LIVE STREAMING OF COURT PROCEEDINGS: A WAY TO OPEN JUSTICE

Jeremy Bentham, a veteran jurist perfectly quoted the importance of transparency in public institutions in the following words:

“The doors of all public establishments ought to be, thrown wide open to the body of the curious at large-the great open committee of the tribunal of the world”.

INTRODUCTION

The outbreak of the COVID-19 pandemic comes with huge number of challenges especially for a country like India, where there are great difficulties in access to knowledge, technology, and resources. There are concerns that the accessibility of justice may be impeded by online Courts, as the Court incorporates video conferencing technology in legal proceedings. In this shift towards the digital world, the live broadcasting of the Court proceedings has been brought to light. On 17 July, 2021 after the release of the draft Model Rules on Live Streaming and Recording of Court Proceedings, by the E-Committee of the Supreme Court and so the Gujarat High Court became the first High Court of India to release “The Gujarat High Court (Live Streaming of Court Proceedings) Rules, 2021” for itself and to formally start live-streaming of its proceedings.

The live streaming of Court hearings drew a lot of attention in the Indian judicial hall during the landmark judgment of Swapnil Tripathi v. Supreme Court of India, but later lost the attention of the Courts’ authorities. In the above mentioned case, the Supreme Court reiterated the significance of open court, which can be better accomplished via the implementation of live streaming technology. Justice is the ultimate goal of judicial proceedings; it belongs to everyone and is universal – therefore, it must be accessible to everyone.

Within this frame of reference, this article will deal with the interconnectivity between live streaming of Court hearings and the right to open justice, its feasibility, and challenges in live streaming of Court proceedings.

RIGHT TO OPEN JUSTICE

The idea of open justice has long been a tenet of common law systems. It is considered a sound and highly precious component of the country’s Constitution and the administration of justice in a liberal democracy. Apart from being a strong embodiment of the idea of freedom of expression, it achieves the concept of democratic accountability. It portrays the judge’s fairness and impartiality, as well as counsels’ dexterity, to the public in general and litigants in particular. In the words of the renowned judge, Justice D.Y Chandrachud, “access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first-hand”.

The Constitution’s Article 145(4) explicitly states that all judgments and evidence must be delivered in open court. Although the Supreme Court is not mandated by the Constitution to perform “open Court hearings,” this may be traced back to laws such as Section 327 of the Code of Criminal Procedure, 1973, and Section 153-B of the Code of Civil Procedure, 1908. It was well-pronounced that publicity is the very essence of justice since it regulates judicial behaviour and the conduct of contending counsels and litigants while dealing with cases. Thus, the principle of open Court enables public access to Court proceedings with a few reasonable exceptions since the Court’s dignity and majesty are inviolable and the privacy rights of litigants and witnesses whose cases fall into certain exceptional categories are extremely important.

Virtualization of judicial proceedings is considered vital to fulfil their constitutional duties. Court litigants are individuals from different areas with different economic and social situations and so neither everyone has equal access to the network nor the Court proceedings. Conclusively, they are unable to witness live Court proceedings in their own right. The public dissemination of knowledge about judicial proceedings is critical to justice since trials held under public scrutiny and gaze naturally function as a check against judicial caprice or vagaries, as well as develop public confidence in the administration of justice’s impartiality and fairness.

Among the methods available to the judiciary for implementing the idea of open justice, live broadcasting is the most prominent. It will be crucial not just during the COVID-19 time, but also thereafter. It will carry out the right to access justice, or the notion of justice at one’s doorstep, as established in Article 21 of the Constitution. It will have a broad reach and will improve both litigants’ and the general public’s experience of judicial proceedings even outside of Court premises. This is the better moment when Courts welcome new technology to help them run more smoothly. 

