Dr. Syed Mohammad Yawar
“Few people have direct experience of court proceedings, and overall public understanding of the criminal justice system is limited. Most court sittings take place when many people are at work. Many people, therefore, currently base their views on how the system is portrayed on television, or in films. These dramatized accounts rarely portray what happens in court accurately. With the range of technology now available, it should be easier for people to access better information on court proceedings.” The Ministry of Justice in the UK,
Justice is the backbone of society. Without justice, society cannot survive. But the appearance of Justice is also necessary to the same extent. The society should not only get justice but must know that justice is done to the wrongdoers and the victims. Theorists like Rawls believe that Justice is necessary for fairness in the community. If justice is not achieved there would not be fairness in the society. Likewise, philosophers like Kant believed that the whole of the Moral structure of the society would collapse if the justice is not served.
Various organs of every civilized State work for the enhancement of justice. Courts and judiciaries work for justice. Legislatures legislate for justice. Executive enforces the laws for the sake of Justice. The appearance of justice is the expression of justice. The expression of justice comes from the advertisement and publication of the justice serving machinery. That machinery is primarily Judiciary in most of the modern States. Various modern Nations use modern techniques for the publication of Court Proceedings. Previously the only publication of the Court proceeding was in the form of print media publications of the Court Proceedings. Generally, in the earlier times, the news of the next day used to publish what has happened in the Court.
With the advent of the modern day technology, Countries like the United States opted for the live telecast of the Court proceedings. Now a day’s most of the developed nations and other countries which have resources have already started the live streaming of the Court proceedings. The Supreme Court in the case of Swapnil Tripathi v Supreme Court of India quoted Jeremy Bentham who was himself an advocate of the Publication of the laws as saying,
“In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has a place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity”
Justice as doorstep is the ultimate aim of the Judiciary of this Country. Justice should be served at the doorstep and should also be known by the society at large to be served as so. The demand for enforcement the Article 21 is more than the basic justice but with the modern trends, the publication of justice is also the demand of Article 21.
Nobody in India can plead ignorance of the law, that he was not aware of the law. Therefore the State also has the duty to make sure that every law is in the public domain. When on one hand one cannot plead ignorance of the law, then on the other hand it is the corresponding duty upon the State to bring the law to public notice and in public domain. The day to day proceedings of the Courts is the part of the law (Specially the judgments of Supreme Court of India). Right to Information is a part of the Fundamental Rights of people. The Supreme Court has observed that the right to information covers the right to know the Court proceedings as well. It is considered to be a part of the dignity of an individual in the Dworkinian sense.
In the cases where a majority of population is involved with the subject matter, live streaming of the Court proceedings can help them to know the status of the case as well to give them the liberty and convenience of ‘not required to leave their jobs’, etc. in order to know the case status. It will also help the lower courts and authorities in finding the daily directives of the Supreme Court. Quoting Article 145(4) and Section 327 Code of Criminal Procedure, the Court was not in any doubt that the open proceedings are the need for justice. Supreme Court in the case of Naresh ShridharMirajkar and Ors. Vs. State of Maharashtra and Ors. held that although the open Court should be a norm but this norm should be applied cautiously. The court believed that the technological advancements of the day should be utilized for the purposes of live streaming etc. The Court said, “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.”
The apex Court of Australia since 2013 allowed the live streaming of the proceedings. The Brazilian Supreme Court also allows the live video and audio broadcast of the proceedings. But in Brazil, it was telecasted through a special TV channel named ‘TV Justica 18’ and a dedicated Radio Channel. Internet and You tube are also used for the like purposes in Brazil. In Canada, the Supreme Court’s proceeding is streamed since 1994. It is aired through Cable Parliamentary Affairs Channel (CPAC) 21. Even the lower court proceedings’ broadcast is available through TV and the internet. By the 2010 regulations issued by the Supreme Court of China, live streaming is also available to the public through TV Channel. In England, since 2005 media broadcast is allowed although it was an offence before that. Germany also allows the live streaming of the Supreme and Federal Courts proceedings. The ICC allows for live streaming of its proceedings with a 30-minute delay to allow for any necessary redactions of confidential information. The proceedings of International Criminal Tribunal for the former Yugoslavia (ICTY) are available for viewing on the website of the ICTY51. Ireland (Republic) has no statutory provisions which prohibit photography or sound, television or video recordings in courts, broadcast of court proceedings, whether photography or audio-video recording, without permission, is restricted as a practice. Israeli Supreme Court has also approved of live-broadcasting court proceedings.
In its landmark judgment of The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others, the Supreme Court of South Africa allowed for broadcast of proceedings in criminal trials, holding that courts should not restrict the nature and scope of broadcast of court proceedings unless prejudice was demonstrable and there was a risk that such prejudice would occur.
The Supreme Court of the United States of America does not allow the live streaming and has turned down the repeated requests for the same although it has allowed the audio recordings of the proceedings. Certain Federal Appellate Courts allow for broadcast of court proceedings subject to guidelines laid down in that regard.
The Hon’ble Supreme Court of India in the case of Swapnil Tripathi vs Supreme Court of India held that “Courts in India are ordinarily open to all members of public, who are interested in witnessing the court proceedings. However, due to logistical issues and infrastructural restrictions in courts, they may be denied the opportunity to witness live Court proceedings in propria persona. To consummate their aspirations, the use of technology to relay or publicize the live court proceedings can be a way forward. By providing “virtual” access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants. Open justice, after all, can be more than just physical access to the courtroom rather it is doable even “virtually” in the form of live streaming of court proceedings and has the same effect. 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 for Constitutional rights, sincere efforts must be made to harmonize such conflict in order to give maximum expression to each right while minimizing the encroachment on the other rights.”
The Court laid the procedural guidelines in these words, “It may be desirable to keep in mind other measures to be taken for efficient management of the entire project such as:
- 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.
- Specialist video operator(s) should 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.
- The focus of the cameras in the courtroom will be directed only towards two sets of people:
- 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;
- 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.
- There shall be no broadcast of any interaction between the advocate and the client even during arguments.”
Thereby the Court ordered that the live streaming of the judgments would be done through the internet in phases. The Court speaking through Chief Justice Dipak Mishra said, “In conclusion, we hold that the cause brought before this Court by the protagonists in the larger public interest, deserves acceptance so as to uphold the constitutional rights of public and the litigants, in particular. In recognizing that court proceedings ought to be live streamed, this Court is mindful of and has strived to balance the various interests regarding the administration of justice, including open justice, dignity and privacy of the participants to the proceedings and the majesty and decorum of the Courts.”
In a vast country like India which has the world’s second highest population, one judgment of the Supreme Court affects millions of people. It is, therefore, the need of the hour that the proceedings of such kind of cases which may affect the interest of the general masses should be made available for the people to watch and hear. A person would be able to have the first hand knowledge of the proceedings of the court sitting in any corner of the length and breadth of India what proceeding is going on in the Court. While we see most of the democratic republican countries have allowed it there was very little reason to not to allow the live streaming. If we see and analyze the situation of the Countries which allowed it we find that the live streaming resulted in a thing of positive constructive and academic use. Therefore allowing the live streaming of the Court is a mile stone in the era of Judicial Activism in India.
 Assistant Professor, Faculty of law, JamiaMilliaIslamia (A Central University).
 Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639.
 Cassel & Co v. Broome (2018) 10 SCC 639.
 Naresh ShridharMirajkar and Ors. v. State of Maharashtra and Ors (1966) 3 SCR 744.
 Supra note 3.
 The NDPP v Media 24 Limited & others (2017) ZASCA 97.
 Supra note 3
 Supra note 3
 Supra note 3