Should Court Proceedings be telecast?

By Vijay Kumar

THE Bombay High Court has recently dismissed a petition seeking an order to allow video recording and telecast of Court Proceedings. The HC made some interesting observations:

Nobody suggests that courts are free from error. Throughout recorded human history, they never have been. The annals of mankind's progress are littered with instances of courts in error. Yet judicial systems, adversarial or otherwise, have endured and are an integral to what we now accept it means to be a 'civilized' and 'civil' society. All known and recognized judicial systems acknowledge the possibility of error. Therefore: courts of appeal, and provisions for review and revision, all in-built corrective mechanisms. There are permissible and legitimate steps available to all courts to correct course. This has worked for two millenia. It works still. There is no basis for the assertion that without video recording some great evil will continue to be perpetrated.

Our judicial system is adversarial, not gladiatorial. Our courts are not the amphitheatres of Roman times, though much of our law is descended from Roman law. What happens in Court on a minute to-minute basis is often unrelated or tangential to the final result.

This dialectic of questioning, probing, testing is constant. Taken out of context, a single question, sometimes sharply worded, from the Bench is apt to be misread. The entire context and colour changes. Our attempt as judges is to remove emotion from the judicial decision-making process.

Some Advocates tend very often to be obstreperous, even downright obnoxious. Courts and judges know how to deal with such situations: selective deafness, a gentle chiding, something light-hearted and, if it gets too much, "Move along, Mr. So-and-So".

Sometimes, a fleeting moment of good-natured levity defuses a potentially volatile exchange. At other times, there is a passing moment of waspishness. It happens on either side of the Bar. Both sides know well to take these moments in their stride and to not make over much of them. In live broadcasts, these moments are likely to be taken wholly out of context and out of proportion. With cameras omnipresent, many lawyers, perhaps tempted into seeing this as a shot at some sort of two penny publicity, would give free rein to their thus far thankfully constrained histrionic tendencies. That is unlikely to be very helpful from any perspective.

We, as judges and lawyers, know only too well that trials are unpredictable. A trial's path twists and turns through its progression. A litigant's fortunes may rise one day only to flounder the next, or even a few minutes later. Lawyers and judges are trained to take this in their stride, and to make no assessment till the entire trial is complete and all the evidence is in. Then begins the process of analysing that evidence, collating it, and presenting it to the Judge in a particular fashion, of advocating a particular interpretation, suggesting one particular sequence of causality as preferable to another, and cushioning all this in the framework of what the law allows and does not allow. These are necessary safeguards; and it is to prevent a 'splicing', a stripped-from-context dissemination of nuggets of evidence yet in the process of being gathered, that we in this Court do not allow the public availability of evidence transcripts. Ensuring that the right to a fair and impartial hearing or a trial is never compromised is the paramount responsibility of a court. That responsibility is entirely compromised, and those essential rights threatened and curtailed, by allowing televising of our proceedings. The impact on parties, witnesses and judges is bound to be severe.

What, in short, the Petitioners seek is to strait-jacket the proceedings in court for one and only one purpose: to develop a weapon with which to pillory and terrorize judges and so to wholly compromise the judicial decision-making process. What the Petitions say to judges is this: "Watch out. You are on candid camera. We will drag you before the public if you dare contradict us." All this, knowing that before the general public, and in public media, judges are the most voiceless in public service. We speak through only through our judgments. We cannot defend them in public forums. What the Petitioners seek is not the right to criticize judges' decisions - that is a right given to all - but the opportunity to flog judges in the market square.

There is a clear difference between a litigant or a lawyer or even a member of the public attending Court and of the general public using courts as spectacles or arenas for amusement, diversion and entertainment. The dangers we speak of risk reducing the gravity, solemnity and dignity of these proceedings into something bordering on the farcical, and even more deadly, the ignominious.