I received an email from one KV Dhanajay, Advocate, Supreme Court of India; the email was not any personal email but was addressed to many addresses including me; initially I thought it was more like a spam communication or an unsolicited invite to join some movement or sell a service or product; but my thought was wrong though my instinct was right; instinct prevailed over thought and I went through the contents and attachment to that email opening through defined links.

I must admit that I was really overwhelmed by the initiative taken by this lawyer Dhanajay. As claimed in his email, to ensure greater transparency in judicial proceedings, he wrote a letter to the Learned Chief Justice, Delhi High Court on 03-Mar-2009 stating that he wish to audio-record judicial proceedings in which he represented one or more of the parties to that proceeding. He also claimed that the said letter was on similar terms as that made to the Learned Chief Justice, Karnataka High Court in the month of September, 08. Six months later, he was told that the High Court of Karnataka is yet to take a decision on that letter. He is contemplating taking legal action/remedy against the Hon’ble Chief Justice of Karnataka High Court, in his administrative capacity, to compel him to allow his request.

The Indian national daily Indian Express has carried a story on this in their Delhi and North Indian editions. According to the newspaper, “a Young lawyer has provoked a new debate on transparency in the judiciary by sending a letter to Delhi High Court Chief Justice A P Shah, seeking permission to “non-intrusively” tape-record court proceedings……………………………………But Dhananjay reasoned in the letter that an audio record of court proceedings, especially interaction between the judge and lawyer, would help his client accurately follow the case. “The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic.”

I also went through the contents of the said letter written by Dhananjay to the Learned Chief Justice, Delhi High Court, as the same is available on google’s website. By way of the said letter, he has sought a no objection from the Chief Justice to record those judicial proceedings in which he is engaged as the arguing counsel by any party to such judicial proceeding conducted in this Hon’ble Court. If allowed, he proposed to use miniature digital audio recorders being several times smaller than the smallest cell phone in use today. The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic. The request was made because ordinarily in India audio recording of judicial proceedings is not permissible. The justification extended by the lawyer for the said request is that transcription has become an integral part of judicial proceedings in most parts of the world today and every major democratic institution of the world employs transcription. Appellate Courts in many jurisdictions routinely remand matters back to the lower court and order retrial in the event the previous trial was not captured in an official transcript or if the official transcript is lost or destroyed. And their intermediate and Supreme Courts routinely consult transcripts of precedent proceedings to resolve any substantial question of law. Millions of transcripts of judicial proceedings from various parts of the world are posted on the internet and have fostered immense trust and faith in the integrity of the judicial proceedings that are open for transcription. Further, every judicial proceeding is invariably reconstructed on appeal and the fairness of an appeal is directly determined by the degree of accuracy with which the proceeding below is reconstructed. The absence of a transcription greatly burdens an appellate court with assumptions (about the proceeding below) that may greatly vary from the actual proceeding. A transcript relieves an appellate court of such enormous burden and in doing so, similarly relieves an appellant of burden that is incompatible with the modern era – recording devices are commonplace, transcribing professionals are active in every part of the world and more so in the city of Delhi and its adjuncts, transcribing software mechanically converts audio signals to written word with 99.99 % accuracy (while the balance 0.01% is achieved manually). The lawyers also goes on to state that a party to a judicial proceeding has an inherent right to information about such proceeding and the consequent right to preserve such information. This right is not fully honored as long as a party must reconstruct a judicial proceeding by employing his own memory or that of his counsel. Further, given the possibility of different counsel appearing at different stages of the same judicial proceeding and of different appellate counsel, it becomes absolutely essential that a party’s need for an accurate reconstruction of a judicial proceeding is fully honored. Now let’s go through the contrary view as contained in the Indian Express; one section of the legal fraternity feels that audio recording of court proceedings also carries with it a possibility that information could be manipulated, distorted, or used to embarrass, harass or intimidate parties to court proceedings.

Speaking now for myself, I would certainly support the audio and even video recording; in my assessment it has following advantages –

1. First and foremost, it will improve the discipline and decorum inside the court rooms; cause everybody will be conscious of the fact that they are being recorded;

2. It will improve the standards of practice; each lawyer would try to justify to his or her client about his or her best efforts;

3. Likewise, it will also improve the justice delivery system; cause the Judges would be under scanner;

4. It will improve the judicial mechanism as a whole; cause the data of judicial proceedings in any matter would be readily available for scrutiny by the higher court;

5. It will speed up justice; cause the appellate courts need not hold actual detailed hearings; they can analyze video/audio and if need be circulate questionnaire to the parties;

6. Globally, we are moving towards digitization and electronic management system; everything should be available composite data form;

7. It will cut cost; one could have proceedings viewed through video conferencing mode; the litigants need not attend court proceedings, they could have a password oriented long distance video access to the proceedings;

8. It will certainly bring about transparency in judiciary and legal system as a whole.

I feel that one should always deal with a problem` head on’ and not by `escapism’. Hold the bull by its horns because otherwise you will have no option but to be hit by it. The section of lawyers who are opposing the AV recordings are according to me not opposed to the idea of AV but are either scared of the risk of not being able to control the bull or are not confident enough or want to tame the bull first and then solve the issue; let me advise them that one cannot tame the wild bull. Judicial activism against judicial intoxication; we in India are blessed with a proactive and sensitive judiciary who has by and large upheld the rule of law and sentiments of the society; I am sure that our judiciary will be open to the idea of AV recording of the judicial proceedings; I have full faith in the custodians of law; let us not lose hope. I wish all the very best to the activist lawyers like KV Dhanajay in their initiatives directed towards modernization and transparency.

By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA