“One of the great liabilities of history is that all too many people fail to remain awake through great periods of social change. Every society has its protectors of status quo and its fraternities of the indifferent who are notorious for sleeping through revolutions. Today, our very survival depends on our ability to stay awake, to adjust to new ideas, to remain vigilant and to face the challenge of change.”
Martin Luther King, Jr.[1]
“The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.”
George Bernard Shaw[2]
In Part I of the Article, the preliminaries of the title were discussed threadbare. It was a conceptual discussion veering around “open courts”, “publicised justice” and their Indian context. Also discussed were the statutory provisions under the Indian laws mandating requirements of “open courts” and “publicised justice”. Some innovative instances adopted by few of the Judges in the early 21st century for live streaming of their court proceedings were also quoted. Part I thus concluded for Part II to take the subject ahead to Swapnil Tripathi v. Supreme Court of India[3] judgment and its trail.
Read Part 1 HERE
“Swapnil Tripathi” Judgment and its Trail in 3 Years
A law student from National Law University, Jodhpur, Swapnil Tripathi, approached the Supreme Court with an inventive plea that the proceedings of Supreme Court of India, especially Constitutional Bench matters are far removed and inaccessible for bright and meritorious law students whose learning experience is bereft of any practical exposure. In his plea before the Supreme Court, he posed the difficulty that law students face, being pushed out in the corridors, when the courts are jam-packed with seniors arguing ticklish constitutional issues. Thus, there never arises any occasion for any law student to observe, watch and pick up from court proceedings. It was thus pleaded that the court proceedings of all the constitutional courts must be live streamed. Unexpectedly, the plea found favour unanimously with all members of the Bench, headed by erstwhile Chief Justice of India, Mr Justice Dipak Misra.
The 3-Judge Bench comprising also Mr Justice A.M. Khanwilkar and Dr Justice D.Y. Chadrachud, in their separately authored but concurring judgments delved deep into international practices of various courts on live streaming and real-time screening of the court proceedings. Examples were quoted in galore from countries like Israel, France, Germany, Britain, United States, Canada, Singapore, etc. by the Court to accede to arguments of the law student that live streaming is an essential aspect of the justice dispensation system of any country. The majority opinion authored by Justice A.M. Khanwilkar accepted that live streaming procreates justice that is easily visible on smartphones or such utilitarian widgets, instead of the person undergoing a rigmarole of travelling all the way to courts with resultant mental agony of arranging means to somehow attend his case in time. The Court accepted the plea that a “publicised justice” through live streaming becomes extremely affordable, as it brings the whole system virtually at the doorstep of the litigant or those wanting to observe it closely from the legal fraternity, even law students. Court also examined the exceptions brought on record by the Attorney General to live streaming, cases that warrant secrecy, confidentiality and be curtained from the normal process of live streaming.
The concurring judgment authored elegantly by Dr Justice Chadrachud elaborated how live streaming makes judiciary accountable and acceptable to those it is meant to serve i.e. the litigants. Quoting the celebrated saying of Justice Louis Brandeis[4], “sunlight is the best disinfectant”, Justice Chandrachud observed how live streaming makes Judges conscious in their conduct; fair in their approach towards the counsels and those listening to them, which transparency is bound to bode well for the institution in the longer run. It also makes each and every participant in the court extremely cautious and cognizant of whatever he is arguing before the court of law.
Live streaming as “one pill for many ills” is the synthesis of the wide spectrum of observations recorded in the concurring judgment of Justice Chandrachud in Swapnil Tripathi case[5].
Summing up, the groundbreaking verdict of the Swapnil Tripathi case[6] made publicity, visibility, open access to virtual courts a rule/norm and its denial (in particular cases to be discussed below) an exception.
It has been more than 3 years since the judgment of Swapnil Tripathi[7] was handed over to the nation by the Supreme Court, but perhaps its observance in reality by all the High Courts is yet to be witnessed. Except the Gujarat and the Karnataka High Courts, that too only for their Chief Justice’s Court, no other High Court of the country has perhaps ventured out to join the fray of taking the path-breaking decision of live streaming of all its courts. The success of live streaming can be gauged from the fact that the official YouTube channel of the Gujarat High Court as on 21-6-2021 had more than 60,000 subscribers and more than approximately 60 lakh views of various videos uploaded as part of live streaming.
