"Can media report what does not come on record?:" Madhya Pradesh High Court asks, issues notice in plea to allow live reporting of proceedings

The Madhya Pradesh High Court on Monday admitted a plea moved by four journalists seeking that the media be allowed to live report on court proceedings. .A Division Bench of Justices Sheel Nagu and GS Ahluwalia has issued notice in the petition moved challenging restrictions imposed on access to virtual court proceedings to persons other than lawyers under the High Court of Madhya Pradesh Video Conferencing and Audio- Visual Electronic Linkage Rules, 2020..However, the Bench also queried why oral observations that do not ultimately form part of the Court's order should be reported. .“How can the media report what does not come on record?” the Bench asked, while hearing arguments concerning the media's rights to report on court proceedings. ."Whether the journalists can claim a fundamental right to report whatever goes on even as part of informal discussions between the Bench and the Counsel or whether it must be confined and restricted only to the Judgments and the Orders? Won’t it amount to asking for too much by claiming a right to know and report whatever constitutes part of oral observations and discussions from the Bench. Whether a ‘dialogue per se’ can constitute ‘Court Proceedings’ to be claimed as a right to be reported? It's like a ‘manufacturing process, where the final product is the judgment. You can't claim a right to know about the manufacturing process itself which may be required to keep it confidential", Justice Nagu observed further. .The Judge pointed out that the main outcome of the proceedings (the order or judgment) is in public view. As such, he questioned whether it is required to record the entire judicial proceeding.."Which does not come on record, how can the media report it? You can say this is a manufacturing process and the final outcome is in public view or not? Does the manufacturing process matter?" he asked..All the same, the High Court admitted the matter, observing that the petitioners had an arguable point. The case was posted the matter for further hearing on June 9. .Justice Sheel Nagu added,"So far as the court being open for public view is considered, they should be open, it should be held in public view, unless that person creates nuisance", he said..Appearing for the petitioners, Senior Advocate, Nidhesh Gupta submitted that the Madhya Pradesh High Court Video Conferencing Rules appears contrary to the rules being followed by the rest of the country in requiring a specific Court order for a third party to have access to a Video Conferencing hearing.."Not in a single High Court such rule is there which prohibits media access to court proceedings ... The impugned rules specifically Rule 16 turns the concept of ‘Open Courts’ it on its head upside down; it makes ‘seeking permission for Court access’ a rule and ‘unrestricted access’ an exception. The other High Courts of the country do not have such retrogressive rule, which compromises with the fundamental principle of ‘Open Courts’ and ‘Transparent Justice'", Senior Advocate Gupta argued..The Bench, in turn, questioned the extent to which to which the media can report, given that “oral observations have no sanctity and they are not part of the official order.”.To this, Senior Advocate Gupta responded that even the Supreme Court has allowed the live reporting of cases. He argued that oral remarks and exchanges within the courtroom are part of judicial proceedings..It was submitted that the media has the right under Article 19 of the Constitution of India (freedom of speech and expression) to report the conversations that take place between a Judge and a Lawyer in the courtroom. .In particular, reliance was placed on the recent Supreme Court ruling in The Chief Election Commissioner of India v. MR Vijayabhaskar & Ors, whereby the top Court had rejected a plea moved by the Election Commission of India (ECI) to bar the reportage of oral exchanges in the courtroom following wide reportage of critical comments made orally in the Madras High Court against the ECI..[BREAKING] "Don't want to demoralise High Courts, media should be allowed to report oral observations:" Supreme Court to Election Commission.He also referred extensively to the case of Swapnil Tripathi & Ors. v. Supreme Court of India & Ors., whereby the Court had expressed agreement with pleas to livestream Court proceedings in the larger public interest..Justice Ahluwalia, however, observed that if Senior Advocate Gupta's arguments are accepted, then everything would be thrown to the public. ."Suppose a Judge orally expresses his mind that a case is within his jurisdiction, but later on, decides it to be without jurisdiction and dismisses a petition. In such a case, won’t public confidence be affected owing to the contradiction between what he said and the order he passed, especially in context of Section 362, CrPC. This all would lead to serious complications in the Court Proceedings with the public doubting the judicial process, which is not generally aware of exactly how the courts are conducted. Rule 16 protects the confidentiality of Court Proceedings and freedom must be confined to finally passed orders and judgments and not everything discussed orally within the Court", he explained.."The difficulties are many, if your argument is accepted", Justice Ahluwalia told Senior Advocate Gupta. .Gupta responded by submitting that transparency and openness has its own price."If once the proceedings go live or are reported, then automatically every person participating in the proceedings is scrupulous about his or her conduct in the Court and just because of a few difficulties, we can’t say that the Rule becomes justified. After all we are testing the Rules on the principles of Fundamental Rights under Articles 19(1)(a), and the right of the citizens to know, which is also a facet adequately discussed and elaborately laid down in both the judgments of Tripathi and Election Commission. The reasonability of the restriction has to be tested on the basis of its own wordings and the width of its limit", he argued further. .The Court eventually to issued notice and posted the matter for further hearing on June 9."Let’s hear the other side of what they have to offer in the defense of Rule 16. Any question of interim can arise only after hearing the other side, since the validity of the Rule is concerned", the Court said. .The petition before the High Court was filed by journalists, Nupur Thapliyal and Sparsh Upadhyay (Live Law Media Pvt. Ltd.), Areeb Uddin Ahmed (Bar & Bench) and Rahul Dubey (Dainik Bhaskar Prakashan Ltd.). The petition was filed through Advocate Manu Maheshwari..The following rules of the High Court of Madhya Pradesh Video Conferencing and Audio- Visual Electronic Linkage Rules, 2020 have been challenged: 1. Rule 2(xv), defining Required Person’ to include witnesses, advocates, other persons in whose presence the court proceeding is required to be conducted or who are permitted by the Court to attend the proceedings. 2. Rule 3(vi), which states, "Unless expressly permitted, no person or entity ... shall be permitted to record visual electronic linkage. In case of violation it will be punishable in accordance with law.” 3. Rule 16 which provides that third parties would be allowed to attend the court proceedings only upon a specific order being issued by the Court. .The petitioners have contended that, effectively, these rules bar the entry of litigants, third parties and strangers (including journalists) into the virtual Courtroom, without the express permission of the Court. .As interim relief, the petitioners had also urged the Court to allow the live streaming of all the matters relating to COVID-19 for the viewership of the general public..Media entitled to report on cases of public importance: Journalists move Madhya Pradesh High Court for live-streaming, permission to attend Court