When the Covid-19 pandemic hovered over the entire globe, not even a single entity was left unaffected. A similar scenario was witnessed in India where even the judicial system came under the light of the blackening situation of the virus. In 2020, seeing the then hovering circumstances of the pandemic, the Supreme Court highlighted a shift in the country’s long-stagnant and restrictive legal system. The Supreme Court has ruled that new-age virtual courts do not violate India’s open court system. This statement was highlighted especially due to the disability of courts to dispense justice due to the pandemic. In a 39-page statement, the Supreme Court explained that the traditional open court system and virtual courts complement each other effectively, are symbiotic and can deliver quality justice in light of the current global circumstances.
However, the new virtual system
of the age-old dignified court attracted criticism as well. But the court referenced examples of other
countries where this system has been implemented, claiming that India is ahead
of its time in terms of productivity. This includes developed countries such as
the United States, France, and the United Kingdom. The Supreme Court further
remarked that this technique might save time, money, and energy, as well as the
appearance of litigants and lawyers.
What is the Open Court system in India?
The Judicial Plan of 1877, created by Warren Hastings during his stint as Governor of Bengal, was the first to establish an open court system.[1] This was the first time the law was established on a firm basis so that the general public could understand how the court worked. All matters were to be heard in open court, according to the miscellaneous provisions of the aforementioned plan, in order to promote pure and impartial justice. The aforementioned rules were reaffirmed in order to find a stronghold in our Indian Constitution, namely in the aspects of the Judiciary, which is an organ of the Indian Constitution. In India, the judiciary serves as a watchdog on the Constitution and citizens’ fundamental rights. It has the ability to hold open trials, which is a feature granted to Indian courts. Any logical person could participate in such trials. The concept of open courts is used to ensure that justice is administered in a transparent manner. The parties are aware of the progress of the proceedings since they are physically present, and it is also important to instill discipline and caution in the minds of all those participating in the administration of justice. As a result, open court systems are regular court sessions in which anybody can observe the activities in the courtroom.
There are circumstances when it
is not practicable to accommodate those who are not parties to the proceedings,
such as in marital cases or cases involving rape or sexual assault. In-camera
sessions are held in a closed room where the public is not allowed to observe
the proceedings. Apart from the aforementioned example, all procedures can be
held in open courts to ensure that everyone has access to justice, as
stipulated by the Indian Constitution.
Legal basis of the open court
system
The open court system is a part
of the judiciary, which is mentioned in Article 51 of the Indian Constitution,
which states that the judiciary must be independent of the executive and
legislative. The subject of the preceding Article is restated in Articles 13
(1) and 13(2) of the Indian Constitution, which makes the judiciary the
responsible organ by granting the authority of judicial review, preventing the
executive and legislative branches from exceeding the Constitution’s
limitations. As a result, the Judiciary’s independence also grants it the
authority to administer justice in open courts. The right to attend judicial
hearings is guaranteed by Article 19(1) (d) of India’s Constitution.
“Open trials and public
access during the hearing of matters before the Court are undeniably accepted
propositions. Even Article 145(4)[2] of the Constitution
expressly states that they must be pronounced in open court. Although there is
no clear provision in the Constitution for “open court hearings”
before the Supreme Court, regulations like Section 327 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) and Section 153-B of the Code of Civil Procedure,
1908 (Cr.P.C.) can be traced back to the Constitution (C.P.C.).
Digitization of the open courts
A lot of judicial data is being
collected throughout the three tiers of the Indian judiciary, i.e., the Supreme
Court, the High Courts, and the subordinate courts, thanks to the recent
digitization initiatives of the E-committee of the Apex Court, individual High
Courts, and the Ministry of Law and Justice. Through effective disclosure among
stakeholders, this data can help the judiciary innovate while also increasing
judicial accountability. However, the Indian judiciary does not yet have an
open data policy that would provide meaningful access to this information. It
lacks a framework for collecting and disseminating accurate judicial data.
Historically, the higher judiciary’s decisions have mostly been conveyed
through methodical publishing in law reports. Access to legal information and
judicial accountability might be revolutionized by a well-designed open data
policy, both of which are key foundations for upholding rule of law in India.
