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 aTweet
Swapnil Tripathi v. Supreme Court of India
In the case of ‘Swapnil Tripathi v. Supreme Court of India (2018)’, three petitions were preferred in Supreme Court of India under Article 32 of the Constitution, for the declarations of live streaming of the Supreme Court’s Proceedings of those cases which are of Public importance.
The petition stated, “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 for public viewing.”
The petitioner placed the reliance on the case ‘Naresh Shridhar Mirjakar v. State of Maharashtra (1966)’ where the Court emphasised the efficacy of open trials for upholding the legitimacy and effectiveness of the Courts and for enhancement of public confidence and support.
The Supreme Court thoroughly analysed the case and made observations in favour of live streaming of court proceeding. Justice Deepak Mishra and Justice M. Khanwilkar gave separate judgment and Justice D.Y. Chandrachud wrote his separate concurring judgment.
Directions of the Court
Justice Mishra and Justice Khanwilkar, wrote down following directions to be applied in live streaming of court proceedings-
“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.
The entire project will have to be executed in phases, with certain phases containing sub-phases or stages. such as:-
(i) To begin with, 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.
(ii) 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 in the matter for live streaming of the court proceedings of that case, after having due regard to the relevancy of the objections raised by the concerned party. The discretion exercised by the Court shall be treated as final. It must be non-justiciable and non-appealable.
(iii) 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, keeping in mind that the cause of administration of justice should not suffer in any manner.
(iv) The discretion of the Court to grant or refuse to grant such permission will be, inter alia, guided by the following considerations:
(a) unanimous consent of the parties involved,
(b) even after the parties give unanimous consent the Court will consider the sensitivity of the subject matter before granting such permission, but not limited to case which may arouse passion or social unrest amongst section of the public,
(c) 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,
(v) 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 a full-fledged module and mechanism for live streaming of the court proceedings of the Supreme Court over the “internet” is evolved, it would be open to explore the possibility of implementation of Phase-I of live streaming in designated areas within the confines of this Court via “intranet” by use of allocated passwords, as a pilot project. The designated areas may include:
(a) dedicated media room which could be accessible to the litigants, advocates, clerks and interns. Special provisions must be made to accommodate differently abled people;
(b) the Supreme Court Bar Association room/lounge;
(c) the Supreme Court Advocates-on-Record Association room/lounge;
(d) the official chambers of the Attorney General, Solicitor General and Additional Solicitor Generals in the Supreme Court premises;
(e) Advocates’ Chambers blocks.
(f) Press Reporters room. It may be desirable to keep in mind other measures to be taken for efficient management of the entire project such as:
(i) Appoint a technical committee comprising the Registrar (IT), video recording expert(s) and any other members as may be required, to develop technical guidelines for video recording and broadcasting court proceedings, including the specific procedure to be followed and the equipment to be used in that regard.
(ii) Specialist video operator(s) be appointed to handle the live broadcast, who will work under the directions of the concerned Court. The coverage itself will be coordinated and supervised by a Court-appointed officer.
(iii) The focus of the cameras in the courtroom will be directed only towards two sets of people: a. The Justices/Bench hearing the matter and at such an angle so as to only show the anterior-facing side of the Justices, without revealing anything from behind the elevated platform/level on which the Justices sit or any of the Justices’ papers, notes, reference material and/or books;
b. The arguing advocate(s) in the matter and at such an angle so as to not to reveal in any way the contents of notes or reference material being relied upon by the arguing advocate(s). This will also apply to parties-in-person arguing their own matter.
c. There shall be no broadcast of any interaction between the advocate and the client even during arguments.
(iv) Subject to any alteration of camera angles for the purpose of avoiding broadcast of any of the aforestated papers, notes, reference materials, books and/or discussions, the camera angles will remain fixed over the course of the broadcast.
(v) This Court shall introduce a case management system to ensure inter alia that advocates are allotted and adhere to a fixed time limit while arguing their matter to be live streamed.
(vi) This Court must retain copyright over the broadcasted material and have the final say in respect of use of the coverage material.
(vii) 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. Any person engaging in such act(s) can be proceeded under, but not limited to, the Indian Copyright Act, 1957, the Indian Penal Code, 1860, the Information Technology Act, 2000 and the Contempt of Courts Act, 1971.
In his judgment, Justice Chandrachud laid down following guidelines- “The model guidelines are based on the following broad principles:
a. Article 145 (1) of the Constitution provides:
“Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court…”
Determining the modalities for live-streaming of the proceedings of this Court can appropriately be dealt with under the Rules which should be framed in pursuance of Article 145(1). Regulating, generally, the practice and procedure of the Court would extend to formulating Rules for live-streaming.
b. Not all cases may be live-streamed. Certain sensitive cases like matrimonial or sexual assault cases should be excluded from the process of live-streaming;
c. Live-streaming will be carried out with a minimal delay to allow time for screening sensitive information or any exchange which should not be streamed;
d. The final authority to regulate suspension or prohibition of live-streaming in a particular case where the administration of justice so requires, must be with the presiding judge of each court;
e. Live-streaming will be carried out only by persons or any agency authorized under the directions of the Chief Justice of India, or as contemplated in the Rules. The streaming and broadcasting will be hosted by this Court on its website with the assistance of the National Informatics Centre and the Ministry of Electronics and Information Technology;
f. The copyright over all the material recorded and broadcast in this Court shall vest with this Court only; and
g. The recordings and broadcast may not be used by anyone for commercial purposes.
h. Archives shall be maintained of all live-streaming, to be hosted on the web-site of the Court. The model guidelines are of a suggested nature and will not detract from the authority of the Court to frame Rules under Article 145(1) in order to determine all the modalities, including,
(i) the phases in which live-streaming shall be introduced;
(ii) the types of cases for which live-streaming of cases will be provided;
(iii) authorising the use of appropriate technology;
(iv) the agencies through which live-streaming will be implemented;
(v) other facets for implementation; and
(vi) laying down norms for the use of the feed.
