2018 (9) TMI 2157 - SC - Indian Laws

Supreme Court allows live-streaming of proceedings to enhance transparency and public access to justice

The SC declared that live-streaming of court proceedings is permissible, emphasizing open trials as fundamental to justice and public access. The Court ... Broadcasting/ live streaming of court proceedings - Seeking declaration for Open trials and access to the public during hearing of cases before the Supreme Court case proceedings of “constitutional importance' - obligation on the State to spread awareness about the law and the developments - right to know and receive information - fundamental right to carry occupation under Article 19(1)(g) of the Constitution - right to attend the proceedings in court under Article 19(1)(d) - right to freedom of speech and expression included their right to publish a faithful report of the proceedings - efficacy of open trials for upholding the legitimacy and effectiveness of the Courts and for enhancement of public confidence and support. HELD THAT:- International courts have also embraced the idea of broadcasting their court proceedings. The International Criminal Court (ICC) permits televising of its cases, although with a thirty minute delay. The ICC has a YouTube channel where it broadcasts case proceedings, press conferences, and informative videos in different languages. In the European Court on Human Rights (ECHR), all hearings are permitted to be made public, unless specifically disallowed by the Court. The broadcast is available on the Court’s website on the same day. Broadcast of morning sessions is put up by the afternoon, and the afternoon sessions by evening. The ECHR states that all hearings are filmed and broadcast of the court’s website on the day itself, from 14:30 (local time) onwards On examining the practices followed by the jurisdictions discussed, it appears that broadcasting of courtroom proceedings emerged in several countries through judicial decisions. Further, most jurisdictions follow certain common practices such as (i) a minimal delay in live broadcast; (ii) retention of the copyright with the court; (iii) conducting a pilot project before introducing broadcasting for all cases; (iv) excluding certain categories of cases where the interests of justice warrant that the hearings should not be webcast or streamed; and (v) conferment of power on the presiding judge to regulate the live transmission. Every jurisdiction has a set of limitations to which the broadcast is subject. Broadcast is usually not permitted when it impedes the administration of justice. The need for live-streaming of proceedings applies with equal and, in some respects, greater force to proceedings of cases in the district judiciary and the High Courts. The pattern of litigation in our country resembles a pyramid. The courts within the district judiciary represent the large base of the pyramid where citizens have the greatest interface. It is to the Courts comprised in the district judiciary that citizens turn as a point of first access for remedying injustice. At the tip of the pyramid is the jurisdiction of this Court. In terms of volume, the largest amount of litigation emanates in the district judiciary, followed by the High Courts. The engagement of the district judiciary in resolving injustices faced by citizens requires that every citizen should have full access to and knowledge about the proceedings before those courts. Equally, the principle of an open court which has been espoused in this judgment would merit that proceedings before the High Courts should also be live-streamed. Live-streaming of proceedings is crucial to the dissemination of knowledge about judicial proceedings and granting full access to justice to the litigant. Access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first hand. Apart from this, live-streaming is an important facet of a responsive judiciary which accepts and acknowledges that it is accountable to the concerns of those who seek justice. Live-streaming is a significant instrument of establishing the accountability of other stake-holders in the justicing process, including the Bar. Moreover, the government as the largest litigant has to shoulder the responsibility for the efficiency of the judicial process. Full dissemination of knowledge and information about court proceedings through live-streaming thus subserves diverse interests of stake holders and of society in the proper administration of justice. For lawyers and judges familiar with the cocoon of a physical court room, live-streaming would require attitudinal changes. They include the maintenance of order and sequencing of oral arguments. Judges in charge of their courts would have to devote attention to case management. But these demands are necessary incidents of the challenges of our time. Slow as we have been to adapt to the complexities of our age, it is nonetheless necessary for the judiciary to move apace with technology. By embracing technology, we would only promote a greater degree of confidence in the judicial process. Hence, the Chief Justices of the High Courts should be commended to consider the adoption of live-streaming both in the High Courts and in the district judiciaries in phases, commensurate with available resources and technical support. The High Courts would have to determine the modalities for doing so by framing appropriate rules. The model guidelines are of a suggested nature and will not detract from the authority of the Court to frame Rules under Article 145(1) in order to determine all the modalities, including (i) the phases in which live-streaming shall be introduced; (ii) the types of cases for which live-streaming of cases will be provided; (iii) authorising the use of appropriate technology; (iv) the agencies through which live-streaming will be implemented; (v) other facets for implementation; and (vi) laying down norms for the use of the feed. The Supreme Court shall hold exclusive copyright over videos streamed online and archived with the Registry; and 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. