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
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The concept of open courts is not alien to the Indian legal system. The Constitution adopts the concept in Article 145(4), which states that the Supreme Court shall be an open court:
“(4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open Court.”
The Code of Civil Procedure, 1908 (“CPC”) and the Code of Criminal Procedure, 1973 (“CrPC”) extend the principle of open courts to all civil and criminal courts in India.
Section 153-B of the CPC provides that every civil court which tries a suit shall be deemed to be an open court:
“Section 153-B. Place of trial to be deemed to be open court.- The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them:
Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.”
Similarly, Section 327 of the CrPC also mandates criminal courts to be open:
“Section 327. – Court to be open.- “[(1)] The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.”
Hence, all courts in India are open to the public and function as open courts, except when the administration of justice requires public access to the court to be restricted. The principle of open courts in India recognises exceptions which are in the interest of fair administration of justice.
Importance given to Open Courts by Supreme Court
Various judgments of Supreme Court have reinforced the importance of open courts. The earliest and most significant judgment on this aspect is the decision of a nine-judge Bench in Naresh Shridhar Mirajkar v State of Maharashtra[1] (“Mirajkar”).
While upholding an oral order of the High Court prohibiting the media to publish the evidence of a witness in a defamation suit, the majority emphasised the importance of open courts. Chief Justice Gajendragadkar, speaking for the majority observed:
“20… It is well settled that in general, all cases brought before the courts, whether civil, criminal, or others, must be heard in open court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.
Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the court-room.”
Justice Gajendragadkar then quoted from Bentham (as noted in Scott v Scott):
“20… 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. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity.”
Even in his dissenting opinion, Justice Hidayatullah (as the learned judge then was) agreed with the majority on the importance of an open court system:
“90. …As we have fortunately inherited the English tradition of holding trials (with a few exceptions to which I shall refer later) in public, I shall begin with the English practice. It has always been the glory of the English system as opposed to the Continental that all trials are held ostiis apertis, that is, with open doors.
This principle is old… it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of Justice and that in proportion as publicity had place, the checks on judicial injustice could be found.…”
Justice J C Shah elaborated on open justice but also recognised the need to restrict access to protect the administration of justice, in cases where it becomes necessary:
“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.
But hearing of a cause in public which is only to secure administration of justice untainted must yield to the paramount object of administration of justice. If excessive publicity itself operates as an instrument of injustice, the court may not be slow, if it is satisfied that it is necessary so to do to put such restraint upon publicity as is necessary to secure the court’s primary object…”
Quoting Hegel in “Philosophy of Right,” Justice Bachawat added that:
“140 … A court of justice is a public forum. It is through publicity that the citizens are convinced that the court renders even-handed justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the court proceedings.
The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation.
141. …Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is a universal belonging to all.”
Key takeaways emerge from the opinions in Mirajkar:
(i) Open courts serve as an instrument of inspiring public confidence in the administration of justice;
(ii) Open courts act as a check on the judiciary;
(iii) Publicity of the judicial process is the soul of justice;
(iv) Open justice must yield to the paramount object of the administration of justice, in case it becomes necessary to restrict access in the facts of a particular case; and
(v) Open courts are essential for the objective and fair administration of justice.
Almost two decades later, in Olga Tellis v Bombay Municipal Corporation,[2] a Constitution Bench of Supreme Court held that eviction of slum-dwellers violated their right to earn a livelihood. Chief Justice Y V Chandrachud reiterated the value of a hearing, in emphasising the principle that justice must also be seen to be done:
“47…justice must not only be done but must manifestly be seen to be done… The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done… .
..Whatever its outcome, such a hearing represents a valued human interaction in which the affected person experiences at least the satisfaction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way.
Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one.
Justice Frankfurter captured part of this sense of procedural justice when he wrote that the
“validity and moral authority of a conclusion largely depend on the mode by which it was reached…No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.”
These observations have been made in the context of analysing the importance of the right to be heard. But Olga Tellis emphasised that not only the ends, but also the means of justice are important. The purpose behind an open court system is to grant the affected party and the public an opportunity to observe justice being dispensed. The process by which justice is rendered has an important bearing on the confidence which it inculcates in society. Knowledge of the process is a confidence builder.
In Life Insurance Corporation of India v Prof. Manubhai D. Shah,[3] the Court examined the right claimed by a citizen to contribute to an in-house magazine published by an instrumentality of the State. Writing for the two-judge Bench, Justice A.M. Ahmadi (as the learned Chief Justice then was) dwelt on the significance of disseminating information in a democracy:
“8. …The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy… …It cannot be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy.
Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution…”
More recently, in Mohd. Shahabuddin v State of Bihar,[4] a two-judge Bench of this Court was examining a challenge to a notification by the Patna High Court declaring the premises for conducting a trial. Justice M K Sharma, in his concurring opinion, described open courts:
“215… In my considered view 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…”
Through these judicial decisions, Supreme 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 public and litigants to witness the dialogue between the judges and the advocates and to form an informed opinion about the judicial process.
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.
Technology and Open Court
In the present age of technology, it is no longer sufficient to rely solely on the media to deliver information about the hearings of cases and their outcomes. Technology has become an inevitable facet of all aspects of life. Internet penetration and increase in the use of smart phones has revolutionised how we communicate.
Technology can enhance public access, ensure transparency and pave the way for active citizen involvement in the functioning of state institutions. Courts must also take the aid of technology to enhance the principle of open courts by moving beyond physical accessibility to virtual accessibility.
Reference
Swapnil Tripathi v. Supreme Court of India (2018)
[1] (1966) 3 SCR 744.
[2] (1985) 3 SCC 545.
[3] (1992) 3 SCC 637.
[4] (2010) 4 SCC 653.