Video recording of hearings can facilitate real justice

                                                                                                                                                                                                                                                               Indira Unninayar*

Most people go to court to resolve their disputes and to obtain justice. They hope that a judge who is a figure of authority, will hear them out carefully, understand them, piece together their tales of woe and apply the law correctly to their cases. It is with that great hope of justice, that people seek redress from courts.

However, most people are unaware that the Indian judicial system does not allow the piecing together of their story. A judge (as presiding officer of the court) only hears a case very briefly on the first date in order to decide whether to allow it to proceed or not. For on that date as on others, he/she has to deal with 50-100 other cases. If it appears that the case might have merit, then the judge 'issues notice' to the other side and proceeds to 'give a date' to list it a few months later. Thus begins a slow and painful journey with many short piecemeal hearings. Most hearings are routinely adjourned to future dates, usually with long gaps of three to six months between hearings. The stories remain untold and unheard even after the passage of several years as each hearing or 'date' is limited to a fragment of the case and these fragments remain disjointed and seldom get connected to reveal the complete picture.

Is it possible to render justice without verbatim records of court hearings?

In India, judges are tremendously handicapped by the absence of verbatim records of court hearings. They do not have the benefit of relying upon accurate and detailed transcripts of what is discussed or argued for hours together in courts. So they must rely upon their memory or sketchy notes made during the course of almost 50-100 court hearings. Records of proceedings therefore end up as very short 'one-line orders' that say "Heard. Re-notify (re-list) on ___ date" or "Dismissed". Others end up as long rambling orders or 'judgments' which are written long after the hearing, with the limited and highly inadequate aide memoires mentioned above. The result is that orders and judgments are 'versions' of hearings as perceived by judges, often ridden with errors and inaccuracies.

Judges do not, and quite often, cannot, correct their orders/judgments

Even if the errors and inaccuracies are pointed out, judges either refuse to correct them or are barred from doing so as in criminal matters. Parties have little choice but to live with the errors, or in the alternative, to embark upon the next arduous journey in 'appeal'. By the stage of appeal however, the inaccuracies become so entrenched that it becomes virtually impossible to extricate the truth. Thus, the 'errors' get perpetuated and finally become the 'truth' and justice recedes further and further away to eventually become a distant dream.

Most people are unaware that there are no verbatim records of court hearings in India

Most people are unaware that there are no verbatim records of hearings in Indian courts. They see a court-stenographer sitting through all proceedings typing all day, so it is natural for them to presume that the stenographer meticulously records whatever is said in court by parties, lawyers and the judge. However, the fact is that the court-stenographer is only tasked to "take down" orders dictated by thejudge, correct them and record witness-depositions which too are para-phrased and often changed in meaning. There is nobody who records or transcribes complete court hearings.

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Conduct in court and remarks made during court hearings are often deleted and most dare not point out errors or mistakes

Judges, lawyers and parties make several statements during court hearings in order to make their points or counter-points. However, most of these statements remain 'off the record' even though they ought to be an integral part of it. These remarks range from offensive ones against 'jhuggi dwellers' or 'street vendors' in general to remarks against specific individuals. To illustrate, some judges of the Delhi High Court openly describe street vendors as "trespassers", "encroachers" and "hawker-menace" even before they examine the facts of the case and their lawyer as "someone who would defend them even if they came and encroached into the judge's home". They openly espouse elitist views and say "these people dirty our cities and should not be here." Yet these very judges are allowed to preside over matters dealing with street vendors, something impermissible in law as they already carry a 'bias' against them.

When parties or their counsel make loose remarks aimed at prejudicing the judge's mind during court hearings, they are often taken seriously but the objections to their remarks are seldom recorded in court orders.

When a judge chooses to adjourn a matter, the order usually reflects that the adjournment was sought with the consent of both parties, or else simply records "re-notified" without saying it was adjourned. When a judge has already made up his/her mind even before the hearing and therefore refuses to hear one of the parties, the order still seems to indicate that both parties were heard. Most people have neither the time nor the energy, nor indeed the courage, to challenge these orders.

