A Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. decided in favour of live streaming [Swapnil Tripathi vs Supreme Court of India] of cases of constitutional or national importance before a Constitution Bench of the Supreme Court. Justice Khanwilkar delivered the leading judgment for the CJI and himself. While Justice Chandrachud rendered a separate concurring opinion, reported SCC.
The petitioners, claiming to be public-spirited persons, sought 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. Further direction was sought to frame guidelines to enable the determination of exceptional cases that qualify for live streaming. The Court requested the Attorney General for India, K.K. Venugopal 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) was to be granted.
The Supreme Court made a reference to Section 327 CrPC and 153-B CPC to which can be traced provisions regarding open court hearing. In Court’s considered opinion use of technology to relay the live court proceedings could be a way forward. By providing virtual access of live court proceedings to one and all, it would effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and include the right of justice at the doorstep of the litigants. However, it was also opined that while doing so, regard must be had to the fact that just as the dignity and majesty of the Court is inviolable, the issues regarding privacy rights of the litigants or witnesses, as also other exceptional categories of cases of which live streaming of proceedings may not be desirable as it may affect the cause of administration of justice itself, are matters which need to be identified and a proper regulatory framework must be provided in that regard by formulating rules in exercise of the power under Article 145 of the Constitution.
While generally agreeing with the Comprehensive guidelines for live streaming of Court proceedings in the Supreme Court suggested by the Attorney General K.K. Venugopal as stated below:–
Supreme Court may lay down the following guidelines to administer live streaming of Court proceedings:
5. At the outset, it is submitted that Live Streaming of Court proceedings should be introduced as a pilot project in Court No.1 and only in Constitution bench references. The success of this project will determine whether or not live streaming should be introduced in all courts in the Supreme Court and in Courts pan India.
6. To ensure that all persons including litigants, journalists, interns, visitors, and lawyers are able to view the live streaming of the proceedings, a media room should be designated in the premises of the court with necessary infrastructural facilities. This will also ensure that courts are decongested. Provisions may also be made available for the benefit of differently abled persons.
7. Apart from live streaming, the Supreme Court may, in the future, also provide for transcribing facilities and archive the audio-visual record of the proceedings to make the webcast accessible to litigants and other interested persons who are unable to witness the hearings on account of constraints of time, resources, or the ability to travel long distances to attend hearing on every single date. Such webcasts will also allow students of law to supplement their academic knowledge and gain practical insights into cases of national importance.
8. It is pertinent that this Hon’ble Court lay down guidelines to safeguard and limit the broadcasting and recording of its proceedings to ensure better access to justice. Some of the recommendations are:
a. The Court must have the power to limit, temporarily suspend or disallow filming or broadcasting, if, in its opinion, such measures are likely to interfere with the rights of the parties to a fair trial or otherwise interfere with the proper administration of justice.
b. The Court may law down guidelines/criterion to determine what cases constitute proceedings of constitutional and national importance to seek permission for broadcasting.
c. As held famously in the case of Scott v. Scott, (1913) AC 417, “While the broad principle is that the Courts must administer justice in public, the chief object of Courts of justice must be to secure that justice is done”, broadcasting must not be permitted in the cases involving:
i. Matrimonial matters, ii. Matters involving interests of juveniles or the protection and safety of the private life of the young offenders, iii. Matters of National security, iv. To ensure that victims, witnesses or defendants can depose truthfully and without any fear. Special protection must be given to vulnerable or intimidated witnesses. It may provide for face distortion of the witness if she/he consents to the broadcast anonymously, v. To protect confidential or sensitive information, including all matters relating to sexual assault and rape, vi. Matters where publicity would be antithetical to the administration of justice. vii. Cases which may provoke sentiments and arouse passion and provoke enmity among communities.
d. Use of the footage would be restricted for the purpose of news, current affairs and educational purposes and should not be used for commercial, promotion, light entertainment, satirical programs or advertising.
e. Without prior written authorization of the Supreme Court of India, live streaming or the webcast of the proceedings from the Supreme Court should not be reproduced, transmitted, uploaded, posted, modified, published or republished to the public.
f. Any unauthorized usage of the live streaming and/or webcasts will be punishable as an offence under the Indian Copyright Act, 1957 and the Information Technology Act, 2000 and any other provisions of the law in force. The law of contempt should apply to such proceedings. Prohibitions, fines, and penalties may be provided for.
g. The Courts may also lay down rules of coverage to provide for the manner in which the filming may be done and the equipment that will be allowed in court.
h. Case management techniques should be introduced to ensure that matters are decided in a speedy manner and lawyers abide by time limits fixed prior to the hearing. A skeleton of arguments/Written submissions should be prepared and submitted to the Court by the lawyers prior to their arguments.
i. The Court of Appeal in England, in November 2013, introduced streaming its proceedings on YouTube. The telecast is deferred by 70 seconds with the Judge having the power to mute something said in the proceedings if he feels they are inappropriate for public consumption.
j. Like the Court of Appeal in England, the Supreme Court should also lay guidelines for having only two camera angles, one facing the judge and the other- the lawyer. The camera should not focus on the papers of the lawyer; the Court was of the opinion that:
Project of live streaming must be implemented in a progressive, structured and phased manner, with certain safeguards.
The project will have to be executed in phases. Before the commencement of the first phase, formal rules will have to be framed by the Supreme Court to incorporate the recommendations.
Only cases of constitutional or national importance being argued for final hearing before a Constitution Bench with advance written permission of the Court concerned be live streamed as pilot project.
