Rafale or NRC cases. When evidence or pleadings that form the basis of judicial decisions are not disclosed, the legitimacy of the entire proceedings comes into question.
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