In a more than welcomed judgment pertaining to Indira Jaising v. Registrar General of Supreme Court commonly known as the “live streaming” case, Chief Justice Dipak Misra, and Justices AM Khanwilkar and DY Chandrachud conceded to the demand of the petitioner-in-person, Senior Advocate Indira Jaising to allow the live-streaming of court proceedings. Justices Khanwilkar and D Y Chandrachud authored two separate judgments with Chief Justice Misra siding with Justice Khanwilkar. All the three judges unanimously decided “that live streaming of Supreme Court proceedings at least in respect to cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning”.
The judgment was welcomed by petitioner-in-person Senior Advocate Indira Jaising, who posted a series of tweets quoting from the judgment.
— indira jaising (@IJaising) September 26, 2018
— indira jaising (@IJaising) September 26, 2018
— indira jaising (@IJaising) September 26, 2018
Justice Khanwilkar’s judgment
“In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity.” (Scott v. Scott)
Justice Khanwilkar opened his judgement by referring to Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors in which a nine-judge bench had opined that “public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice”.
Flowing from the maxim —ignorance of the law excuses not— meaning no person can plead ignorance of law, Justice Khanwilkar points out that there is “corresponding obligation on the State to spread awareness about the law and developments thereof”. He states that Right to Information is constitutionally recognised under Article 19(1)(a) which is “buttressed by the value of dignity of the people”.
“Technological solutions can be a tool to facilitate actualisation of the right of access to justice bestowed on all and the litigants in particular, to provide them virtual entry in the Court precincts and more particularly in Court rooms”, he added. Those interested will be able to watch live proceeding in propria persona on real time basis. Justice Khaniwikar further stated in his judgement that live streaming of court proceedings will expand the boundaries of the four wall court rooms.
He comments on the current times where “technology is evolving with increasing swiftness whereas the law and the courts are evolving at a much more measured pace.” He says that the courts cannot be oblivious to the boons of technology.
In order to understand the balance between the benefits of live streaming; preservation of dignity and majesty of the Court; the privacy, confidentiality of the litigants or witnesses; to preserve the larger public interest owing to the sensitivity of the case having potential to spring law and order situation or social unrest, Justice Khanwilkar referred to Court proceedings adapted by other countries.
Agreeing to most of the guidelines submitted by Attorney General, K K Venugopal, Justice Khanwilkar detailed, “The project of live streaming of the court proceedings of the Supreme Court on the “internet” and/or on radio and TV through live audio-visual broadcasting/telecasting universally by an official agency, such as Doordarshan, having exclusive telecasting rights and/or official website/mobile application of the Court, must be implemented in a progressive, structured and phased manner, with certain safeguards to ensure that the purpose of live streaming of proceedings is achieved holistically and that it does not interfere with the administration of justice or the dignity and majesty of the Court hearing the matter and/or impinge upon any rights of the litigants or witnesses.”
Justice Khanwilkar suggested that only a specified category of cases or cases of constitutional and national importance being argued for final hearing before the Constitution Bench be live streamed as a pilot project. For that, permission of the concerned Court will have to be sought in writing, in advance, in conformity with the prescribed procedure. Prior consent of all the parties to the concerned proceedings must be insisted upon and if there is no unanimity between them, the concerned Court can take the appropriate decision. The discretion exercised by the Court shall be treated as final. It must be non-justiciable and non-appealable. The concerned court would retain its power to revoke the permission at any stage of the proceedings. There must be a reasonable time-delay (say ten minutes) between the live court proceedings and the broadcast, in order to ensure that any information which ought not to be shown, as directed by the Court, can be edited from being broadcast. Until mechanism for live streaming of the court proceedings of the Supreme Court over the “internet” is evolved, it can be tried within the Court premises by use of allocated passwords.
Khanwilkar stressed on the point that live streaming will require efficient management of time on part of the advocates, the court will maintain copyright over the broadcasted material. Reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification of any part(s) of the original broadcast of Court proceedings, in any form, physical, digital or otherwise, must be prohibited, he added.
Justice DY Chandrachud’s judgment
“Justice should not only be done but should manifestly and undoubtedly be seen to be done.”
-Lord Chief Justice Hewart.
Justice Chandrachud’s opening paragraph states, “Citizens have a right to know about and to follow court proceedings…It will subserve the cause of access to justice.” He adds that the genesis of online streaming is based on the principle of open justice.
