November 19, 2019

Live Streaming of Supreme Court Cases: Case Comment

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Case Comment: Live Streaming of Supreme Court Cases

Author: Ms. Kashish Khurana, School of Law Jagran Lakecity University, Bhopal

Swapnil Tripathi & Others vs. Supreme Court of India & Others

In The Supreme Court of India

Writ Petition (Civil) no. 1232 of 2017

Decided on 26^th September 2018

(Before then CJI Dipak Mishra, A.M.Khanwilkar, D.Y.Chandrachud

INTRODUCTION

“Justice should not only be done but should manifestly and undoubtedly be seen to be done”

Gordon Hewart

Justice is not complete until it is considered by people to be complete. All types of courts have been established to render justice to people in every matter may it be personal or in the interest of people at large. Each and every citizen could not visit the courts to understand the proceedings of law. It is media through which a common man can get access to what is going on inside the courtrooms. But, a common man does not actually know how things work inside there. Only people who are connected either to the case or through the legal world visit and know about how the proceedings take place. A fourth-year student, Swapnil Tripathi took the initiative after the denial to the interns to have access of Supreme Court proceedings on Mondays and Fridays, which are fixed for the fresh filings.

FACTUAL BACKGROUND

Introduction

The present case is a writ petition filed by a law student of NLU Jodhpur, Swapnil Tripathi in December 2017 regarding the live streaming of Supreme Court verdicts in constitutional matters. The petitions included those filed by Senior Advocate Indira Jaising and an NGO, the Centre for Accountability and Systematic Change. On 26th September 2018, a bench of Chief Justice Dipak Mishra (now retired) and Justices A.M.Khanwilkar and D.Y.Chandrachud heard and persued the petition.

Facts of the case

Swapnil Tripathi in his third year was interning under an advocate in the Supreme Court of India, during which he felt that there should be live streaming of the cases of constitutional matters. He felt that it would enhance the thinking capability and quality of critical analyzing of law students. Moreover, it would bring transparency for the litigants and the public at large.
After some time, the interns were denied access to the Supreme Court on Mondays and Fridays. As he had interned in the Supreme Court he had the knowledge of what an intern can miss during those two days. Apart from those two days, it was difficult for the interns to enter the courtroom and hear the proceedings on any other day when any important matter was listed as it used to be overcrowded. His urge to file the petition became stronger.
He filed a writ petition in the apex court for stating that it is violating their right to equality and live streaming of the Supreme Court cases should be done in the constitutional verdicts.
Another petition was filed by the senior advocate Indira Jaising who suggested that the court proceedings should be allowed to video recorded and safeguarded from being illegally used or broadcast.
Mathews J. Nedumapara and the Centre for Accountability and Systematic Change had independently filed their respective petitions under article 32 of the Indian Constitution in the apex court suggesting to upload the video recordings on the official website. Later, all the petitions were combined and heard together.

DEFINING ISSUES

Whether live streaming of the court proceedings should be allowed only in the Supreme Court or other courts in the country as well?
If live-streaming is allowed what would be the circumstances and guidelines under which it would be done?

ARGUMENTS ADVANCED

Contentions of the petitioner:-

Senior advocate Indira Jaising was the counsel on the part of petitioners. She has filed her PIL for the live streaming and/or video recording of the cases of national importance that impact the public at large. In her first contention, she stated before the Hon’ble bench that it is the right of each and every citizen of our country to have information of any kind under article 19(1)(a) of the Indian Constitution.
Secondly, she contended that the principle of open courts and access to justice is protected under article 21 of the Indian Constitution. So, it is the right of every citizen to have access to justice, as of how it is delivered and what laws are involved.
In her third contention, she referred to the cardinal principle of law that justice should not only be done, but also be seen. She stated that the best possible manner to achieve this goal is to live stream the proceedings in important cases so that the arguments of all the counsels and the interaction between the judges and the lawyers in course of hearing is recorded accurately without any distortions.
Her fourth contention was that it would be the discretion of the judges to decide the cases that should be recorded. In her PIL she also cited the guidelines provisions that have been directed by the courts in UK, Canada, Australia, New Zealand, European Court of Human Rights, International Criminal Tribunal for the former Yugoslavia for live streaming and video recording of the cases.
In her fifth contention she stated that the live telecast of Lok Sabha and Rajya Sabha proceedings since 2003 and 2004 has brought awareness among the people about how their elected representatives work, and also enhanced transparency in the working of parliamentary processes. In the same manner, awareness of law, knowledge of just and unjust and how justice is delivered is important as well as right of the citizens of the country.
She also stated that live streaming in important cases impacting the lives of people at large would build up their confidence in judiciary. Also, people who are parties to their cases or are interested to listen to the proceedings need not to travel a long way leaving their works. They can have access to the proceedings from their work itself and even thereafter. There is also lack of space in the courtrooms and the public galleries for litigants, lawyers, students and interns.
The biggest benefit that we will have is that the live streaming of cases would avoid the misinformation and disinformation among the people.

