“Justice should not only be done, but should be seen to be done”, is an oft-quoted phrase first used by Lord Chief Justice Hewart in R v. Sussex.[i] The statement underlines a key common law principle that judges should do even-handed justice manifestly, in open court and in full public gaze. And while the efficacy and the rationale behind sunlight as a disinfectant is a subject-matter of the field of science, Chandrachud, J. certainly seems to espouse the idea that shedding light on the processes and the goings-on of the Court room and making it public in a more effective sense of the phrase will help in furthering the cause of justice.[ii] In doing so, it extended the principle of open courts to the idea of live streaming court proceedings for the benefit of the litigants, law students as well as the general public. And it is in this context that the present write-up endeavours to analyse the judgment of the SC, in Swapnil Tripathi v. Supreme Court of India,[iii] allowing live streaming of SC proceedings.
The PIL, under Article 32, was moved by Senior Advocate Indira Jaising seeking directions from the SC for making the proceedings of the Court widely available by video recording the same and uploading it on the court’s website. The SC Bench, comprising Dipak Misra, CJ, Khanwilkar, J. and Chandrachud, J., passed a detailed and reasoned order allowing the petition moved by Ms. Jaising. The decision of the Court, delivered by Khanwilkar, J. (speaking for himself and the CJ), as well as Chandrachud, J.’s concurring opinion, traced the legal rationale for allowing the court proceedings to be live-streamed, the position with respect to this issue in other countries, the history of SC’s receptiveness in accepting technologically-backed improvements in Indian justice delivery system, and the guidelines for implementation of the decision to live stream.
While there is no specific Article in the Constitution which mandates that the Supreme Court shall be open to the public, the 3-judge bench took into account several statutory provisions to come to the conclusion that such a result would be in harmony with the essence of the Constitution. Sections 153B, CPC and 327, CrPC provide that civil and criminal courts in India shall be open to the general public. An exception is carved out in the two provisions, giving a discretion to the presiding officer to bar, in appropriate circumstances, any particular person or the public in general from attending court proceedings. Section 327, CrPC creates an express exclusion in cases of sexual offences in order to maintain the dignity of the victim as well as to prevent an atmosphere that might overawe her.
While the CPC and CrPC contain express provisions in this respect, the two do not fetter the proceedings of the SC. The authority, therefore, for the proposition of live-streaming as an extension of the idea of open courts has to emanate from the Constitution itself. Article 145(4) speaks about judgments being delivered in an open court. This coupled with Article 129, which provides that the SC is a court of record, lend credence to the fact that the proceedings of the Court are amenable to the view (and possible scrutiny) of the public.
But none of these provisions bespeak a right in favour of the public to observe SC proceedings. And that is where the holy trinity of Articles 14, 19 and 21, as it has innumerable times in the past, comes into play. For the inclusion of such a right, the Court relied on the 1966 9-judge bench decision of the SC in NareshShridharMirajkar v. State of Maharashtra.[iv] The 9-judge bench judgment spoke of the right of the journalists, in order to carry on their occupation under Article 19(1)(g) and to effectively exercise their freedom of speech and expression under 19(1)(a), to attend the proceedings in court in order to publish a faithful account thereof. Basing its reasoning on the 1966 judgment, and relying on the fact that right to information (Article 19(1)(a)) and right of access to justice(Article 21) now form a part of the constitutional scheme, the SC had no hesitation in propounding that the right to access court proceedings as they unfold and the opportunity to witness them live is an integral part of Articles 19 and 21 and a natural corollary of Articles 129 and 145(4).[v]
While the in-principle nod to live streaming court proceedings would seem innocuous, working out the modalities of the same posed a greater challenge for the bench. In order to devise a workable and effective mechanism for live-streaming, both, Khanwilkar, J. and Chandrachud, J., took into account the provisions dealing with live streaming of court proceedings in other countries as well as the guidelines proposed by the Attorney General for regulating the same. The Court extensively dealt with similar guidelines for regulating streaming of court proceedings in UK, USA, Brazil, Australia, New Zealand, Canada, China and Ireland among others. Most of these nations allow either video-recording or audio-recording of the court proceedings and uploading them on the court’s website.
Before adverting to the proposals of the AG for regulating live streaming and the guidelines laid down by the SC with respect thereto, it is pertinent to briefly refer to Chandrachud, J.’s observations made in his concurring opinion with respect to the specific incidents evincing the advent of technology in the justice administration and delivery system. Whether it is the e-Courts project introduced as part of the National e-Governance Plan with the objective of enhancing judicial service delivery for litigants and lawyers, or a single unified Case Information System for viewing the case status, past orders or judgments and next date of hearing, technology has been increasingly playing a key role in the Indian judicial system. India has been hailed as one of the pioneers in this respect, with the use of internet aiding in the establishment of e-Courts portal, mobile app, SMS and email services, e-filing and e-payment, as well as in the creation of National Judicial Data Grid and National Software and Tracking of Electronic Process.
