Live streaming of supreme court hearings: A brief analogy

Introduction

Recently, in its historic first, the Supreme Court of India started live streaming its constitutional bench hearings. This decision was taken by the CJI U. U. Lalit in a full court meeting where it was unanimously agreed that live-streaming of constitutional bench cases should be initiated from September 27, 2022.

However, it wasn’t the first time that the Supreme Court of India live-streamed its constitutional Bench hearing, and opened its door to the general public through live-streaming. Originally the Supreme Court on August 26, 2022, for the first time since its inception, as a gesture to bid adieu to the then CJI N. V. Ramana, live-streamed its ceremonial bench proceedings.

From long-running Indian daily soaps to blockbuster Hollywood series, from best-selling novels to inspiring autobiographies, the legal genre has always been a favourite amongst the public and the yearning desire to know how justice is being carried out is always prevalent.

Tripathi v. Supreme Court of India – The much-awaited PIL

Facts leading to the finding

The Supreme Court in Tripathi vs SCI issued a first-of-its-kind decision in response to a PIL filed in 2017 by Senior Advocate Indira Jaising and Advocates Swapnil Tripathi and Matthews J. Nedumpara, among others, seeking live streaming of cases of constitutional and national importance that could have an impact on the public.

According to the PIL, live streaming and videography of Supreme Court proceedings in matters of great public importance will be consistent with the principle of open access to justice. It further said that such an exercise would instil trust in the judiciary’s functioning as an institution and help maintain the respect it deserves as a guardian of the state.

Those affected by court decisions must have the right to know how decisions are made, allowing individuals to comprehend the reasons in situations impacting their rights according to the petition, is part of their right to dignity and an inherent component of their right to be heard under Article 21 of our Constitution.

The petition also mentioned environmental courts, triple talaq, air pollution, a prohibition on liquor to avoid deaths on national highways, an embargo on firecrackers to prevent air and noise pollution, and extra-judicial killings, all of which affect the public who do not get to see how the court makes decisions.

Judicial findings

Thereafter on August 26, 2018, a bench led by then CJI Dipak Misra, with Justices A.M. Khanwilkara and D.Y. Chandrachud, delivered the landmark judgement in Swapnil Tripathi v. The Supreme Court of India which later became the basis for many High courts and the supreme court to start live-streaming of cases.

The Court set out the importance of the rights implicated in this case, and the need to balance the rights to access justice with the privacy of the litigating parties and the dignity of the courts.

It referred to the case of Naresh Shridhar Mirajkar v. State of Maharashtra which had ruled that the right to free expression guaranteed by Article 19 should be interpreted to allow journalists to continue their work by attending Court proceedings.

The Court explained that the Mirajkar decision (supra) held that journalists’ rights to freedom of expression under subsection (a), read with subsection (d), and subsection (g), meant that they had a right to publish a faithful report of the proceedings which they had witnessed and heard in Court as journalists.

Respectively, the Court determined that it may be appropriate to have a proper and balanced regulatory framework in place before the concept of live streaming is implemented. Although the Constitution provided no clear guarantee for an “Open Court hearing”, Article 145(4) states all judgements are to be rendered in open court, and sections 327 of the Code of Criminal Procedure, 1973 and section 153-B of the Code of Civil Procedure, 1908 required courts to be open.

The Court also acknowledged that the National Mission of Justice Delivery and Legal Reforms Advisory Council proposed introducing audio-video recordings proceedings on an experimental basis in 2014, but that a final decision was deferred until the Supreme and High Court judges could be consulted.

The Court recognised the necessity of involving judges in any decisions about the use of live streaming in court hearings to guarantee that the dignity and majesty of the Court are preserved, while also addressing concerns of privacy and secrecy and avoiding unrest.

The concurring judgement underlined the principle of transparent justice and described its applicability in current judicial systems. According to the judgement, the idea of an open court is a crucial procedural component of the wider concept of open justice.

The Judge in the case of Attorney General v. Leveller Magazine Ltd. and Others in the United Kingdom House of Lords commented on the role open courts play in fostering public trust in the administration of justice, noting how this helps to protect the “rule of law and the stability of the social fabric.

The decision also cited the Indian case of Olga Tellis v. Bombay Municipal Corporation, which reiterated the value of a hearing by emphasising the notion that justice must also be seen to be done and so demonstrated that the means of justice are as important as the aims.

It also cited the cases of Life Insurance Corporation of India v. Prof. Manubhai D. Shah and Mohd. Shahabuddin v. The State of Bihar to emphasise the importance of open courtrooms in facilitating information distribution and informing the public about the judicial process.

Live-streaming of cases in the High Court

Following the abovementioned landmark decision of allowing online streaming of court proceedings, various High Courts adopted live-streaming of court proceedings in the backdrop of the Covid-19 Pandemic, which was followed by a nationwide lockdown.

The High Court of Gujarat was the first to launch live streaming of court proceedings in July 2021, The Karnataka High Court was the second, followed by the Madhya Pradesh High Court and other High Courts such as Orissa, Patna and Jharkhand.

In April 2020, the Bombay High Court also experimented with live-streaming of proceedings where Justice G.S. Patel heard nine listed cases and one urgent matter during the public video-conferencing held via the Zoom application.

Global paradigms

The decision to live-streaming in India is based on various models of other countries which acted as useful precedents.  The following points hereinbelow enlist the same.

1. Australia began posting audio-visual recordings of all High Court (their Supreme Court) proceedings on its website, although there’re no rules for its lower courts.
2. The Canadian Supreme Court proceedings have been broadcast on a dedicated television channel and streamed on court websites, and lower courts make broadcast decisions on a case-by-case basis, since 1994.
3. The United Kingdom abolished the criminalization of recording court proceedings and permitted the broadcast and live streaming of Supreme Court hearings in 2005.
4. The European Court of Human Rights broadcasts its proceedings on its website and the International Criminal Tribunal for Yugoslavia maintains a YouTube channel and social media profiles containing various videos from its sessions.
5. Germany has allowed for the broadcast of proceedings; it is subject to stringent legal restrictions.
6. Ireland allows for the broadcast of proceedings on a case-by-case basis, but it is rarely used.
7. In Brazil, the judiciary operates a television and radio station that broadcasts Supreme Court and Superior Court of Justice hearings. There is also a YouTube channel where the Supreme Court hearings are streamed.
8. In South Africa, the right to free expression was invoked to allow for the broadcast of criminal matters, and the Supreme Court of Appeal established guidelines for courts to consider when deciding whether to allow the broadcast of specific cases.
9. Since 1955, the United States Supreme Court has allowed oral recordings of its hearings but not video broadcasting, and lower courts allow broadcasting subject to guidelines.

Hence, these models helped formulate a system to implement the decision of Tripathi (supra) in Indian Courts.

Conclusion

Without a doubt, live streaming of Court proceedings has the potential to provide the public with the opportunity to witness live court proceedings that they would otherwise be unable to do due to logistical issues and infrastructural constraints of Courts; it would also provide them with a more direct sense of what has transpired.

Thus, technology solutions can assist the realisation of the right to justice granted to everybody, particularly litigants, by allowing virtual admissions into Court premises and, more specifically, Courtrooms.

All of the people agree that live streaming of Supreme Court sessions, at least in instances of Constitutional and national importance, with an influence on the general public or a significant number of people in India, maybe a good start, as indicated by the Bar.

This article has been authored by Dhruv Vaishya, a student at Jitendra Chauhan College of Law affiliated with Mumbai University.