Contention of the defendant

Since this is a writ petition filed by four individuals and here the defendant is the Supreme Court itself, therefore there are no contentions on the part of the defendant. Only some guidelines were given by Attorney General of India, K.K.Venugopal.

HOLDING

Section 327 of Code of Criminal Procedure: Court to be open.
Section 153-B of Code of Civil Procedure: Place of trial to be deemed to be open court.
Indian Copyright Act, 1957.
Information technology Act, 2000.
Indian Penal Code, 1860.
The Contempt of Court Act, 1971.
Constitution of India:
- Article 19(1)(a):- Right to freedom of speech and expression.
  - 19(1)(d):- Right to move freely throughout the territory of India.
  - Article 21:- Protection of life and personal liberty.
  - Article 129:- Supreme Court to be a court of record.
  - Article 145(1):- Rules of court for persons practicing before the court.
  - 145(4):- Rules of court for the entertainment of appeals under article 134.

JUDGMENT

Different writ petitions were filed by law student Swapnil Tripathi, Senior Advocate Indira Jaising, Advocate Mathew J. Nedumpara and an NGO named the Centre for Accountability and Systematic Change under article 32 of the Indian Constitution. The main motive of the PIL was to plead the bench to allow the live streaming of the cases comprising national and constitutional matters. The petition was allowed by the bench comprising Chief Justice Dipak Mishra (now retired), and Justices A.M.Khanwilkar and D.Y.Chandrachud. The bench was agreed with the contentions presented by senior advocate Indira Jaising on the fact that the courts are open to all those people who wish to attend the proceedings of the court in any case.

In Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors[1].,which has had an occasion to inter alia consider the arguments of journalists that they had a fundamental right to carry on their occupation under Article 19(1)(g) of the Constitution; that they also had a right to attend the proceedings in court under Article 19(1)(d); and that their right to freedom of speech and expression guaranteed under Article 19(1)(a).But it becomes difficult for the people coming from far away to attend the proceedings specially those living in the Southern part. Also, agreeing with the fact that on miscellaneous days the Apex court becomes overcrowded as it has the lack of space in courtrooms as well as the public gallery.

On this account, it would be advantageous to build an infrastructure where the live streaming can be done or video recordings can be displayed over. They advised to build a separate hall in the Court itself for the law students, interns and other people where the live streaming can be done so that the courtroom may not be overcrowded.

Also, anyone else working for the higher court would have practical knowledge of the cases of national importance rather than just reading them from the files. This would truly account for an open justice system.

Furthermore, the bench with the aid and advice of attorney general of India prescribed the guidelines for how the system of live streaming would work. In prescribing these guidelines, the rules and guidelines of many countries in live streaming has been discussed by the counsels in the Hon’ble Court. Given down are the guidelines for live streaming of the cases:

At the very first, the live streaming of the court proceedings should be introduced as the pilot project in court no 1. and only in constitutional bench references. The success of the reference will decide whether this system of live streaming has to be followed in the other courtrooms of the Supreme Court and other courts all over the nation.
It should be ensured that all the litigants, law students, journalist, interns and other people are able to view the live proceedings and a media room should be designed with the necessary infrastructural facilities. Special provisions would also be made for differently-abled persons.
Apart from the live streaming of the cases, the audio-video recordings shall be made available to make web caste accessible to the litigants and other people who are unable to attend the proceedings because of the traveling distance. It would also help the law student as we learn easily when we hear or see something rather than reading it.
The court will have the power to temporarily suspend the live streaming in the some cases as they feel such measures interfere the rights of any of the parties.
As held in Scott vs. Scott [2]that the court should held the justice in public, the chief object of the court is to secure that justice is done. Also the broadcasting may not be permitted in the following matters:-
Matrimonial matters
Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
Matters of National security,
To ensure that victims, witnesses or defendants can depose truthfully and without and fear. Special protection must be given to vulnerable or intimidated witnesses. It may provide for face distortion of the witness if she/he consents to the broadcast anonymously,
To protect confidential or sensitive information, including all matters relating to sexual assault and rape, and
Matters where publicity would be antithetical to the administration of justice.
Cases which may provoke sentiments and arouse passion and provoke enmity among communities.
Usage of the footages must be strictly for the purpose of news, educational purpose and current affairs only and not for use of commercial or promotional basis.
If the parties do not unanimously decide about the live streaming of the case, the court will decide upon the matter.
If any unauthorized use is made of the video recordings, it will be punishable as an offense under the Indian Copyrights Act, 1957 and the Information and technology act, 2000 and many other acts and provisions as suitable.
Case management techniques should be used by the lawyers for speedy trials. Also, a skeleton of all the arguments is to be presented in written before the live streaming of the cases.
There should be two cameras while live streaming, one towards the lawyer and other towards the judge but the camera should not focus on the papers of the lawyer.
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 totally and that it does not interfere with the administration of justice or the dignity and majesty of the Court hearing the matter and/or infringe any rights of the litigants or witnesses. The entire project will have to be executed in phases, with certain phases containing sub-phases or stages.
There must be a reasonable time delay in the court proceedings and the streaming so that if anything ought not to be shown can be edited later.