Most democratic nations applaud and recognise the idea of the open Court system worldwide. Except for India, every country which is well-known for its constitutional and judicial excellence has already made Court proceedings public, in order to increase awareness and transparency. Countries such as Brazil, Canada, the United Kingdom, and Germany broadcast their Supreme Court proceedings live, Australia broadcasts recorded footage of proceedings, and the United States publishes recorded oral arguments on their official website because filming in their courts is prohibited. Even the highly restricted countries like China have the rule to webcast all Courts, ranging from the trial Courts to the Supreme Court live. So, this is high time for the Supreme Court of the world’s greatest democracy to instil more transparency in the judicial system by allowing live hearings of at least constitutional matters and in matters of national importance.

CHALLENGES AND APPLICABILITY

The live streaming of Court hearings would fill the unfortunate void of inaccessibility to Court proceedings. At the same time, it is important to have a mindful cognizance of its application and challenges. Just like the famous phrase “there is no rose without thorns”, the live stream of Court proceedings comes with some challenges that need to be sorted. Among the many difficulties, some of which need considerable attention are factors such as accessibility to technology, the necessity for a functional approach, privacy issues, and maintaining judicial decorum.

The recent draft Model rule for live streaming and recording of Court proceedings presented by the Supreme Court’s e-committee has tried to address all potential constraints and problems in live streaming.Subject to certain exceptions, the Draft rule provides for live broadcasting of all judicial proceedings. Live streaming is exempted in matrimonial cases, matters concerning the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Protection of Children from Sexual Offences (POCSO) Act, 2012, and cases involving gender-based violence against women. To address privacy concerns, personal information such as date of birth, address, bank information, and identity card number will be muted or deleted from live streaming or recording. Additionally, the Bench has the authority to halt live streaming by recording reasons in any case where broadcasting would be detrimental to the administration of justice.

According to the rules, it would be the Court master’s responsibility to notify the parties that the Court would be live-streamed. On the subject of an objection, the bench will make the ultimate and non-justiciable decision. However, the bench must make a decision while keeping in mind the principle of an open and transparent judicial procedure. Proceedings that cannot be live-streamed will be recorded and preserved for use by the concerned Court and Appellate authorities. The recordings’ content may be posted, in whole or in part, on the Court’s website or made available on other digital platforms at the discretion of the Court.

To avoid the misuse of videos of Court proceedings, the Court will own the exclusive copyright to the live-streamed proceedings and archived data. The live-streamed and recorded Court proceedings can only be recorded, shared, or disseminated by authorized persons or entities. Any unlawful use will be prosecuted under the Indian Copyright Act, 1957, the Information Technology Act, 2000, and the contempt of court law.

Apart from the newly drafted Model rules, a sustainable live streaming of the Court proceedings model would necessitate an attitude shift amongst lawyers and judges in order to ensure consecutive oral arguments and a systematic pattern of proceeding. To make the procedures straightforward and simple, the Court should work in a barely specified and not random manner. Finally, the responsibility for proper Court management should fall on the shoulders of the judges.

CONCLUSION

It is the current need to adapt technology to changing times and guarantee that work is completed on time; an unfavourable attitude toward current demands may impede its efficacy and hinder the smooth operation of the judicial process. As Courts are now upgrading themselves in order to remain effective and efficient in their work, this would be an excellent time to take a step further and reach an open space by going live on the internet. The government must also take responsibility for improving the effectiveness of the judiciary. Finally, live-streaming of virtual Court proceedings should be implemented as soon as possible in the Supreme Court and the rest of the High Courts, as well as in physical Courts once they reopen. The Supreme Court’s e-Model committee’s Model draft rule on live broadcasting and recording of Court hearings should be followed. Any subsequent delay in the publishing of Court proceedings should be seen as partial justice for the litigants in individual cases, who will be heard in-camera or in courtrooms with limited public access. It would be appropriate to emphasise here that justice must not only be done but also clearly seen to be done.

Written By: Satyam Dwivedi (KIIT SCHOOL OF LAW, BHUBANESWAR)