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court in this judgment are:(a) Whether Supreme Court proceedings of constitutional and national importance, impacting the public at large or a significant section thereof, should be live streamed for public viewing;(b) Whether guidelines and a regulatory framework should be framed to determine the exceptional cases that qualify for live streaming;(c) How to balance the principle of open justice and public access to court proceedings with concerns relating to privacy, confidentiality, dignity of the Court, fair trial rights, and administration of justice;(d) The feasibility and modalities of implementing live streaming of Court proceedings, including infrastructural and technological aspects;(e) The extent to which live streaming can be introduced in a phased manner, including pilot projects and case management techniques;(f) Comparative analysis of practices in other jurisdictions regarding live streaming and broadcasting of court proceedings;(g) The legal basis under the Constitution and procedural laws for live streaming and open courts;(h) The scope and limitations on live streaming, including categories of cases excluded and the discretion of the presiding judge;(i) Copyright and control over the broadcast material and penalties for unauthorized use.2. ISSUE-WISE DETAILED ANALYSIS(a) Right to Open Justice and Live Streaming of Court ProceedingsThe Court extensively examined the principle of open justice, rooted in constitutional and common law traditions. Article 145(4) of the Constitution mandates that Supreme Court judgments be pronounced in open Court, while Sections 327 CrPC and 153-B CPC declare courts to be open to the public unless restricted for reasons of justice administration.The Court relied on the landmark nine-judge decision in Naresh Shridhar Mirajkar v State of Maharashtra, which emphasized that public trials are essential for healthy, objective, and fair administration of justice. Public scrutiny acts as a check against judicial caprice and fosters public confidence in the judiciary. Bentham's dictum that 'Where there is no publicity there is no justice' was cited to underline the foundational role of openness.The Court recognized that open justice includes the public's right to attend court, the duty of judges to give reasoned decisions, and the promotion of accurate reporting. However, it also acknowledged that exceptions exist where in-camera trials are necessary to protect privacy, confidentiality, or the administration of justice.The Court further observed that the right to know and receive information is a facet of Article 19(1)(a) and that live streaming would enhance access to justice, especially for litigants unable to attend physically due to logistical constraints.(b) Technological Feasibility and Implementation of Live StreamingThe Court noted the rapid advancement of technology and its potential to expand the courtroom beyond physical confines through live streaming and webcasting. It acknowledged the existing e-Courts Project and ICT infrastructure in India, which have digitized case management and judicial processes across thousands of courts.Live streaming was seen as a logical extension of open courts, enabling real-time access to proceedings for litigants, lawyers, students, journalists, and the public. It was recognized as a tool to improve transparency, accountability, and public understanding of judicial processes.The Court emphasized the need for a structured, phased approach, starting with a pilot project limited to Constitution Bench cases of constitutional and national importance, with appropriate infrastructure such as designated media rooms and provisions for differently-abled persons.(c) Balancing Open Justice with Privacy, Fair Trial, and Dignity of the CourtThe Court underscored the necessity to balance competing constitutional rights and interests. While open justice is paramount, it must not compromise the dignity and majesty of the Court, the privacy and confidentiality of litigants and witnesses, or the fair trial rights of parties.The Court highlighted categories of cases to be excluded from live streaming, including matrimonial matters, sexual assault cases, matters involving juveniles, national security issues, and cases where publicity may provoke social unrest or prejudice justice.The presiding judge was vested with the discretion to disallow or suspend live streaming in specific cases, either in advance or during proceedings, based on the interests of justice. The Court's discretion in this regard was to be final, non-justiciable, and non-appealable.(d) Comparative Jurisprudence on Live Streaming and BroadcastingThe Court undertook an extensive comparative survey of practices in multiple jurisdictions, including Australia, Brazil, Canada, China, England, European Court of Human Rights, Germany, International Criminal Court, Israel, New Zealand, Scotland, South Africa, the United States, and others.Common themes emerged from these jurisdictions:Live streaming or broadcasting is generally permitted in apex courts and some appellate courts, often with restrictions.Categories of cases involving privacy, national security, or sensitive witnesses are excluded.Broadcasts often include a delay (ranging from seconds to minutes) to allow for editing or censorship of sensitive content.The courts retain copyright and control over broadcast material and impose restrictions on usage.Media coverage is usually regulated by protocols or guidelines, with the presiding judge retaining discretion.Many courts use pilot projects before full implementation.Technological and infrastructural measures are adopted to ensure minimal disruption and protect the administration of justice.The Court noted that the United States Supreme Court does not permit video broadcasting but allows same-day release of audio recordings. Other jurisdictions like Canada, UK, Australia, Brazil, and South Africa have embraced live streaming with safeguards.