The impact of all this is a steady erosion of public confidence in the judicial system. The lengthy list of extraneous considerations in deciding matters such as 'apparent judge-bias', 'refusal to listen to a specific party and the overt keenness to hear the other', 'unduly short hearings of few seconds with abrupt endings because the judge loses patience', 'wilful non-application of the law', 'wilful delays or long dates to punish the side that dares question any wrong-doing in court', 'threats of contempt or jail', etc., are simply not recorded. Consequently, there is no chance of pinning responsibility and accountability of judges in conducting and managing court hearings.

The underlying philosophy of our legal system, an inheritance from the colonial system, seems to be 'the judge can do no wrong. So woe betide anyone who points out any mistake made by the judge. The Bar Council Rules of India require lawyers to "fearlessly" point out any wrong-doing in court but most lawyers would rather avoid this, as any such attempt is seen as a threat to the "judge" and the "court" OR descends into an undesirable exchange with little chance of success.

Justice is thus routinely subverted everyday, over and over again.

A simple solution

There is a very simple, swift and inexpensive solution to these problems of miscarriage of justice by ensuring a complete and verbatim record of court hearings and proceedings. This can easily be done by 'digitally video-recording' all court hearings and proceedings and making these and their transcripts available to the litigant at nominal fee. Today, sports associations record 'high stakes' events such as cricket matches facilitating both their viewing as well as prompt correction of wrong decisions. The Indian Parliament records and telecasts its proceedings making them accessible to all citizens. The right to inform and be informed are both part of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India, yet an exception has been made in themost fundamental dimension of our lives justice.

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Three stories where avoidable injustice grew to monumental proportions

These are three stories of glaring transgressions of rights and justice. In two of them, the initial violations that brought the victims to court could easily have been set right but because they were not, they spawned multiple cases over several years. The third shows how a court has passed a detailed judgment without even alluding to the law that was invoked. All three reflect how in justice grew to monumental proportions. However, the injustices arising from court hearings might not have occurred in the first place had there been digital video records of court proceedings. Each of these three stories reveals the kind of transgressions routinely practised by our courts.

Story 1: The case of a street vendor

The first is a story of a vegetable vendor and his co-vendors who were targeted in order to keep a flourishing extortion racket going, but whom the courts repeatedly failed to protect through their inaction. Roop Singh is a street vendor who sells vegetables to earn a living. He used to sit in Harkesh Nagar, near Okhla Sabzi Mandi, New Delhi, along a narrow street about 5 minutes away from the Okhla metro station. One day the police came to him and asked him to shift temporarily ("thodi der keliye hat jaao") to allow the Delhi Metro Railways Corporation (DMRC) to complete some repair work on the road nearby. However, it transpired that that was just a ruse to swiftly run a road roller on the vending site and illegally remove en masse, 130 street vendors who had been vending there for about 20 years. The Delhi Metro with the help of the Delhi Police had tricked them, with the Delhi Municipality in silent collusion. 130 vendors who survive on street vending to feed their families and send their children to school, were removed without notice even though the law does not permit any eviction or removal of any street vendor until a survey is conducted to establish whether he/she is 'fictitious or 'real'. After that, the Delhi Municipality claimed that these vendors had never existed in the first place and denied their removal altogether. Thus, 130 vendors were tricked on the same day by supposedly responsible government officials in one swift devious stroke.

Their public interest litigation before the Delhi High Court was swiftly "disposed of" directing the victims to seek their reliefs before the officials of the municipality, the very same persons who had colluded with Delhi Metro and Delhi Police. The vendors were sent back and forth as the municipality never bothered to grant them a hearing. They got back their sites and livelihoods two years later by a chance coincidence; a strong complaint to the then Chief Minister against the municipality for dumping garbage at their vending area resulted in its swift removal to facilitate their return.