Issues in the open-court system in this digital era
The
lack of a framework to gather and publish accurate court statistics is one of
the most significant difficulties facing the Indian judiciary. Attempts to
establish a structure to collect judicial statistics have failed in the past,
making planning for the judiciary’s future and measuring its effectiveness
difficult.
Judicial
pleadings, which detail the claims of litigants and include supporting
documents, are a crucial source of information for understanding a case. Few
courts have pioneered the acceptance of judicial pleadings via e-filings in
recent years, and it is only a matter of time before more advocates and courts
follow suit. As a result, all pleas might be made public in one consolidated
database, similar to the PACER system in the United States, supporting judicial
transparency and the open court’s principle. The Supreme Court and High Courts,
as well as the norms by which they operate, are the main impediment to making
pleadings available to the public.
There
has long been a demand for live audio-video broadcasting of events in Indian
courtrooms, which can greatly aid legal education and ensure that both the bar
and the bench are held accountable. In a recent ruling, the Supreme Court
agreed to enable audio-visual live-streaming for major cases considered by the
court’s constitutional benches on a trial basis. However, little has been done
to put this decision into practice.
What is the Jurisprudence behind Sealed Covers in the Indian Court system?
The Supreme Court, as well as
the subordinate judicial structure, has a tradition of requesting or accepting
information from government agencies in sealed envelopes that can only be
accessed by judges. While the notion of sealed cover is not defined by law, the
Supreme Court has the authority to apply it under Rule 7 of Order XIII of the
Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.
According to the regulation, if the Chief Justice or the court orders that
particular material is kept under seal or that it is of a confidential
character, no party will be permitted access to the contents of such
information unless the Chief Justice himself orders that the opposite party be
allowed access. It also states that information can be kept private if it is
not considered in the public interest to make it public. Official unpublished papers relating to state
matters are protected under the Evidence Act, and a public officer cannot be
forced to disclose such materials. Other times when information is sought in
confidence or secrecy include when it impedes an ongoing investigation, such as
details from the police case diary, or when it violates an individual’s
privacy.
Various instances where sealed cover jurisprudence was witnessed:
In the recent past, courts have
regularly used sealed cover jurisprudence.
During the time of former Chief
Justice of India Rajan Gogoi, documents were examined in a sealed cover in a
number of high-profile cases. In the matter of the disputed Rafale fighter jet
acquisition, a Bench led by Chief Justice Ranjan Gogoi ordered the Centre to
submit data about the transaction’s decision-making and cost in a sealed
envelope in 2018. This was done because the Centre claimed that such
information was subject to the Official Secrets Act and the deal’s secrecy
terms.
In the case of the National
Register of Citizens (NRC) in Assam, the Supreme Court ordered the NRC
coordinator, Prateek Hajela, to provide period reports in sealed cover that
neither the government nor the petitioners could see.
The Supreme Court had instructed the Central Vigilance Commission (CVC) to submit its preliminary report in a sealed cover in the matter where the CBI’s former director Alok Verma and the national agency’s former special director Rakesh Asthana had levelled counter-charges of corruption against one other.
Critical analysis
Recently, relying upon the case
of Dinesh v. State of BiharandNivedita Jha v. State of Bihar[3],
the Apex Court through the words of Justice DY Chandrachud, stated
that he is very averse to the concept of sealed cover jurisprudence. He said
that the court would examine the concept and the matter on a broader basis,
especially on the background of the ban on the media houses. He even said that
there is a very small area of exception where the public must be kept away from
the government files.
It is hostile to the Indian legal system’s values of transparency and accountability and stands in contrast to the concept of an open court, where rulings can be scrutinized by the public. It is also believed to increase the opportunity for arbitrariness in court decisions because judges are obliged to justify their conclusions, but this is impossible to do when they are based on personal information. What’s more, whether the state should be granted such a right to submit evidence in secret when current rules like in-camera hearings already provide adequate security for sensitive information is a point of contention. While granting bail to Congress leader P. Chidambaram in the INX Media case in 2019, the Supreme Court chastised the Delhi High Court for denying bail to the former union minister based on documents given by the Enforcement Directorate (ED) in a sealed cover. Henceforth, “Though it is held that the Court may peruse the documents,” the three-judge Bench of justices R Banumathi, A S Bopanna, and Hrishikesh Roy had said, “it would be against the concept of a fair trial if in every case the prosecution presents documents in a sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail.”
