This Case Summary is written by Pragati Singh, a student at Law College, Lucknow
The present case brought a very prominent but undeterred issue in disseminating the judgements which bind the whole territory. Moreover, the advent of pandemics and recent changes in the functioning of Courts makes this judgement more cardinal. Though the judgement is highly praised, it still has some inadequacy. The petitioners approached the Supreme Court of India with the request of making court proceedings available to litigants, advocates, students of law and the general public keeping in mind the Right Of Access to Justice and heavily packed courtrooms on miscellaneous days.
The petitioners and interventionists under Article 32 have sought a declaration that the Supreme Court case proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live-streamed in a manner that is easily accessible or public viewing.
Further, the petitioners sought a proper and balanced regulatory framework before the concept of live streaming of the Court proceedings. Further, guidelines to enable the determination of exceptional cases that qualify for live streaming.
Petitioners, to corroborate their claim, have relied on a nine-judge bench of the Apex Court in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors. which held that Article 19(1)(a) included journalists’ right to publish a report of the proceedings which they had witnessed and heard in Court.
In the abovementioned case, the Court emphasized about the efficacy of open trials for “upholding the legitimacy and effectiveness of the Courts and for enhancement of public confidence and support”.
Whether live dissemination of proceedings should be introduced with the aid of Information and Communication Technology (ICT) and if so, under what conditions and exceptions?
The petitioners submitted that the Right Of Access To Justice under Article 21 of the Constitution or be it the concept of justice at the doorstep, would be meaningful only if the public gets access to the proceedings. Live proceedings will educate public at large about the issues which come up for consideration before the Court on real time basis.
As no person can plead ignorance of law, there is corresponding obligation on the State to spread awareness about the law and the developments including the evolution of the law which may happen in the process of adjudication of cases before the Court.
The right to know and receive information, is a facet of Article 19(1)(a) of the Constitution and the public is entitled to witness Court proceedings involving issues having an impact on the public at large or a section of the public.
Litigants involved in large number of cases pending before the Courts throughout the country will be benefitted if access to Court proceedings is made possible by way of live streaming of Court proceedings. Hence, it will increase productivity and save time.
Article 145(4) of the Constitution states that pronouncements of judgments by the Supreme Court shall be made in open Court. The concept of “open Court hearing” can be traced to Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC).
Live streaming of Court proceedings with the use of technology is to “virtually” expand the court room area beyond the physical four walls of the court rooms. It will epitomize transparency, good governance and accountability, and will accommodate a large number of viewers to witness the live Court proceedings.
Publication of court proceedings of the Supreme Court is a facet of the status of the Court as a Court of Record by virtue of Article 129 of the Constitution.
Justice Khanwilkar delivered the majority judgement on behalf of himself and Chief Justice Dipak Misra. Justice Chandrachud delivered a concurring judgement.
The Court admitted looking up to proposal of Advisory Council of the National Mission of Justice Delivery and Legal Reforms to initiate audio video recording on an experimental basis in the Courts. Policy and Action Plan Document for Phase II for the e-Courts Mission Mode Project proposed audio video recording of Court proceedings but was deferred as it required consultation with Hon’ble Judges of the Supreme Court and the High Courts.
The Court agreed with the comprehensive guidelines for live streaming of Court proceedings suggested by the Attorney General Shri K.K. Venugopal.
The project of live streaming on the “internet” and/or on radio and TV universally by an official agency, such as Doordarshan, will be implemented in phased manner, with safeguards such that it does not interfere with the administration of justice of the Court hearing the matter and/or impinge upon any rights of the litigants or witnesses.
The project will be executed in phases, before the commencement of first phase formal rules will be framed by the Court to incorporate the recommendations made by the learned Attorney General.
The Court laid down measures for efficient management of the project such as; (i) appointment of technical committee, (ii) specialist video operator(s), (iii) focus and direction of the camera(s), (iv) case management system, (v) copyright of the Court over broadcast material, (vi) reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification rights and its liabilities.
The Court reiterated that the Supreme Court Rules, 2013 will be amended to provide for the regulatory framework. Therefore, accepted the PIL in larger public interest so as to uphold the constitutional rights of public and the litigants.
The Court addressed the importance of “principle of open justice”. Drawing a link between open justice and democratic values, R (Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs for Foreign and Commonwealth Affairs was cited.
Open courts allow the public to view courtroom proceedings which is salient feature to maintaining public confidence in the administration of justice. Also, keeps a check on the process of adjudication in judicial proceedings.
Open courts foster public confidence by allowing litigants and public to view courtroom proceedings and ensure that the judges apply the law in a fair and impartial manner. To preserve the rule of law public confidence in the judiciary is crucial.
All courts in India are open to the public except when the administration of justice requires public access to the court to be restricted. The concept of open court and access to justice was reinforced in majority decision of nine-judge bench in Naresh Shridhar Mirajkar v. State of Maharashtra.
Again, in Olga Tellis v. Bombay Municipal Corporation value of hearing and principle that justice must also be seen to be done was reiterated. In Life Insurance Corporation of India v. Prof. Manubhai D. Shah Justice Ahmadi dwelt on the significance of disseminating information in a democracy.
