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:
- 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.
- Prior consent of all the parties to the concerned proceedings must be insisted upon
- The concerned court would retain its power to revoke the permission at any stage of the proceedings suo motu or on an application filed by any party to the proceeding or otherwise, in that regard, if the situation so warrants.
- The discretion of the Court to grant or refuse to grant such permission will be, inter alia, guided by the following considerations: (i) unanimous consent of the parties involved, (ii) even after the parties give unanimous consent the Court will consider the sensitivity of the subject matter before granting such permission (iii) any other reason considered necessary or appropriate in the larger interest of administration of justice, including as to whether such broadcast will affect the dignity of the court itself or interfere with/prejudice the rights of the parties to a fair trial
- 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.
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:
- The entitlement of an interested person to attend court as a spectator;
- The promotion of full, fair and accurate reporting of court proceedings;
- The duty of judges to give reasoned decisions; and
- Public access to judgments of courts.
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:
- Open courts serve as an instrument of inspiring public confidence in the administration of justice;
- Open courts act as a check on the judiciary;
- Publicity of the judicial process is the soul of justice;
- Open justice must yield to the paramount object of the administration of justice, in case it becomes necessary to restrict access in the facts of a particular case; and
- Open courts are essential for the objective and fair administration of justice.
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.
Technology and Open Court
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.
Platforms created for service delivery
- e-Courts Portal: Online mechanisms (websites) are available for stakeholders such as litigants, advocates, government agencies, and the police to track case status, view cause lists, judgments and daily orders. The ecourts.gov.in portal is a one stop access point where a person can locate a case from any court across the country by using different search criteria available on the website. Data is available on the portal for disposed of and pending civil and criminal cases across the country. The portal also contains judgments and orders of the district judiciary.
- Mobile App:e-Courts Services mobile app available on Android and iOS provides facility for all stakeholders including advocates and parties, create a portfolio of cases in which they are associated and track them for future alerts. A facility to search the case by a QR Code is also provided and the App has been downloaded multiple times.
- SMS Push: Litigants and advocates get an SMS alert on their cell phones, in case of any adjournment, scrutiny, registration, transfer of case, disposal, uploading of orders, etc.
- SMS Pull:This facility allows advocates and litigants to send the CNR number (which is a unique number tagged for every single case in the country) and receive a response with the current status of the case.
- Automated e-Mails:Litigants, advocates and police stations receive information on regular e-mails in relation to the cause lists, transfer of cases, disposal, copies of orders and judgments.
- Touch Screen Kiosks and Service Centre: Dissemination of case status has been made simple with the installation of touch screen kiosks in various court complexes across the country. This allows litigants and advocates to view their case status at the touch of a button. The same information can also be obtained from Judicial Service Centres established in court complexes.
- E-Payment:In order to facilitate ease of payments, online payment of court fees, fines, penalties and judicial deposits through the ecourts.gov.in has been facilitated. Citizens can make payments online without the use of cheques, cash or stamps, with the help of this portal.
- E-filing: For convenience, facility for online filing of cases and case papers with the court registry has been provided. This facility is integrated with standard application software across all the districts and subordinate courts
- National Judicial Data Grid
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.
Other facilities created to speed up justice delivery
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.
- Thereare multiple reasons why live-streaming will be beneficial to the judicial system:
- The technology of live-streaming injects radical immediacy into courtroom proceedings. Each hearing is made public within seconds of its occurrence. It enables viewers to have virtual access to courtroom proceedings as they unfold;
- Introduction of live-streaming will effectuate the public’s right to know about court proceedings. It will enable those affected by the decisions of the Court to observe the manner in which judicial decisions are made. It will help bring the work of the judiciary to the lives of citizens;
- Live-streaming of courtroom proceedings will reduce the public’s reliance on second-hand narratives to obtain information about important judgments of the Court and the course of judicial hearings. Society will be able to view court proceedings first hand and form reasoned and educated opinions about the functioning of courts. This will help reduce misinformation and misunderstanding about the judicial process;
- Viewing court proceedings will also serve an educational purpose. Law students will be able to observe and learn from the interactions between the Bar and the Bench. The archives will constitute a rich source for aspiring advocates and academicians to study legal advocacy procedures, interpretation of the law, and oratory skills, among other things. It will further promote research into the institutional functioning of the courts. Live-streaming and broadcasting will also increase the reach of the courts as it can penetrate to every part of the country;
- Live-streaming will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy;
- Live-streaming will remove physical barriers to viewing court proceedings by enabling the public to view proceedings from outside courtroom premises. This will also reduce the congestion which is currently plaguing courtrooms. It will reduce the need for litigants to travel to the courts to observe the proceedings of their cases;
- Live-streaming is a significant instrument of enhancing the accountability of judicial institutions and of all those who participate in the judicial process. Delay in the dispensation of justice is a matter of serious concern. Live-streaming of court proceedings will enable members of the public to know of the causes of adjournments and the reasons why hearings are delayed; and
- 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.
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.
- United Kingdom:The Supreme Court of UK permits broadcasting of its courtroom proceedings. The Eighth Practice Direction of the Supreme Court permits “video footage of proceedings before the Court to be broadcast where this does not affect the administration of justice.” Three national broadcasters- BBC, ITN, and Sky News are permitted to film and broadcast the Supreme Court proceedings, “in accordance with the protocol which has been agreed with.” The protocol prohibits recording of certain types of proceedings like private discussions between litigants and their counsel. The footage is only allowed to be used for informational purposes in programs like news, current affairs, education, and legal training. However, any broadcasting which may detract from the seriousness or integrity of the proceedings, like entertainment programmes, satirical programmes, political party broadcasts, and advertising or promotion, is not permitted. Further, any still images are always required to be used “in a way that has regard to the dignity of the Court and its functions as a working body.”
- South Africa:In South Africa, the presence of cameras in the courtroom is a recent development and is at a relatively nascent stage. In 2017, the Supreme Court of Appeal (which is the highest court of appeal in South Africa) set a precedent permitting broadcasting of proceedings in all courts of South Africa. Now, the media is permitted to live broadcast the proceedings of all South African courts. While permitting the media to live broadcast the court proceedings, Ponna JA made an interesting observation that it was time for courts to ‘yield to a new reality:’ “It is thus important to emphasise that giving effect to the principle of open justice and its underlying aims now means more than merely keeping the courtroom doors open. It means that court proceedings must where possible be meaningfully accessible to any member of the public who wishes to be timeously and accurately apprised of such proceedings. Broadcasting of court proceedings enables this to occur.”
- Canada:The Canadian Supreme Court is considered a pioneer for adapting itself to technology and permitting audio-visual broadcasting of its proceedings. In 1993, the Canadian Supreme Court conducted a successful pilot project, live televising the hearings of three high profile cases. The broadcasts were governed by the following guidelines: (a) The case to be filmed will be selected by the Chief Justice. (b) The Chief Justice or presiding Justice may limit or terminate media coverage to protect the rights of the parties; the dignity of the court; to assure the orderly conduct of the proceedings; or for any other reason considered necessary or appropriate. (c) No direct public expense is to be incurred for wiring, or personnel needed to provide media coverage.” The Canadian Supreme Court permits the Canadian Parliamentary Press Gallery to live broadcast all appeals before it. The Canadian Parliamentary Affairs Channel (CPAC) is also allowed to televise the appeal hearings of the Court, but at a later date.The broadcasts are subject to guidelines which ensure that the Court retains control over the filming process. Although the CPAC decides which cases to broadcast, the Supreme Court has the discretion to prohibit the filming of specific appeals. The CPAC is permitted to share the broadcast feed with other television networks, for use as snippets in news programs. At present, four cameras are installed in the Supreme Court. The appeal hearings have been broadcast since 2009 and are archived on the Court’s website. The cameras are installed by the Court and are operated by the Court’s employees. Outside cameras are not permitted except for special events. The copyright over the proceedings is retained by the Court. Before any case can be filmed, the Supreme Court requires parties to consent to the recording and televising of the proceedings. Any party seeking to exclude their case from the broadcast must convey the same to the Registrar at least two weeks prior to the hearing date.
- Australia: Australia follows an open court system, with courts in all Australian jurisdictions admitting television cameras into courtrooms. Since 2013, audio-visual recordings of the High Court of Australia have been made available to the public. The entire process of filming and broadcasting is carried out by the Court staff. Transcripts of the hearings are made available within a day or two of most hearings. The High Court has stated that initially the recordings will be available after a few business days, however, the Court will endeavour to reduce the number of days. Apart from the High Court, most Australian courts do not maintain a consistent policy on admitting television cameras into the courtroom. Filming is permitted on an ad hoc basis and is usually restricted to the recording of file and overlay footage or ceremonial sittings.
- New Zealand: New Zealand allows wide access to the media in courts and has one of the most progressive live broadcast policies among common law countries. Traditionally, members of the media were only permitted to make hand-written notes of court proceedings, without the use of any electronic device. From 1996 to 1998, New Zealand conducted a three year pilot project which covered more than twenty cases. All courts in New Zealand were covered under the pilot, contingent on two main rules:
“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.
