The Supreme Court in a historic judgement on the issue of live streaming of cases has held that the right to justice under Article 21 of the Constitution of India would be meaningful only if the public gets access to the proceedings as they unfold before the courts and the opportunity to witness proceedings live. This would educate them about the issues that come up for consideration before the Court on a real time basis.The Attorney General of India collated suggestion by the Petitioners/ Interveners and the Government and placed the same before the Court. Live streaming of court proceedings was found to be feasible due to the advent of technology and has been adopted in other jurisdictions around the world. The Court accepted that it would epitome transparency, good governance and accountability and integrating technology unto court rooms would give the viewing public a presence in the court room and educate them about the working of the court.
The Court considered the procedures followed by High Courts and lower Courts in various countries viz Australia, brazil, Canada, china, England, Germany, International Criminal Courts and Tribunals, Ireland, New Zealand, Scotland, South Africa and United States of America.
Some of the recommendations/guidelines of the Attorney General were as follows:
The Court agreed with the above guidelines as placed by the Attorney General. Further, some of the key aspects of Justice D Y Chandrachud's judgment were as follows:
Our legal system subscribes to the principle of open justice. The prayer for live-streaming of courtroom proceedings has its genesis in this principle. Live-streaming will allow real time access to courtroom proceedings to litigants and to every member of the society. It is urged that cases of constitutional and national importance have a significant impact on the social fabric. Citizens have a right to know about and to follow court proceedings. It has been submitted that live or online transmission of court proceedings with the aid of ICT (Information and Communications Technology) enabled tools will sub serve the cause of access to justice.
Open justice comprises of several precepts:
Public confidence in the judiciary and in the process of judicial decision making is crucial for preserving the rule of law and to maintain the stability of the social fabric. Peoples' access to the court signifies that the public is willing to have disputes resolved in court and to obey and accept judicial orders. Open courts effectively foster public confidence by allowing litigants and members of the public to view courtroom proceedings and ensure that the judges apply the law in a fair and impartial manner.
The concept of open courts is not alien to the Indian legal system. The Constitution adopts the concept in Article 145(4), which states that the Supreme Court shall be an open court: "No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open Court." The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them. Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court. Hence, all courts in India are open to the public and function as open courts, except when the administration of justice requires public access to the court to be restricted. The principle of open courts in India recognises exceptions which are in the interest of fair administration of justice.
Various judgments of this Court have reinforced the importance of open courts. The earliest and most significant judgment on this aspect is the decision of anine-judge Bench in Naresh Shridhar Mirajkar v State of Maharashtra18 ("Mirajkar"). While upholding an oral order of the High Court prohibiting the media to publish the evidence of a witness in a defamation suit, the majority emphasised the importance of open courts. Chief Justice Gajendragadkar, speaking for the majority observed "…It is well settled that in general, all cases brought before the courts, whether civil, criminal, or others, must be heard in open court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice.
Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the court-room."
Key takeaways emerge from the opinions in Mirajkar:
The impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings. This is due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may not be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public's right to know. Courts, though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them.
In the present age of technology, it is no longer sufficient to rely solely on the media to deliver information about the hearings of cases and their outcomes. Technology has become an inevitable facet of all aspects of life. Internet penetration and increase in the use of smart phones has revolutionised how we communicate. As on 31 March 2018, India had a total of 1,206.22 million telecom subscribers and 493.96 million internet users. Technology can enhance public access, ensure transparency and pave the way for active citizen involvement in the functioning of state institutions. Courts must also take the aid of technology to enhance the principle of open courts by moving beyond physical accessibility to virtual accessibility.
This Court and the High Courts in India have pro-actively adopted technology to make the judicial process more accessible, organised, transparent, and simple. For instance, many courts in the country, including this Court, now have display boards in the court premises and on their official websites which enable legal practitioners and the public to view the progress of the cause list. This Court and the High Courts maintain websites where they upload cause lists, daily orders, and judgments. They also maintain an archive of previous judgments, allowing users to search for a specific judgment using various inputs
Recent judgments of this Court also indicate the willingness of this Court to adapt to modern technology for the advancement of justice. In Krishna Veni Nagam v Harish Nagam, this Court had taken into consideration technological developments to regulate the use of video conferencing for certain categories of cases. Justice A.K. Goel on behalf of himself and Justice Lalit directed "The advancement of technology ought to be utilised also for service on parties or receiving communication from the parties. Every District Court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a District Court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/information officer in every District Court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants."
