Courts must remain open, justice be visible

The strength of the judiciary is its open court system as everyone is free to watch what transpires in court. Such a system forecloses any possibility of hanky-panky or foul play. However, in India, the concept of open justice seems to be undergoing a silent burial as the courts are increasingly getting inaccessible. Besides, there is an increasing tendency to ban the reporting of court proceedings in sensitive cases.

In the latest instance, a Delhi court has restrained the media from reporting on the FIR filed against Justice I.M. Quddusi, a former Odisha high court judge, who is an accused in the medical admissions bribery case. The court has said that the constitutional right of free speech does not “confer a right” to defame persons and harm their reputation by “false and unsubstantiated allegations”. It is baffling that the court has termed the allegations “false and unsubstantiated” before the trial. Going by this logic, there should be a total ban on reporting in criminal cases till the court pronounces its verdict. The reputation of every accused is as inviolable as that of a former judge. The only job of judges is to deliver justice, and it should be visible.

The open court system is being discarded in more ways than one. In the name of security, except lawyers and litigants, no one else is allowed in the higher courts; the Supreme Court and most high courts have been turned into fortresses, making it nearly impossible for the ordinary citizen to enter. After a bomb blast near the Delhi high court, its security was tightened to a great extent. Courts these days seem like elite institutions where access is restricted to a privileged few. It is extremely difficult sometimes for even petitioners to enter without the help of a lawyer. In Begusarai, Bihar, even in the district and sessions court, only advocates and witnesses are allowed. The Karnataka high court is an exception, which is still open to the common man.

On October 5, 1936, a bomb was thrown into the chief justice’s court at the Patna high court, but it did not become inaccessible for the common man. No security was enhanced and nothing untoward happened subsequently for decades. Then, 48 years later, in 1984, a bid was made on the life of Justice P.S. Sahay in open court. He was shot at but the bullet did not hit him. The assailant was grabbed by his orderly. It later turned out that the assailant wanted to kill Justice P.S. Mishra but entered justice Sahay’s court due to the similarity in the two names. Justice A.N. Grover was attacked in his court in the Supreme Court and he was injured and taken to hospital by then CJI M. Hidayatullah. But the Supreme Court was not converted into a fortress.

Making the courts inaccessible flies in the face of the judiciary, which boasts of having open courts. India’s Supreme Court has always upheld the concept of open justice. In Naresh Sridhar Mirajkar and Others vs State of Maharashtra in 1966, the Supreme Court clearly said what takes place inside a court is a public matter, and the publication of the proceedings merely enlarges the area of the court and gives that added publicity to the trial which is favoured by the rule that the trial should be open and public. Justice O. Chinappa Reddy, in Samarias Trading C. (P) Ltd. S. Samuel in 1984, observed: “…the administration of justice is a vital concern for the public more than any private party. The public has the right to be present in court and watch the proceeding and its conduct except in the very rare cases where the very cause of advancement of justice requires that the proceedings be held in camera.” In my view, it should apply not only to subordinate courts but also to the higher courts.

In Britain, Lord Shaw, in Scott vs Scott in 1913 elucidated the principle of open justice by referring to Bentham: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial... Where there is no publicity there is no justice.” In Home Office vs Harman in 1983, Lord Scarman elucidated in his dissenting judgment (joined by Lord Simon) that “there is also another public interest involved in justice done openly, namely that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires notification”. There are exceptions to it in rare circumstances, where in-camera proceedings become necessary to ensure justice, but as Lord Diplock summarised beautifully in Attorney-General vs Leveller Magazine Limited (1979), that departure must be “…justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice... if the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice”. The principle was restated by the Court of Appeal of England and Wales in Guardian News and Media Ltd. Vs R & Erol Incedal in 2016: In this case, the issue of derogating from open justice was linked with that of national security. Defendant Incedal had been charged with several offences relating to terrorism. The court reiterated that it could depart from the system of open justice only in unusual or exceptional circumstances.

Nevertheless, the courts are increasingly imposing bans on the reporting of their proceedings. In the Sohrabuddin Sheikh fake encounter case, the trial court restrained the media from reporting its proceedings. However, the Bombay high court set aside the ban order stating that the media is the “most powerful watchdog of society”. At a time when the media is under fire for almost every malady afflicting society, it is heartening to see that Justice Rewati Mohite Dere ruled that “certainly the public has a right to know what is happening in this case”.

In the sexual harassment case against R.K. Pachauri, the trial court passed a baffling order that any news regarding this trial must carry the clarification that the matter is sub judice and that he is only an accused. It’s puzzling why Mr Pachauri was given this special privilege. It’s a matter of common knowledge that any matter is sub judice if the trial is still going on. While convicting Justice C.S. Karnan of contempt of court, the Supreme Court restrained the media from telecasting and publishing his (Karnan’s) statements. It is difficult to understand how his statements would have shaken the people’s faith in the judiciary when all the wild allegations made by him against judges of the Supreme Court and also his colleagues in the high court did not make any such impact.

Judges may remain cocooned in courts, but the courts must be open.