Preceding the decision of the Gujarat High Court to live stream its proceedings was an earnest endeavour made by another law student from Nirma University who took the courage to file a writ petition before the High Court, titled as Pruthvirajsinh Zala.[8] The Division Bench of the High Court led by its Chief Justice Mr Vikram Nath, though disposed of the writ petition holding that the issue is being looked into on the administrative side by the E-Committee of the High Court, but in the process there were few very important takeaways from the High Court’s judgment. The High Court elaborately discussed the mechanism evolved by various High Courts of the country, including the Kerala High Court for ensuring either live streaming or “open access to courts” through State-to-State methodologies. Vide paras 8 and 9, the judgment beautifully correlates the right to know and learn as a facet of Article 19(1)(a) and how public display or judicial proceedings serves this right appropriately. Soon thereafter with effect from the first week of October 2020, the Chief Justice led Bench started live streaming of its proceedings on a daily basis. Though all other courts of the Gujarat High Court are yet to emulate that decision, however something is always better than nothing. Recently, with effect from the first week of June 2021 the Karnataka High Court also joined the fray with its Chief Justice led Division Bench live telecasting its proceedings.
Except these two High Courts, sadly, despite the passage of more than 3 years, no other High Court has stepped out to make its proceedings public. This includes the hyped High Courts of the country like Delhi, Bombay, Kolkata, etc. The inaction on the part of constitutional courts of the country, specifically the High Courts is not only concerning but also disconcerting.
Recently, the Standing Committee of the Parliament tabled its 103rd Report titled as “103rd Report on Functioning of Virtual Courts/Court Proceedings through Video Conferencing” before both the Houses of Parliament on 11–9-2020.[9] The Report underscored the necessity of promoting openness and transparency for reinforcing public faith in the judicial system. Vide Para 2.38 (at p. 10) of the Report, the said Public Accounts Committee (PAC) Report observed thus:
“2.38 The Committee notes that world over, court proceedings are recorded in some form or the other. The Supreme Court has time and again emphasised the significance of live streaming of court proceedings in promoting openness and transparency which in turn reinforce public faith in judicial system. The Committee agrees with the observation made by the Supreme Court that live streaming court proceedings, especially cases of constitutional and national importance having an impact on public at large or a section of the public will promote transparency and openness. The litigant need not come to the court to watch the proceedings and thus will reduce crowding inside the court. The judiciary may also consider broadcasting virtual hearings of certain specified categories of cases to further the principle of open justice and open court.”
The PAC whilst arriving at the aforesaid conclusion referred to a host of judgments of various courts, including that of the Gujarat High Court; views and opinions conveyed by the eminent citizens of the society and such other stakeholders.
Exceptions to Live Streaming and Visibility of Courts
As stated infra, public access to courts had been made a rule and secrecy its exception. Even the concept of live streaming is not without exceptions. There are catena of cases and circumstances where a closed and a four-walled court is expedient in the larger interests of the litigant as also the society so that the demeanour of the Judges, counsels, witnesses or any participant of the proceedings does not spill out in public. Swapnil Tripathi[10] also elaborately discussed the exceptions where live streaming may be dispensed with for averting threats of misuse of dialogue and discussion exchanged inside the court. The report of Attorney General was adverted to at length and broadly the following category of cases as an illustration (not exhaustive) were considered to be outside the pale of the rule of public visibility. Vide Swapnil Tripathi case[11], para 49:
(i) Matrimonial matters.
(ii) Matters involving interests of juveniles or the protection and safety of the private life of the young offenders.
(iii) Matters of national security.
(iv) To ensure that victims, witnesses or defendants can depose truthfully and without any fear, special protection must be given to vulnerable or intimidated witnesses. It may provide for face distortion of the witness if she/he consents to the broadcast anonymously.
(v) To protect confidential or sensitive information, including all matters relating to sexual assault and rape.