*The Author has completed her LL.M and B.A LL.B from Guru Gobind Singh Indraprastha University, Delhi.
Disclaimer:
The views, thoughts, and opinions expressed in the text belong solely to the
author and not to the Jurisedge Academy.
Readers may submit his/her manuscript for publication. Click Here or Scan the QR Code to submit your Manuscript.
[2] Article 145(4) of the
Constitution – No such report shall
be made and no judgment shall be delivered by the Supreme Court save with the
concurrence of a majority of the judges present at the hearing of the case, but
nothing in this clause shall be deemed to prevent a judge who does not concur
from delivering a dissenting opinion or judgment
Saurabh Kumar
Share post:
Author- Kanika Goel*
When the Covid-19 pandemic hovered over the entire globe, not even a single entity was left unaffected. A similar scenario was witnessed in India where even the judicial system came under the light of the blackening situation of the virus. In 2020, seeing the then hovering circumstances of the pandemic, the Supreme Court highlighted a shift in the country’s long-stagnant and restrictive legal system. The Supreme Court has ruled that new-age virtual courts do not violate India’s open court system. This statement was highlighted especially due to the disability of courts to dispense justice due to the pandemic. In a 39-page statement, the Supreme Court explained that the traditional open court system and virtual courts complement each other effectively, are symbiotic and can deliver quality justice in light of the current global circumstances.
However, the new virtual system of the age-old dignified court attracted criticism as well. But the court referenced examples of other countries where this system has been implemented, claiming that India is ahead of its time in terms of productivity. This includes developed countries such as the United States, France, and the United Kingdom. The Supreme Court further remarked that this technique might save time, money, and energy, as well as the appearance of litigants and lawyers.
What is the Open Court system in India?
The Judicial Plan of 1877, created by Warren Hastings during his stint as Governor of Bengal, was the first to establish an open court system.[1] This was the first time the law was established on a firm basis so that the general public could understand how the court worked. All matters were to be heard in open court, according to the miscellaneous provisions of the aforementioned plan, in order to promote pure and impartial justice. The aforementioned rules were reaffirmed in order to find a stronghold in our Indian Constitution, namely in the aspects of the Judiciary, which is an organ of the Indian Constitution. In India, the judiciary serves as a watchdog on the Constitution and citizens’ fundamental rights. It has the ability to hold open trials, which is a feature granted to Indian courts. Any logical person could participate in such trials. The concept of open courts is used to ensure that justice is administered in a transparent manner. The parties are aware of the progress of the proceedings since they are physically present, and it is also important to instill discipline and caution in the minds of all those participating in the administration of justice. As a result, open court systems are regular court sessions in which anybody can observe the activities in the courtroom.
There are circumstances when it is not practicable to accommodate those who are not parties to the proceedings, such as in marital cases or cases involving rape or sexual assault. In-camera sessions are held in a closed room where the public is not allowed to observe the proceedings. Apart from the aforementioned example, all procedures can be held in open courts to ensure that everyone has access to justice, as stipulated by the Indian Constitution.
Legal basis of the open court system
The open court system is a part of the judiciary, which is mentioned in Article 51 of the Indian Constitution, which states that the judiciary must be independent of the executive and legislative. The subject of the preceding Article is restated in Articles 13 (1) and 13(2) of the Indian Constitution, which makes the judiciary the responsible organ by granting the authority of judicial review, preventing the executive and legislative branches from exceeding the Constitution’s limitations. As a result, the Judiciary’s independence also grants it the authority to administer justice in open courts. The right to attend judicial hearings is guaranteed by Article 19(1) (d) of India’s Constitution.
“Open trials and public access during the hearing of matters before the Court are undeniably accepted propositions. Even Article 145(4)[2] of the Constitution expressly states that they must be pronounced in open court. Although there is no clear provision in the Constitution for “open court hearings” before the Supreme Court, regulations like Section 327 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and Section 153-B of the Code of Civil Procedure, 1908 (Cr.P.C.) can be traced back to the Constitution (C.P.C.).
