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The Supreme Court delivered its new-age judgment on the 3rd of May welcoming change in it’s a far stagnant and rigid system of procuring justice. The SC has stated that the new-age virtual courts are not against the principle of the open court system of India. This statement has come under the light in the current Covid-19 Pandemic where the administration of justice was saved from crumbling with the help of modern-day technology.
The SC elaborated, in its 39 paged statement that the traditional open court system and the virtual courts are not in opposition in principle from each other they complement well, are symbiotic to each other and can deliver qualitative justice when taking in consideration, the current situation the world is facing.
The esteemed court has faced some criticism over the new virtual system. However, they believe that this technology has helped in the administration of justice to not fail even during these testing times. The system is being utilized to hear matters of urgent importance. This can be seen through its performance of 22 days (until May 1st, 2020) where it assembled 116 benches with 73 benches for review petition. Besides the hearing of 297 matters that were connected, 538 matters were heard.
The court also cited references of various other countries where this system has started, also stating India to be ahead of its time considering the output. This includes developed countries like the USA, France, and the UK. The apex court also stated that this system could help in saving time, money and energy and the presence of litigants and counsels.
The open court system in India
The open court system was first brought upon by The Judicial Plan of 1877 formulated by Warren Hastings in his tenure as the Governor of Bengal.
This was the first initiative when the law was put on solid grounds for the public at large to know what the procedure of the court was. The Miscellaneous provisions of the aforementioned plan enunciated that to promote pure and impartial justice, all cases were to be heard in open court.
The abovementioned provisions were reiterated to find a stronghold in our Constitution of India, in the features of Judiciary – an organ of the Constitution of India.
The Judiciary in India acts as the guardian protector of the Constitution and the fundamental rights of the people. It is bestowed with the features of conducting open trials – freedom given to the courts in India. Such trials could be attended by any rational person. The concept of open courts is practiced to bring transparency in the administration of justice. The parties, being physically present are aware of the developments in the proceedings and it is also beneficial to inculcate discipline and caution in the minds of all those involved in administering justice.
Thus the open court systems are normal court proceedings conducted where every person is allowed to watch the proceedings in the court.
Sometimes, there are instances where it is not practical to accommodate persons other than the party to proceedings, for instance, proceedings in matrimonial matters or proceedings in cases about rape or sexual assault. Such proceedings are known as In-camera proceedings which are held in a closed room where the public will not have access to watch the proceedings. The In-camera proceedings are imperative in criminal cases like Rape, where it is necessary to protect the identity and modesty of the victim.
Apart from the aforementioned case, all the proceedings can be conducted in the open courts to provide access to justice as enunciated in the Constitution of India.
Its salient features
The open court system is an important organ in dispensing access of justice to all irrespective of caste, creed, sex, or economic background. The open court is encompassed with features which are:
Accessibility to all: The open court trials are accessible to all from the general public to journalists to litigants not associated with the said case to observe the proceedings carried out in the court of law.
Transparency: It thereby provides transparency in the administration of Justice, and also proves to be a good measure to invoke discipline and caution in the minds of all those involved in administering Justice.
Public confidence in the administration of justice: The trials held in open courts are subject to open scrutiny, thus every affirmative measure is taken by the court of law in dispensing justice. It creates confidence in the public and reaffirms the belief in the Judiciary.
Why is it needed?
The justice administration system is made for the people and every citizen has the right to access it. Law is ultimately made for the good of the public. In India, due to the open court system, any person is allowed to witness the proceedings of a case. This openness in the judiciary helps in ensuring many things.
To begin with, it helps in ensuring Fairness in trials. It is a fact that when the public keeps a check on the duties of a public servant, there are lower chances of bias. When courts are open, the judiciary has to function under constant surveillance of the people, including the media. This keeps a check on the powers of the judges and magistrates.
This, in turn, helps in keeping the confidence of the public in the law of the land. When people have open access to courts, and they can witness fair trials taking place, they start to develop trust in the law and the system. If people trust the system, their management is easier for the authorities, because they are well aware that if any issue persists, the law of their land will solve and take care of it.
Finally, this helps in promoting and developing democratic ideals in the people. If the people trust the system, they will promote a society that is free and will choose a leader that is suitable for their country. This leader will, in turn, promote the democratic ideal among his people and will further the welfare ideology.
The concept of the open court system, where the trials are held in open – with attendance of the public at large has its legal backing in varied provisions of the Constitution of India.