(vi) Matters where publicity would be antithetical to the administration of justice.
(vii) Cases which may provoke sentiments and arouse passion and provoke enmity among communities.
The aforesaid category was stated to be illustrative and it was left to the discretion of the constitutional courts to determine those categories of cases, which were to be excepted from public viewership. This is however with a rider that the excepted cases must belong to the same genre of those enumerated in the list in the Attorney General’s report.
The Supreme Court has also echoed the requirement of “in-camera proceedings” wherever needed from time to time. In Supt. and Remembrancer of Legal Affairs v. Satyen Bhowmick[12] it was so said in following words:
- We might also mention that Section 14 was interpreted by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra[13] where this Court while dealing with the question of holding proceedings in camera observed as follows:
“21. Having thus enunciated the universally accepted proposition in favour of open trials, it is necessary to consider whether this rule admits of any exceptions or not. Cases may occur where the requirement of the administration of justice itself may make it necessary for the court to hold a trial in camera. While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a case is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? … That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. … It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice.”
Even otherwise, a number of statutes provide for exceptions to “open courts”, even when convened physically and mandate their holding in camera. Some such special enactments are as follows:
(a) Under Juvenile Justice (Care and Protection of Children) Act, 2000, young offenders (below 16 years of age) are tried in closed rooms before the Juvenile Board. This Board consists of Chief Judicial Magistrate as the Chairperson with two social workers as its members. Though there is no express provision for in-camera trial, the intent of statutes at many places requires the proceedings to be not carried at par with normal courts.
(b) Matrimonial matters also, specifically those concerning judicial separation, restitution of conjugal rights, divorce, impotency, adultery, etc. This is because the right to reputation of both the parties to the lis is of paramount importance to be balanced and preserved from general gaze.
(c) Similarly, Section 11 of the Family Courts Act, 1984 authorises the Family Court to accept a certain set of proceedings wherever Family Court is convinced about maintaining its secrecy. This is however subject to exercise of due care and caution by the court with reasons to be recorded in writing for denying public access to such proceedings.
(d) Section 327(3) CrPC, 1973 itself contains an exception by mandating prior permission of the court in publication, printing of particular categories of proceedings. Breach of Section 327(3) has been made punishable under Section 228-A IPC, 1860, which reads thus:
228-A. Disclosure of identity of the victim of certain offences, etc.—(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB or Section 376-E is alleged or found to have been committed (hereafter in this section referred to as “the victim”) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
(e) Section 44 of the Unlawful Activities (Prevention) Act, 1967 authorises the court to hold proceedings in camera or pass any order that may be necessitated for keeping the identity of witnesses or their addresses intact. The court can even put a moratorium on publication of its proceedings by the media, violation of which entails penal consequences.
From the examples above, it is beyond any pale of doubt that even live streaming has its own exceptions, embodied in various enactments. However all such exceptions are for special reasons, geared towards either the protection of reputation or preservation of identity or address of the witness; when concerns of privacy trump over public disclosure of certain facts, which may put at risk the mutual relations between two persons, etc. Therefore whenever there is an attempt to curtail the public dissemination of court proceedings or an attempt to restrict access to openness of courts, what is to be examined is the outweighing concern or the equity that mandates such secrecy. If, on examination of all the necessary aspects, one arrives at a conclusion that public interests at large would be served more by disclosure than by secrecy, then exceptions cannot be allowed to defeat the rule and vice versa.
Oral Proceedings and Right to Report of Journalists
Lately there has been a lot of discourse and debate on the media’s right to live access and reporting of court proceedings, especially virtual court proceedings. In other words, it is a “right to report of journalists” which is stated to have been derived from Article 19(1)(a) of the Constitution of India as a concomitant to the “fundamental right to know”. Not much needs to be dilated upon right to know as expounded by the Supreme Court under Article 19(1)(a) as an essential attribute of freedom of speech and expression. In State of U.P. v. Raj Narain[14], the Supreme Court categorically held that freedom of speech and expression is directly correlated with the right to information and the right to know about the happenings in the society especially those occupying positions of power. The celebrated observations of the Supreme Court in State of U.P. v. Raj Narain[15] read as follows:
- 74. In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.
