Open Justice
Supreme Court of India
Swapnil Tripathi vs Supreme Court Of India on 26 September, 2018
Author: Dr Dhananjaya Y Chandrachud, J
2 Our legal system subscribes to the principle of open justice. The prayer for live-streaming of
courtroom proceedings has its genesis in this principle.
Live-streaming will allow real time access to courtroom proceedings to litigants and to every
member of the society.
PART A 3 Open justice is a long-established principle of common law systems. It rests on a high
pedestal in a liberal democracy as ‘a sound and very sacred part of the Constitution of the country
and the administration of justice…’1 Jeremy Bentham propounded the idea of open justice in the
late eighteenth century while designing principles for establishments in which persons are to be kept
under inspection:
“...the doors of all public establishments ought to be, thrown wide open to the body of
the curious at large- the great open committee of the tribunal of the world.”2 4
Although Bentham wrote these words in the larger context of public institutions, they
apply on equal terms to the theory of open justice. Bentham in his “Draught of Code
for the Organization of the Judicial Establishment” codified the principle of open
justice as:
“Article XVIII- Judicial proceedings, from the first step to the last inclusive, shall, in
all cases but the secret ones herein specified, be carried out with the utmost degree of
publicity possible.”3 According to Bentham, secret (or in-camera) proceedings were
to be carried out in the judge’s chamber.4 He also prescribed open justice for trials by
the National Assembly Courts, (which, in his Code, were courts constituted to hear
complaints against any metropolitan judge):
1 House of Lords in Scott v Scott, [1913] A.C. 417 at 473.
2 Jeremy Bentham, The Works of Jeremy Bentham, published under the Superintendence of his
Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 volumes, volume 4, at page 46. 3
Ibid at page 288.
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4 Ibid at page 303.
PART A “Article III- Such trial shall be conducted from beginning to end, with open doors and with
the utmost possible degree of publicity.”5 The principle underlying open justice was formulated by
Lord Chief Justice Hewart:
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”6 In R
(Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, Lord Judge CJ
draws a link between open justice and democratic values:
“...the principle of open justice represents an element of democratic accountability,
and the vigorous manifestation of the principle of freedom of expression. Ultimately
it supports the rule of law itself.”7 5 Legal scholars indicate that the principle of open
justice encompasses several aspects that are central to the fair administration of
justice and the rule of law.8 It has both procedural and substantive dimensions,
which are equally important. Open justice comprises of several precepts:
(i) The entitlement of an interested person to attend court as a spectator;
5 Ibid at page 300.
6 King’s Bench, Division Court in R v Sussex [1923], All ER Rep 233. 7 Court of Appeal, England and
Wales in R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, [2010]
3 WLR 554.
8 Cunliffe Emma, "Open Justice: Concepts and Judicial Approaches", (2012) 40 Fed L Rev 385.
PART A
(ii) The promotion of full, fair and accurate reporting of court proceedings;
(iii) The duty of judges to give reasoned decisions; and
(iv) Public access to judgments of courts.9
The principle of an open court is a significant procedural dimension of the broader concept of open
justice. Open courts allow the public to view courtroom proceedings. Black’s Law Dictionary defines
an “open court” as follows:
“… a court to which the public have a right to be admitted… This term may mean
either a court which has been formally convened and declared open for the
Swapnil Tripathi vs Supreme Court Of India on 26 September, 2018
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transaction of its proper judicial business, or a court which is freely open to
spectators…”10 The idea of open courts is crucial to maintaining public confidence in
the administration of justice:
“The public must be able to enter any court to see that justice is being done in that
court, by a tribunal conscientiously doing its best to do justice according to law.”11
Open courts ensure a check on the process of adjudication in judicial proceedings.
Bentham regarded publicity about courtroom proceedings as a mechanism to prevent
improbity of judges:
9 Ibid.
10 Black’s Law Dictionary, 6th Edition, 1990, page 1091. The Black’s Law Dictionary, 10th Edition,
2014, page 1263 defines an “open court” thus: “1. A court that is in session, presided over by a judge,
attended by the parties and their attorneys, and engaged in judicial business… The term is
distinguished from a court that is hearing evidence in camera or from judge that is exercising merely
magisterial powers. 2. A court session that the public is free to attend…” 11 Supra note 7.
PART A “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.
... It is through publicity alone that justice becomes the mother of security. By publicity, the temple
of justice is converted into a school of the first order…”12 6 Lord Diplock, speaking for the House of
Lords in AG v Leveller Magazine, remarked that open courts are a safeguard against judicial
arbitrariness or idiosyncrasy. 13 Open courts, in his view, help build public confidence in the
administration of justice. 14 The public’s trust in the judicial system depends on their perception of
how courts function. Open courts make it possible for the public to develop reasonable perceptions
about the judiciary, by enabling them to directly observe judicial behaviour, and the processes and
outcomes of a case.
In the decision of the High Court of Australia, in Grollo v Palmer, Gummow J dwelt on the idea of
open courts:
“An essential attribute of the judicial power of the Commonwealth is the resolution of
such controversies ... so as to provide final results which are delivered in public after
a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded
by grounds for decision which are animated by reasoning. An objective of the exercise
of the judicial power in each particular case is the satisfaction of the parties to the
dispute and the general public that, by these procedures, justice has both been done
and been seen to be done.” 15 12 Supra note 2 at page 316-317.
13 House of Lords, as per Lord Diplock in AG v Leveller Magazine, [1979] AC 440, at page 450. 14
Ibid.
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15 High Court of Australia, as per Gummow J in Grollo v Palmer, [1995] HCA 2.
PART A The Ministry of Justice in the UK, in its proposal to permit broadcasting of court
proceedings, has succinctly articulated the need for open courts:
“Few people have direct experience of court proceedings, and overall public
understanding of the criminal justice system is limited. Most court sittings take place
when many people are at work. Many people, therefore, currently base their views on
how the system is portrayed on television, or in films. These dramatised accounts
rarely portray what happens in court accurately. With the range of technology now
available, it should be easier for people to access better information on court
proceedings.” 16 In the decision of the US Supreme Court in Richmond Newspapers,
Inc. v Virginia, Burger CJ observed:
“The early history of open trials in part reflects the widespread acknowledgment, long
before there were behavioural scientists, that public trials had significant community
therapeutic value… … People in an open society do not demand infallibility from their
institutions, but it is difficult for them to accept what they are prohibited from
observing.”17 7 Public confidence in the judiciary and in the process of judicial
decision making is crucial for preserving the rule of law and to maintain the stability
of the social fabric. Peoples’ access to the court signifies that the public is willing to
have disputes resolved in court and to obey and accept judicial orders. Open courts
effectively foster public confidence by allowing litigants and members of 16 Ministry
of Justice, UK, Proposals to allow the broadcasting, filming, and recording of selected
court proceedings, making recommendations, 2012. Available at:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217307/broa
dcasting-filming-recording-courts.pdf 17 Supreme Court of United States in
Richmond Newspapers, Inc. v Virginia, 448 US 555 (1980).