As the Supreme Court commences hearings on multiple cases involving key Fundamental Rights (especially the one challenging the constitutional validity of Aadhaar), it is faced with a conundrum, thanks to a PIL filed by Senior Advocate Indira Jaising. The petition asks the court to allow live-streaming of arguments in seminal cases.
At the very outset, it is important to keep in mind that the general public does not have unhindered access to the Supreme Court . Those well-acquainted with the complex procedure of gaining entry into the court know how difficult it is, and how all the more difficult it is to hear, follow and understand arguments as they are being made. While it is true that judgements and orders are uploaded to the court’s website, their value deteriorates considerably if one is prevented from following the arguments in real time. In such a scenario, how is the impression of the public about the working of the Supreme Court affected, especially at a moment when it is facing perhaps its greatest crisis of credibility?
In November 2010, the US Supreme Court led by Chief Justice William Rhenquist, turned down all pleas to telecast the hearing of Bush v. Gore. The court, brushing aside all concerns for overwhelming public interest, decided to shroud itself in secrecy, reinforcing the public’s suspicion that the court “helped” George W Bush steal the election. Although the transcripts of the oral arguments were released later, the suspicion over the initial zeal for secrecy lingered. Then in 2013, there was a big furore over CNN bungling up its reportage on the Affordable Healthcare case (more popularly known as the Obamacare case) as it initially reported the court’s decision incorrectly.
These instances should act as serious wake-up calls for our Supreme Court, more so because barring a handful of honourable exceptions, legal reporting in India is rife with mistakes and sensationalisation, as this writer detailed in The Caravan in 2014.
‘Will the public even understand?’
The first argument against the idea is that the public won’t understand, because the law is a hyper-specialised subject, meant only for experts or at least for those with some knowledge. Otherwise it is feared, that the “unlettered” public, disappointed by the absence of the “spectacle” they expected, would draw erroneous conclusions. The response to this is articulated by The News York Times’ Supreme Court correspondent, Adam Liptak, who says: not only does this impose a sort of “intellectual poll tax” on the people, but such a dim view of the public’s ability also breeds distrust and resentment.
What if the public imputes motives to judges and their decisions? Surely, even if they disagree with a verdict, the best way to avoid such conjecture would be to open up the process to the people, so that their suspicions are dissipated.
Naysayers are also wary of grandstanding by members of both the bar and the bench. They feel that the presence of cameras would ensure the vindication of the “Observer effect” — a phenomenon in which the very existence of watchers (cameras, in this case) makes people behave differently. This would thus possibly lead to the judicial process being disparaged. This, one must say, is too cynical by half. This is because if there is so little faith in judges’ ability to restrain themselves from “playing to the camera”, or self-restraint on part of the lawyers, then faith in the judicial system itself must be misplaced.
That the Supreme Court isn’t completely camera-shy is evident from its permitting the broadcast of the proceedings of the first Lok Adalat it held with great fanfare on its premises on 2 May, 2008.
The question which thus arises is: can the highest judicial institution in the land afford to be selective about openness?
Live-streaming could allow for ‘open justice’
The concept of open justice, in which everyone gets to see and understand justice being done, is worth considering as a principle and as a practice. Open justice will be incomplete without giving the public access to oral arguments in court in matters of high constitutional importance.
Misgivings about open justice include fears of a ‘trial by media’ but less attention is paid to the quality of legal reportage, which truth be told, has many evident deficiencies. For one, barring very few honourable exceptions, most reporters tell us only what the court held, not how it arrived at the decision.
While the constraints of the newsroom leave reporters with little space for filing detailed, lucid stories which tell the public exactly what happened in court, there is a dire need for better-trained and specialised legal correspondents. This fact was acknowledged by the Law Commission of India during a consultation on media laws in September 2017. The commission agreed that there was a need to transform the structure of rules governing the reporting of court proceedings and sub judice cases.
In the Naresh Mirajkar case, five judges of the Supreme Court unanimously upheld the public’s right to watch court proceedings because it was essential to the administration of justice. However, the court erred by holding that a judicial decision only affects the right of parties, not the public at large.
If the court corrects this anomaly in judicial reasoning, and allows truly unfettered access to proceedings concerning significant public interest, it would only enhance the “majesty of the law” instead of diminishing it by clinging on to secrecy. After all, if Britain, Canada and Australia can allow live broadcast of Supreme Court proceedings without the rights of parties being compromised, what is holding back our apex court from doing so?