Justice Ujjal Bhuyan Questions Sealed Cover Procedure, Says Greater Judicial Transparency Boosts Public Trust

Supreme Court judge Justice Ujjal Bhuyan on Sunday stressed that greater transparency in the judiciary is essential for strengthening constitutional democracy, asserting that a judiciary which enjoys higher public trust is better equipped to enforce government accountability and uphold the rule of law.

Speaking at the launch of the report "Judicial Transparency Index: Assessing Disclosure of Information by the Supreme Court and the High Courts" by Vidhi Centre for Legal Policy, Justice Bhuyan said transparency enables public oversight and informed engagement with the judicial system, thereby reinforcing judicial independence, fairness and efficiency.

Justice Bhuyan expressed agreement with the report's view that "ansparency in the judiciary is central to the functioning of a constitutional democracy."

"By enabling public oversight and informed engagement, it strengthens judicial independence, fairness and efficiency. A judiciary that commands greater public trust is better placed to enforce government accountability and uphold the rule of law," he said.

While acknowledging that the judiciary has made "significant strides" towards openness, Justice Bhuyan observed that much more remains to be done.

"The report notes that the Indian judiciary has taken significant strides towards greater transparency. However, much more needs to be done," he said.

Questions Sealed Cover Practice

During the panel discussion which followed,  Justice Bhuyan called for an examination of the continued use of the sealed cover procedure in courts, questioning its compatibility with constitutional principles of fairness and open justice.

Referring to the common justification advanced for sealed cover proceedings, Justice Bhuyan said national security is often cited as the reason for withholding information from one of the parties. However, he questioned whether such a practice violates the guarantee of equality before law.

"Information is withheld from the other side. Is that not a violation of the principle of Article 14? You are not giving equal treatment and equal opportunity to both parties before the court," he said.

Justice Bhuyan said the judiciary must revisit the practice and assess whether it continues to have a place in a justice delivery system founded on openness.

"I think the sealed cover procedure is also an area that we need to examine. We need to see whether courts are still following the sealed cover procedure, because it runs contrary to the principle of openness in the justice delivery system," he said.

On Livestreaming

Justice Bhuyan stated that the most visible development in terms of transparency in the last decade has been the live streaming of court proceedings. Quoting Greek Philosopher Plato and English Jurist Jeremy Bentham, he supported the idea of open justice through access of judicial proceedings to public.

He referred to the Swapnil Tripathi judgment wherein the Supreme Court allowed livestreaming of proceedings flowing from the right to access justice and the right to receive information under Articles 19 and 21. But pointed out that the recent restriction of the Supreme Court on unauthorised clipping, editing and circulation of the live-streamed proceedings is one of the concerns Bentham had anticipated. 

He said: "...Bentham anticipated that decontextualised fragments of oral exchanges, observations made by judges in the course of argument, not findings, are being circulated with sensational captions, causing reputational harm to judges, advocates, and litigants alike, and distorting public understanding of what had actually happened in court. The order does not retreat from live streaming; it draws a distinction, familiar from Bentham's own writing on the necessary limits of publicity in adjudication, between transparency of the process and the licence to manufacture a misleading narrative from that process."

Vouching the idea of open justice, he referred to former Dr. Justice D.Y. Chandrachud's concurring opinion in the Swapnil judgment, which is based on the premise that citizens have a right to know and follow court proceedings.

He said: "Public confidence in the judiciary and in the process of judicial decision making is crucial for preserving the rule of law and to maintain the stability of social fabric. People's access to the court signifies that the public is willing to have disputes revolved in court and to obey and accept judicial orders. Open courts effectively foster public confidence. Allowing the litigants and members of the public to view courtroom proceedings would ensure that judges apply the law in a fair and impartial manner."

Further, Justice Bhuyan referred to the judgment in Central Public Information Office, Supreme Court of India v Subhash Chandra Agarwal, wherein the Court was sought to answer the question how transparent is transparent enough, as it posed to itself, in the context of the collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges etc.

He explained that issue arose when the respondent sought copies of the correspondence exchanged between different constitutional authorities together with file notings relating to the appointments of Justice H.L. Dattu, Justice A.K. Ganguly and Justice R.M. Lodha superseding the seniority of Justice A.P. Shah, Justice A.K. Patnaik and Justice V.K. Gupta.

The CPIO declined to provide the information sought for on the ground that the Supreme Court's Registry does not deal with matters pertaining to appointment of judges, as appointment of judges to the higher judiciary are made by the President according to the procedure prescribed by law.

