Transparency in the Court: Recording oral proceedings – the way forward?


Recently, it was reported in several newspapers (including the Hindu and the Indian Express) that the Supreme Court while hearing a petition filed by an NGO ‘Janhit Manch’ stated that it would consider allowing the recording of Court proceedings in the interests of judicial transparency. It appears in fact that the Supreme Court has approved of a policy to audio-record its proceedings. Further, an Advocate of the Karnataka High Court, Mr. K.V. Dhananjay, has requested the Chief Justice of Karnataka to allow him to audio-record judicial proceedings in which he was involved. These developments raise important issues connected to transparency in the Courts. Proposals for recording of Court proceedings are particularly relevant given the difficulty faced in India in accessing arguments made before Courts. Some blogs (including Spicy IP and Law and Other Things) as well as organizations such as Lawyers Collective have made attempts to report on the arguments made in important cases before the High Courts and the Supreme Court, but there are several difficulties faced in doing so. In this context, it is important to look at the pros and cons of recording of Court proceedings.

One objection to allowing recording of the proceeding of Courts is that it may interfere with the proceedings. However, this is hardly an objection in principle, and there are several means of non-intrusive recording. Digital recording devices should allow one to record Court proceedings without in any way negatively impacting the work of the Court. Another objection may perhaps be that if lawyers are allowed to record the proceedings and present the records in appellate forums, obvious problems related to authenticity of the record would arise.

This difficulty can be solved by having an official transcript of the Court’s proceedings. This would involve not lawyers, but the Court itself making audio recordings, which can then be treated as part of the record of the Court. This should not mean that a lawyer cannot make a recording for his own purposes – just that the lawyer’s recording need not be treated as an authoritative part of the record. A lawyer may wish to record for his own purposes – say, for the benefit of a client unable to attend; or (in a lengthy case) to determine what course his arguments need to take etc. More fundamental, of course, is the fact that a Court should record its proceedings to maintain an official record.

An official transcript can be of use in appellate proceedings as it can serve as the record of proceedings in the lower Court. It may perhaps lead to an increase in the quality of the bar as well as the Bench – with each word being recorded, advocates and judges may feel compelled to ‘prepare’ better. Judges will be able to refer to the transcripts in cases where judgments are not pronounced soon after oral arguments. The recordings are also likely to have an appreciable impact on legal scholarship in India. Any researcher wanting to comment on an Indian case is often faced with the fundamental problem that he has no access to the actual arguments in Courts. Even the major law reports in India do not contain the exhaustive arguments of the parties. In comparison, major English and American reporters contain excellent records of the arguments made in Court by counsel. Recording of oral proceedings would certainly give a boost to Indian legal writing. And recording of Court proceedings will certainly make the job of the legal reporter easier, and make it more feasible to stimulate public debate.

The problem, of course, is that judges may get too cautious, and hesitate in asking relevant questions. Particularly in cases which are already at the centre of pubic debate, judges may feel that recording proceedings will portray them as having a certain bias. This fear may perhaps cause them to be silent when a straight question could have clarified matters. First, it is only a matter of conjecture that recording proceedings will have such an effect on a judge. It is quite likely that a judge will not actually be inhibited in any manner. Secondly, in any event, that this perceived disadvantage is arguably one of the benefits of recording proceedings. If a judge does feel inhibited in doing something on the record, then he should perhaps not really be doing that thing anyway.

Turning to another aspect, one needs to ask whether it will be too expensive to have an official record of oral proceedings. Again, this fear appears to be rather unjustified. Particularly, making an audio-recording of proceedings in at least the Supreme Court and the High Courts is unlikely to appreciably increase the amount of money spent on the judiciary.

So it seems that on balance there are good reasons for allowing for audio-recordings by lawyers (except in, say, in-camera proceedings) in cases where they appear before the Court. Of course, because of problems related to proving the authenticity of the recordings, they cannot be treated as part of the official record. It is therefore important that the higher judiciary at least itself records its proceedings and makes those recordings a part of the official record of the case. This move will undoubtedly have an appreciable impact on transparency in the Courts, and is likely to enhance the quality of the judicial process. It is to be hoped that the Supreme Court acts further on its new policy of audio-recording proceedings, and the High Courts emulate the Supreme Court’s lead in this respect.

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8 comments.

  1. AvatarSheetal Arya

    I strongly feel that it is good to have an audio recording of the court proceedings, due to obvious reasons like transparency. But while dealing with some cases, in which the accused may be asked a lot of personal questions, it may turn out to be quite embarrassing. One more issue of greater concern is that each lawyer has his own style of tackling cases, so on listening the audio versions of court proceedings even novice lawyers will be able to copy them, so would it lead to some kind of infringement issue?

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  2. AvatarSheetal Arya

    I strongly feel that recording the proceedings of the court is has its own advantages. But I am also concerned about other issues involved. For instance, in some cases where it becomes necessary for a lawyer to ask personal questions to the accused or the defendant. Every lawyer has his own style of tackling the technicalities of a case, so recording the court proceedings may lead to copying the style of an experienced lawyer by a novice. So, this may lead to infringement issues also.

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  3. Avatarkamakhya

    Hi Sheetal Arya,

    Your comment saying that a novice lawyer copying the style of a senior lawyer tackling legal technicalities will raise infringement issues is, I think, simply streatching IP too far.

    Please elucidate what kind of IP is involved here?

