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
.) 

7 comments

  1. This issue of a tension between security in courts and the principle of open and accessible courts came up before the Delhi HC last year. The case is Sajid Ali v. State, and is available at http://indiankanoon.org/doc/96093441/

    The court was divided on where and how the line between security and open access should be placed. I think the matter is before a third judge now.

  2. hmmmm. i live in chennai… a stones throw away from the high court of madras….when i was growing up..the high court campus was a favorite haunt of mine ( i am kind of a history buff) as it was so rich in historical landmarks (the old lighthouse, the emden bombing site, the imposing statues of long dead and gone legal luminaries etc)….i am saddened to see the security hassles now preventing entry into the campus for ordniary citizens and taxpayers like me…only judges and lawyers are allowed through the gates without a full body (airport style) checking system…..its unfair, discrimnatory and probably illegal as hel…but we all know that our judiciary makes its own laws for itself..so what else can we ordinary citizens expect?

  3. If I leave my address and phone number to a private shopping website; or my snap and other details to facebook/gplus; or for the sake of matter if you say both are voluntary then if i leave my details with the college authorities where i intend to study by filling their form (compulsory if i want to join that institution) and is not selected would that be problematic according to author. Proximity card/pass was introduced for security, I am on the same footing with the author when claims that there is no statutory backing or even administrative backing but then again comes in issue is rather contentious & debatable issue of NATIONAL SECURITY and its impact on citizen liberty vis-å-vis role of state as protector. But proximity pass do serve a purpose by chaffing out already overcrowded courtrooms at the cost of LIBERAL open access replaced by scrutinised open access. The point regarding database collection with phone no. as key for easy facilitation and its fear or probability being misused could be balanced by the proposition that its the trust on the state as the whole project is under supervision of SC and for "National as well as litigants" security otherwise even the facebook or university data also has probability of being misused.

  4. Dear All,
    It is very relevant and necessary to mention here that, there is already a web-based entry-pass issuance system put in place by Supreme Court of India, that very effectively addresses the issue of long queues and waiting by the visitors. This facility, called as Online SC Visitor Management System (SCVMS) can be accessed at http://scvms.gov.in/WebVisitorBookingNew.aspx.
    A link to this is also available on the homepage of website of Supreme Court of India i.e. http://www.sci.nic.in.

  5. Hi

    I would like to respond to the last two comments.
    To address the last comment first, the availability of the pass is not in issue. So I don't see how the online version being there matters. The queue is just as long, because there are that many people regardless.

    The comment before that agrees and disagrees in part with the arguments I make. One thing that runs through it, as well one other comments, is the focus on security. This is the very notion I seek to question through this post. That question is not answered by saying security is important. Few would deny this. However, what all can and should be done in the name of security.

    Best
    Abhinav

  6. I want the Courts to be 'open courts' as they are called. I want them to be freely and easily accessible to all. But being a lawyer myself, I know how hard it is to make way to court rooms at Supreme Court, especially on the misc. days.
    But that still is not the main issue. The Courts of record in India, which also are one of the prime targets of peace-haters owing to their status and importance, are made easily accessible to all, they shall also become easily accessible to the peace-haters.
    If unfortunately something goes wrong with them, it would be us who would say "If the Government cannot ensure the security of the Supreme Court and High Courts, how can we expect them to provide security to us."

    With such a huge population which we have, unfortunately, access to 'open courts' cannot be provided to all while also ensuring the security at the same time. At least with the present infrastructure and system. But I am saddened by the fact that Supreme Court e-committee did not agree to audio-visual recordings of the court proceedings.

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