[The Viewpoint] Live Streaming of Court Proceedings: A Substantial Step Forward

“It is well settled that, in general, all cases brought before the courts, whether civil, criminal, or others, must be heard in open court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. 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. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the courtroom. As Bentham has observed in Scott v. Scott, 1913 AC 417 that, in the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has 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 the 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.”

On 20^th September 2022, the Full Court of the Supreme Court of India decided to live stream the proceedings of the Constitution Benches. Thereafter, on 27^th September 2022, three Constitution Benches in Courtroom Numbers 1, 2 and 3 of the Supreme Court sat simultaneously and their proceedings were live streamed through Supreme Court’s webcast as well as through YouTube. It was truly a historic day as the statistics showed that more than 8 lakh viewers watched the proceedings of the Constitution Benches. This is a significant step taken by the Apex Court which will make the judicial process more accessible and transparent in the country.

It will be apposite to enunciate that four years ago, on 26 September 2018, the Supreme Court of India in Swapnil Tripathi v. Supreme Court of India allowed the Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people to be live streamed in a manner that is easily accessible for public viewing.

Open courts are not new to the legal system of the country. As per the Constitution of India, no judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 of the Constitution of India save in accordance with an opinion also delivered in open Court. Open court hearings find a mention in Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC) which read as under:

“327. Court to be open. — (1) The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.

(2) Notwithstanding anything contained in sub-section (1), the inquiry into the trial of rape or an offence under Section 376, Section 376-A, Section 376-B, Section 376-C, Section 376-D or Section 376-E of the Penal Code, 1860 shall be conducted in camera:

Provided that the Presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court:

Provided further that in-camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court:

Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”

“153-B. Place of trial to be deemed to be open court. —The place in which any civil court is held for the purpose of trying any suit shall be deemed to be an open court, to which the public generally may have access so far as the same can conveniently contain them:

Provided that the Presiding Judge may, if he thinks fit, order at any state of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.”

In Swapnil Tripathi, the Supreme Court lucidly opined that live streaming of court proceedings is feasible due to the advent of technology and has been adopted in other jurisdictions across the world. The Apex Court, while enunciating the benefits of technology, observed that technology can epitomise transparency, good governance and accountability, and more importantly, open the vista of the courtrooms, transcending the four walls of the rooms to accommodate a large number of viewers to witness the live court proceedings. Public confidence in the judiciary is essential for preserving the rule of law in the country and that can be easily achieved by open court hearings when the public is able to observe the proceedings of the courtroom which will ultimately lead to an organized and transparent judicial process.

There may be times where the administration of justice itself may make it necessary for the courts to hold in-camera trials, therefore, as per the Model Rules for Live Streaming and Recording of Court Proceeding, the following matters have to be excluded from live streaming and these are: matrimonial matters, child adoption and child custody including transfer petitions arising thereunder; cases concerning sexual offences, including proceedings instituted under Section 376, Indian Penal Code, 1860; cases concerning gender-based violence against women; matters registered under or involving the Protection of Children from Sexual Offences Act, 2012 and under the Juvenile Justice (Care and Protection of Children) Act, 2015; matters registered under or involving the Medical Termination of Pregnancy Act, 1971; in-camera proceedings as defined under Section 327 of the Code of Criminal Procedure, 1973 or Section 153 B of the Code of Civil Procedure, 1908; matters where the bench is of the view, for reasons to be recorded in writing that publication would be antithetical to the administration of justice; cases, which in the opinion of the bench, may provoke enmity amongst communities likely to result in a breach of law and order; recording of evidence, including cross-examination; privileged communications between the parties and their advocates; cases where a claim of privilege is accepted by the court; non-public discussions between advocates; and any other matter in which a specific direction is issued by the bench.

It is pertinent to state that the live streaming of court proceedings has also been started in High Courts of Gujarat, Orissa, Karnataka, Jharkhand, Patna and Madhya Pradesh which is a step in the right direction. With the Hon’ble Supreme Court of India rising to the occasion by live streaming the proceedings of the Constitution Benches, time is ripe to start live streaming of the proceedings of other Benches as well by excluding the matters not to be live streamed, as discussed above. The High Courts and District Courts all over the country which have not started live streaming of proceedings as yet should do so as soon as possible so that the object of live streaming is achieved to the fullest, i.e., dissemination of knowledge about the proceedings and grant of access to justice to the litigants. It would be apt to build an infrastructure in Courts which is appropriate for live streaming so that the public can view the court proceedings without any constraints. The High Courts should determine the modalities of live streaming of cases at the earliest so that live streaming becomes a reality in every part of the country. Live streaming of court proceedings will surely strengthen the right of access to justice flowing from Article 21 of the Constitution of India and it will result in the judicial process being more accessible, organized and transparent. The Supreme Court and various High Courts of the country have taken a substantial step which will undoubtedly maintain public’s confidence in our judicial process in the words of Justice J.C. Shah:

“Hearing in open court of causes is of the utmost importance for maintaining confidence of the public in the impartial administration of justice: it operates as a wholesome check upon judicial behaviour as well as upon the conduct of the contending parties and their witnesses…”

Muneeb Rashid Malik is an Associate at Luthra and Luthra Law Offices India.