However, their woes did not end there and they had to face constant extortion and daily harassment from the Police and Municipal officials. It was on their third petition before the Delhi High Court that the court finally passed an order of 'stay' against any further harassment and extortion by the police and municipality. It had taken the court 3 long years to pass a simple order of protection, and finally, about 400 street vendors in the entire locality stopped paying bribes to the municipality and the police.

Denied of their extra income, both municipality and police joined hands and launched an aggressive attack upon the vendors and spread terror among them after attacking a sweet-seller for his alleged "illegal" construction of a 'permanent structure'. The law requires proper eviction proceedings wherever necessary but the police and municipality paid little heed to the law and instead, lathi charged and arrested several persons on the concocted ground of "defying the State and obstructing officials from performing their duty". Finally, the High Court issued notices of contempt against 38 persons including the former Police Commissioner and his subordinates, the Municipal Commissioner and his subordinates, the dalaals/touts, the MCD counsellor, etc.

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 However, that respite also proved short-lived. A change of the judges' roster brought the case before another bench which despite the pendency of the contempt cases, one day, suddenly dismissed the entire matter abruptly, after having barely commenced its hearing. Although 11 serious errors were pointed out in a review petition against its very short judgment passed in great haste, the court refused to correct them. The errors included wrong facts, wrong presumption of mass trespassing, reliance on old obsolete laws and acceptance of an obviously tampered and doctored CD (compact disc) prepared by the Delhi Police falsely projecting a brick structure from another place, as an illegal construction put up by the vendors. Today, after a herculean effort of 3 writ petitions before the Delhi High Court and 2 representations before the MCD, and multiple arrests on false cases, the vendors are left with little faith in the law.

Had court proceedings and arguments been recorded, there would have been an unbiased report of how the hearing took place or did not take place the day the entire case was abruptly dismissed. The vendors' rights could have been immediately restored and the judges in question could have been brought to book.

Story 2: The case of a former wife of an influential person

The second is an ongoing case where the former wife of a well-connected person is being systematically persecuted through abuse of the law and the state machinery.

A young woman's rosy vision of her husband and his family were rudely shattered within a few days of marriage when she was abused and humiliated for not bringing them enough dowry and for not compelling her father to 'gift' her husband a car. She contributed her own earnings to feed her husband and his family's never-ending demands and tried hard to make her marriage work. But it was very difficult with a husband who stood by and watched silently as his father verbally abused his wife or flung at her, the hot food that she had painstakingly prepared for the family. When she sought his support, her husband would taunt her saying there was nothing she could do against him or his family as they were all very "well connected." Despite being mentally harassed and physically abused by her in-laws, she was forced to continue supporting her husband and his family until one day, after three years of this highly abusive marriage, she was unceremoniously told to pack her belongings and leave her home. She sought protection from the police against her husband and in-laws, as, apart from her own safety, she feared for the safety of her elderly parents and friends who had lent her their support. Having been looted of her family heirlooms and valuable jewellery worth lakhs of rupees by her husband and in-laws, she was constrained to file criminal cases against them under S 498A and S 406 of the Indian Penal Code (IPC) on counts of cruelty, dowry and criminal breach of trust. She also sought urgent orders of protection under the Domestic Violence Act (DV Act). The latter prompted her husband to swiftly initiate a settlement that she consented to in order to "buy peace" as she was advised that her fight for justice could stretch over several years and probably not end in her favour in any case. However, she was blatantly cheated even in this peace-deal, as her husband never honoured his part of the settlement after ensuring that the cases against him were withdrawn or closed.

Having thus secured his and his family's position, the settlement was suppressed from the court and false cases registered against the victim-wife by the police. The police used an edited1 page summary of her complaint prepared afterwards, to wrongly register it as her FIR (First Information Report) while in fact hers was a detailed 13 page complaint. She was then attacked by the same police for registering a weak FIR without specifics and projected as a 'liar' in court. This then became the basis for turning her own complaint against her, claiming that she had given false evidence to the police. Her lawyer was also compromised and made to give up her right to a protest petition.