    Kamakhya

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  4. AvatarDivya

    @ Sheetal’s Concerns:
    I dont think any IP infringement is at all involved.. even to the farthest stretch of imagination, the idea-expression dichotomy may not find a place.. thanks to the uniqueness of every case, its facts, law.. as also the manner to handle a judge as well as each lawyer’ own thought process.. Even if style copying happens, I guess.. a Senior would o0nly be way too happy to have been mentored to such a great degree!!!

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  5. AvatarMihir Naniwadekar

    Hi,

    Thanks for the comments. I agree with Mr. Kamakhya and Ms. Divya – I do not think there would be infringement issues arising. The other consideration which you raise is important – and special rules may well have to govern those situations.

    Reply
  6. AvatarK.V.DHANANJAY

    Hello

    My name is K.V.Dhananjay. The lawyer, cited above. Heres a full text of my letter to the Chief Justice of Karnataka High Court.

    Date: 18-Sep-2008
    To
    Sri Paul Daniel Dinakaran
    The Hon’ble Chief Justice of Karnataka
    High Court of Karnataka
    Bangalore

    Through:
    The Hon’ble Registrar General
    High Court of Karnataka
    Bangalore

    Sub: Respectfully seek ‘No-objection’ to noiselessly and non-intrusively record (audio only) those judicial proceedings that involve my representation on behalf of one or more of the parties to such judicial proceeding.

    Your Lordship

    1. I am an Advocate in active practice. I hereby express my intention to record those judicial proceedings in which I am engaged as the arguing counsel by any party to such judicial proceeding conducted in this Hon’ble Court. A request is hereby made for a ‘No Objection’ to actuate this intention.

    2. Miniature digital audio recorders which are several times smaller than the smallest cell phone in use today are widely used in society today and an advocate participating in a judicial proceeding should not be excluded from utilising such device in a Courtroom.

    3. Judicial proceedings are presently not transcribed in this Hon’ble Court. I lack definite information to extend this observation to other High Courts in our Country. As early as 1885, judicial proceedings in England and possibly, even in India, were transcribed (every spoken word was written down by a specialist reporter present in the Court) and the transcripts formed part of the Official record in many cases.

    4. Transcription has become an integral part of judicial proceedings in most parts of the world today and every major democratic institution of the world employs transcription. Appellate Courts in many jurisdictions routinely remand matters back to the lower court and order retrial in the event the previous trial was not captured in an official transcript or if the official transcript is lost or destroyed. And their intermediate and Supreme Courts routinely consult transcripts of precedent proceedings to resolve any substantial question of law.

    5. Millions of transcripts of judicial proceedings from various parts of the world are posted on the internet and have fostered immense trust and faith in the integrity of the judicial proceedings that are open for transcription.

    6. Judicial proceedings in this Hon’ble Court, whether judged by historic or present standards, deserve to be transcribed.

    7. In view of an absence of any official mechanism to transcribe judicial proceedings in this Hon’ble Court, it becomes necessary for an advocate to employ his own transcription.

    8. I hereby seek, respectfully, a ‘No objection’ to an audio recording of all judicial proceedings which involve my participation as an arguing counsel for one or more of the parties to such judicial proceeding.

    9. The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic.

    10. The recording shall vest either with myself or with my client and will be transcribed at our own cost and shall serve as a reference for our own purposes.

    11. Every judicial proceeding is invariably reconstructed on appeal and the fairness of an appeal is directly determined by the degree of accuracy with which the proceeding below is reconstructed. The absence of a transcription greatly burdens an appellate court with assumptions (about the proceeding below) that may greatly vary from the actual proceeding. A transcript relieves an appellate court of such enormous burden and in doing so, similarly relieves an appellant of burden that is incompatible with the modern era – recording devices are commonplace, transcribing professionals are active in every part of the world and more so in the city of Bangalore, transcribing software mechanically converts audio signals to written word with 99.99 % accuracy (while the balance 0.01% is achieved manually).

    12. Given the fact that Orders made by this Hon’ble Court in its various jurisdictions are appealable, whether on intra-court, statutorily or on special leave, every appeal pursued on any Order made by this Hon’ble Court would invariably benefit from Court transcription.

    13. Further, a party to a judicial proceeding has an inherent right to information about such proceeding and the consequent right to preserve such information. This right is not fully honoured as long as a party must reconstruct a judicial proceeding by employing his own memory or that of his counsel. Further, given the possibility of different counsel appearing at different stages of the same judicial proceeding and of different appellate counsel, it becomes absolutely essential that a party’s need for an accurate reconstruction of a judicial proceeding is fully honoured.

    14. Further, every attorney representing any party in a judicial proceeding has an inviolable duty to accurately report his participation to the party and this duty is not adequately discharged as long as a transcript of the judicial proceeding is unavailable to the party or to his attorney.

    15. It is obvious that the ‘No objection’ I seek does not involve any participant to a judicial proceeding to alter his/her conduct in any manner howsoever. That is, lawyers, arguing counsel, parties, members of the public, court officers, Presiding Judges, Judges, other staff members of the judiciary are not required to conduct themselves in any different manner than is the case at present. Therefore, I seek such ‘No objection’ to our recording at the earliest.

    Respectfully

    K.V.DHANANJAY
    Advocate

    Reply
  7. AvatarSGM RIZVI

    I think that when proceedings of legislature can be recorded and shown on the TV, why the proceedings of Judiciary should not be recorded and shown to the public on TV.

    Atleast the Poor citizen of India can see the functioning of Third Pillar of democracy ” The Judiciary”

    There are countries where proceedings are recorded and CDs are given to public on request by paying fee. Why this cannot be done in India.
    SGM RIZVI

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