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
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
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.