Justice Bhuyan pointed out that the Constitution Bench speaking through Justice Khanna emphasized on the need to balance the fundamental right to information which is traceable to free speech and expression on the one hand and the independence of the judiciary forming part of the basic structure of the Constitution on the other hand.

Observing that judicial independence and accountability go hand in hand, the Bench was of the view that transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. He said: "The judgment notes that the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Dismissing the appeal, the Bench held that the office of the Chief Justice of India is a 'public authority' under the Right to Information Act, 2005 bringing judicial appointments correspondence within its reach, albeit qualified by considerations of confidentiality and public interest."

Here as well, Justice Bhuyan referred to the supplementary opinion of Dr. Justice D.Y. Chandrachud, who held that disclosure of assets of judges is warranted in the larger public interest.

"The argument that independence of the judiciary would be affected prejudicially due to disclosure of such information is specifically rejected as it cannot be argued that information regarding the assets of the judges, who are public functionaries, is personal information having no relationship with any public activity or interest. In this regard, he emphasized that the edifice of judicial independence is built on the constitutional safeguards to guard against interference by the legislature and by the executive. Judicial independence is not secured by the secrecy of cloistered halls," Justice Bhuyan said.

Highlighting Bentham's theory of open justice, Justice Bhuyan said that judicial proceedings, from the first step to the last inclusive, should be carried out with the utmost degree of publicity possible. The only exception that Bentham would exclude from such proceedings was in camera proceedings to be carried out in the judge's chamber.  He also referred to the judgment of Scott Vs. Scott, wherein it was declared that open justice is a long-established principle of common law systems.

Justice Bhuyan said: "Transparency is not alien to Indian jurisprudence. By now, open trials and access to the public during hearing of cases before the court has become an accepted norm...Therefore, the concept of open court in the dispensation of justice is fairly acknowledged within the Indian legal framework."

Further, Justice Bhuyan cited the Naresh Shridhar Mirajkar judgment(1996) of the nine-Judge Bench. Mirajkar was a journalist serving as a reporter of the English weekly Blitz published from what was then Bombay and edited by R.K. Karanjia. One Krishnaraj sued Karanjia before the original side of the Bombay High Court and claimed damages for alleged defamation because of some publication in the Blitz.

In the course of the trial, one of the witnesses requested the judge hearing the suit (none other than Justice Tarkunde) to protect him by directing that his evidence should not be reported in the press, particularly in the Blitz, which was causing loss to him in business. Justice Bhuyan stated that judge then told the learned counsel appearing for Karanjia to tell the petitioner Naresh Shridhar Mirajkar not to publish reports of evidence of the said witness in the Blitz which he was doing all this while. 

This was challenged by Mirajkar before the Division Bench of Bombay High Court by a writ petition under Article 226. The writ was dismissed by the Division Bench on the ground that the impugned order was a judicial order of the High Court and was, therefore, not amenable to judicial review.  Contending that his fundamental rights under Article 19(1)(a) and (g) of the Constitution of India were violated, Mirajkar moved the Supreme Court of India under Article 32 of the Constitution of India.

Justice Bhuyan stated that what was relevant was the observations made by Justice P.B. Gajendragadkar, the then Chief Justice of India, speaking for the Bench. Quoting Gajendragadkar, who had said: " In general, all cases brought before the courts, whether civil, criminal or others, must be heard in open court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the court-room." 

He pointed out that Chief Justice Gajendergadkar quoted Bentham, which was extracted in Scott v. Scott as: "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. "

Justice Bhuyan added: " By publicity what is meant is public access to justice and transparency. However, Chief Justice Gajendargadkar was quite mindful of the fact that there may be some category of cases where the requirement of the administration of justice itself may make it necessary for the court to hold a trial in camera. Barring such exception, the general principle is of open court justice."

He also referred to the concurring opinion of Justice Bachawat, who opined that a court of justice is a public forum. It was said that is through publicity that the citizens are convinced that the court renders even-handed justice.

"It is therefore necessary that the trial should be open to the public and that there should be no restraint on the publication of the report of the court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the court may hold the trial behind closed doors or may forbid the publication of the report of its proceedings during the pendency of the litigation. Save in exceptional cases, the proceedings before a court of justice should be open to the public. There is no doubt that open courts make it possible for the public to develop reasonable perceptions about the judiciary, by enabling them to directly observe judicial behaviour, the processes and outcome of cases," Justice Bhuyan said.

Also from the event - By Not Giving Reasons, Collegium Doing Disservice To Judges Doing Good Work : Justice Ujjal Bhuyan