The essence of open courts is diminished as large segment of the society rarely witness court proceedings. This might be due to poverty, illiteracy, distance, cost and lack of awareness. Litigants depend on information provided by lawyers; others depend on the information provided about judicial decisions in newspapers.
Taking technological developments into consideration the Court in Krishna Veni Nagam v. Harish Nagam put forward the use of video conferencing for certain cases.
Further, means and ends of technology and its implementation to fulfil the objectives of e-Courts Project were widely elaborated. Functions and application of National Judicial Data Grid and platforms created for service delivery like, e-Courts Portal, e-Courts Services mobile app, SMS Push/Pull, Automated E-Mails, Touch Screen Kiosks and Service Centre, E-Payment and E- Filing database were detailed.
Reasoning as to why live-streaming will be beneficial to the judicial system were distinctly laid down and compared with countries across globe. A pilot project of live-streaming of national and constitutional importance for about three-months was suggested.
The Court comprehensively laid down kind of matters to be live-streamed as a form of Model Guidelines for broadcasting of the proceedings. It further laid down manner of live streaming, technical specifications for live-streaming, communications that shall not be filmed, archiving rights and facilities and broadcast room.
The judgement starts with submission by the petitioners, recommendations by the learned Attorney General for India, comparative study of Courts of countries across the globe and elaborative guidelines by the Court. By means of live proceedings in the absence of official transcription, recordings will serve as oral transcripts. Dissemination of live proceedings flows from Principle of Open Court, Right to Know and Right to Freedom of Speech and Expression. The judgement serves the means of transparency in Judiciary, it being the most trusted body which has been ascribed with the responsibility of keeping a check on other bodies.
Appreciation Of The Judgement
The judgement deems fit in taking cognizance of the matter of disseminating Right of Access to Justice which includes Right to Access Live Court Proceedings. Both majority and concurring judgement distinctively laid down guidelines, procedure, application, prevention and precautions to be taken during live proceedings.
Criticism Of The Judgement
- TEST OF ALL TIMES
The advent of pandemic brought even Courts to a still but technology came as a rescue apparatus and aided the process of adjudication. After being restricted to judge, courtroom stakeholders and functionaries for a prolonged period in a very first move by Calcutta High Court, immediately after lockdown, the Kerala High Court live-streamed its proceedings. In June 2020, Delhi High Court in its highly appreciated move allowed public to witness live court proceedings. When the Supreme Court started hearing matters via video conferencing, even the Supreme Court Bar Association raised a demand for live-streaming the hearing.
To further the ends of justice and legitimize the present case and Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ors., live streaming of video conferences shall be done at earliest.
Though, in a recent move, Chief Justice N. V. Ramana in a virtual address launched an official Supreme Court mobile application which would aid journalists to view the Supreme Court’s witness virtual proceedings. However, currently the application is temporary and “only” devices registered with the Public Relations Office would be able to access links through it. Thus, the judgement fails to pass the test of all time. The Court, abiding by its own judgement should make the virtual proceedings available to public also. The Chairman of e-Committee of the Supreme Court delivered the concurring judgement and therefore, it becomes more pertinent to take cognizance of the ‘Principle of Open Justice’ which seems to be missing in these extraordinary times.
- THE MISSING ELEMENT
To further Right of Access to Justice, transparency under the ambit of Article 129 of the Constitution which allows Supreme Court to publish court proceedings so that “acts and proceedings are enrolled for perpetual memory and testimony”, along with live proceedings and its archives, written briefs by the Counsels can be uploaded on a database.
The Court may decide the exceptions in case of written briefs in a similar manner like broadcasting of cases as live proceedings. Written briefs shall be voluntary in nature and subject to concerns of privacy, confidentiality of witnesses and litigants to preserve and protect the sentiments of public at large. Publication of written briefs on public domain will serve the purpose of comprehensive understanding of the case. Further, the Court may make publication of briefs compulsory for the cases at are of utmost public importance and concern.
It is suggested with the idea of educating the general public at large about the cases going on in the Courts of Law that stand as precedent and affect lives of each citizen and non-citizen. Publication of written brief will assist understanding of subsequent cases and interpretation of law as per the needs of the society. Moreover, as judgements too present arguments in a concise manner and case files are not easily accessible, written briefs will serve as an aid for the practising litigants and students of law.
Such a technology can revolutionize Indian courts indeed; but we should be wary about the fundamental rights of every citizen and Indian constitutional framework. Even in the remotest of areas, the Supreme Court of India has triumphed in its duty to uphold the flag of Right of Access to Justice. In both majority and concurring judgement, the Court enacted elaborative guidelines over the kinds of matter to be live-streamed, manner of live-stream, technical specification, archiving and other miscellaneous broadcasting rules. Hence it becomes apparent from the judgement that even the Highest Court of Appeals of India, which shoulders the burden to keep a check on the other organs of the state, desires transparency and scrutinization for the benefit of every citizen.