The open court system is a part of the Judiciary, which has a mention in Article 51 of the Constitution of India providing that the judiciary is free from the executive and the legislature as it is required to be independent.
The matter in the aforementioned Article is reiterated in Article 13 (1)(2) of the Constitution of India making judiciary the responsible organ by providing the power of judicial review thereby checking the executive and the legislative branch from going beyond the limits of the Constitution.
Thus the independence of the Judiciary also provides the power to dispense justice through open courts.
Article 19(1)(a) of the Constitution of India, which provides for the right to freedom of speech and expression included the rights of journalists to publish a faithful report of the proceedings which they had witnessed and heard in Court as journalists.
Article 19(1)(d)of the Constitution of India provides a right to attend the proceedings in court.
Article 21 of the Constitution of India provides the right to Access Justice. The strength of the said article could be elaborated by mentioning the judgment of Justice A.M Khanvilkar in case of two petitions filed in two PILs filed by Senior Advocate Indira Jaising and Swapnil Tripathi, which is as follows,
“Indeed, the right of access to justice flowing from Article 21 of the Constitution or be it the concept of justice at the doorstep, would be meaningful only if the public gets access to the proceedings as it would unfold before the Courts and in particular, opportunity to witness live proceedings in respect of matters having an impact on the public at large or section of people. This would educate them about the issues which come up for consideration before the Court on a real-time basis.”
Article 145 (1) of the Constitution of India provides as follows:
“Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court..”
Another paragraph of the aforementioned decision 1 could be quoted, which mentions Article 145 of the Constitution of India, which is as follows :
“Indisputably, open trials and access to the public during the hearing of cases before the Court is an accepted proposition. As regards the pronouncement of judgments by the Supreme Court, there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open court. Indeed, no such express provision is found in the Constitution regarding “open court hearing” before the Supreme Court, but that can be traced to provisions such as Section 327 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and Section 153-B of the Code of Civil Procedure, 1908 (C.P.C.).
Section 327 of the Code of Criminal Procedure, 1973 (Cr.P.C.) provides that ‘The place in which any Criminal Court is held to inquire into or try any offence shall be deemed to be open.’
Section 153-B of the Code of Civil Procedure, 1908 (C.P.C.)provides that,
‘The place in which any Civil Court is held to try 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 Court.’
Hence the abovementioned Articles, Decisions and Provisions in the court of law provide legal backing and status to the Open court system in India.
The open court system is a manner through which the socialist values of India have been reflected in the administration of justice. The openness of the administration in the public has resulted in a more open manner of keeping the Judiciary under check. This system has worked well in India. It has also played a strong role in propagating the values of democracy in the justice system. However, in recent times, due to the worldwide ongoing pandemic, the delivery of justice had become difficult. How is the judiciary to function if a crowd of people can not remain in the same room? What about the rules of social distancing? The solution for the same was the same as most of the problems in the present-day- technology.
The judicial system came up with virtual courts. In this system, the judge, the parties and the counsel could argue their case through a video call. This could be the most righteous solution to this present-day situation. Justice would not get more delayed in the current lagging system. However, people raised questions against this.
An issue was formed about this new system where people believed that the cases where heard against the idea of open courts in India. The court negated this mindset. They believed that in the present situations, this was the best option. The court also stated many other countries have adopted this system. This system has earned better results in India. The court also stated that virtual court along with the regular court, after lockdown would make the system more dynamic.
The statement should be examined more closely as it is one of impact. With the number of structural issues, the judicial system faces, the idea of bringing in technology to reduce the load is an excellent idea. If such a system is infused with the current structure of the judiciary, a long amount of structural backlog of courts shall be reduced, and justice could be served, to some extent, faster.
Open court systems are an indispensable part of the Indian Judiciary. It allows the general public to access the court and witness the trial of any party. This helps in a more transparent functioning of the system. The biggest benefit of this system is the knowledge it provides. When the general public has the availability of going and seeing the court functioning, it increases their knowledge as well as creates a deterrent for society.
With the current situation going on in the society, it is very difficult for courts to function more openly; therefore, for the hearing of important cases, the court has started the process of virtual courts. This process has received some criticism; however, the Supreme Court has stated that in the present scenario, this is the most viable option and that serving justice is of supreme importance. Hence, with the entrance of virtual reality in the courts, India might be able to establish a newer manner of serving justice.
Authors: Vidhi S Shrivastav from University of Mumbai and Maitreyi Shishir from Symbiosis Law School, Hyderabad.
Editor: Yashika Gupta from Rajiv Gandhi National University of Law, Patiala.