Muneeb Rashid Malik
“It is well settled that,in general, all cases brought before the courts, whether civil, criminal, or others, must be heard in open court………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…
“Naresh Shridhar Mirajkar v. State of Maharashtra.
On 20th September, 2022, the Full Court of the Supreme Court of India decided to live stream the proceedings of the Constitution Benches. Thereafter, on 27th 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 26th September, 2018, the Supreme Court of India in Swapnil Tripathi v. Supreme Court of India allowed the Supreme Court case proceedings ofconstitutional 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 Article 145(4) of 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, 1973and Section 153-B of the Code of Civil Procedure, 1908.
In Swapnil Tripathi (supra), 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, 2012and 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 the Code of Criminal Procedure, 1973or the Code of Civil Procedure, 1908; matters where the bench is of the viewthat 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, etc.
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, organised 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…”
(The author is is an Advocate and Associate at Luthra and Luthra Law Offices India).
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