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Vidhi Centre for Legal Policy has recently prepared a report on the topic of open courts in India. Titled Open courts in the digital age: A prescription for an open data policy, the report deals with how an open data policy can make the Indian Judiciary more accessible and accountable.
The report recognizes that various digitization initiatives have increased access to legal information for all Indians, including print-disabled citizens. However, it notes that a lot more can be done by the judiciary to facilitate innovation if it adopts an Open Data policy that focused on accountability and dissemination of legal information.
The report gives a multi-faceted approach on this Open Data policy by focusing on various areas such as judicial data on case details from e-courts, websites of High Courts and other digital services, judgments of Courts, video recordings of court proceedings, legislative texts and translation of data into regional Indian languages.
Open Courts in India: A Brief History
The report states notes that Sections 153 and 327 of the Code of Civil Procedure and the Code of Criminal Procedure respectively call for all cases to be tried in an open court, subject to the discretion of judges and the circumstances of the case.
The report also refers to a number of cases to understand the position of Indian courts with respect to open courts. One such case was Mirajkar v. State of Maharashtra & Anr, where a High Court judge restrained the press from reporting the statements of a witness in a trial. The case was taken to the Supreme Court, which held that High Courts could exercise their inherent powers to deviate from the principle of open courts if it was felt that a public trial would adversely affect the fair administration of justice.
Former Chief Justice of India Justice Mohammed Hidayatullah had dissented in this case, holding that Article 19(1) (a) covered the right of the press to attend and report the proceedings of a court.
Since then, the report states, the position of Indian courts on openness of proceedings has changed. Most recently, in the case of Swapnil Tripathi v. Supreme Court of India, the Court held the following:
“The right to know and receive information is a facet of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness Court proceedings involving issues having an impact on the public at large or a section of the public, as the case may be.”
Issues with existing Judicial Data systems
The report acknowledges that there is a dearth of sufficient data and accurate judicial statistics regarding case pendency and disposal. India lacks a system of collating and publishing accurate judicial statistics because most High Courts lack proper well designed systems to collect and report statistics.
The report also sheds light on the National Judicial Data Grid (NJDG), which generates statistical data by drawing real time information from the e-courts system used by the district courts across the country.
A major issue is that the site runs a disclaimer which states “cannot be considered a substitute for the authentic verified information i.e., by a competent authority designated by each Court”, which makes the whole attempt futile, the report states.
With regard to the obstacles to access information from High Court sites, the report reads,
“The far richer dataset available on the e-courts website or on the High Court sites have become tougher to ‘scrape’ for data because of the use of the ‘captcha’ system to block automated data ‘scraping’ efforts…”
The report further states that judicial data should be viewed as a public resource as the Central Government had invested approximately Rs. 2,309 crore of taxpayer money on building the e-courts system.
Accessing judicial pleadings under the era of RTI Act
The report notes the conflict between Rules laid down by various courts and the Right To Information Act, 2005 with respect to accessing pleadings. As per the RTI Act, all information is meant to be public unless the state can justify its denial of information.
The biggest obstacle to accessing pleadings, the report states, are the antiquated court rules which are being cited for not making accessible pleadings under the RTI Act. The issue of whether the RTI Act will prevail over individual court rules is pending before the Delhi High Court, the report states.
Also observed is the trend of requests by litigants for orders to protect the confidentiality of information disclosed during proceedings, especially in cases of commercial transactions. Highly confidential information could be protected under the equitable duty of confidence, it is suggested.
“Even the RTI Act has an exemption for information that was shared with the government in commercial confidence. That trade secrets cases are exempt from the traditional presumption of ‘open courts’ is well established, under both judicial precedent.”
Judgments in the age of Open Data
This chapter explains the history of law reports along with the reasons for digitization and publication of judgments.
One of the “most welcome outcomes” of making available judgments on the internet is the creation of Indiankanoon, the report mentioned.
“Unlike the judicial websites, Indiankanoon.org provides a powerful text-search function that allows users to conduct searches for particular legal propositions or legal terms across all judgments rendered by the courts from whose websites, judgments are being extracted.”
The website has proved to be quite useful even in terms of legal research. The report further notes that, Indiankanoon has made a huge impact on the ‘accessibility’ factor of judgments and moreover, the services are provided free of cost.
According to the report, some of the key issues that need to be considered by the judiciary while designing an open data policy for its websites would include giving bulk access to judgments to all innovators, guaranteeing authenticity, devising a neutral citation format to replace proprietary citations of private law reporters, and ensuring all websites and standard comply with accessibility norms.
Demand for live audio-video streaming of proceedings
The report referred to the Swapnil Tripathi case, in which the Supreme Court articulated that the live audio-video streaming of court proceedings is merely an extension of the ‘open court’ principle. One of the main reasons why the Supreme Court was in favour of the same was is that it would facilitate the dissemination of accurate information of court proceedings.
Yet another pertinent issue that was mentioned in the report was the copyright of the video recordings vested with the Supreme Court. The Court had barred the re-use, re-editing or redistribution of the video recordings in any form except with the written permission of the Registry of the Supreme Court. This move has been criticised with the argument that the Copyright Act itself allows for the reproduction and publication of public importance to the general public.
Furthermore, the Court’s reluctance to allow the video recording to be used for any “commercial” or “promotional” purposes is not backed by any detailed reason or logic, the report noted.
Additionally, the report states,
“Further, in a country like India where litigation culture varies across high courts and states and each district court may have its own cultural peculiarities, witnessing courtroom proceedings can provide an excellent opportunity for ‘attorney acculturation.”
Make Judgments available in Indian Languages
Generally speaking, Indian legislation and judgments have been made available only in English and at most in Hindi. Therefore, there is an utmost necessity to make available the law and judgments in more Indian languages, the report notes.
To address a part of this need, the Supreme Court mobile app was recently launched during the Constitution Day celebrations held a few days ago. It will be available in English, Hindi and six other regional languages.
[Read the full report here]