Referring to the definition of Black’s Law Dictionary to explain ‘open court’: “… a court to which the public have a right to be admitted… This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators…” he says, open courts are crucial for maintaining public confidence in the administration of justice. It ensures a check on the process of adjudication in judicial proceedings. It also enables public to develop reasonable perception about the judiciary.
Explaining why public confidence in the judiciary is important, Justice Chandrachudopines, “judicial decision making is crucial for preserving the rule of law and to maintain the stability of the social fabric.”Quoting the late Justice YV Chandrachud’s [his father and the 16th Chief Justice of India] judgment on Olga Tellis v. Bombay Municipal Corporation, he says, “Olga Ellis emphasised that not only the ends, but also the means of justice are important.”
Elucidating on the technology revolution and its benefits, JusticeChandrachud says: “Technology has become an inevitable facet of all aspects of life. Internet penetration and an increase in the use of smartphones has revolutionised how we communicate… public access, ensure transparency and pave the way for active citizen involvement in the functioning of state institutions.”He quotes his own dissenting judgment in a matrimonial case of Santhiniv VijayaVenketesh in which he discussed the importance of using technology to enhance the delivery of justice.
delivery of justice.
He further states how the courts are trying to adapt to the technology — displaying notices on the websites, uploading judgements for easy access and video conferencing. He gives illustrations of how ICT are being used in Indian courts, digital platforms are created for service delivery, National Judicial Data Grid, a public portal to ensure transparency and other facilities are created to speed up the justice delivery system.
Pointing to the fact that “time has come for this Court to take a step further in adopting technology and to enable live-streaming of its proceedings”,Justice Chandrachud goes on to enumerate various benefits of it- immediate access to the public on the happenings,right to know and “it will help bring the work of the judiciary to the lives of citizens”, reduce misinformation, serve educational purpose, enhance rule of law, reduce congestion in the court room, increase accountability of judicial institution. He states, “Above all, sunlight is the best disinfectant. Live-streaming as an extension of the principle of open courts will ensure that the interface between a court hearing with virtual reality will result in the dissemination of information in the widest possible sense, imparting transparency and accountability to the judicial process.”
In order to address concerns of privacy, confidentiality and sensitivity of litigants, witnesses and cases, Justice Chandrachud cities examples of how other countries have dealt the question where broadcasting of judicial proceedings have emerged out of judicial decisions.
He says, most jurisdictions followcertain common practices such as (i) a minimal delay in live broadcast; (ii)retention of the copyright with the court; (iii) conducting a pilot project beforeintroducing broadcasting for all cases; (iv) excluding certain categories of cases where the interests of justice warrant that the hearings should not be webcast or streamed; and (v) conferment of power on the presiding judge to regulate the live transmission. Every jurisdiction has a set of limitations to which the broadcast is subject. Broadcast is usually not permitted when it impedes the administration of justice.
Justice Chandrachud, agreeing to Justice Khanwilkar’s plan of action of implementing live streaming by first doing a pilot on only cases of national and constitutional importance in the Chief Justice’s Court.
Pointing towards the pyramid structure of judiciary, Justice Chandrachudsays that that live streaming is most important in the District and the High Courts as they are accessed by a larger number of people. He talks about the shift in the lawyers and judges that would require with the implementation of live streaming. He says: “For lawyers and judges familiar with the cocoon of a physical court room, live-streaming would require attitudinal changes. They include the maintenance of order and sequencing of oral arguments. in charge of their courts would have to devote attention to case management. But these demands are necessary incidents of the challenges of our time.”
He also points out that the “Slow as we [judiciary] have been to adapt to the complexities of our age, it is nonetheless necessary for the judiciary to move apace with technology.”
Petitioner-in-person, Indira Jaising
Senior Advocate Indira Jaising filed a petition in the Supreme Court calling for the live streaming and/or video recording of Supreme Court cases for cases of ‘national importance that impact the public at large.’ Filed as public interest petition under Article 32 of the Constitution, this petition was aimedat furthering the right information under Article 19(1)(a) of the Constitution. The petition intended to advance the principle of open courts and access to justice as protected under Article 21. It would inspire confidence in judiciary, avoid misinformation and disinformation of the Supreme Court proceedings and enable citizens access the courts.
“The Petitioner submits that a cardinal principle of law is that justice is not only to be done in public but also should be seen to be done and the best possible manner to achieve this goal is to live stream the proceedings so that arguments of all Counsels are heard and recorded, and the concerns of the judges as reflected in the interaction between the Counsels and the Court, are recorded accurately and without distortions.”
