On Tuesday, Chief Justice of India DY Chandrachud announced that the Supreme Court is experimenting with automatic transcribing of the hearings to have a “permanent record” of the apex court’s workings.
At present, this proposal is being tested for Constitution bench hearings – those dealing with important questions of law with at least five judges.
“We will just see how this works, at least in the Constitution bench matters,” Chandrachud said to the court in the dispute about the disqualification of Shiv Sena MLAs.
Transcription is another step by the Supreme Court in making the institution more open to the public. It is in line with a series of steps undertaken in the last few years, such as live-streaming of hearings, to ensure more openness and better coverage of the courtroom.
Several legal commentators have welcomed the move, saying that this will result in better research and record-keeping and will also improve arguments in the courtroom.
The proposal
The court is using a computer software that will transcribe courtroom arguments and exchanges in real-time. This will be uploaded on the Supreme Court’s website.
The transcript from Tuesday was uploaded on Wednesday evening. Before that, a draft copy has been circulated to the lawyers who appeared on Tuesday to point out any inconsistencies.
“If there are two or more voices at the same time, that might cause some problem [in transcription],” Chandrachud explained during the Tuesday hearing. “During the course of the day, the counsel will get the link so that the counsel can look at it. By evening they would have cleaned up the transcript and given to us.”
Presently, the rules relating to how transcription will be uploaded have not been finalised. “We may have some rules such as the use of ‘unparliamentary language’ [or its equivalent] which cannot be allowed to go on record,” said senior advocate Indira Jaising who filed the petition that led to courts being live-streamed.
The Supreme Court in 2018 held that court proceedings can be broadcasted to the general public, on account of transparency and accountability. It agreed with the then Attorney General KK Venugopal’s recommendation that the “Supreme Court may...also provide for transcribing facilities and archives of audiovisual record [apart from live-streaming]”. These developments, it said, will also help students to “supplement their academic knowledge and gain practical insights into cases of national importance”.
Better lawyering
Lawyers and legal commentators have welcomed this move. They see this as benefitting all stakeholders, such as lawyers, researchers and students.
“By and large this is a positive move,” said Delhi-based senior advocate Sanjoy Ghose. “Transcription is an international practice, particularly in arbitrations.”
He added that transcription leads to more precise arguments. “Since you know that everything is recorded, therefore you will try and minimise unnecessary submissions,” he explained.
Jaising believed that this will also lead to better “discipline in oral arguments” and reduce “cross-talk among lawyers”. For instance, she said that judges asked lawyers on Tuesday to not speak over each other so that transcription can happen properly and the lawyers adhered to this demand.
This will also lead to formulating better arguments. “The most important part of a case is lawyers taking an informed decision on how to formulate arguments in pleadings,” said G Mohan Gopal legal academic, who now appears as a lawyer in selected cases in the Supreme Court.
He believed that transcripts will be a valuable resource containing a variety of arguments lawyers can learn from. “Lawyers can also see how judges respond to particular arguments,” he added.
However, Ghose said that one aspect that might be hampered by transcribing all cases is that lawyers who may concede in cases, would stop doing so. “It is common for government lawyers to unofficially concede some cases when they realise that it is a hard case to argue,” he said. “Now that will stop.”
However, since live-tweeting has become very prevalent in cases, he said, “transcribing will only make official what is already happening”.
Govt Lawyer: “Lordship may not record my concession, it’s a hard case, Court may allow the writ”
— sanjoy ghose (@advsanjoy) February 21, 2023
Court: very fair of you. Take down, “while ld State Counsel vehemently opposed writ petition, in the interest of justice, Court allows…”
Extinct in post transcript era! pic.twitter.com/sGICHcwkyI
Record keeping improved
Experts also believed that transcripts will improve court’s record-keeping.
Currently, the only way anyone can access historical records of a case is through a judgement, which consists of the arguments made and the court’s opinion on them. However, this may not be a very accurate way.
Gopal said that often judgements do not accurately reflect the arguments made by counsels. According to him, in the case challenging the constitutionality of the reservations for economically weaker sections, one of his arguments was about the policy being unconstitutional on the ground that beneficiaries have to belong to a forward class as an eligibility condition.
“This argument was not addressed in any judgement although former Chief Justice of India UU Lalit had, in remarks from the bench, acknowledged it to be one of the most important issues,” he explained.
Added Ghose, “Tomorrow if there is a dispute about whether something was argued or emphasised or not, then transcripts can help.” Therefore, he said that parties seeking a review or a clarification of a case may reduce.
Better reporting
Transcripts will also make reporting better. “You can verify your reports,” said Manu Sebastian, managing editor of the legal news website Live Law. “It will also bring in more transparency.”
Sebastian said that right now they are constrained by Twitter’s word limit and real-time tweeting could also lead to some things getting missed. Transcripts will correct this, he added.
While a lot of the benefits talked about are already there, since Constitution benches are live-streamed, transcripts have their own benefits. “You may not be in a position to watch the entire video if you want to verify something,” Sebastian explained. “However, with text, it is much easier to verify a particular portion.”
A more open court
In the past few years, several developments have made courts a more open space. In January 2021, Scroll reported how legal websites like Live Law and Bar & Bench, which have started functioning in the last decade, have made legal news much more accessible to the public with their real-time reports on courtroom proceedings.
During Covid-19, several High Courts also started live-streaming proceedings. In October 2020, Gujarat High Court was the first one to live-stream its proceedings. Soon five other High Courts started doing the same.
In 2018, while holding that courtroom proceedings should be broadcasted live, the Supreme Court said that this project is to be “executed in phases”, the court noted. In September, the court started live-streaming Constitution benches. The Supreme Court is currently in the process of developing a platform as well as formulating rules for live-streaming.
Further developments
Lawyers and researchers are looking to have more court documents archived and made public. Jaising added, “I will like to see all important petitions filed in digital format for public viewing, except private matters, such as matrimonial disputes. I was shocked to find that petitions filed long ago are not archived.”
Access to more records will help with understanding the history of adjudication of each case better. “If I have more information about arguments that were advanced in a case, I can understand more deeply the circumstances which gave rise to the disputes in a particular case for research, teaching and advocacy purposes,” Gopal added.
This will also lead to understanding the country’s history better. Jaising explained that the court has been involved in significant events, such as the emergency and land reforms. “The history of the court is also the history of the nation,” she said.
