Friday, March 28, 2014

Justice in "Open" Courts

Guest Post by Abhinav Sekhri

I recently happened to visit the Supreme Court of India where I required a “proximity-pass” for gaining entry to the building. Coming from the Bombay High Court where entry is free, I was rather unprepared for what awaited. It took nearly two hours to obtain that pass for something that required fifteen minutes. Seeing greatly harrowed litigants around me miss their cases due to the slow-paced queue was disheartening and alarming. The system poses serious doubts over the notion of administering justice in open courts that legal systems cling to. This short comment is an attempt to put the same into greater perspective.

The Current System
Up until 2007, only ordinary security checks were in place with no special restrictions imposed for gaining entry to the Court. A slew of orders came in the wake of bomb blasts in court premises across Uttar Pradesh in 2007. Throughout orders issued since late 2007, the official reason behind these measures was ensuring greater security. The Supreme Court was declared a “high security zone”. Accordingly, one has to undergo two full checks before entering the Court premises, and one frisk-search just outside court-halls.
Since 2009, litigants wishing to gain entry must fill a form to get a photo-id proximity pass; your name, occupation, mobile number and address primarily. Passes are only issued for visiting a particular court for your particular case. These must be stamped by an Advocate on Record (not your ordinary advocate), and submitted along with copies of a designated photo-id. All this data is keyed in by persons behind a counter, who takes your photograph, and hands over the pass. If you visit Court often, next time just tell your mobile number to help retrieve the details. From personal experience, I can vouch for this working till a year from the previous visit.

Unwanted Consequences
The veritable golden-ticket for the Supreme Court creates several consequences that are not often considered. The most alarming is refusing entry to any interested member of the public who does not have matters in Court. There was a pass system in place before the photo-id at the Court, but without such a complete restriction. Today, it is nearly impossible for one to hear matters of immense national importance being argued by some of the sharpest minds in our country. In the absence of audio-recording arguments, this is indeed tragic.
This sacrifice of the fundamental tenet of “open justice” is foreboding in a democracy for two reasons. First, in a country where the law is notoriously inaccessible, such measures deepen the persisting non-engagement between the law and common public. Especially, those “ghosts” in our system: the have-nots living without any government-issued identity. These measures thus not only exclude non-litigants, but also poorer ones. There is also the issue of accountability. Though the press covers the Court it is no substitute for people being able to see what exactly goes on inside courtrooms.

Second, blithely restricting access to the highest court of law owing to terror threats is doing exactly what terror ideologues desire. Courts are supposed to ensure a society runs on the rule of law, not ratify measures taken under terror from a gunman. Today when the sceptre of terror-threats looms larger than any real terrorist activity, it is difficult to question the value of “security” as an object. I do not object to imposing restrictions on this basis, agreeing with those who argue that security, or a sense of it, is valuable. However, one must question the nexus between the measures taken and the stated object. Is there a presumption that someone without a matter in Court would not be a terror threat, which justifies such a complete restriction?

Comparing Countries
Continuing with the issue of a reasonable nexus of the proximity pass for ensuring security within the Court, we must look at the measure itself. Issuing these passes has little or nothing to do with protecting the “high security zone” from the professed terror threats. Persons are in any case subject to body-searches and a scan of their belongings before entering Court. If the only additional value in the pass is that it records photographs – why not place cameras at entry gates?

India is by no means unique in facing with terror threats. The USA and England have suffered particularly gravely. However, consider the restrictions for entry to their Apex Court. Both do not impose such a clear prohibition on entry of non-litigants. In fact, they encouragevisitors to the Court, as can be gleaned by a quick look at their websites. Having been to the UK Supreme Court, I can confirm they do not require identification proof to allow entry (at least till 2012). They do however have effective court-management systems. Thus if designated spaces for visitors are fully occupied in a court-hall, then one cannot enter the same.

Daunting Prospect
Recently, the Supreme Court has been hearing arguments on the constitutionality of the “Aadhar” scheme deployed by the Government. One of the fundamental grounds of challenge is the retention of personal data by the government without any statutory backing. If one considers the apparently innocent proximity-pass, is it very different?

The pass does not take biometric information. However, it takes our name, address, contact number, occupation and photograph. Further, we know this data is being stored, somewhere. This retention is not backed by either the statute of the Supreme Court, nor the 1966 Rules. Even the administrative orders do not mention anything about storing that data. When one considers the number of litigants that frequent the Court, the thought of all that information being misused is a daunting prospect indeed.

Concluding Thoughts

Perhaps the first response one might address against these thoughts is their symbolic indulgence. What is an issue of entry into the Supreme Court beyond a symbolic one of other issues? Most certainly it is so, but that does not reduce its importance. The fact that the Apex Court is actively propagating exceptions to the rule of law it must promote is disheartening and problematic. Further, the absence of any murmur of dissent against the systematic exclusion of the majority of Indians from their Supreme Court is a damaging indictment of the level of interaction between our public and courts. Perhaps someday, we will have the pleasure of listening to Mr FaliNarimanor other legal doyens argue, for no other or better reason than us wanting to. 

(Abhinav is a Final Year student at NLSIU, Bangalore. He would like to thank Ms. Deekshitha Ganesan for her help in finding the relevant information for this piece.) 
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