- There shall be no use of material obtained from expanded media coverage otherwise than for normal news programmes or articles unless prior approval for that use has been given by the trial judge or, where that judge is unavailable, another judge of the relevant court.”85
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.
- United States:The US Supreme Court does not permit video recording or photography of its proceedings. It releases audio transcripts of the oral arguments on the same day. Audio recordings of each week’s oral arguments are released on the court’s website at the end of the week. Each Federal Court of Appeals has the discretion to provide audio or video recordings of its proceedings, subject to guidelines framed by the court. Since 2014, the US Court of Appeals for the Ninth Circuit has approved video broadcasting of all cases before it, except those prohibited by law through guidelines. The media needs to take prior approval of the court to record the proceedings. The presiding judge is granted absolute discretion to limit or terminate media coverage, or direct the removal of camera coverage personnel when necessary, in order to protect the rights of the parties or aid the conduct of proceedings. The video and audio recordings of the federal judiciary are hosted on YouTube and are also available on the court’s official website. The district and lower courts in each state permit some form of audio or video broadcasting and recording of its proceedings, subject to guidelines and rules.
- Brazil: In 2002, the President of Brazil sanctioned a law enabling the creation of a public television channel dedicated to the judiciary and to the Supreme Court. The court sessions of the Supreme Court (Supremo Tribunal Federal) are broadcast online on either ‘TV Justica’101 or ‘Radio Justica’ and operated by the Supreme Court. Aside from being aired on television and radio, the proceedings can also be streamed online as the Court maintains a Twitter account and a YouTube channel. The unique feature of the Brazilian Supreme Court is that cameras are permitted into the conferences where the judges deliberate.
- International Courts: International courts have also embraced the idea of broadcasting their court proceedings. The International Criminal Court (ICC) permits televising of its cases, although with a thirty minute delay.The ICC has a YouTube channel where it broadcasts case proceedings, press conferences, and informative videos in different languages. In the European Court on Human Rights (ECHR), all hearings are permitted to be made public, unless specifically disallowed by the Court. The broadcast is available on the Court’s website on the same day. Broadcast of morning sessions is put up by the afternoon, and the afternoon sessions by evening. The ECHR states that all hearings are filmed and broadcast of the court’s website on the day itself, from 14:30 (local time) onwards. On examining the practices followed by the jurisdictions discussed above, it appears that broadcasting of courtroom proceedings emerged in several countries through judicial decisions. Further, most jurisdictions follow certain common practices such as (i) a minimal delay in live broadcast; (ii) retention of the copyright with the court; (iii) conducting a pilot project before introducing 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.
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:
- Live streaming of court proceedings as a pilot should be introduced only in constitutional bench references and success of the same would determine whether or not live streaming should be introduced in all courts in the Supreme court and courts pan India.
- In order to ensure all persons including litigants, journalists, interns, visitors and lawyers are able to view the live streaming of the proceedings, a media room should be designated in the premises of the court with necessary infrastructural facilities. Provisions may also be made available for the benefit of differently abled persons.
- the Supreme Court may, in the future, also provide for transcribing facilities and archive the audio-visual record of the proceedings to make the webcast accessible to litigants and other interested persons who are unable to witness the hearings on account of constraints of time, resources, or the ability to travel long distances to attend hearing on every single date.
- The Court must have the power to limit, temporarily suspend or disallow filming or broadcasting, if in its opinion, such measures are likely to interfere with the rights of the parties to a fair trial or otherwise interfere with the proper administration of justice.
- The Court may lay down guidelines to determine what cases constitute proceedings of constitutional and national importance to seek permission for broadcasting
- Broadcasting must not be permitted in the cases involving 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 protect confidential or sensitive information, including all matters relating to sexual assault and rape, Matters where publicity would be antithetical to the administration of justice and Cases which may provoke sentiments and arouse passion and provoke enmity among communities.
- Use of the footage would be restricted for the purpose of news, current affairs and educational purposes and should not be used for commercial, promotion, light entertainment, satirical programs or advertising.
- Without prior written authorization of the Supreme Court of India, live streaming or the webcast of the proceedings from the Supreme Court should not be reproduced, transmitted, uploaded, posted, modified, published or republished to the public.
- Any unauthorized usage of the live streaming and/or webcasts will be punishable as an offence under the Indian Copyright Act, 1957 and the Information Technology Act, 2000 and any other provisions of the law in force. The law of contempt should apply to such proceedings. Prohibitions, fines and penalties may be provided for.
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.