Model guidelines for broadcasting of the proceedings and other judicial events of the Supreme Court of India
A. Kind of matters to be live-streamed
1. Proceedings involving the hearing of cases before the Supreme Court shall be live-streamed in the manner provided below:
a) Cases falling under the following categories shall be excluded as a class from live-streaming:
(i) Matrimonial matters, including transfer petitions;
(ii) Cases involving sensitive issues as in the nature of sexual assault; and
(iii) Matters where children and juveniles are involved, like POCSO cases.
b) Apart from the general prohibition on streaming cases falling in the above categories, the presiding judge of each courtroom shall have the discretion to disallow live-streaming for specific cases where, in his/her opinion, publicity would prejudice the interests of justice. This may be intimated by the presiding judge in advance or live-streaming may be suspended as and when a matter is being heard; and
c) Where objections are filed by a litigant against live-streaming of a case on grounds of privacy, confidentiality, or the administration of justice, the final authority on live-streaming the case shall lie with the presiding judge.
2. In addition to live-streaming of courtroom proceedings, the following events may also be live-streamed in future subject to the provisions of the Rules:
(a) Oath ceremonies of the Judges of the Supreme Court and speeches delivered by retiring judges and other judges in the farewell ceremony of the respective Supreme Court Judges; and
(b) Addresses delivered in judicial conferences or Full Court References or any event organized by the Supreme Court or by advocate associations affiliated to the Supreme Court or any other events.
B. Manner of live-streaming
1. Live-streamed and archived videos of the broadcast shall be made available on the official website of the Supreme Court. The recorded broadcast of each day shall be made available as archives on the official website of the Supreme Court by the end of the day;
2. Live-streaming shall commence as soon as the judges arrive in the courtroom and shall continue till the Bench rises;
3. The presiding judge of the courtroom shall be provided with an appropriate device for directing the technical team to stop live-streaming, if the Bench deems it necessary in the interest of administration of justice;
4. Live-streaming of the proceedings should be carried out with a delay of two minutes;
5. Proceedings shall only be live-streamed during working hours of the court;
6. Courtroom proceedings will continue to be live-streamed unless the presiding judge orders the recording to be paused or suspended;
7. To give full effect to the process of live-streaming, advocates addressing the Bench, and judges addressing the Bar, must use microphones, while addressing the Court;
8. Recording of courtroom proceedings shall be done by the Registry with the technical support of National Informatics Centre or any other public private agency authorised by the Supreme Court or the Ministry of Information and Technology; and
9. The portions of proceedings which are not broadcast online, on the direction of the presiding judge of the Bench shall not be made part of the official records and shall be placed separately as ‘confidential records’.
C. Technical specifications for live-streaming
1. Live-streaming shall be conducted by the Supreme Court with its own camera-persons or by an authorized agency. No person who is not authorized by the Supreme Court will be permitted to record any proceeding;
2. Cameras should be focused only on the judges and advocates pleading before the Bench in the matter being live-streamed;
3. Cameras shall not film the media and visitor’s galleries;
4. Cameras may zoom in on the Bench when any judge is dictating an order or judgment or making any observation or enquiry to the advocate; and
5. The following communications shall not be filmed:
a) Discussions among the judges on the Bench;
b) Any judge giving instructions to the administrative staff of the courtroom;
c) Any staff member communicating any message to the judge or circulating any document to the judge;
d) Notes taken down by the judge during the court proceedings; and
e) Notes made by an advocate either on paper or in electronic form for assistance while making submissions to the court.
1. The audio-visual recording of each day’s proceedings shall be preserved in the Audio-Visual Unit of the Supreme Court Registry;
2. Archives of all broadcasts of courtroom proceedings which have been live-streamed should be made available on the website of the Supreme Court; and
3. Hard copies of the video footage of past proceedings may be made available according to terms and conditions to be notified by the Supreme Court Registry. The video footage shall be made available for the sole purpose of fair and accurate reporting of the judicial proceedings of the Supreme Court.
E. Broadcast Room
1. The Registry will make one or more rooms or a hall available within the premises of the Supreme Court for the purpose of broadcasting the proceedings. Multiple screens along with the other necessary infrastructural facilities shall be installed, for enabling litigants, journalists, interns, visitors and lawyers to view the courtroom proceedings in the broadcast room(s). Special arrangements will be made for the differently abled.
F. Miscellaneous 1. The Supreme Court shall hold exclusive copyright over videos streamed online and archived with the Registry; and
2. Re-use, capture, re-editing or redistribution, or creating derivative works or compiling of the broadcast or video footage, in any form, shall not be permitted except as may be notified in the terms and conditions of use and without the written permission of the Registry”
Benefits of Live streaming
While writing his judgment, Justice Chandrachud also counted benefits of live streaming of court proceedings, according to him- “There are multiple reasons why live-streaming will be beneficial to the judicial system:
a. 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;
b. 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;
c. 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;
d. 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;
e. Live-streaming will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy;
f. 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;
g. 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
h. 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.’
Swapnil Tripathi v. Supreme Court of India (2108)