Advocate Sushila
THE BEGINNING OF VIRTUAL COURTS : CASE ANALYSIS OF SWAPNIL TRIPATHI v. SUPREME COURT OF INDIA 2018
Advocate Sushila Ram 15 May 2020

THE BEGINNING OF VIRTUAL COURTS : CASE ANALYSIS OF SWAPNIL TRIPATHI v. SUPREME COURT OF INDIA 2018

The unprecedented crisis caused by the #Coronavirus #Lockdown has compelled the Justice Delivery System to take recourse to video-conferencing to deal with the crucial legal matters. The likelihood of video-conferencing is expected to stay with Judges noticing its time-saving potential and ability to fast-track cases. However, adapting to this new technology, having virtual courts is not going to be without glitches. Introduction of any new system always has teething problems and so will this but that does not stop us from trying it.

Right now proceedings can only be viewed by the lawyers and their clients and are not available for public viewing. Many legal experts postulate that while technology is here to stay, it should not erode the rule of law. In the end, the #credibility of the court and its authority depends upon the conduct of open hearings.

The question which arises is how can courts retain public confidence in a post-pandemic world where digital pathways will have to be resorted to? One option is live streaming, which the Supreme Court itself had upheld in 2018. Justice D.Y. Chandrachud, had authorized it in the matter of Swapnil Tripathi v. Supreme Court of India[(2018) 10 SCC 628] saying “sunlight is the best disinfectant”.

BRIEF FACTS OF THE CASE

In 2017, various individuals and groups filed #petition(s) before the Supreme Court of India under Article 32 of the Constitution. The Petition was seeking a declaration that “Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people should be live streamed in a manner that is easily accessible for public viewing”. In addition, the Petition also sought guidelines from the Court to enable the future determination of cases that would qualify for live streaming.

The Petitioners relied on the Supreme Court case namely Naresh Shridhar Mirjkar v. State of Maharashtra [(1966) 3 S.C.R 744] (‘Mirjkar’) wherein it was held that Article 19 of the Constitution included the right of journalists to publish reports of court proceedings. In that case the Court had emphasized “the efficacy of open trials for upholding the legitimacy, effectiveness of the Courts and for enhancement of public confidence and support”.

LEGAL ISSUES:

  1. Whether there should be live dissemination of proceedings before this Court with the aid of information and communications technology (ICT).
  2. Whether live streaming of court proceedings should be introduced in India, and if so, under what conditions.

DECISION:

The Judgment was delivered by a three-judge Bench of the Supreme Court of India. Justice Khanwilkar delivered the majority Judgment on behalf of himself and Chief Justice Deepak Mishra. Justice D.Y. Chanrachud delivered a separate concurring Judgment.

The Bench ruled that proceedings of cases having constitutional and national importance before the #SupremeCourt should be broadcast to the public.

The Judgment is a significant decision on the concepts of Open Justice, access to public information and transparency in the judicial process. Though the Judgment only directs that certain proceedings in the Supreme Court be live-streamed for the time being, it has opened the doors for live-streaming to be extended to all proceedings in the Supreme Court, High Courts and proceedings in lower courts.

HELD

The Court held that the ability to view live broadcasts of the Supreme Court proceedings flowed from the right of access to justice in the Constitution. The Court said that this right should not be absolute. It provided a set of Model Guidelines which should govern the courts’ discretion on when such broadcast should be used.

ANALYSIS AND OBSERVATIONS ON THE DECISION

The Court requested the Attorney General for India, Mr K.K. Venugopal (AG) to collate the suggestions given by him as well as the Petitioners and submit a comprehensive note for evolving a framework, in the event the relief claimed in the Writ Petition(s) to be granted.