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She approached the concerned High Court seeking quashing of any investigation against her, but her case has been languishing without any order of stay for 1 ½ years with the judge repeatedly adjourning the matter despite there being compelling evidence of the settlement as well as the mala fides by the police on the record.

Had there been a digital video record of court proceedings, the victim might not have had to undergo the ordeal of the false case against her and would have been spared the unusually prolonged pendency of her appeal before the High Court. The Court would have been held accountable for repeatedly adjourning the matter and allowing the police to proceed against her despite evidence to the contrary.

Story 3: A PIL dismissed with a verbose 63 page judgment but without even a whisper of the law that was invoked, the Disaster Management Act

There was a large petroleum/oil storage depot coming up very close to a village in Delhi. The villagers were naturally concerned after a raging fire in Jaipur that had continued for 11 days and had killed 11 and injured a much larger number of people in October 2009. Buildings as far as 2 kms away were badly damaged, so the villagers who were at a distance of a few 100 metres from the proposed oil storage depot near them, asked the State whether they were safe and whether the oil storage depot was at an adequate distance from their village. Their numerous applications under the Right to Information Act (RTI Act) from February 2010 onwards before various authorities ranging from the concerned oil company to the Ministry of Petroleum and Natural Gas, Ministry of Environment, Petroleum Explosives Safety Organization, Oil Industry Safety Directorate, Prime Minister of the country, etc., fell on deaf ears as they elicited inadequate or misleading replies or no reply at all. Meanwhile, the company expedited construction of its depot and the villagers had no choice but to move the Delhi High Court which took several months to pass an order of stay restraining the company from commencing its operations. After repeated adjournments, eventually, the court heard the matter but inadequately and refused to hear 12 out of the 14 parties although all 14 were responsible government bodies. The court said that it did not have the time. An application was moved to conduct a proper hearing but the court swiftly dismissed that application. The court passed a lengthy order and judgment several months later without addressing violations of the specific law invoked, namely, the Disaster Management Act. It also wrongly recorded that the villagers had not filed replies to the 14 government authorities although they had filed detailed responses that are very much a part of the record.

Had there been a record of court proceedings, the court's restricted hearing followed by the repeated requests to hear the matter properly would have been on the record. Today, if the exhausted villagers have to move the Supreme Court, they will have to spend months to just re-organize all the information in the requisite format for the Supreme Court in order to commence their case in appeal all over again.

Concluding remarks

Several democracies record their court proceedings through audio or video devices to improve the efficiency and accuracy in preparing court records. In Australia and New Zealand for instance, the High Court which is the apex court, video records and puts up transcripts of proceedings on its website and in their remaining courts, transcripts can be applied for from the concerned court subject to their rules. A study by INPROL (International Network to Promote the Rule of Law), a project of the United States Institute of Peace with facilitation from other organizations, inter alia, shows that availability of court records improves public confidence in the judicial system.

The Indian judiciary cannot and must not continue to remain shrouded in opacity. Justice is far too important for us to carry on fumbling in the dark without detailed and accurate records of court proceedings. There is

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an increasing demand from dissatisfied consumers of the justice-dispensation system to dispel opacity and ensure transparency. With accurate records, the dramatis personae in the courts would be under public scrutiny and act in a more responsible manner as they can be held accountable if required. There would be a significant reduction in judicial delays and justice would not only be done, but would also be seen to be done.

The Indian State guarantees equality before the law and justice to all under Articles 14 and 21 of its Constitution. The introduction of digital video-recording of court proceedings would be just a small step that would go a long way towards fulfilling this promise by ensuring transparency, equality and a fuller realization of justice.

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* Indira is an advocate practicing in the Supreme Court, the Delhi High Court and district courts in Delhi and Gurgaon. She works primarily on matters of public interest and human rights of vulnerable groups.

Volume: Vol. XXXV No. 1
January-March, 2016