In Santhini v Vijaya Venketesh, discussed the importance of using technology to enhance the delivery of justice: "Technology must also be seen as a way of bringing services into remote areas to deal with problems associated with the justice delivery system. With the increasing cost of travelling and other expenses, videoconferencing can provide a cost-effective and efficient alternative. Solutions based on modern technology allow the court to enhance the quality and effectiveness of the administration of justice. The use of technology can maximise efficiency and develop innovative methods for delivering legal services. Technology-based solutions must be adopted to facilitate access to justice… Repeated adjournments break the back of the litigant. West just embrace technology and not retard its application, to make the administration of justice efficient."
One of the objectives of the e-Courts Project is to make the ICT infrastructure comprising of computer hardware, Local Area Network (LAN), Wide Area Network (WAN), information kiosks, UPS, renewable energy-based power backup and other peripherals available in the district judiciary. The e-Courts Project is developed on Open Source Technology by the National Informatics Centre (NIC), a Central Government department under the Union Ministry of Electronics and Information Technology. A single unified Case Information System (CIS) Software has been developed and made available to the entire district judiciary in India, for catering to the diversified requirements of the country in terms of local procedures, practices and languages.
The NJDG is a public portal that provides a database of pending and disposed of cases in various High Courts and District Courts across India. The NJDG portal njdg.ecourts.gov.inprovides transparency in the judicial system to all citizens by allowing them to view statistics of cases pending before various courts. The World Bank has also acknowledged NJDG as a significant innovation. It serves as a national judicial data warehouse that may be used to shape legislative policy.
NSTEP: National Software and Tracking of Electronic Process, is a mechanism that consists of a centralised service tracking application and a mobile app for court bailiffs. NSTEP has been created for speedy delivery of process and to reduce inordinate delays in judicial procedures. The mobile app, equipped with GPS location tracking assists the bailiffs in real-time and transparent tracking of services. The mobile app also has the facility to record the photo and signature of the receiver. In case of non-service of notice or communication, the mobile application instantly communicates it to the central NSTEP server.
Video Conferencing: In an effort to speed up the judicial process, video-conferencing facilities connecting courts and jails have been established in 488 courts and 342 jails across India.
Concept of Video-Streaming/Web-Cast Advancement in technology and increased internet penetration has facilitated transmission of live or pre-recorded video feed to devices like computers, tabs and mobiles. Live-webcast or streaming of court proceedings in real time can be implemented through available technological solutions. Live-webcast or streaming is the fastest method for communicating and is most suited for connecting geographically dispersed audiences.
Virtual reality as an extension of the open court The time has come for this Court to take a step further in adopting technology and to enable live-streaming of its proceedings. Live-streaming of courtroom proceedings is an extension of the principle of open courts. Live-streaming will have the ability to reach a wide number of audiences with the touch of a button.
Major common law jurisdictions across the globe have already embraced the concept of live-streaming and broadcasting courtroom proceedings. It may be useful to look at the evolution of the concept in a few jurisdictions, and the practices followed by them.
"1. Material obtained from expanded media coverage which is broadcast shall be presented in a way which gives an accurate, impartial and balanced coverage of the proceedings and of the parties involved. Any such broadcast is to be without editorial comment and to be of at least two minutes duration per news item.
New Zealand permits media houses to broadcast court proceedings with the approval of the court. The broadcast is governed by a set of guidelines which balance the principle of open justice with the need for a fair trial. They impose upon the media the responsibility to provide "an accurate, fair and balanced report of the hearing" without publishing anything out of context. They also provide for a ten minute delay in broadcasting audio and video recordings. Under the guidelines, any media outlet wishing to film and broadcast court proceedings is required to seek prior written permission from the court for each case.
The majority of the Justices agreeing with the above then went ahead and suggested the modalities of live streaming of Phase I of the project:
The Court has concluded by formally accepting that the case brought before the Court is one of larger public interest and that it deserves acceptance as it upholds the constitutional rights of the public at large. The Court has sought to balance the various interests regarding justice, dignity and privacy of parties and the majesty and decorum of the courts. The Petitioners and Intervener applications were allowed by the Supreme Court. This is probably the first time in legal history that a Supreme Court of a country has so lucidly set out a broad outlay to plan for transparency in courts, for both for now and future, thus, giving true meaning to an open court system which India severely lacked. The other remarkable feather is the time within which the Supreme Court decided this case.
Hopefully backlogs on the judiciary would come down in future as a result of live streaming and immediate access to copies of the proceedings for all. When I had written an article in May 2017 (republished in 2018) I was not expecting the courts to decide this issue of live streaming and transparency so soon. Kudos to the judiciary, the petitioners, interveners and the citizens of the India for such a marvellous achievement. A great step in the right direction.