Muneeb Rashid Malik
“It is clear that, in general, all cases brought before the courts, whether civil, criminal or other, must be tried in open court ……… The process is subject to public scrutiny and the gaze naturally serves as a check against the judiciary is arbitrary or whimsical and serves as a powerful tool to build public confidence in the fairness, objectivity and impartiality of the administration of justice…
“Naresh Shridhar Mirajkar vs Maharashtra State.
On September 20, 2022, the General Court of the Supreme Court of India decided to livestream the hearings of the Constitutional Courts. Thereafter, on September 27, 2022, three constitutional benches convened simultaneously in Courtrooms 1, 2, and 3 of the Supreme Court and their hearings were broadcast live on the Supreme Court webcast and on YouTube. It was truly a historic day as statistics showed that more than 8,000 spectators watched the Constitutional Banks meetings. This is a significant move by the Apex Court that will make the country’s judicial process more accessible and transparent.
It is fitting to announce that four years ago, on 26 September 2018, the Supreme Court of India, in Swapnil Tripathi v. Supreme Court of India, decided on the Supreme Court proceedings of constitutional importance affecting the general public or a large public allowed number of people to be live streamed in a way that is easily accessible to the public.
Open courts are not new to the country’s legal system. Pursuant to Article 145(4) of the Constitution of India, the Supreme Court may not render a judgment except in open court, and no report may be made under Article 143 of the Constitution of India except in accordance with an opinion of public court also delivered . Public hearings are mentioned in Section 327 of the Criminal Procedure Code, 1973 and Section 153-B of the Civil Procedure Code, 1908.
In Swapnil Tripathi (supra), the Supreme Court clearly held that live streaming of court proceedings is possible due to the advent of technology and has been adopted in other jurisdictions around the world. While emphasizing the benefits of technology, the Apex Court noted that technology can embody transparency, good governance and accountability and, more importantly, open the view of courtrooms by going beyond the four walls of the room to create a large Number of spectators to accommodate the live trial. Public trust in the judiciary is essential to upholding the rule of law in the country and can be easily achieved through open court hearings when the public can observe proceedings in the courtroom, ultimately leading to an organized and transparent trial.
There may be times when the administration of justice itself dictates that the courts conduct behind-the-scenes hearings. Therefore, pursuant to the Model Rules for Live Streaming and Recording of Court Proceedings, the following matters must be excluded from live streaming and these are: Marital matters, child adoption and child custody, including requests for transmission arising therefrom; sex offenses cases, including proceedings under Section 376, Indian Penal Code, 1860; cases of gender-based violence against women; Matters registered under or affecting the Protection of Children from Sexual Offenses Act 2012 and the Juvenile Courts (Care and Protection of Children) Act 2015; Matters registered under or affecting the Medical Termination of Pregnancy Act 1971; Proceedings in camera within the meaning of the Criminal Procedure Code 1973 or the Civil Procedure Code 1908; Matters where the Chamber considers publication to be contrary to the administration of justice; cases which, in the Chamber’s opinion, may create enmity between communities likely to result in a violation of law and order; taking of evidence, including cross-examination; privileged communication between the parties and their counsel; Cases where a claim for privilege is recognized by the court; non-public discussions between lawyers etc.
It is important to note that live streaming of court cases has also started in the High Courts of Gujarat, Orissa, Karnataka, Jharkhand, Patna and Madhya Pradesh which is a step in the right direction. As the Hon’ble Supreme Court of India has risen to the opportunity to live stream the proceedings of the Constitution Benches, the time is right to start live streaming the proceedings of other benches as well, by covering the matters that are not live streamed are to be excluded as discussed above.
Those High Courts and District Courts across the country that have not yet started live-streaming of proceedings should do so as soon as possible so that the goal of live-streaming is fully achieved, which is to spread knowledge about the procedure and the granting of access to justice for the litigants. It would be appropriate to set up infrastructure in courts that is suitable for live streaming so that the public can follow the court proceedings without restrictions.
The High Courts should set the modalities of live streaming of cases at the earliest so that live streaming becomes a reality in all parts of the country. The live streaming of court proceedings will certainly strengthen the right of access to justice enshrined in Article 21 of the Indian Constitution and result in the court process becoming more accessible, organized and transparent. The Supreme Court and various high courts across the country have taken a significant step that will no doubt maintain public confidence in our judicial process in the words of Judge JC Shah:
“The hearing in open court is of the utmost importance in maintaining public confidence in the impartial administration of justice: it serves as a salutary check on the behavior of the judges and the behavior of the disputing parties and their witnesses…”
(The author is a lawyer and associate at Luthra and Luthra Law Offices India).
