In Supreme Court of India
2018 (11) SCALE 475
Supreme court of India
Date of Judgement
26 September 2018
(CJ) Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud
In theory, it has always been asserted that courts in India are open to all members of the public who wish to attend the court proceedings. However in practice many interested are not able to witness the hearing on account of constraints of time, resources or the ability to travel long distances to attend hearing on every single date and therefore run the risk of being excluded from attending court hearings. Also, on miscellaneous days of hearing, the Apex court is highly congested with practically no space available in courtrooms and in the public gallery to accommodate litigants, lawyers and law students and interns. On account of such shortcomings, petitions have been filed in this court to allow for live streaming.
Petitioners have sought a declaration that Supreme Court case proceedings of constitutional and national 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. Further direction is sought to frame guidelines to enable the determination of exceptional cases that qualify for live streaming and to place those guidelines before the full court of this court.
1. Whether there should be live dissemination of proceedings before this court with the aid of information and communications technology (ICT)?
The court while relying on the judgement of this court in Naresh Shridhar mirajkar & ors vs. State of Maharashtra & ors went on to emphasize about the efficacy of open trials for upholding the legitimacy and effectiveness of the courts and for enhancement of public confidence and support. Citing the relevant extracts:
All cases brought before the courts, whether civil, criminal or others must be heard in open court. For a healthy, objective and fair administration of justice, what is needed is a public trial in open court. 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. Justice is found to be residing in a place where there is ample publicity. It acts as a guardian against improbity. Important points emerged from the case are:
a. Open courts serve as an instrument of inspiring public confidence in the administration of justice
b. Open courts act as a check on the judiciary
c. Publicity of the judicial process is the soul of justice
d. 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
Our legal system subscribes to the principle of open justice. Open justice is a long established principle of common law systems. It rests on a high pedestal in a liberal democracy as a ‘sound and a very sacred part of the Constitution of the country and the administration of justice.’ It operates as a wholesome check upon judicial behavior as well as upon the conduct of the contending parties and their witnesses. This principle of open justice was formulated by Lord Chief Justice Hewart stating that justice should not only be done but should manifestly and undoubtedly be seen to be done. This principle represents an element of democratic accountability and the vigorous manifestation of the principle of freedom of expression and supports the rule of law itself. It has following precepts:
1. Entitlement of an interested person to attend court as a spectator
2. Promotion of full fair and accurate reporting of court proceedings
3. Duty of judges to give reasoned decisions
4. Public Access to Judgement of courts
The principle of open court is a significant dimension of the broader concept of open justice. Open court allow the public to view courtroom proceedings. The idea of open court is crucial to maintaining public confidence in the administration of justice and ensures a check on the process of adjudication in judicial proceedings which in turn in essential for maintaining the stability of the social fabric. People’s access to the court signifies that the public is willing to have disputes resolved in court and to obey and accept judicial orders. The public’s trust in the judicial system depends on their perception of how courts function and open courts make it possible for the public to develop reasonable perceptions about the judiciary by enabling them to directly observe judicial behavior and the process and outcomes of a case. 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 is given access to the proceedings as it would give an opportunity to witness live proceedings in respect of matters having an impact on the public at large or on section of people. This would be helpful in educating them about the issues which come up for consideration before the court on real time basis.
But if excessive publicity itself operates as an instrument of injustice, court may hold the trial behind closed doors and forbid publication of the report of its proceedings. The impact of open courts in our country is diminished by the fact that a large segment of society rarely has an opportunity to attend court proceedings 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. This report of judicial hearings if not correct, impedes people’s right to know.
The right to know and receive information is a facet of Article 19(1)(a) of the Constitution and for this 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. State is obligated to spread awareness about the law and developments thereof including the evolution of the law which may happen in the process of adjudication of cases before this court. This 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 a regular basis to witness hearings and instead can attend to their daily work without taking leave.
As regards the pronouncement of judgements by the Supreme Court, there is an express stipulation in Article 145(4) of the Constitution but no such provision is found in the Constitution that such pronouncements shall be made in open court. This can be traced to provisions such as section 327 of the Code of Criminal Procedure, 1973 ( court to be open) and section 153-B of the Code of Civil Procedure, 1908 (place of trial to be deemed to be open court)
Live streaming of court proceedings provide 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. This has become feasible due to the advent of technology. Technology has become an inevitable facet of all aspects of life. Technology can enhance public Access, ensure transparency and pave the way for active citizen involvement in the functioning of state institutions. Technological solutions can be a tool to facilitate the 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 courtrooms. This will virtually expand the courtroom area beyond the physical four walls of the court rooms and can epitomize transparency, good governance and accountability.
The Indian judiciary has incorporated information and communication technology under the aegis of e-courts, integrated mission mode project (e-courts project). This has been a part of the national e-governance plan which has been implemented in all high courts and district courts in India.
In Santhini vs. Vijaya Venkatesh it was held that 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.
Following are the reasons why live streaming will be beneficial to the judicial system
1. The technology of live streaming enables immediacy as it makes each hearing public within seconds of its occurrence. It further allows viewers to have virtual access to courtroom proceedings as they unfold.
2. It 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.
3. It will reduce the public’s reliance on second-hand narratives to obtain information about important judgements of the court and the course of judicial hearings. The public will have access to first hand information through live proceedings and will be able to form reasoned and educated opinions about the functioning of courts. This will help reduce misinformation and misunderstanding about the judicial process.
4. It 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 and will further promote research into the functioning of the courts. It will also increase the reach of the courts as it can penetrate to every part of the country.
5. It will further lead to enhancement of the rule of law and promote better understanding of legal governance as part of the functioning of democracy.
6. It will remove physical barriers to viewing court proceedings by enabling the public to view proceedings from outside the courtroom premises. This will reduce the congestion which is currently plaguing courtrooms and the need for litigants to travel to the courts to observe the proceedings of their cases.
7. It will enhance the accountability of judicial institutions and of all those who participate in the judicial process.
8. Sunlight is the best disinfectant. As an extension of the principle of open courts, live streaming will ensure the dissemination of information in the widest possible sense, imparting transparency and accountability to the judicial process.
Comprehensive Guidelines suggested by the Attorney General of India, Shri K.K Venugopal approved by court are as follows:
1. Not all cases may be live streamed. Certain sensitive cases like matrimonial, sexual assault and matters where children and juveniles are involved like POCSO cases should be excluded from the process of live streaming.
2. Live streaming will be Carried out with a minimum delay to allow time for screening sensitive information or any exchange which should not be streamed.
3. 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.
4. Live streaming will be carried out only by persons or agencies authorized under the direction of the chief justice of India or as contemplated by 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.
5. The copyright over all the materials recorded and broadcast in this court shall vest with this court only
6. The recordings may not be used by anyone for commercial purpose.
7. Archives shall be maintained of all live streaming to be hosted on the web site of the court
Live streaming of proceedings is crucial to the dissemination of knowledge about judicial proceedings and granting full access to justice to the litigants. Litigants will have full access to justice only when they will be able to see, hear and understand the course of proceedings first hand. Also, it is an important facet of responsive judiciary which accepts and acknowledges that it is accountable to the concerns of those who seek justice.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje