Daily Times

Every word uttered by a lawyer and each remark made by the judge during each hearing of a case needs to be documented and treated as part of the judicial record. And that judicial record of the proceedings should be archived in both audio files and the form of written transcripts. Besides, the judicial record should be made available to the public at large by publishing it on the website of the respective High Courts and the Supreme Court.

At present, the judicial record of the proceedings is, by and large, maintained only by the judicial officers. It places an onerous burden on the individual who is often not able to keep up with dictates of a taxing workday.

This has, in turn, created multiple stumbling blocks in delivering justice. In the district and civil courts, for instance, judges rely on their clerks to write order sheets for them.

There is no mandate for the court clerks or judicial assistants to write order sheets, although the commissions appointed by the court may record evidence for the parties.

Gone are days when lawyers were able to confidently tell their clients about the proceedings in the courtrooms just by sifting through the order sheets

Apart from being not legible, most of the order sheets maintained by the staff (and signed by judicial officers) have important aspects of hearing missing for that day. Gone are days when lawyers were able to confidently tell their clients about the proceedings in the courtrooms just by sifting through the order sheets.

In the High Courts too, the order sheets maintained by the judges do not necessarily record proceedings of the day, as they happened. With details omitted in the order of the day, our honourable judges, again greatly overworked, often forget the proceedings of the previous hearing. It has become a norm now, for the lawyers, to remind the honourable judges about the last proceedings in a case and a fair amount of time is often devoted to recap, so to speak, the previous hearing in the High Courts. This does not happen in every case. But a human mind can only retain so much, and through technological nudges, we need to fix this crack and help our judicial officers.

Shockingly, there has been no technological intervention proposed in different reforms to help our judicial officers in maintaining the record of the proceedings. Audio files and transcripts have become a common feature in the developed justice systems and even our good neighbours in the east have made giant leaps towards making transcripts available. In Pakistan, we can access the audio files of cases argued in the US Supreme Court and hear the arguments that were raised by the parties on different issues of law.

It is not just an issue of an important argument or development omitted from an order sheet in a certain matter. At times, final oral submissions made are not even recorded in the final judgments. Now, this is a bigger problem. Our common law system, in general, vests a great degree of discretion in the judge in the manner he or she is to conduct the court. It is quite possible that a judicial officer, not due to being overworked but for purely extraneous considerations, does not record the submissions of the counsel. If the submission is not recorded in the final opinion of the court; the court does not need to address that in its final ruling. Good luck persuading the appellate forum that a particular argument was made but not recorded in the final judgment! And often our judicial officers, when they do record the submissions made, don’t do so accurately and rely on their notes. And this can only be addressed if, in addition to a judicial officer, other means are made available to record the courtroom proceedings.

Then there is a policy aspect of it. Questions such as the cost of introducing these interventions. The costs are minimal, in the nascent stages, even if the parties at the time of filing are asked to bear additional costs for both transcripts and audio files. Thus, most parties, having endured, rather suffered, our justice system, would opt to pay additional costs. That is, even if they are made to pay for it.

We have to move on from the idea, that only a judicial officer should maintain the record of the courtroom proceedings through order sheets. Audio files of the recordings and transcripts must also be introduced. This could revolutionise our justice system by holding both our bar and bench to the account, as with records publicly available, every person concerned can go back and check what exactly happened on the day; and how it happened. Useless arguments by lawyers and sensational remarks by judges that don’t reflect in the order sheets would organically fissile out. We need technological stimuli in the form of transcripts and audio files or such similar interventions, to improve access to justice in this country. These nudges will also help improve the perception of our courts in the minds of the general public.

The writer is a Barrister of Lincoln’s Inn and holds LLM from Berkeley