The entry of cameras into our courts has transformed the courtroom experience for members of the Bar and the Bench, as also for litigants and members of the general public.
In Swapnil Tripathi v. Supreme Court of India, the Supreme Court mooted live-streaming as a pilot project in constitutional cases of public importance. The pandemic compelled virtual access as a matter of sheer necessity and without that facility, the court system would have come to a grinding halt. Virtual courts have now come to stay. The challenge before us today is to harness and optimise its benefits without falling prey to its pitfalls.
Virtual access and live-streaming are regarded as an extension of the open justice principle which is based on the fundamental premise that justice must not only be done, but ‘seen’ to be done. Publicity serves an important ‘sunshine’ function and is regarded as a deterrent against misconduct by both members of the Bar and the Bench. Open access is a facilitator of accountability to the public for whom the system exists. It is intended to keep everyone on their toes and when that happens, it is believed that there will be less tolerance for inefficiency, incompetence or misdemeanour.
There is a vital societal purpose to be served through open justice. It is imperative that people have a better understanding and appreciation of the manner in which the justice system works. Only when they have an appreciation of the workings of the adjudicatory process can public confidence be achieved. Public confidence is, after all, the pillar on which the Rule of Law rests. If people do not have faith in the system, the casualty is the Rule of Law. Open justice enhances the right to a fair trial, a facet of the fundamental right to life and liberty under Article 21. It also facilitates the right to information about justice delivery, a facet of the fundamental right under Article 19(1)(a).
During the pandemic, remote hearings were a saviour not only for litigants but also their lawyers’ right to practise their profession under Article 19(1)(e). Many lawyers who found themselves on the other side of the digital divide suffered enormously in not being able to keep pace with changed times and, in the process, losing out on livelihood.
In India’s crowded courtrooms, where lawyers and litigants jostle for space, technology is, in many ways, a godsend. Virtual access saves litigants and their lawyers from different parts of the country, expensive trips to the Supreme Court in the capital city and long waits in an alien and often inhospitable environment for their cases to reach. Litigants now watch their counsel in action and make a first-hand assessment of their performance. Indeed, virtual access has changed the rules of the game, making the court system hitherto regarded as remote and unapproachable as one that is easier to access and comprehend. To witness a ‘live’ exchange of arguments by counsel before ‘live’ judges, one only otherwise reads about, lends a whole new dimension to the system - a new-found intimacy, understanding and accountability.
In times when proceedings were conducted within the relative privacy of the courtroom and free from the glare of the camera, judicial misconduct or, for that matter, misconduct by members of the Bar, may have gone unnoticed. Today, that is much harder to escape. In a variety of cases, course correction was compelled by the publicity that proceedings in court received outside the courtroom.
The pedagogical value of live-streaming and digital reach is also significant. Legal education can be overly textual without adequate access to practical experience. Live-streaming enables students and young practitioners to observe and learn from real-time advocacy, procedural nuance and the dialectic exchange between the Bar and the Bench. It is also a great convenience to reporters, journalists, researchers and academics, saving them trips to courts across the country.
All that said, the enormous advantages of virtual access are contingent on the process itself not turning into a victim of visibility. The immediate challenge is straddling the tightrope between the need for openness and transparency on the one hand and the necessity for restraint, context and nuance on the other. Selective amplified visibility occasioned by virtual access is impacting the very conditions under which justice is administered.
Open justice was historically premised on enabling access to those who choose to enter the courtroom to engage with proceedings in their full and complete context. It was not intended to transform judicial proceedings into material for widespread consumption detached from context. The contemporary digital environment, however, allows judicial proceedings to be recorded, fragmented or spliced and circulated far beyond the original setting. This marks a shift not only in how proceedings are accessed, but also in how they are used.
Selective extracts fragment the understanding of the case and can have the effect of trivialising the setting, diluting its gravity and reducing the proceedings to a spectacle. The digital environment and social media on which these clips go viral thrive on immediacy and attention. Only what grabs attention and eyeballs is likely to go viral on social media. Thus, the public is fed short and catchy clips that are intended to entertain or satiate an appetite for sensationalism rather than serve any didactic purpose.