Digitization of the open courts
A lot of judicial data is being collected throughout the three tiers of the Indian judiciary, i.e., the Supreme Court, the High Courts, and the subordinate courts, thanks to the recent digitization initiatives of the E-committee of the Apex Court, individual High Courts, and the Ministry of Law and Justice. Through effective disclosure among stakeholders, this data can help the judiciary innovate while also increasing judicial accountability. However, the Indian judiciary does not yet have an open data policy that would provide meaningful access to this information. It lacks a framework for collecting and disseminating accurate judicial data. Historically, the higher judiciary’s decisions have mostly been conveyed through methodical publishing in law reports. Access to legal information and judicial accountability might be revolutionized by a well-designed open data policy, both of which are key foundations for upholding rule of law in India.
Issues in the open-court system in this digital era
What is the Jurisprudence behind Sealed Covers in the Indian Court system?
The Supreme Court, as well as the subordinate judicial structure, has a tradition of requesting or accepting information from government agencies in sealed envelopes that can only be accessed by judges. While the notion of sealed cover is not defined by law, the Supreme Court has the authority to apply it under Rule 7 of Order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872. According to the regulation, if the Chief Justice or the court orders that particular material is kept under seal or that it is of a confidential character, no party will be permitted access to the contents of such information unless the Chief Justice himself orders that the opposite party be allowed access. It also states that information can be kept private if it is not considered in the public interest to make it public. Official unpublished papers relating to state matters are protected under the Evidence Act, and a public officer cannot be forced to disclose such materials. Other times when information is sought in confidence or secrecy include when it impedes an ongoing investigation, such as details from the police case diary, or when it violates an individual’s privacy.
Various instances where sealed cover jurisprudence was witnessed:
In the recent past, courts have regularly used sealed cover jurisprudence.
During the time of former Chief Justice of India Rajan Gogoi, documents were examined in a sealed cover in a number of high-profile cases. In the matter of the disputed Rafale fighter jet acquisition, a Bench led by Chief Justice Ranjan Gogoi ordered the Centre to submit data about the transaction’s decision-making and cost in a sealed envelope in 2018. This was done because the Centre claimed that such information was subject to the Official Secrets Act and the deal’s secrecy terms.
In the case of the National Register of Citizens (NRC) in Assam, the Supreme Court ordered the NRC coordinator, Prateek Hajela, to provide period reports in sealed cover that neither the government nor the petitioners could see.
The Supreme Court had instructed the Central Vigilance Commission (CVC) to submit its preliminary report in a sealed cover in the matter where the CBI’s former director Alok Verma and the national agency’s former special director Rakesh Asthana had levelled counter-charges of corruption against one other.
Critical analysis
Recently, relying upon the case of Dinesh v. State of Biharand Nivedita Jha v. State of Bihar[3], the Apex Court through the words of Justice DY Chandrachud, stated that he is very averse to the concept of sealed cover jurisprudence. He said that the court would examine the concept and the matter on a broader basis, especially on the background of the ban on the media houses. He even said that there is a very small area of exception where the public must be kept away from the government files.
It is hostile to the Indian legal system’s values of transparency and accountability and stands in contrast to the concept of an open court, where rulings can be scrutinized by the public. It is also believed to increase the opportunity for arbitrariness in court decisions because judges are obliged to justify their conclusions, but this is impossible to do when they are based on personal information. What’s more, whether the state should be granted such a right to submit evidence in secret when current rules like in-camera hearings already provide adequate security for sensitive information is a point of contention. While granting bail to Congress leader P. Chidambaram in the INX Media case in 2019, the Supreme Court chastised the Delhi High Court for denying bail to the former union minister based on documents given by the Enforcement Directorate (ED) in a sealed cover. Henceforth, “Though it is held that the Court may peruse the documents,” the three-judge Bench of justices R Banumathi, A S Bopanna, and Hrishikesh Roy had said, “it would be against the concept of a fair trial if in every case the prosecution presents documents in a sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail.”
*The Author has completed her LL.M and B.A LL.B from Guru Gobind Singh Indraprastha University, Delhi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
Readers may submit his/her manuscript for publication. Click Here or Scan the QR Code to submit your Manuscript.
[1] Open court system in India, available at: https://lexlife.in/2020/05/16/open-court-system-in-india/
[2] Article 145(4) of the Constitution – No such report shall be made and no judgment shall be delivered by the Supreme Court save with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a judge who does not concur from delivering a dissenting opinion or judgment
[3] Special Leave Petition (Civil) 24978 of 2018.
Share this:
Related