On January 20, a Supreme Court bench comprising Justice MR Shah and Justice Ravikumar dismissed a public interest litigation filed by journalist Sourav Das seeking the free public disclosure of all chargesheets in criminal trials on the internet.

The public interest litigation relied upon the precedent in the Youth Bar Association of India vs Union of India case from 2016, in which the Supreme Court directed the police across the country to publish copies of First Information Reports, or FIRs, on their websites within 24 hours of being registered.

Unlike FIRs, which often contain unsubstantiated and often scandalous allegations, chargesheets are filed by the police after an investigation. The document lays out the prosecution’s entire case against the accused, including a detailed account of the evidence. Despite this strong precedent in the petitioner’s favour, the Supreme Court came to a completely contrary conclusion in Das’s case on the rather shocking grounds that chargesheets are not “public documents”.

Not only is this judgement incorrect in law, it is yet another reminder of the Supreme Court’s diminishing respect for its own precedents and jurisprudence.

The petitioner’s case

Separate from the precedent in the Youth Bar Association case, Das had based his case on the rich jurisprudence of the Supreme Court on the right to information, which, for long, has been anchored in Article 19(1)(a) of the Constitution that enshrines the fundamental right to free speech.

As reasoned by the court in numerous decisions, the right to free speech means nothing without the right to access information that is necessary to ask the government questions about its functioning.

The petitioner combined this jurisprudence with existing obligations in the law, notably in Section 4 of the Right to Information Act that requires the proactive disclosure of public records on government websites, and also the National Data Sharing and Accessibility Policy, which draws on Section 4 to urge government departments to make available all records held by them in a digital format that is searchable by computer programs.

The court’s order

The Supreme Court dismissed the public interest litigation in a disappointing judgement that failed to engage with the basics of the law. For instance, the judgement does not mention, at a single instance, the phrase Article 19(1)(a) or a single precedent of the court that interpreted this fundamental right to include in its ambit the right to information.

Similarly, the Supreme Court does not even reference the National Data Sharing and Accessibility Policy. These serious omissions aside, the remaining reasons provided by the court were insufficient to justify the court’s ruling.

While trying to distance itself from its precedent in the Youth Bar Association case where the Supreme Court ordered the publication of FIRs on the internet, the court in the current case simply stated that the FIRs and chargesheets cannot be equated.

Logic suggests that if the court has previously held that publication of FIRs would further the rights of the accused, so will the publication of chargesheets. However, the bench offers no reasons for distinguishing between the standard of disclosure for a FIR and a chargesheet.

The Supreme Court merely stated in passing that making chargesheets publicly available may violate the rights of the accused and the victim but failed to articulate exactly which rights are being considered and the manner in which they will be violated.

In a befuddling segment of its judgement, the court also concluded that a copy of a chargesheet is not a public document. The argument put forth by the petitioner was that chargesheets could be considered public documents as per Section 74 of the Evidence Act. This provision defines a public document as any document recording the acts of the public officers.

Chargesheets, prepared as they are by police officers, are clearly public documents. The Supreme Court, however, rejected this logical argument with the reasoning that can only be described as incomprehensible:

“Documents mentioned in Section 74 of the Evidence Act only can be said to be public documents, the certified copies of which are to be given by the concerned police officer having the custody of such a public document. Copy of the chargesheet along with the necessary documents cannot be said to be public documents within the definition of Public Documents as per Section 74 of the Evidence Act.”

Similarly, regarding the proactive disclosure requirement in Section 4 of the Right to Information Act, the court simply concludes, “Copies of the chargesheet and the relevant documents along with the charge-sheet do not fall within Section 4(1)(b) of the RTI Act.” Once again, the court does not provide any reasons to come to this conclusion.

Cavalier attitude

The cavalier attitude of the Supreme Court towards an issue related to transparency in the operation of criminal justice is concerning for many reasons, chief among them being the bench’s disregard for the court’s own precedents.

For instance, when the court in the 2018 Swapnil Tripathi case, upheld the livestreaming of proceedings, it had correctly remarked that technology can virtually expand the courtroom beyond the physical walls. While criminal trials are conducted in open court, citizens and journalists have limited time and resources to physically attend them.

Surely, digital and prompt access to chargesheets will allow reporters to cover crimes accurately apart from allowing citizens and academics to assess the quality of investigations. Such access will also allow the regional media, which are starved of funds to cover crimes being investigated by central investigating agencies, to report on such proceedings with greater accuracy.

In the absence of free public access to chargesheets, crime reporters have to seek these reports as a favour from the police or lawyers or the court registry rather than as a right. Proactive publication could have also ruled out selective leaks made to journalists, or reliance on press notes that do not contain complete information.

One of the reasons perhaps that this judgement is poorly reasoned is because it was delivered at the stage of admission before even issuing notice to the government. Perhaps, if the court had issued notice and heard both the government and the petitioner, it may have delivered a better reasoned judgment.

Prashant Reddy T is a lawyer and Chitrakshi Jain is a legal researcher.