Over the course of the next few weeks, the United States Congress is expected to pass the Open Courts Act, which will make PACER – the digital database for accessing court records filed with the federal judiciary – accessible to everybody, free of cost! The law sets a timeline of three years to make all court records machine readable, searchable, and available freely to the public.

This would not only serve the interests of judicial transparency well, but it would also especially come in handy for journalists who regularly rely on court pleadings and other records to further their work.

American courts have repeatedly upheld the right of the press to access pleadings, and media organisations have dutifully fought many legal battles to defend their right to report and access unjustifiably sealed court documents. This is because court records serve as very important sources for journalists in building investigative narratives. Information which is submitted to the court by government departments is rarely available in the public domain otherwise. It may particularly concern the dispute between the government and the other party, but it will always contain important clues about the actions of public institutions and individuals.

While journalists can collect information and develop a story through other sources, there are several advantages that court records offer. Chief amongst them is that they are libel proof. Information provided to courts is given under oath, in written documents; this adds to the credibility of the reports that journalists eventually publish. In addition, court documents also serve as gateways for journalists to identify human sources who can provide more information.

In an environment where the press is severely resource constrained, the information generated through litigation becomes even more valuable for journalists. A scholar studying the interaction between media and courts found that between 1995 and 2015, in 23 of the 25 Pulitzer-winning projects, legal sources played a role in developing the story.

While the United States is contemplating making records accessible online and free of cost, India is still struggling to clearly articulate a right to access pleadings and establish a procedure granting access in a seamless fashion.

Travails of the Indian journalist

The absence of an official mechanism to access pleadings leaves Indian journalists free to practise the Indian art of jugaad. Most of the journalists we spoke to informed us that lawyers are the primary source of accessing pleadings and affidavits. This transactional relationship between the press and the bar leaves journalism at the mercy of lawyers whose only incentive to share information is favourable coverage they may receive in the media.

It also means journalists then begin to “owe” lawyers favours.

The secondary source of legal information as per our survey are the registries of courts. Reporters who are on the crime beat or work with television channels are also known to nurture long-standing relationships with officials in the court registry, often having to grease palms to gain access to records.

Bhadra Sinha, a veteran journalist who has been covering the courts for more than 20 years, mentioned to us how the access to records becomes difficult in higher courts. So, for example if a journalist is a regular at the trial court, the court staff may be more willing to share pleadings. However, the Supreme Court’s registry and the central agency section – where the government filings happen are notoriously uptight and keep journalists at a distance – make journalists more dependent on lawyers to source pleadings. Access to pleadings became even more difficult during the pandemic where the courts were functioning virtually and access to lawyers was cut off.

The reason that journalists have to rely on jugaad to access court pleadings is because the Indian judiciary, led by the Supreme Court, has put in place complicated procedures to access pleadings through the legal route. Apart from being cumbersome, these procedures afford the registrars of various courts immense discretion in judging a citizen’s motivations for accessing pleadings. The Supreme Court has also held the RTI Act to be inapplicable to pleadings held by courts, despite the fact that the RTI Act has a specific clause stating that it overrides all conflicting laws.

None of this bodes well for a country with an ever-increasing appetite for legal information, transparency, and accountability. Journalism should not be left to the mercy of lawyers and officials at the court registry. India needs to put in place a systematic procedure of enabling access to pleadings and affidavits that makes it easier for both journalists and the public to access legal information.

Opening up government databases of court filings

Considering that the Indian judiciary has not voluntarily made available a facility under eCourts to view pleadings and has resisted application of the RTI Act in accessing judicial records, it is incumbent on the Indian government to open up its own databases.

A good place to begin such reform is the law ministry’s Legal Information Management and Briefing System, or LIMBS, which was designed as a centralised docket management system for all litigation conducted by the government of India. LIMBS is also supposed to contain copies of all affidavits and pleadings filed by the Government of India.

However, as is the case with most of its databases, the government does not provide the ordinary citizen access to LIMBS. Only authorised bureaucrats are allowed to access this database which essentially contains public records. Under the RTI Act, government departments routinely provide copies of affidavits filed in court. Why not then open up the database containing all these affidavits to the general public and journalists?

In fact, there is a strong case to argue that the current design of LIMBS, restricting access to only select bureaucrats, is illegal and contrary both to government policy and the law.

First, section 4 of the RTI Act mandates proactive disclosure of all public records on the internet for the general viewing of the public so that they are not required to file RTI applications in the first place.

Second, the National Data Sharing & Accessibility Policy, adopted in 2012 and which is inspired by section 4 of the RTI Act, requires the government of India to adopt open data policies for all their IT projects. The rationale of this policy is that publicly funded data must be publicly available for free. In its current form, LIMBS offends both the RTI Act and NDSAP.

Making the database accessible to everybody would not only honour the law ministry’s obligations under the RTI Act and the NDSAP, but it would also go a long way in enabling journalists access court records.

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