The legendary actor Sivaji Ganesan once halted work on a movie after the director revealed that it was not being filmed on a set created by the crew but in a real courtroom. The actor chided the director for being reckless about a place that commands reverence. It took much convincing to get Ganesan to get back into action.
Citizens have for long known that the physical space of a court of law is where justice is delivered. But despite this, the judicial process carried a bit of mystery, giving courts an enigmatic aura.
That shroud is slowly being lifted now. For months, the Supreme Court has been live-streaming important cases to the public. What people read on newspapers and websites in textual form has hit their screens in dramatic audiovisual form. A recent example was the Constitution bench proceedings in the marriage equality case in May.
But what does this access do to people’s perception of the court? Is the judicial process now completely transparent or are we witnessing the reshaping of an institution?
Seeing the court differently
Courtrooms have evolved over the years. When monarchs exercised direct authority over judges, courtrooms were public spaces. Judges were accountable to the political establishment and any divergence in opinion resulted in the decision being overruled. In extreme cases, judges were punished.
As law and architecture scholars have noted, the situation changed between the 18th and the 20th centuries as judges escaped political servitude and obtained independence. Legally, this independence was guaranteed by mechanisms such as fixed tenures and salaries. Structurally, it manifested in the construction of courthouses separated from the centres of political power, signifying that they were hermeneutically sealed from them.
The Supreme Court of India, a post-Independence structure, stands segregated from Parliament by a few kilometres. The distance between the court and Parliament conjures up the illusion of separation necessary to signify the autonomy of the institution.
The newfound autonomy of the judiciary meant it had to assert itself as a seat of authority. Its own signs, symbols and structures aided this assertion. Carefully curated architectural features such as elevated benches where judges sit, the emblem of the Supreme Court embossed on the judges’ chairs, the physical distance between the judges’ bench and the lawyers’ dais, the heavy doors of courtrooms, the long staircase leading up to the courtrooms, and the large dome-like structure above the courtroom all contribute to the generating and maintaining the court’s authority.
Additionally, the mannerisms and attire of lawyers, disciplined as they are by the judges themselves, ensure that the judge is transformed from an ordinary person to the personification of justice, and that the legal system appears rational, serious, and just. They signify the court’s authority to the viewer and potentially inhibit challenges to judicial authority.
In live-streamed proceedings in India, neither the mannerisms nor the architecture of the courthouse is captured. All that the viewer sees through three different camera angles is the judges’ bench and the dais of the litigants. Missing from these angles are notions of the size, structure, or grandeur of the courthouse. Missing also is the experience of visiting a courthouse: from extensive security checks to climbing the stairs to the seat of justice.
Though it is too early to empirically prove the consequences of these absences, one could conjecture that they alter the effect the judiciary has on its viewers. Emancipated from its aura, the new observers will see the court in a different light and could respond differently. As such, while live-streaming has opened up the court, it has also changed how people look at the court and what they see when they look at it.
Seeing a different court
On the flipside of authority lies accountability. While previously, judges were accountable to rulers, with independence and autonomy for the judiciary, accountability had to be sought elsewhere. To fill this void, the Constitution emerged as the source of accountability and legitimacy. In the case of the Indian Supreme Court, the law’s centrality was reflected in the court’s motto – “yato dharmastato jayaha” (where there is justice there is victory). Implicit in this motto is the idea that judges have a duty to follow the law and not sway to the side of popular sentiment.
Since the construction of the Supreme Court of India, ideas of judicial function and accountability have of course evolved, though not radically. This evolution can be seen as reflected in the use of glass in modern courthouses. Glass typically represents transparency but does so in a peculiar manner.
The ones used on the buildings of modern courthouses such as the Saket District Court represent a form of opaque transparency. They offer to the viewer a mirrored reflection rather than the ability to see through the glass. Those within the building can see outside but do not feel as though they are being observed by those outside. For the dynamics of the courtroom, this implies that while judges and lawyers could look outward and feel responsible to the outside, they never feel watched by those outside.
With the use of live-streaming, this equation changes. Even if there are no actual viewers, the presence of the cameras in the courtroom creates a perception of being watched. This awareness could potentially alter the judicial function, prompting judges to seek accountability and legitimacy from the public rather than the law alone.
Worse, populist arguments are termed so because they appeal to popular emotions, even if they are legally and ethically wrong. The more the court confronts populist rhetoric in courtrooms (a danger that populist lawyering aware of the camera’s presence poses), the more the potential for altering the public confidence in the judiciary. Some studies in other countries on telecast of trials show a positive impact on the court. But even such studies admit to a lack of conclusive evidence in making these links.
As for the impact this will have on the judges, studies in public policy show that public commitment to a position creates resistance to change even when presented with persuasive counterarguments. In Brazil, where court proceedings are telecast, judges admit to great difficulty in changing positions once explicitly stated. This undermines the judicial method, dependent as it is on the tool of persuasion.
Idea of transparency
The aesthetic shifts that affect the people’s perception of the court aside, the claim that live-streaming leads to transparency in delivery of justice requires a closer look.
In Swapnil Tripathi vs Supreme Court of India, the 2018 judgment that enabled live- streaming of court proceedings, the Supreme Court reiterated the view that open court proceedings uphold the legitimacy and effectiveness of the judicial system and enhance public confidence in the court. In this, it acts as a crucial element of democratic accountability. In addition, open courts serve an educational value, improving the awareness of law and the judicial process.
However, this access does not necessarily lead to a complete understanding or even awareness of the entire judicial process. This is because people only have partial access to the process. Live-streaming enables a large audience to witness how lawyers argue the cases and how judges question these submissions. This is of course significant, given that this drama of the courtroom that has profound implications for the country was kept away from the public till recently.
But this drama is not the end of the judicial process. Much of the decision-making happens in the background, once the courtroom proceedings are complete and judges take the case papers and their notes to their chambers.
For centuries, how the judges arrive at their decision has confounded legal scholars. Are decisions strictly based on legal considerations or are there extraneous considerations? How does politics affect judicial decision-making? How does the ideological position of the judge influence their perception of the law and the facts of the case? There seems to be more than just the courtroom exchanges that determine the final judicial outcome.
This crucial side of the judicial process, of how the judges determine what is the right decision, will remain hidden from the public. The cameras that live stream proceedings do not have the capability to reveal the mind of a judge.
This poses an important problem given that people now have access to the proceedings but cannot see the other facets of the process. The legal method that the judges use to determine what the law is may at times seem counter-intuitive to those not familiar with it. The uninitiated may find the losing argument more convincing than the winning. Would they be content with the fairness of the process and accept the decision? Would this mismatch affect the court’s authority? And will the court respond by altering its decision-making process?
It is too early to empirically state if live-streaming in India will induce judges to play to the gallery rather than play by the book. However, the risks are certainly real. Live-streaming is a step towards the idea of accountable justice. But we cannot ignore the fact that what viewers see and how courts may react may also change in response to the increased access.
Rohit Sarma and Sruthisagar Yamunan are doctoral candidates in comparative constitutional law at the Central European University, Vienna.