On the same lines were the observations of Supreme Court in Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd.[16], wherein the Court further expanded this right and recognised that the right to information is a fundamental right under Article 19 read with Article 21 of the Constitution. This Court in Reliance Petrochemicals case[17] observed that:
-
- 34. … We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform.
The right to know holds special importance for journalists, especially those whose primary responsibilities include live reporting of any decision-making process be that of the executive or of the courts. Therefore journalists, especially from online media networks, have been clamoring for their right to report as a necessary corollary to Article 19(1)(a) rights. A spate of petitions have been filed before various High Courts by journalists claiming that their right to report includes the right to access live court proceedings. Journalists of online legal media platforms like Bar and Bench and Live Law have approached Allahabad High Court[18] and the Madhya Pradesh High Court[19] in the recent past for being permitted to access court proceedings on a real-time basis.
The cause of action for journalists to approach various High Courts was fuelled by the recent judgment of the Supreme Court in Chief Election Commr. v. M.R. Vijayabhaskar[20] wherein the Supreme Court was approached to examine the plea for expunging of oral remarks made by Madras High Court. Shorn of unnecessary details, the Division Bench of the High Court presided by its Chief Justice orally remarked that officers of Election Commission must be booked and tried for murder charges. The aforesaid remarks became a subject of intense debate over social media as also in television debates, where people on both sides of the divide levelled aspersions on Commission for holding elections amidst peak of Covid pandemic. These oral remarks made by the Court escalated the issue so much that the Chief Election Commissioner had to knock at the doors of Supreme Court for the deletion of the said remarks. The Supreme Court Bench headed by Dr Justice D.Y. Chandrachud thus was seized of a golden opportunity of examining the right of media to report “course of proceedings” convened before the constitutional courts of the country, especially the High Courts. The Court beautifully correlated Article 19(1)(a) with the “right to report of journalists”, in a digital age, where live tweeting of any information has the cascading effect of generating a forest fire. The Court vide paras 23 and 31 of Vijayabhaskar case[21] upheld the right of journalists and media to live report the court proceedings and observations, including even those that may not even be encrypted as part of the final order or judgment of the Court. The Court elevated the inalienable rights of free speech and expression reading in them the right to have live access to court proceedings, which makes justice dispensation transparent and has the effect of making everybody accountable in the process including Judges on the Bench. Some of the observations of the Supreme Court that have got perpetually engraved on the wall can be quoted as follows:
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- 23. Cases before the courts are vital sources of public information about the activities of the legislature and the executive An open court serves an educational purpose as well. The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights. In Swapnil Tripathi v. Supreme Court of India,[22] a three-Judge Bench stressed upon the importance of live streaming judicial proceedings. One of us (D.Y. Chandrachud, J.) analysed the precedent from a comparative perspective:
“82. … Through these judicial decisions, this Court has recognised the importance of open courtrooms as a means of allowing the public to view the process of rendering of justice. First-hand access to court hearings enables the public and litigants to witness the dialogue between the Judges and the advocates and to form an informed opinion about the judicial process.
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- 83. 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.”
emphasis supplied
***31. Our court has performed its modest part to acknowledge the rapid pace of the development of technology, and our need to keep up. In Swapnil Tripathi[23], it noted:
“C. Technology and Open Court
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- 84. 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 smartphones has revolutionised how we communicate. As on 31-3-2018, India had a total of 1206.22 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.”
Reverting to the journalists’ plea, they have eventually been successful before both the Allahabad as well as the Madhya Pradesh High Courts. The Allahabad High Court on the administrative side decided to display the joining link publicly on its website for enabling the media and journalists to join the ongoing court proceedings. The E-Committee of the Madhya Pradesh High Court also in the same vein, filed an affidavit before court stating that mechanism shall soon be evolved through which one and all from media shall be allowed to closely watch and observe live court proceedings virtually. However, even though two High Courts of the country have taken a call to publicly display the joining links for access by media, the other High Courts of the country are yet to follow suit. Maybe for the journalists, it is supposed to be a long-drawn battle of approaching all the High Courts one by one for the same relief. However once live streaming of all the courts sees the light of the day, then possibly this series of litigation may not be required at all.
