India has inherited the English tradition of holding trials in public. 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 and according to Hallam 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.

Except for trials before the Council all trials in England, including those before the notorious Star Chamber, were public and with observance of the law terms. It is because English trial has not known the Letters de cachet of Louis XIV and all its state trials were public, that the Selden Society has been able to collect the cases of the Star Chamber and we have the verbatim reports of almost all state trials.

As Emlyn in his preface to the State Trials says proudly:

“In other countries the courts of Justice are held in secret; with us publicly and in open view; there the witnesses are examined in private, and in the prisoner’s absence; with us face to face, and in the prisoner’s presence.”

He was no doubt speaking of criminal trials but the principle (with a few exceptions) is applicable to civil cases also. This attachment to an open trial is not a rule of practice with the English, but is an article of their Great Charter and Judges view with great concern any departure from it.

Whenever, a Judge departed from it he defined the ‘field of exception’ and stated ‘ the overriding principle’ on which his decision was based. No Judge passes an order which is not recorded in the minutes and a question of this kind is not dealt with by the Judge as within his mere discretion as to what he considers expedient or convenient.

In Malan v. Young[1] (in the Sherborne School libel case) Lord Denman (then Denman J.) with the consent of the parties made an order for hearing in camera and a part of the case was so heard. Then a lawyer protested and Mr. Justice Denman, on a reconsideration of the matter, invited the parties to decide whether they would take the risk of a case in camera or would begin de novo in open court.

The parties agreed to have the case heard before him as an arbitrator. A decision of a case in camera, even if parties agree, is voidable (as was decided by the Judicial Committee in Mc. Pherson v. Mc Pherson[2] and Lord Denman was apprehensive of such a result.

This attitude to the trial in open was summed up by Viscount Haldane L.C. in Scott v. Scott[3] by saying that a Judge could only depart from the principle that the trial must be in public (except for some narrow exceptions) by demitting his capacity as a Judge and sitting as an arbitrator.

The exceptions to the general rule which Viscount Haldane mentioned are cases of lunatics and wards of courts, of trade secrets, and nullity cases in which the Ecclesiastical Courts granted trials in camera.

But even these are viewed very narrowly and the principle on which each exception is made to rest, differs. The cases of lunatics and wards are so viewed because- the court exercises over them a quasi- paternal Jurisdiction on behalf of the Queen as the parent patriae.

These cases are considered private or domestic with which the public have no concern. The cases of trade secret are so viewed because secret processes (which are property) must be protected and unless secrecy from public view is maintained justice itself must fail in its purpose. The last are kept away from publicity because they involve sordid details of domestic life and therefore embarrass deponents.

Even the last rule does not apply to all matrimonial cases as is evident from Scott. v. Scott referred, to earlier. In Scott v. Scott (supra) there are certain observations which proceed upon a dictum of Sir Francis Jenne in D. v D.[4] that the court possesses an inherent jurisdiction to hear any case in private when the administration of justice requires or with the consent of parties.

Viscount Haldane did not dissent from that dictum, “provided that the principle is applied with great care and is not stretched to cases where there is not a strict necessity for invoking it.” These observations were really made in relation to the three exceptions he was considering and he did not intend by them to give a wide discretion to the judge.

He himself stated:

“But unless it be strictly necessary for the attainment of justice, there can be no power in court to hear in camera either a matrimonial cause or any other where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure.

But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to show that the evidence can be effectively brought before the court in no other fashion.”

In Scott v. Scott (supra) the question had arisen in connection with a nullity suit and the main decision was that the Probate, Divorce and Admiralty Division had no power, either with or without the consent of the parties, to hear a nullity suit or other matrimonial suit in camera in the interest of public decency.

The order of hearing in camera which led to a suppression of publication of the proceedings in perpetuity was held to be bad. So strong is this principle of open trial that even where this rule is departed from on the ground that interest of justice would suffer the Judges always remember to remind themselves that the order cannot be made as a matter of course.

Thus it was that in Moosbrugger v. Moosbrugger and Moosbrugger v. Moosbrugger and Martin[5] (which were two cross suits between spouses for divorce), Evans P., while,acceding to the request of the wife for privacy because of the horrible details of her case, repeated again and again that the trial was public and should not be thought not to be so.

He was apprehensive that the lady’s case would suffer if the sordid details were asked to be divulged in public and, therefore, heard only that part in private to give her confidence. In India the position is not different.

Open Courts in India and Exceptions

Public hearing of cases before courts is as fundamental to our democracy and system of justice as to any other country. That our legal system so understands it is quite easily demonstrable. We have several statutes in which there are express provisions for trials in camera.

Section 53 of Act 4 of 1869 dealing with matrimonial causes, s. 22 of the Hindu Marriage Act, 1955, s.352 to the Code of Criminal Procedure, 1898 and s. 14 of the Indian Official Secrets Act, 1923, allow the court a power to exclude the public.

Where the Legislature felt the special need it provided for it. Section 14 of the Official Secrets Act, however, needs some comment because an argument is knit from it. That section recites “without prejudice to any powers which a court may possess to order the exclusion of the public” and it is suggested that this recognizes the existence of inherent powers spoken of by Sir Francis Jeune.

From this recital alone it is not right to assume that courts possess a general or inherent power of dispensing with open and public trials. This recital is necessary to be stated lest it may be thought that unless the prosecution applies to have the public excluded for reasons arising under the Official Secrets Act, other power derivable from any other source such as s. 352 of the Code of Criminal Procedure cannot be exercised. For this reason the other powers are expressly mentioned and preserved.

The above statutes do not only confer power to hold trials in camera, but in a way they show that trials under laws which do not contain such enabling provisions must be open and public unless a strong case exists for holding them in camera. Inherent powers can only be exercised on well-recognized principles and they cannot be assumed to exist where they do not.


Naresh Shridhar Mirjakar v. State of Maharashtra (1966)

[1] (1889) 6 T.L.R. 38

[2] L. R. [1936] A.C. 177

[3] L. R. [1913] A.C. 417 at 436.

[4] [1903] P. 144

[5] (1913) 29 T.L.R. 658.