(e) Legal Framework and Guidelines for Live Streaming in IndiaThe Court identified Article 145(1) of the Constitution as the enabling provision empowering the Supreme Court to frame rules regulating its practice and procedure, including live streaming.The Attorney General of India and other petitioners submitted comprehensive guidelines, which the Court generally accepted and adopted with modifications. Key features include:Live streaming limited initially to Constitution Bench cases of constitutional and national importance as a pilot project;Prior written consent of all parties required, with the Court's discretion to decide in case of dissent;Presiding judge's power to revoke or suspend live streaming at any stage;Exclusion of certain categories of cases (matrimonial, sexual assault, juveniles, national security, etc.);Use of a time delay (suggested 2 to 10 minutes) to allow for screening;Restrictions on the use of broadcast footage to news, current affairs, and educational purposes only;Prohibition on unauthorized reproduction, transmission, or modification, with penalties under copyright, IT, and contempt laws;Technical guidelines on camera angles focusing only on judges and advocates, avoiding filming of confidential materials, media galleries, or private communications;Archiving of recordings on the Supreme Court website and preservation of copyright by the Court;Designation of media rooms within Court premises for viewing live streams to reduce courtroom congestion;Appointment of technical committees and specialist operators to manage broadcasts;Case management techniques to ensure orderly and timely hearings;Phased implementation and possibility of intranet-based pilot projects before full internet streaming.(f) Application of Law to Facts and Court's ReasoningThe Court reasoned that live streaming is a natural progression of the principle of open courts and open justice, facilitated by modern technology. It acknowledged the constitutional and statutory provisions mandating open courts and public trials, and the public's right to access information.The Court balanced the public interest in transparency and access with the need to protect privacy, fair trial rights, and the dignity of the judiciary. It emphasized that the presiding judge's discretion is critical to maintaining this balance.By adopting a phased approach and detailed guidelines, the Court sought to ensure that live streaming would not disrupt judicial proceedings or prejudice any party. The Court also recognized the educational and societal benefits of live streaming, including reducing misinformation and enhancing public confidence.(g) Treatment of Competing ArgumentsThe Court considered arguments from petitioners advocating for universal live streaming to maximize transparency and access, as well as concerns raised by the Attorney General and others about potential risks to privacy, security, and fair trial rights.The Court acknowledged that while open courts are a constitutional norm, there are legitimate exceptions. It adopted a cautious, balanced approach by excluding sensitive categories and allowing judicial discretion.The Court also addressed concerns regarding infrastructural constraints and logistical difficulties faced by litigants and the public in accessing court proceedings physically, recognizing live streaming as a remedy.3. SIGNIFICANT HOLDINGS'Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. 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.''Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity.''Open justice can be more than just a physical access to the courtroom rather, it is doable even 'virtually' in the form of live streaming of court proceedings and have the same effect.''The project of live streaming of the court proceedings of the Supreme Court on the 'internet' and/or on radio and TV through live audio-visual broadcasting/telecasting universally by an official agency, such as Doordarshan, having exclusive telecasting rights and/or official website/mobile application of the Court, must be implemented in a progressive, structured and phased manner, with certain safeguards to ensure that the purpose of live streaming of proceedings is achieved holistically and that it does not interfere with the administration of justice or the dignity and majesty of the Court hearing the matter and/or impinge upon any rights of the litigants or witnesses.''Prior consent of all the parties to the concerned proceedings must be insisted upon and if there is no unanimity between them, the concerned Court can take the appropriate decision in the matter for live streaming of the court proceedings of that case, after having due regard to the relevancy of the objections raised by the concerned party. The discretion exercised by the Court shall be treated as final. It must be non-justiciable and non-appealable.''There must be a reasonable time-delay (say ten minutes) between the live court proceedings and the broadcast, in order to ensure that any information which ought not to be shown, as directed by the Court, can be edited from being broadcast.''The Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework as per the contours delineated hereinabove.''Live-streaming of court proceedings is manifestly in public interest. It is important to re-emphasise the significance of live-streaming as an extension of the principle of open justice and open courts.''The cause brought before this Court by the protagonists in larger public interest, deserves acceptance so as to uphold the constitutional rights of public and the litigants, in particular.'