Courting Controversy: Justice, now streaming

"Justice should not only be done, but should manifestly and undoubtedly be seen to be done."

Lord Hewart's century-old maxim demanded that justice be perceptibly fair. If the idea of visibility and public perception is constitutive of justice, the maxim raises a harder question than it answers: what, exactly, is meant to be seen? If justice is to be seen, must contempt be seen too? Should the public necessarily witness courtroom disruption, the litigant escorted out, and if so, in what form and for how long does that visibility serve justice rather than distract from it? 

The authority of courts stems not from force, but from public confidence in orderly argument, procedure and impartial adjudication. When these pillars are disturbed, the damage rarely stays confined to the courtroom; it travels unpredictably into public consciousness.

Quite a few incidents in recent years have disturbed court decorum with litigants raising their voice at the bench, using intemperate language, or turning courtroom proceedings into moments of confrontation rather than argument. Each such episode chips away at the orderly conduct of proceedings. A recent incident before the Supreme Court, where a litigant resorted to unparliamentary language and engaged in disruptive conduct of throwing papers, illustrates this concern starkly. Notably, in the recent incident, the Supreme Court did not invoke its power to issue contempt under the Contempt of Courts Act, 1971. Once the individual was escorted out, the Court simply dismissed the petition for lack of merit. While issuing contempt remains a matter of judicial discretion, this incident exposes a second, more urgent concern - one that has everything to do with what happened next. 

Within hours, clipped videos of the disruption circulated widely across television and social media, stripped of context and packaged for maximum engagement. A moment of courtroom misconduct became viral content and in doing so, it created a template. If a few seconds of disorder can generate millions of views, publicity-seeking litigants can weaponise live-streaming of proceedings, treating the bench as a stage rather than a forum for adjudication.

The Supreme Court had anticipated this danger over a decade ago. In S Khushboo v. Kanniammal, the Court had cautioned news channels and media against publishing information for unnecessary publicity, remarking,

“…electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel…”

Those observations are more relevant today than when they were written.  In the age of short-form videos, selective clips and sensational headlines, isolated moments of misconduct can eclipse the substantive work of courts. 

The Supreme Court itself has now moved to address this directly. In Harshita Grover v. Union of India, the Court passed an interim order stating that there shall be “no posting, reposting, extraction, modification, dissemination, monetisation, recording or review of the live-streamed proceedings” of the Court on digital platforms without the prior permission of the Registrar and the Secretary General of the Supreme Court or the Registrar General of the concerned High Court.  Significantly, the order does not curb live-streaming or fair news reporting because it targets the specific harm of de-contextualised extraction and monetisation.

One may pause here to ask why such additional measures are required when the Court possesses the power to punish for such disorderly conduct. The answer lies in what contempt can and cannot effectively reach. While action in contempt punishes the person who caused the disruption and may well be able to hold the initial disseminator liable, there is little effective remedy available to the Court if the clip gains traction and gets reposted millions of times. It is practically not possible for the Court to take action each time a clip gets reposted. 

The disruption and its circulation are, in effect, two separate harms occurring on two separate timelines and punishing the former does not touch the latter. Circulation is cumulative; it is not one act but a continuous, self-replicating process. Moreover, holding anyone accountable for viral circulation is difficult with the perpetrator behind a reposted clip lost somewhere between the original poster, the accounts that re-shared it and the algorithms that amplified such posting. This is why there is a shift in focus from whether to punish the disruptive litigant to how to regulate the circulation of what was filmed.

A practical response to the issue of viral circulation would need to work on several fronts. The first is a platform-level compliance and extending obligations for regulation of such clips to social media intermediaries, since enforcement will depend on takedown mechanisms as much as courtroom directives. The second could be a calibrated, not blanket, restriction  withholding or delaying the live feed of a disrupted segment briefly, or holding in camera proceedings of deliberate disruption. 

Being watched is not the same as being seen to act justly; a disruption broadcast to millions may satisfy the letter of Hewart's maxim while defeating its spirit. Responsible media reporting, coupled with procedural safeguards on the dissemination of live proceedings, can insulate the judicial process from becoming a subject of public entertainment and sustain the truer, figurative sense in which justice must be seen to be done.

Nakul Dewan is a Senior Advocate and King’s Counsel.