Having considered all these developments and recognising the need for a more transparent administration and delivery of justice, the Court laid down certain broad parameters after taking into account the proposals made by the AG. These broad parameters have also factored in the strengths and weaknesses of the live-streaming procedure in other countries. First, it is extremely important to balance the “dignity and majesty” of the SC with the privacy interests of the parties, especially in confidential matters.[vi] Therefore, the judgment broadly proposes that in certain exceptional cases (to be considered on a case-to-case basis), the right of the public to witness live proceedings would subserve the right of the parties to maintain confidentiality.[vii] Apart from a discretion being provided to the presiding judge in this respect, in cases of sexual offences and involving POCSO or matrimonial disputes or national security or where the temper of the general public or a class thereof is susceptible to being flared up, the Judge should disallow live streaming of proceedings.
Secondly, the procedure for live streaming would be introduced on a pilot basis, only in respect of matters of national or general public importance being argued before the Constitution Bench. Depending on the implementation challenges faced during the pilot phase, the system of live streaming would be extended to other matters and to other courts. Thirdly, the video shall capture only the judges and the lawyers, and neither the parties or the witnesses, nor the documents being adduced or the lawyers’ brief shall be recorded. Furthermore, the discussions among the judges as well as between the parties and their lawyers shall not be recorded. In order to accord an opportunity to the administrators of the system (Judges on the Bench as well as the technical team) to edit out any remarks or statements which, in the opinion of the Judges, ought not to be live streamed, there shall be a 10-minute (2-minute as per Chandrachud, J.) delay in the broadcast of live court proceedings. Needless to mention that the copyright in the compendious recordings shall vest in the SC and any use thereof, except for academic, educational or informational purposes, shall be treated as a contempt of court as well as an offence under the IPC.
While the SC’s attempt to remove drapes, albeit partially, from its workings is laudable and a step in the right direction, it raises more concerns and questions than it answers. The need for comprehensive guidelines framed by the SC, after exhaustive consultations with all the stakeholders involved (lawyers’ organisations, technical staff, civil society, litigants’ groups), is but one area which needs to be adequately addressed. Secondly, and this is a larger ramification of the live-streaming, the fear that the judges might become susceptible to the vagaries of public opinion is not completely unfounded. The task of the Courts is to administer the law by interpreting the statutory provisions and the Constitution; their job is not to represent or advance the general public view. And the fact that the judges of the highest court of the land will, for the first time, truly come out of the iron curtain so as to become amenable to public opinion is disconcerting and unsettling. [In fact, both the judgments in the case quote a line from one of Bentham’s works, wherein he said that in case of an open court, it is the Judge himself who stands trial.[viii]] Furthermore, as an extension of this, the freedom of the judicial officers in passing remarks, strictures and judgments shall be fettered by their own apprehension of being portrayed (for whatever reasons) in a negative light. Thirdly, even though there is hardly any recording of evidence in the apex appellate court, the likelihood of the process being prejudiced against the accused due to a parallel media trial (especially in cases of heinous offences or corruption) cannot be brushed aside. Fourthly, the prospect of an increasing number of petitions being filed in the SC merely to score political brownie points outside the court is certainly worrisome; though this will only be put to test once the SC extends the live streaming system to cases other than those dealt by the Constitution Bench. Lastly, the odds of judges and lawyers being quoted out of context on news channels and the consequent spread of misinformation, rather than information, would subvert the objective of introducing the live-streaming system.
No new project can be without challenges and there can be no survival without dynamism. And the dynamic nature of the judicial system demands that the system be made more public-friendly and less opaque; that litigants be brought closer to the justice delivery system than being pushed further away from it; that the citizens be educated about the workings of the court so that several unverified concerns can be allayed. The live-streaming mechanism would enable the achievement of these objectives. However, the implementation of the mechanism is key and the system should not be rolled out in the same opaque manner in which the Collegium had been functioning for years, without addressing the legitimate concerns raised by various legal luminaries and activists.
[i] R v. Sussex Justices, ex P McCarthy, [1924] 1 KB 256.
[ii] Swapnil Tripathi v. Supreme Court of India, 2018 SCC OnLine SC 1667, ¶18 (h).
[iii] Swapnil Tripathi v. Supreme Court of India, 2018 SCC OnLine SC 1667.
[iv] Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744.
[v] Swapnil Tripathi v. Supreme Court of India, 2018 SCC OnLine SC 1667, ¶¶12-13.
[vi] Id. at ¶13.
[vii] Id. at ¶14.
[viii] Id. at ¶1; Id. (per Chandrachud, J.) ¶5.
By Arjun Gaur, Senior Editor
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