While generally agreeing with the Comprehensive Guidelines for live-streaming of Court proceedings in the Supreme Court suggested by the AG, the Court recorded the following observations:

  1. The Court while considering the Petition observed that there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open court. It further held that “no such express provision is found in the Constitution regarding open court hearing before the Supreme Court, but it can be traced to provisions such as Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC).”
  2. The Court acknowledged that there was “unanimity between all protagonists that live streaming of Supreme Court proceedings at least in respect of cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning”.
  3. The Court discussed the importance of the rights involved in such a case, and the need to balance such rights that is access to justice while taking into account the privacy of the litigating parties and the dignity of the courts. It referred to the Mirajkar case (supra) which had held that the right to freedom of expression under Article 19 of the Constitution should be interpreted to allow journalists to carry on their occupation by attending Court proceedings.
  4. The Court noted that the right of access to justice as set out in Article 21 of the Constitution, which protects the right to life and liberty, would be meaningful only when the public gets access to the proceedings. In addition, the Court commented that the State has an obligation to spread awareness about the law to enable individuals to understand the law. The Court also remarked, that it was now well settled that Article 19(1)(a) of the Constitution confers the right to know and receive information. So the public is entitled to witness Court proceedings.
  5. The Court also referred to the Indian case of Olga Tellis v. Bombay Municipal Corporation [(1985) 3 SCC 545] which had reiterated the value of a hearing by emphasizing the principle that “justice must also be seen to be done”. It also referred to the cases of Life Insurance Corporation of India v. Manubhai [1992 (3) S.C.R. 595] and Mohd. Shahabuddin v. State of Bihar [(2010) 4 SCC 653]. These cases highlighted the importance of open courtrooms in assisting the dissemination of information.
  6. The Court concluded that live streaming should be accepted “so as to uphold the constitutional rights of public and the litigants”. It also added that it had sought to balance the interests of administration of justice, including open justice, dignity and privacy of the participants to the proceedings.

The Court also pointed out the multiple reasons why live-streaming would be beneficial to the judicial system. It stated the following:

  1. The technology of live-streaming injects radical immediacy into courtroom proceedings. Each hearing is made public within seconds of its occurrence.
  2. Introduction of live-streaming will effectuate the public’s right to know about court proceedings. It will enable those affected by the decisions of the Court to observe the manner in which judicial decision are made.
  3. Live-streaming of courtroom proceedings will reduce the public’s reliance on second-hand narratives to obtain information about important judgments of the Court and the course of judicial hearings.
  4. Viewing court proceedings will also serve an educational purpose. Law students will be able to observe and learn from the interactions between the Bar and Bench.
  5. Live-streaming will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy;
  6. Live-streaming will remove physical barriers to viewing court proceedings by enabling the public to view proceedings from outside courtroom premises. This will also reduce the congestion which is currently plaguing courtrooms.
  7. Live-streaming is a significant instrument of enhancing the accountability of judicial institutions and of all those who participate in the judicial process.

The Court concluded by reiterating that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework. The Judgment also undertook an analysis of the situation in comparative jurisdictions and identified some common trends. Which included the following points such as requirement of a minimal delay in live broadcast, that the Court retains copyright of the broadcast, that the presiding judge retains discretion to regulate the broadcast, etc. The Court also discussed the importance of beginning with a pilot project, and the potential for exclusion from broadcast of certain cases.

Dr D.Y. Chandrachud, J. delivered a separate concurring opinion wherein he formulated Model Guidelines for the broadcasting of the proceedings and other judicial events of the Supreme Court of India.

CONCLUSION

To summarize the said Judgment, the Court conveyed that the live-streaming must not compromise the integrity of the Justice System. The majesty and decorum of the Courts must not be compromised. We can consider the various steps taken by the Judiciary after this Judgment and especially, during the Coronavirus Lockdown with regard to fair functioning of the judicial mechanism. One thing is sure, that the Judiciary is looking at a virtually efficient judicial system in India.

The Judiciary cannot afford more delays. As crucial hearings are awaited decision in cases such as the Citizenship (Amendment) Act, and the use of Money Bill amongst others. Neither can the court afford to delay decisions on important public matters which involve scams and other criminal cases.

Lakshmi Vishwakarma

Associate

The Indian Lawyer & Allied Services

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services

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