Jaising petitioned that proceedings from Lok Sabha and Rajya Sabha have been webcast, as well as telecasted on their television channels since 2003, and 2004 respectively. This has allowed citizens the access to the happenings of the parliamentand enhanced transparency in the Parliamentary processes. There is no rational reason as to why the same should not be done for cases of constitutional and national importance that impact the public at large.
The petition cited guidelines and provisions of Courts across the world that permit live streaming and video recording of their proceedings, including those in UK, Canada, Australia, New Zealand, European Court of Human Rights, International Criminal Tribunal for the Former Yugoslavia. Looking at the concerns relating to privacy, the petition provide the judges the discretion to decide the cases that should be recordedand articulates that restriction can be placed on recording of cases that have privacy concerns in family law matters, or witness testimonies in criminal matters. This would have significant archival value and be an important educational resource as well.
Case hearing
The Union of India conceded that live streaming was a useful addition. It will not only increase access, but will also help in de-congestion of the court rooms.
It was agreed by the judges that it will be a non-adversarial litigation where both the parties would supply guidelines for how the process of live streaming would be implemented. Interestingly, in a hearing that did not see any clash of opinion between the petitioners and the respondents; one of the petitioners, Mr. Mathew Nedumpara, who had filed a similar petition, but sought live streaming to be extended to all courts and in all matters, accused the Bench and the Court of being favourable to Senior Advocates. His indirect jibes at Ms. Jaising and the accusations of favouritism towards the judiciary were only detrimental to his petition as the CJI dismissed his petition after a few hearings due to his repeated remarks.
Along with live streaming, an intervention application was filed seeking transcription of proceedings along with the live streaming to maintain the records of the proceedings. The court acknowledged that already live tweeting takes place on matters of constitutional importance.This process will allow the flow of information to be more accurate and will ensure that the words of the Bench or the submissions made by the advocates would not be taken out of context. The concern about congestion in court rooms and in the corridors was raised quite vehemently by the Attorney General Venugopal. This progressed into seeking a media gallery where interns, litigants, media persons, leaving more space in the court rooms.
Over the course of seven month hearing, various facets were discussed, ranging from- whether live streaming should be allowed in all cases, extended to all courts and not be restricted to the Supreme Court; the kind of matters which should be exempted from streaming; if it should be recorded for archival purposes; and whether the provision should be available for third parties to use or modify these recordings.
The Chief Justice even added that the impact of text and visual is different, and time has come for the visual impact of court proceedings. The hearings in this case came across as a discussion between the bar and the bench about the pros, cons, and the implementation of live streaming and video recording process in the court rooms. The CJI asked the advocates present in the courtroom for their opinion on live streaming. CJI displayed concerns regarding the efficacy of live streaming proceedings due to the unorderly, and at times even unruly manner in which the lawyers tend to talk, a lack of structure with respect to the sequence of arguments, not providing written arguments before hand.
In another petition on the same matter it was pleaded that live streaming should not be allowed as there will be nothing to stop the streamed material from being taken out of contex. Justice Chandrachud acknowledged the concern expressed in the petition but relented that misuse cannot be a reason why the utility and use of an initiative which will benefit not only the litigants but even the education of law students. The Attorney General went on to suggest that the educational benefit of this should be extended and centres could be created in national law schools for analysing the arguments made by the advocates in constitutional benches and point where it went wrong (this remark saw giggles all across the courtroom). It would be pathbreaking for emerging lawyers to witness the arguments and be able to learn from them.
On August 24, the last day of hearing, the Attorney General submitted a list of comprehensive guidelines to the Supreme Court, which were supplemented by petitioner and advocate Jaising. The Attorney General suggested a pilot project for live streaming of cases of national importance. The exemptions to include matrimonial matters, national security issues, sensitive issues involving juveniles and minors. The Attorney General had included communal and religiously sensitive matters in this list of exemption which was objected by Jaising. She opined that it was broad and did not need to be excluded from live streaming. The restrictions to ensure that the recording are not misused have been extended to not permitting any unauthorized usage, modification, reproduction of any part of the recording by anyone. Explicit permission will be required to be taken by the Supreme Court which will hold the copyright of these recordings.
At this juncture, although guidelines have been drafted by the Attorney General and a few revisions suggested by Jaising, the final judgment of the Supreme Court is still awaited, which we hope will give a timeline for operationalizing the guidelines and direct the administrative side of the Supreme Court to provide infrastructure so the wheels can be set in motion for the new era of access to justice and open courts.
