"Biggest Threat To Judicial Independence Is Big Tech Algorithms, Not Government": Justice Joymalya Bagchi

Speaking at the fifth Justice H.R. Khanna Memorial National Symposium organised by the Confederation of Alumni for National Law Universities (CAN Foundation) on August 1, Justice Bagchi said the digital ecosystem was fundamentally altering public perception of justice and placing unprecedented pressure on judges.

"Today, the biggest threat to judicial independence and informed public opinion is not the other organs of the government, but the machine learning algorithms of the big tech, trained to tilt the public opinion against judicial process, not as fair comment, but a curated public outrage for sensationalisation and profit maximisation," Justice Bagchi observed.

He warned that social media has increasingly transformed judicial proceedings into public spectacles, where judges are subjected to online abuse for delivering decisions that do not align with popular sentiment.

"Dispassionate adjudication is auctioned on the altar of likes, and judges are demonised in the social media marketplace for holding on to an independent view, not endorsed by the uninformed mob," he said.

Justice Bagchi noted that the challenge extends beyond the courtroom, as misinformation spreads far more rapidly than any subsequent correction.

"The deeper challenge, however, is no longer the camera in the courtroom, but the hydra-headed social media outside it. Our tools, tailored to print and electronic media, were never designed for it. A clip uploaded on one platform regrows on many. Misinformation outruns the correction," he remarked.

Addressing concerns surrounding the live-streaming of court proceedings, Justice Bagchi acknowledged that while the initiative had significantly enhanced transparency, it had also produced unintended consequences.

"Digital space is replete with unauthorised video clips of judicial proceedings, extracted or copied from the live-streamed content. Judiciary is trolled by treating tentative oral observations as final verdicts," he observed.

He further warned that the widespread reach of live-streaming risks encouraging performative conduct inside courtrooms.

"With the immense reach of live-streaming, the courtroom becomes a platform to address a wider audience. This breeds a propensity amongst the stakeholders, both judges and lawyers, for grandstanding. A forensic quest for the truth is altered into a judicial theatre of hyperbole," Justice Bagchi said.

Rejecting suggestions that judges should actively counter misinformation through social media, he stressed that judicial tradition demands restraint.

"One may argue that the judge may clear misinformation by being on social media himself. However, our tradition prescribes that judges have to live and behave like hermits," he said.

Justice Bagchi also underscored that judicial independence requires insulation not only from intimidation but equally from public praise.

"A judge is bound by oath to act without fear of the digital mob, without favour towards the applauding crowd, and above all, without followers. For the new media rarely threatens a judge with punishment. It tempts him with approval, and approval corrodes independence more quietly than fear ever did," he observed.

Highlighting the changing nature of threats to the judiciary, Justice Bagchi said digital technologies have introduced new forms of pressure that transcend national boundaries.

"A hashtag storm tests the judge's resilience before an appeal is heard. A 30-second clip passes off a casual courtroom exchange as a sensational decision and an algorithm assisting adjudication can carry an invisible prejudice," he noted.

The Supreme Court judge also cautioned against media trials, observing that while the Constitution guarantees freedom of the press, that freedom remains subject to reasonable restrictions in the interest of the administration of justice.

"The freedom of press guaranteed by the Constitution can be reasonably restricted on the ground of contempt. Criminal contempt means any act which scandalises the court, interferes with judicial proceedings or obstructs the administration of justice. A media trial or a viral clip must be tested on this angle," he said.

While affirming that fair reporting and criticism remain protected, Justice Bagchi stressed that media freedom cannot become a licence to pronounce guilt before courts have adjudicated a matter.

On reforms, Justice Bagchi suggested that live-streaming should not be mandatory in every case and should instead be left to the discretion of courts or permitted at the request of parties where necessary to safeguard the right to a fair trial.

He also proposed that the Supreme Court and High Courts maintain secure digital archives of live-stream recordings under the Digital Personal Data Protection Act, with access regulated through the Right to Information Act and production before appellate courts whenever required.