Prior consent of all parties to be insisted and in case of objections Court to decide and that decision shall be final.
Court would retain the power to revoke permission at any stage of the proceedings.
There must be a reasonable time-delay between live court proceedings and the broadcast to edit any information which ought not to be shown.
Appointment of a technical committee comprising of the Registrar (IT), video-recording experts, etc. to develop technical guidelines for recording and broadcasting.
The focus of cameras to be either towards Judges/Bench or the arguing advocates. No broadcast of any interaction between the client and advocate.
Court to retain copyright over the broadcast material.
Reproduction, publication, etc. of the original broadcast material in any form shall be prohibited.
The Court concluded by reiterating that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework as per the contours delineated hereinabove.
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
A. Kind of matters to be live-streamed
1. Proceedings involving the hearing of cases before the Supreme Court shall be live-streamed in the manner provided below:
a) Cases falling under the following categories shall be excluded as a class from live-streaming:
(i) Matrimonial matters, including transfer petitions; (ii) Cases involving sensitive issues as in the nature of sexual assault; and (iii) Matters where children and juveniles are involved, like POCSO cases.
b) Apart from the general prohibition on streaming cases falling in the above categories, the presiding judge of each courtroom shall have the discretion to disallow live-streaming for specific cases where, in his/her opinion, publicity would prejudice the interests of justice. This may be intimated by the presiding judge in advance or live-streaming may be suspended as and when a matter is being heard; and
c) Where objections are filed by a litigant against live-streaming of a case on grounds of privacy, confidentiality, or the administration of justice, the final authority on live-streaming the case shall lie with the presiding judge.
2. In addition to live-streaming of courtroom proceedings, the following events may also be live-streamed in the future subject to the provisions of the Rules: (a) Oath ceremonies of the Judges of the Supreme Court and speeches delivered by retiring judges and other judges in the farewell ceremony of the respective Supreme Court Judges; and (b) Addresses delivered in judicial conferences or Full Court References or any event organized by the Supreme Court or by advocate associations affiliated to the Supreme Court or any other events.
B. Manner of live-streaming
1. Live-streamed and archived videos of the broadcast shall be made available on the official website of the Supreme Court. The recorded broadcast of each day shall be made available as archives on the official website of the Supreme Court by the end of the day;
2. Live-streaming shall commence as soon as the judges arrive in the courtroom and shall continue till the Bench rises;
3. The presiding judge of the courtroom shall be provided with an appropriate device for directing the technical team to stop live-streaming if the Bench deems it necessary in the interest of administration of justice;
4. Live-streaming of the proceedings should be carried out with a delay of two minutes;
5. Proceedings shall only be live-streamed during working hours of the court;
6. Courtroom proceedings will continue to be live-streamed unless the presiding judge orders the recording to be paused or suspended;
7. To give full effect to the process of live-streaming, advocates addressing the Bench, and judges addressing the Bar, must use microphones, while addressing the Court;
8. Recording of courtroom proceedings shall be done by the Registry with the technical support of National Informatics Centre or any other public/private agency authorized by the Supreme Court or the Ministry of Information and Technology; and
9. The portions of proceedings which are not broadcast online, on the direction of the presiding judge of the Bench shall not be made part of the official records and shall be placed separately as ‘confidential records’.
C. Technical specifications for live-streaming
1. Live-streaming shall be conducted by the Supreme Court with its own camera-persons or by an authorized agency. No person who is not authorized by the Supreme Court will be permitted to record any proceeding;
2. Cameras should be focused only on the judges and advocates pleading before the Bench in the matter being live-streamed;
3. Cameras shall not film the media and visitor’s galleries;
4. Cameras may zoom in on the Bench when any judge is dictating an order or judgment or making any observation or enquiry to the advocate; and
5. The following communications shall not be filmed: a) Discussions among the judges on the Bench;
b) Any judge giving instructions to the administrative staff of the courtroom;
c) Any staff member communicating any message to the judge or circulating any document to the judge;
d) Notes taken down by the judge during the court proceedings; and
e) Notes made by an advocate either on paper or in electronic form for assistance while making submissions to the court.
1. The audio-visual recording of each day’s proceedings shall be preserved in the Audio-Visual Unit of the Supreme Court Registry;
2. Archives of all broadcasts of courtroom proceedings which have been live-streamed should be made available on the website of the Supreme Court; and
3. Hard copies of the video footage of past proceedings may be made available according to terms and conditions to be notified by the Supreme Court Registry. The video footage shall be made available for the sole purpose of fair and accurate reporting of the judicial proceedings of the Supreme Court.
E. Broadcast Room
1. The Registry will make one or more rooms or a hall available within the premises of the Supreme Court for the purpose of broadcasting the proceedings. Multiple screens along with the other necessary infrastructural facilities shall be installed, for enabling litigants, journalists, interns, visitors and lawyers to view the courtroom proceedings in the broadcast room(s). Special arrangements will be made for the differently abled.
1. The Supreme Court shall hold exclusive copyright over videos streamed online and archived with the Registry; and
2. Re-use, capture, re-editing or redistribution, or creating derivative works or compiling of the broadcast or video footage, in any form, shall not be permitted except as may be notified in the terms and conditions of use and without the written permission of the Registry.
Simultaneously, he clarified that the model guidelines were of a suggested nature and would not detract from the authority of the Court to frame Rules under Article 145(1) in order to determine all the modalities.
As a result, the Supreme Court allowed the writ petitions with the aforementioned observations and hoped that the relevant rules will be formulated expeditiously and the first phase project executed in right earnest by all concerned.
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