Supreme Court of India building | photo credit: AFP
The Supreme Court of India has almost reached the ultimate limit of transparency in its cases agreed to live telecast of some of its hearings The move was warmly welcomed by activists demanding more openness in judicial proceedings. Statement of the Chief Justice of India, that Judgments of the Supreme Court of India will now be translated In four languages (Hindi, Gujarati, Odia and Tamil, “the English language in its ‘legal avatar’ is not understood by 99.9% of citizens”) is another step towards making judicial procedures more accessible.
Against this background, a Supreme Court’s decision on the charge sheet appears to be retrograde. Here, the court ruled that a charge sheet filed against an accused in a criminal case is not a ‘public document’ within the meaning of the Right to Information Act 2005 or the Indian Evidence Act – therefore, a charge sheet demands a criminal case as soon as it is filed in the court Must be uploaded to public website, it was unstable. The order was passed while disposing of a petition filed by a PIL activist and journalist.
It is a move that can be seen as a blow to those pushing for greater transparency in criminal justice administration as it has several implications as far as investigating officers and victims of crime are concerned.
protest against previous order
Prima facie, this judgment appears to contradict an order passed by the Court, where, in Youth Bar Association of India Vs Union of India (2016), directed that the First Information Report (FIR) in any case should be on the website of the concerned investigating agency within 24 hours of its registration. It was for public consideration and appropriate action. But now in the view of the Court, the charge sheet (i.e., the final report as specified by the Code of Criminal Procedure 1973) is distinct from the FIR, and hence cannot be shared with anyone other than the accused and the victim. This was possibly because a charge sheet was a comprehensive description of the offense under consideration and contained important information such as the list of prosecution witnesses and documents in support of the findings of the investigating officer.
While such material would become public knowledge during the trial, in the view of the apex court, any action with the details contained in these documents even before the commencement of the trial would be detrimental to the accused and the victim. The Court has observed that open publicity of the contents of the final report does not fall within the scheme contemplated by the Code of Criminal Procedure.
Time has changed
We are a long way from the early days of the Constitution, when secrecy was the mantra in every aspect of judicial activity. The courts were a sacred institution at that time, where none of their actions were open to criticism or scrutiny of any kind. The slightest criticism of judicial decisions was a fair occasion to invite contempt and punishment. Now we have a situation where judges are often criticized in the media for their judicial decisions which are unorthodox and do not conform to popular expectations. We have also seen the personal life of a judge becoming a subject of public debate. It is against this backdrop that the Supreme Court’s decision to withhold the charge sheet from public knowledge can be disapproved of by those who are persistently pushing for expanding the boundaries of judicial silence.
In my view, it is very right to share the charge sheet with the public on demand. Though it need not be posted on the website of the court concerned, public interest warrants a positive response to a request to read its contents. It is true that the accused with vested interests may indulge in finding loopholes in the charge sheet with a view to weaken the case of the prosecution. But this is no reason to prevent members of the public from viewing the charge sheet before the start of the trial and denying them the opportunity to assess the quality of the investigation. Instead, the possibility of critical analysis by a ranked outsider has the potential to enhance the soundness of an investigation and prevent biased prosecution against innocent individuals based on facts. We now know how malicious and biased some investigations are due to extraneous views. A trial court would actually benefit from an outside scrutiny of the prosecution’s case if a charge sheet is made available to the general public.
a missed opportunity
The Supreme Court order is a wake-up call for all investigative agencies, including the Central Bureau of Investigation, who are often reprimanded by courts for delay in filing charge sheets or poor quality of investigations. Court of Inquiry is a good feature in India’s criminal justice system which reasonably ensures that false prosecution of an innocent person is only an aberration and not the rule. An opportunity for the well-intentioned public to study the charge-sheets, at least before the commencement of trial in important cases, will only ensure that the number of sloppily drafted charge-sheets will be small.
RK Raghavan, former director of the Central Bureau of Investigation, teaches criminal justice and policing at Jindal Global University, Sonepat, Haryana