“Technological solutions can be a tool to facilitate actualization of the right of access to justice bestowed on all and the litigants in particular, to provide them virtual entry in the Court precincts and more particularly in Court rooms.”
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Swapnil Tripathi v. Supreme Court of India (2018)
This was the case of ‘Swapnil Tripathi v. Supreme Court of India (2018)’ When for the first time, 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.
Supreme Court’s Analysis
While considering the question of live streaming of court proceedings, the court made many important observations about people’s right to be informed and features of healthy democracy. The Court analysed the question as follows-
Dipak Misra & Justice A.M.Khanwilkar
- Indeed, the right of access to justice flowing from 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 as it would unfold before the Courts and in particular, opportunity to witness live proceedings in respect of matters having an impact on the public at large or on section of people. This would educate them about the issues which come up for consideration before the Court on real time basis.
- As no person can be heard to plead ignorance of law, there is corresponding obligation on the State to spread awareness about the law and the developments thereof including the evolution of the law which may happen in the process of adjudication of cases before this Court.
The right to know and receive information, it is by now well settled, is a facet of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness Court proceedings involving issues having an impact on the public at large or a section of the public, as the case may be. This right to receive information and be informed is buttressed by the value of dignity of the people.
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- One of the proponents has also highlighted the fact that 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.
That would increase the productivity of the country, since scores of persons involved in litigation in the courts in India will be able to avoid visiting the courts in person, on regular basis, to witness hearings and instead can attend to their daily work without taking leave.
- As regards the pronouncement of judgments by the Supreme Court, there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open Court.
Indeed, no such express provision is found in the Constitution regarding “open Court hearing” before the Supreme Court, but that can be traced to provisions such as Section 327 [Court to be open] of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B [Place of trial to be deemed to be open Court] of the Code of Civil Procedure, 1908 (CPC).
- Indubitably, live streaming of Court proceedings has the potential of throwing up an option to the public to witness live court proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions of Courts; and would also provide them with a more direct sense of what has transpired.
- Thus, technological solutions can be a tool to facilitate actualization of the right of access to justice bestowed on all and the litigants in particular, to provide them virtual entry in the Court precincts and more particularly in Court rooms.
In the process, a large segment of persons, be it entrants in the legal profession, journalists, civil society activists, academicians or students of law will be able to view live proceedings in propria persona on real time basis. There is unanimity between all the protagonists that live streaming of Supreme Court proceedings at least in respect of cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning, as is suggested across the Bar.
Live streaming of Court proceedings is feasible due to the advent of technology and, in fact, has been adopted in other jurisdictions across the world. Live streaming of Court proceedings, in one sense, with the use of technology is to “virtually” expand the Court room area beyond the physical four walls of the Court rooms.
- Technology is evolving with increasing swiftness whereas the law and the courts are evolving at a much more measured pace. This Court cannot be oblivious to the reality that technology has the potential to usher in tangible and intangible benefits which can consummate the aspirations of the stakeholders and litigants in particular.
It can epitomize transparency, good governance and accountability, and more importantly, open the vista of the court rooms, transcending the four walls of the rooms to accommodate a large number of viewers to witness the live Court proceedings.
Introducing and integrating such technology into the courtrooms would give the viewing public a virtual presence in the courtroom and also educate them about the working of the court.
- Publication of court proceedings of the Supreme Court is a facet of the status of this Court as a Court of Record by virtue of Article 129 of the Constitution, whose acts and proceedings are enrolled for perpetual memory and testimony. Further, live streaming of court proceedings in the prescribed digital format would be an affirmation of the constitutional rights bestowed upon the public and the litigants in particular.
- While doing so, regard must be had to the fact that just as the dignity and majesty of the Court is inviolable, the issues regarding privacy rights of the litigants or witnesses whose cases are set down for hearing, as also other exceptional category of cases of which live streaming of proceedings may not be desirable as it may affect the cause of administration of justice itself, are matters which need to be identified and a proper regulatory framework must be provided in that regard by formulating rules in exercise of the power under Article 145 of the Constitution.
- It must be kept in mind that in case of conflict between competing Constitutional rights, a sincere effort must be made to harmonise such conflict in order to give maximum expression to each right while minimizing the encroachment on the other rights.
We are conscious of the fact that in terms of Section 327 of CrPC and Section 153-B of CPC, only court-directed matters can be heard in camera and the general public can be denied access to or to remain in the court building used by the Court.
- Until such direction is issued by the Court, the hearing of the case is deemed to be an open court to which the public generally may have access. The access to the hearing by the general public, however, would be limited to the size and capacity of the court room.
By virtue of live streaming of court proceedings, it would go public beyond the four walls of the court room to which, in a given case, the party or a witness to the proceedings may have genuine reservations and may claim right of privacy and dignity.
Such a claim will have to be examined by the concerned Court and for which reason, a just regulatory framework must be provided for, including obtaining prior consent of the parties to the proceedings to be live streamed. Justice D.Y.Chandrachud
- 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.
- The need for live-streaming of proceedings applies with equal and, in some respects, greater force to proceedings of cases in the district judiciary and the High Courts. The pattern of litigation in our country resembles a pyramid.
The courts within the district judiciary represent the large base of the pyramid where citizens have the greatest interface. It is to the Courts comprised in the district judiciary that citizens turn as a point of first access for remedying injustice.
- At the tip of the pyramid is the jurisdiction of this Court. In terms of volume, the largest amount of litigation emanates in the district judiciary, followed by the High Courts. The engagement of the district judiciary in resolving injustices faced by citizens requires that every citizen should have full access to and knowledge about the proceedings before those courts.
Equally, the principle of an open court which has been espoused in this judgment would merit that proceedings before the High Courts should also be live-streamed.
- Live-streaming of proceedings is crucial to the dissemination of knowledge about judicial proceedings and granting full access to justice to the litigant. Access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first hand.
Apart from this, live-streaming is an important facet of a responsive judiciary which accepts and acknowledges that it is accountable to the concerns of those who seek justice.
- Live-streaming is a significant instrument of establishing the accountability of other stake-holders in the justicing process, including the Bar. Moreover, the government as the largest litigant has to shoulder the responsibility for the efficiency of the judicial process. Full dissemination of knowledge and information about court proceedings through live-streaming thus subserves diverse interests of stake holders and of society in the proper administration of justice.
- For lawyers and judges familiar with the cocoon of a physical court room, live-streaming would require attitudinal changes. They include the maintenance of order and sequencing of oral arguments. Judges in charge of their courts would have to devote attention to case management. But these demands are necessary incidents of the challenges of our time. Slow as we have been to adapt to the complexities of our age, it is nonetheless necessary for the judiciary to move apace with technology.
- By embracing technology, we would only promote a greater degree of confidence in the judicial process. Hence, the Chief Justices of the High Courts should be commended to consider the adoption of live-streaming both in the High Courts and in the district judiciaries in phases, commensurate with available resources and technical support. The High Courts would have to determine the modalities for doing so by framing appropriate rules.
- 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.”
In this case, the Supreme Court also laid down guidelines regulating the live streaming process of court proceeding. Click here to read about guidelines.
Reference
Swapnil Tripathi v. Supreme Court of India (2018)