Open Courts and the Indian Judiciary
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1767 of 2021
(Arising out of SLP (C) No. 6731 of 2021)
The Chief Election Commissioner of India ....Appellant
Versus
M.R Vijayabhaskar & Ors. ....Respondents
Hon. Justice D. Y. Chandrachud
C.1 Open Courts and the Indian Judiciary
19 Courts must be open both in the physical and metaphorical sense. Save and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. Arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed. An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. Transparency in the functioning of democratic institutions is crucial to establish the public‘s faith in them.
In Mohammed Shahabuddin vs State of Bihar, the concurring opinion noted:
―… even if the press is present, if individual members of the public are refused admission, the proceedings cannot be considered to go on in open courts…an ―open court is a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial proceedings.
20 There are multiple ways in which an open court system contributes to the working of democracy. An open court system ensures that judges act in accordance with law and with probity. Lord Widgery‘s remarks in R vs Socialist Workers Printers, ex p Attorney General11 sum up the role public hearings play on the conduct of the judge in the following terms:
―The great virtue of having the public in court courts is that discipline which the presence of the public imposes upon the court itself. When the court is full of interested members of
10 (2010) 4 SCC 653
11 [1974] 3 WLR 801
the public…it is bound to have the effect that everybody is more careful about what they do, everyone tries just that little bit harder and there is disciplinary effect on the court which would be totally lacking if there were no critical members of the public or press present. When one has an order for trial in camera, all the public and press are evicted at one fell swoop and the entire supervision by the public is gone.
21 Public scrutiny fosters confidence in the process. Public discussion and criticism may work as a restraint on the conduct of a judge. In his dissenting opinion in Naresh Shridhar Mirajkar vs State of Maharashtra12, Justice M Hidayatullah (as the learned Chief Justice was then), observed how an open court paves the way for public evaluation of judicial conduct:
―129. […] Hearing in open court of causes is of the utmost importance for maintaining confidence of the public in the impartial administration of justice: it operates as a wholesome check upon judicial behaviour as well as upon the conduct of the contending parties and their witnesses.
22 Cases before the courts are vital sources of public information about the activities of the legislature and the executive13. An open court serves an educational purpose as well. The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights. In Swapnil Tripathi vs Supreme Court of India14, a three Judge Bench stressed upon the importance of live streaming judicial proceedings. One of us (DY Chandrachud J) analyzed the precedent from a comparative perspective :
―82. […] Through these judicial decisions, this Court has recognised the importance of open courtrooms as a means of allowing the public to view the process of rendering of justice. First-hand access to court hearings enables the
12 (1966) 3 SCR 744, hereinafter referred to as ―Mirajkar‖
13 Cunliffe Emma, "Open Justice: Concepts and Judicial Approaches" (2012) 40 Fed L Rev 385.
14 (2018) 10 SCC 639, hereinafter referred to as ―Swapnil Tripathi‖
public and litigants to witness the dialogue between the Judges and the advocates and to form an informed opinion about the judicial process.
83. The impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings. This is due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may not be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public's right to know. Courts, though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them."
(emphasis supplied)
23 However, there are certain exceptions to the rule of open courts in India. In Mirajkar (supra), Chief Justice PB Gajendragadkar observed:
―21. … While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? If the primary function of the court is to do justice in causes brought before it, then on principle, it is difficult to accede to the proposition that there can be no exception to the rule that all causes must be tried in open court. If the principle that all trials before courts must be held in public was treated as inflexible and universal and it is held that it admits of no exceptions whatever, cases may arise where by following the principle, justice itself may be defeated. That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. It is hardly necessary to emphasise that this inherent power must be exercised with great caution and it is only if the court is satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open court that it can pass an order to hold the trial in camera. Hence, while in camera proceedings may be necessary in certain exceptional circumstances to preserve countervailing interests such as the rights to privacy and fair trial, for instance, in a sexual assault case, public scrutiny of the court process remains a vital principle for the functioning of democracy.