Some areas must be fixed only where the live streaming control would be allowed and given access with certain passwords. Those places will be a dedicated media room, Supreme Court bar association room, Supreme Court advocates on record room, the official chamber of attorney general, secretary-general, solicitor general, additional solicitor general, advocates chamber block and press reporters room.

Also for efficient management of the entire project appointment of a technical committee should be done comprising of a registrar, video recording expert and other required members. Specialist video recorders should be appointed to handle the live broadcast. No broadcast of the conversation between the lawyer and client would be allowed.

The court shall retain a copyright over the material broadcasted and have the final say in respect of usage of the material. Any kind of misconduct done by any person with the material would be punished under the Indian Penal Code, 1860 and the Contempt of Court Act, 1971.

At last, the bench stated that the petition bought in front of them relates to constitutional matter and is for public welfare and interest. Therefore, it deserves acceptance as it comprises of the constitutional rights of the public and the litigants in particular.

Hence, the live streaming and video recording of the constitutional cases, safeguarding the interest, dignity, and privacy of the people is allowed by the court.

CASES REFERRED

Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors. (1966) 3 SCR 744
Scott vs. Scott (1913) AC 417
R(Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, [2010] 3 WLR 554
R v Sussex [1923], All ER Rep 233.
Grollo v Palmer, [1995] HCA 2.
AG v Leveller Magazine, [1979] AC 440,
Inc. v Virginia, 448 US 555 (1980).
Life Insurance Corporation of India v Prof. Manubhai D. Shah, (1992) 3 SCC 637.
Mohd. Shahabuddin v State of Bihar, (2010) 4 SCC 653.

COMMENTS

The case mainly starts when the fourth-year law student Swapnil filed a petition in December 2017 for the live streaming of cases because of the overcrowded situation of the courts. Later on, senior advocate Indira Jaising, advocate Mathew J and an NGO file independent petitions for the video recording of the cases and their availability on the different websites. These petitions were accepted by the bench comprising CJI Dipak Mishra, Justices A.M.Khanwilkar and D.Y.Chandrachud.

Indira Jaising was the learned counsel on behalf of the petitioner. Her contentions were based on only one fact that the justice should not only be done but also be seen to be done. He further stated the conditions of the courtrooms and the people who come from far away to hear the proceeding. She also convinced the bench that it is the right of every citizen to have access to justice. She cited the examples of different nations and their guidelines for the live streaming of the cases. She pleaded that there should be live streaming, especially for the constitutional and national matter cases. She also stated that as the live streaming of Lok Sabha and Rajya Sabha has brought awareness amongst the citizens even the live streaming of the cases would provide the knowledge and application of law because courts are mainly established for the application of the law.

All her contentions were found to be satisfactory by the bench. Therefore, they decided to accept their petition and give the order for the live streaming of the cases. For the live streaming the main orders that were given by them were as follows:-

There should be the construction of a different hall where the live streaming would take place and also some rooms including the media rooms would have control over the access using a password.
The video recording of the cases should also be available later on for educational and media purposes on different websites. Any person found misusing the video recordings would be punished under different offences.
It would be the discretion of the judges and the parties of the cases whether to live stream the cases or not. Also, there will be some matters in which live streaming will not be allowed, e.g., personal matters.
There are guidelines on how the cameras should be placed in the courtrooms and there should be a time gap between the court proceedings and the live streaming.
Apart from all these, there should be an expert team for the management of all the live streaming set up.

In my opinion the outcome of the petition was justified, as there is a need for the live streaming of cases to build awareness amongst the citizens. It is the era of technology and advancement and this is one step towards advancement and development. As other countries already have live streaming and availability of video recordings of the cases on their official websites for educational purposes. It would be a great advantage for students, litigants and other people who are keen to know about the application of the law. This decision would save the time of the people who have to travel a long distance just to see how our courts are providing justice.

Even the law students now, just instead of reading files would see what actually happened in the court which would give them both theoretical and practical knowledge. Also, the availability of the video recordings for the educational purpose is a good step. All over the decision was found to be satisfactory.

Apart from all the good points, there are many loopholes in the decision:-

There is no mention of how the appointment of people would be done for the management of the system
Neither there is mention about whether the video recordings will be available on the common websites or youtube, or they will be uploaded on the official website of the Hon’ble court.
Live streaming and video recordings on such a huge scale will have more than enough resources used and our country is not so technologically advanced as compared to others.
Also, the court has stated that if this found to be successful in one courtroom only then is would be applied to other courtrooms of the Supreme Court and then to the whole of India, it means that it will be just a test, if it works it will be applied otherwise will not be.

So, the question still remains stand. Will it be possible or not?

[1] (1966) 3 SCR 744

[2] (1913) AC 417

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