I was recently invited to speak at a webinar, (now don’t come at me with your axes, all you webinar haters. The memes targeted at the concept are getting just as tired, if not more!) the topic of which, circled round the issue of justice dispensation and the practice of law in times of the COVID-19 pandemic and after.
And since circumstance has re-ignited the debate on the right of public access to legal proceedings, I had proposed to share my views in favour of an open court, while highlighting its many virtues against the few circumstances where an exception may be justified.
Thinking what I should talk about – I reminisced of the pre-pandemic courtroom, which despite all shortcomings, we have come to so terribly miss. My thoughts took me back several years – to one particular day.
It is a lucrative admission day before the highest court in the land. There is a visible sense of purpose in the stride of almost every counsel. I have just finished attending to an early morning matter of my own and reluctant to hurry back to office.
I decide to stay back a little while longer. You see, a friend is scheduled to argue a fresh petition filed on behalf of a low-ranking policeman who has recently been dismissed from service following repeated instances of insubordination, supposedly each time, acting under the influence of alcohol. Apparently, the record carries detailed accounts of a number of witnesses who have testified to his haughty acts of defiance. The courts below have declined to interfere with the findings, much less, the conclusions of the disciplinary committee set up by the proud law enforcement agency itself.
The courtroom scene: I notice a stocky gent standing in the enclosure of the courtroom, reserved for the visitors. There is a visible and attentive nervousness in his demeanor as he shifts the abundant weight of his body from one leg to the other. Unbothered, I settle down in one of the last few empty seats in the now packed courtroom. In the hope of gaining the attention of the overburdened court master, the presiding judge double taps his pen on the large judicial table, while using the ubiquitous expression, “take down”. She obliges, and scribbles down a terse judicial expression of outright dismissal in a matter unworthy of the court’s indulgence.
And finally, the matter which I wish to make a spectacle out of, is called to business. My friend starts – but, soon enough it is all so evident, they are disinclined, unconvinced and so obviously, unmoved. (Here I propose to confess the reason for my disconnect from the strong fervor that follows – this is because I have, over the years known this friend to be a rather practical and dispassionate individual).
As his arguments built around the disciplinary committee’s failure to observe the laudable principles of natural justice fail to impress, much less excite, I witness the pleading attempts of the counsel metamorphize into an impassioned appeal to bench, for it must ‘reconsider’ – what about the future of the ‘now-so-sober’ law enforcer? After all, he had a family and he had taken a vow not to repeat the drunken diatribes on his superiors. Sitting now, in desperate anticipation – I ‘shushh’ my neighbouring counsel into silence (what is wrong with people anyway?).
There is more, he goes to the extent of suggesting that the High Court had erred, that the whole thing smacked of hypocrisy and double standards. He proposes that the fault, truly speaking, lies in us – he says,
The liquor barons cheer and applaud, but as I turn around to see, they are not there – never mind, it must be my imagination.
The impassioned appeal catches the fancy of the bench. Of course, no judge could be so inequitable. While they are, in the absence of representation on behalf of the police department, hesitant at this stage to interfere with the order, they deem it fit that emergent notice be issued to the State and leave it there for now. And so, the law enforcer lives to fight another day.
As we step out of the court room, still spellbound, I ask my friend what motivated him to make the impassioned appeal? Possibly, his own affections for his evening drink? He grabs hold of my forearm and retorts: why, a good lawyer would never let his personal preferences come in the way of an exercise as noble as justice dispensation itself. Awe-struck, I nod in agreement – of course, how silly of me!
Rather, he candidly admits the reason – it was his client’s presence in the courtroom. He raises his eyebrow and escorts my eyes right across the hallway. Ah, it is the stocky gent again! He looks relieved now as he walks towards his counsel, my friend. It all makes perfect sense now. And as he understands more fully the consequences of the judicial order, he lowers his eyes, and then nods his head in approval. A man of faith, clearly (must have been, would you have the guts to show your superiors their place after a drink or two?). Reassured, he takes my friend’s hand, and shakes it firmly, appearing genuinely grateful. There you go, he seemed nice enough. These superiors, I tell you.
And for those who believe that every story must have a moral (the world would come to an end, otherwise), the one here is that the litigant is an important stakeholder in the judicial proceedings, and therefore, you should have some sympathy for the sentiment that virtual courts too, should, in some form and manner accommodate his gazing presence. If you think of it, the eagle-eyed-eager-litigant with his proficient human senses has stalked seasoned counsel for ages. Might I suggest, with good reason too.
His keen watchful interest in the proceedings, his uneducated but often fair evaluation of our performance, and his irksome questions, which leave us with little riposte but to remind him of who holds that coveted degree in law (though clearly, not in public relations) have all, troubled the lot of us. And even prior to the pandemic – hand on heart, some of us have felt better when told of the conspicuous absence of our clients from the courtroom, if for nothing more, it saves us the inconvenience of having to have that polite conversation instantly after a hearing on a demanding day.
Yes, many a counsel has shuddered at the very thought of the pesky client watching the proceedings like a hawk, evaluating every move, or the omission to make one, weighing each statement, and often finding us to be lacking in some form or measure. But the pre-pandemic courtroom scene, which I have painstakingly described (gratitude, my fair people) in some detail is good authority to suggest (or at least, imagine) that lawyers too, behave differently when under the scrutinizing gaze of their client. Recount honestly, and I know you will come up with your own drunken law-enforcer episodes.
And so, the issue of the open court system, which has largely been viewed from the traditional standpoint of judicial accountability, the need for transparency, and the desire to inspire public confidence – may also be assessed from this alternate standpoint – the seldom talked about, but equally important consideration i.e. the accountability of the counsel to his client.
Unfortunately, this lockdown, I am short on balloons and champagne but I call for a celebratory fervor – the Delhi High Court while giving effect to the notion that an open court, should be the default rule, has permitted the public viewing of court proceedings that are presently being conducted via video conferencing on account of current exigencies. But we have some distance to go. A number of other High Courts have not followed suit, thus far. [A telephonic conversation on June 26 with the relevant staffers of another High Court confirmed that ‘Advocates’ aside, a VC link to view court proceedings could not be provided to a litigant, much less to an unconnected member of the general public. Their interpretation appears to be in line with the SOP of that Court.]
Concentrating now, on my own deficiencies: over the years I have not kept abreast of the fate of that poor law enforcer (shame on me). By now, you should all have compassion for him. But had he not been in attendance that day, I doubt that my friend would have made that emotive and exciting appeal in favour of equities and against hypocrisy, in all its incarnations.
And while you might have your own views about scotch, and how the dishonorable beverage can transform the most honourable of men into rabid creatures, by providing that artificial liquid-courage, which makes possible these unspeakable feats of insubordination against the high and mighty – but wherever, you might find yourself on that – I beg of you, do agree, that the drunken law enforcer is also entitled to have his day in court (be it a virtual one). And on that day –
he too, shall test the mettle of his counsel,
and he too, shall have the pleasure of witnessing how the counsel infuses some magic into his own dull life,
and he too, shall watch in utter amazement as passion takes over those otherwise lifeless, uninspiring arguments.
After all, why should I solely enjoy so high a privilege; nay, pleasure? Even after all these years, my thoughts take me back to that day, and with shivers down my spine; I secretly beg for an encore!
Note: The courtroom scene is an exaggerated (obviously) and dramatized (or, trying) version of true events. (The author pleads artistic license, so there!)
The author is an Advocate-on-Record at the Supreme Court of India and is currently a Partner in the dispute resolution practice at L&L Partners, Law Offices, New Delhi.