Epilogue
It is time to draw curtains on a detailed article which attempts to deal with all the possible facets of live streaming. Whoever I have spoken to in the recent past, advocates for adoption of live streaming as a cherished utopian. However, words lack action and that is where the Indian judicial system is failing itself on an opportunity it was offered to by one of the landmark judgments of the Supreme Court in 2018 i.e. Swapnil Tripathi.[24] A practice being followed consistently over a passage of time becomes a precedent and this is what is precisely happening with all the High Courts of the country. None wants to venture ahead and show alacrity in adoption of the idea of live streaming. High Courts are headed by Chief Justices, who are akin to captains of a sailing ship and they are supposed to take a call on such vital policy issues. The Bar per se may not take the lead until the Chief Justice of the High Court concerned shows his readiness for public viewership of the proceedings of his court. Perhaps half of the job would be done the day when learned Chief Justices of the respective High Courts themselves go an extra mile and prove to be role models for all the puisne Judges of their High Court. Gujarat and Karnataka are more than enough for other High Courts to emulate. On a lighter note, I am reminded of the lines of brand ambassador for Gujarat and millennial actor Mr Amitabh Bachchan, “kuch din to gujaro Gujarat me”. In the present scenario, the slogan holds much pertinence for the learned Chief Justices of all the High Courts of the country to spend a few minutes watching how seamlessly proceedings of Gujarat High Court are screened on YouTube.
†Siddharth R. Gupta, Advocate practising at Madhya Pradesh High Court and Supreme Court of India.
††Utkarsh Sharma, 4th year student at Unitedworld School of Law, Karnavati University, Gandhinagar, Gujarat.
[1] Martin Luther King, Jr., was an African American Baptist Minister and activist, who became the first President of the Southern Christian Leadership Conference (SCLC) and most visible leader in the Civil Rights Movement. He was the face of the battle against racial discrimination, and propelled several civil rights movements. In 1963, he was awarded the Nobel Peace Prize for his non-violent campaign against racism. The aforementioned lines were said by him in the spring of 1968, where he was sharing his views on the importance of remaining awake through a revolution and the dangers of neglecting something of such great importance. Source: <HERE >.
[2] George Bernard Shaw was an Irish comic dramatist, literary critic, and socialist propagandist, winner of the Nobel Prize for Literature in 1925. G.B. Shaw, through high comedy, continued to explore religious consciousness and to point out society’s complicity in its own evils. The aforementioned lines signify the conflict between man as spiritual creator and woman as guardian of the biological continuity of the human race showcased in his play, “Man and Superman” in 1903.
[4] Louis Dembitz Brandeis was an American Lawyer who went on to become Associate Justice in the US Supreme Court from 1916 to 1939. He developed the modern jurisprudence of free speech and laid the basis for a constitutionally protected right to privacy. Source: <HERE>.
[6] Ibid.
[7] Ibid.
[8] Pruthvirajsinh Zala v. High Court of Gujarat, 2020 SCC OnLine Guj 1055.
[9] 103rd Report prepared by the Rajya Sabha Secretariat New Delhi in September 2020. The Report was prepared by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, comprising eminent members of the Bar like Shri Bhupender Yadav, Mr Vivek K. Tankha, Mr P. Wilson and thirty other members of Parliament.
[11] Id., p. 675.
[12] (1981) 2 SCC 109, 114-15.
[13] AIR 1967 SC 1 : (1966) 3 SCR 744.
[15] Id., p. 453.
[17] Id., p. 613.
[18] Areeb Uddin Ahmed v. Allahabad High Court, Public Interest Litigation (PIL) No. 865 of 2021.
[19] Nupur Thapliyal v. High Court of Madhya Pradesh., W.P. No. 9669 of 2021 (Principal Seat at Jabalpur)
[21] Ibid.
[24] Ibid