The case for making chargesheets freely available on the internet

In 2016, the Supreme Court in the case of Youth Bar Association of India v UOI struck a blow for transparency by directing that all police stations across the country make available copies of FIRs on the internet within 24 hours of their registration.

While the court viewed the issue through the lens of the rights of the accused, there is also the fact that Section 4 of the Right to Information Act, 2005 requires the government to proactively make available its records on the internet.

Making FIRs digitally accessible has indeed induced some transparency in the criminal justice system. These documents are otherwise hidden in police records and are made available as a favour rather than as a right. This decision has made it much easier for lawyers, journalists and researchers to access critical information about the criminal justice system.

The question that I seek to explore in this piece is the possibility of extending similar logic to make even chargesheets easily available on the internet.

The case to make chargesheets public is even stronger. While FIRs are unsubstantiated allegations, chargesheets are prepared by investigating officers after the completion of investigation. Chargesheets or final reports, as the case may be, contain important qualitative information about the crime. The charges cited and the accompanying material adduced are to be proven during the trial. The submission of chargesheet in the court also marks the beginning of criminal trials which are held in open court, in the presence of the media and ordinary citizens alike.

Media reportage and publicness of chargesheets

With increased attention being paid to crimes involving public personalities, the courts are becoming weary of excessive media reportage of such crimes. The courts have mostly bemoaned leaks to the media before filing of chargesheet in court – in a rare instance in State v Shashi Tharoor, the court barred the police and the prosecution from sharing a copy of the chargesheet with anybody other than forensic experts.

Such an order contradicts the well settled position in law which treats chargesheets as public documents, as they are prepared by public officials in discharge of their duty and litigated before an open court. The Central Information Commission in the case of Usha Kant Asiwal v Directorate of Vigilance, GNCTD held that a chargesheet is a public document and its disclosure cannot be denied merely on the grounds that it will impede a probe. While the judgment states that this disclosure can be decided on a case by case basis, it establishes the right to inspect and demand copies of chargesheets under the Right to Information Act. Another CIC judgment ordered the disclosure of the chargesheet and held that its exemption under personal information does not apply.

Democratising access for regional presses

A facility making chargesheets publicly and freely available on the internet would improve the accuracy of reportage on crimes. Access to chargesheets is crucial for reporters covering crimes. With the Central Bureau of Investigation and the Enforcement Directorate being involved in a substantial number of investigations, free access to chargesheets would also allow regional reporters, without sources or offices in Delhi, to cover the stories in the vernacular media. Regional presses are generally severely constrained by resources and easily accessible chargesheets would go a long way in ensuring the accurate reporting of stories and democratising the playing field for reporters across the country.

Crime beat reporters in conversations confirmed the difficulty in accessing chargesheets and the enormous sums spent in either greasing palms for access or photocopying the lengthy ones filed in “high-profile” investigations.

Improving law enforcement

Apart from journalism, a publicly accessible database of chargesheets would also make it easier for law enforcement authorities to verify information.

For example, recently, the Allahabad High Court while dealing with a criminal appeal questioned the state police department about the lack of publicly available information on the criminal antecedents of an accused. It was revealed during the hearing that the government advocate could not access the database of the police and, as a consequence, did not report the antecedents of the accused in the affidavit.

It can be argued that making chargesheets public would also assist the state in improving their record-keeping and record-sharing practices between the different actors – namely, the judges, the police, and the prosecutors. Since criminal antecedents of the accused are often discovered during bail application hearings, a public facility would improve the accuracy of records and reduce the time spent on exchanging them.

Additionally, filing a chargesheet is an exercise in discretion which should be subject to public scrutiny. As per the latest NCRB data for 2020, the current chargesheeting rate of the police, for crimes under the Indian Penal Code stands at 76 percent. This should be read with the conviction rate of courts, which stands at 59.2 percent. While charging is a judicial function in India, the chargesheet filed by the police forms the basis of the decision of the judge. The high rate of acquittal suggests that the police is filing chargesheets indiscriminately, even in cases where there is insufficient evidence to pursue a trial.

Greater transparency in this regard would encourage responsible reportage in the long run and even induce accountability in the police.

Tackling privacy challenges

Amidst this enthusiasm for making chargesheets publicly available, it is important to address the challenges that would be raised, chief amongst them being the right to privacy of the accused. Right to privacy is indeed a fundamental right and one that should be taken seriously. The potential for using chargesheets to create databases of offenders or for private entrepreneurship cannot be disregarded.

It should be noted that chargesheets contain information that is proven during the course of a public trial. In this context, the same standard of disclosure applicable to judgments and orders should be applied to chargesheets as the information contained in chargesheets would inevitably find its way in the judgment pronounced by the court. In a sense, the accused in its interaction with the court would inevitably become a “digital subject” for judgements ought to be made public. There is immense public interest attached to the openness of a criminal trial and making chargesheets publicly available on the internet would further that.

The writer is a legal researcher.