The importance of a complete context was emphasised by Justice Antonin Scalia of the US Supreme Court in an interview with C-SPAN many years ago:
"I am against it because I do not believe, as the proponents of television in the Court assert, that the purpose of televising our hearings would be [to] educate the American people. That's not what it would end up doing…If the American people sat down and watched our proceedings gavel-to-gavel…If the American people saw all of that they would be educated. But they wouldn't see all of that…what most of the American people would see would be 30 second, 15 second takeouts from our argument and those takeouts would not be characteristic of what we do. They would be uncharacteristic...
...But somehow when you see it live, an excerpt pulled out…when you see it live, it has a much greater impact. No, I am sure it will miseducate the American people, not educate."
While the traditional ‘privacy’ of a courtroom was by no means a license for any form of misconduct, the new exposure has brought into the picture a newfound anxiety or self-consciousness that can manifest itself in a myriad ways - indiscretion, playing to a gallery beyond the courtroom, or, in some cases, over-guardedness. None of these is conducive to healthy justice delivery.
Live-streaming is transforming the nature of advocacy. Arguments are increasingly performative. There is now the pressure of a client discreetly watching through the live feed. That awareness can manifest itself in the need for arguing counsel to be noticed and heard, even when not required. It adds to needless sound and fury in court. Noisy and interruptive advocacy is not the atmosphere in which adjudication should take place. The pressure to make one’s presence felt is impacting not only the quality of advocacy, but also the nature of assistance that is being made available to the Bench. The casualty in the process is justice delivery. Sometimes, uncivil and ugly exchanges between members of the Bar make the grade for attaining traction on social media. Shouting and outshouting the opponent is beginning to resemble a television debate on prime time. This is the very last thing that students or younger members of the Bar should emulate. But this is what makes news.
The circulation of video clips by advocates has emerged as a new method of professional self-projection. Although the Bar Council of India Rules prohibit self-promotion, live-streaming has created opportunities for direct or indirect advertising through curated visibility. There are now dedicated channels which monetise the circulation of spliced video clips. This is at odds with the framework envisaged in Swapnil Tripathi, which recognised that copyright over recorded and broadcast material vests with the Court.
The courts are meant to function as counter majoritarian institutions, insulated from popular pressures in order to uphold constitutional values. Live-streaming can complicate this model by exposing proceedings to real-time public interpretation and minute-to-minute media amplification. A relentless real-time public scrutiny coupled with the judicial urge to respond to public opprobrium is a recipe that can impact the independence of the institution. In Sunil Shantisarup Gupta v. Department of Legal Affairs, the Bombay High Court recognised that in practice, independence of the judiciary means far more than independence from executive pressures:
"…This independence is not only from executive interference. It also means, at a deeply personal level, that a judge must be unafraid to judge, and must be sequestered to the extent possible from external influences. Far worse than a lazy judge is a timid or intimidated judge; the former can at least once in a while be goaded into making a determination. Possible public pressure by daily coverage of court proceedings, followed by commentaries… only add to the burden of all judges…"
As a matter of interest, only a couple of years before the judgment in Swapnil Tripathi, the Bombay High Court turned down a plea for live-streaming in the judgment quoted above, with sharp but pressing prescient observations:
"…Courts are open to those who trouble themselves to come to them, and who care to conduct themselves with the decorum and solemnity required of judicial proceedings. It is one thing to afford everyone a right to come to Court. It is quite another to take that Court into everyone's living room. The Constitutional right to freedom of speech and expression, and the freedom of press do not demand the admission of television crews into a courtroom. Those Constitutional guarantees are sufficiently satisfied as long as courts are freely open to all. The Petitions make a fundamental error about the judicial process. This is a solemn, serious business, one that requires care, caution and thought. It is most emphatically not entertainment and nothing ought to be done that would even minimally risk turning a court into a circus."
These words ring so true today. The system needs a fix sooner than later. It is unrealistic to hark back to a system without virtual access. The advantages are too many. The challenge lies not in rolling back technology but in returning to first principles. Open justice was never intended to transform judicial proceedings into consumable content. Its purpose was to promote public confidence through informed engagement with the adjudicatory process. Swapnil Tripathi itself recognised that open justice extends not merely to access to proceedings but also to the promotion of “full, fair and accurate reporting of court proceedings”. The concern today is therefore not openness, but openness divorced from context.
Perhaps the answer lies not in redesigning the framework altogether, but in returning to these foundational values of accuracy and context. Technology may have altered the medium, but it need not alter the values.
Madhavi Goradia Divan is a Senior Advocate and the author of 'Facets of Media Law'.
The author acknowledges the contributions made by Advocate Aandrita Deb.