Paragraph numbers below are the court’s original numbering, recovered from the source text.
1. The issue in this batch of cases is whether there should be live dissemination of proceedings before this Court with the aid of Information and Communications Technology (ICT). The basis of the petitions is that this would enable litigants and society to have wide access to judicial proceedings. It is urged that cases of constitutional and national importance have a significant impact on the social fabric. Citizens have a right to know about and to follow court proceedings.It has been submitted that live or online transmission of court proceedings with the aid of ICT enabled tools will subserve the cause of access to justice.
2. Our legal system subscribes to the principle of open justice. The prayer for live-streaming of courtroom proceedings has its genesis in this principle. Live-streaming will allow real time access to courtroom proceedings to litigants and to every member of the society.
3. Open justice is a long-established principle of common law systems. It rests on a high pedestal in a liberal democracy as ‘a sound and very sacred part of the Constitution of the country and the administration of justice…’1 Jeremy Bentham propounded the idea of open justice in the late eighteenth century while designing principles for establishments in which persons are to be kept under inspection: “…the doors of all public establishments ought to be, thrown wide open to the body of the curious at large- the great open committee of the tribunal of the world.”2 1 House of Lords in Scott v Scott, [1913] A.C. 417 at 473. 2 Jeremy Bentham, The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 volumes, volume 4, at page 46.
4. Although Bentham wrote these words in the larger context of public institutions, they apply on equal terms to the theory of open justice. Bentham in his “Draught of Code for the Organization of the Judicial Establishment” codified the principle of open justice as: “Article XVIII- Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones herein specified, be carried out with the utmost degree of publicity possible.”3 According to Bentham, secret (or in-camera) proceedings were to be carried out in the judge’s chamber.4 He also prescribed open justice for trials by the National Assembly Courts, (which, in his Code, were courts constituted to hear complaints against any metropolitan judge): “Article III- Such trial shall be conducted from beginning to end, with open doors and with the utmost possible degree of publicity.”5 The principle underlying open justice was formulated by Lord Chief Justice Hewart: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”6 In R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, Lord Judge CJ draws a link between open justice and democratic values: “…the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself.”7
5. Legal scholars indicate that the principle of open justice encompasses several aspects that are central to the fair administration of justice and the rule of law.8 It has both procedural and substantive dimensions, which are equally important. Open justice comprises of several precepts: (i) The entitlement of an interested person to attend court as a spectator; 3 Ibid at page 288. 4 Ibid at page 303. 5 Ibid at page 300. 6 King’s Bench, Division Court in R v Sussex [1923], All ER Rep 233. 7 Court of Appeal, England and Wales in R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, [2010] 3 WLR 554. 8 Cunliffe Emma, “Open Justice: Concepts and Judicial Approaches”, (2012) 40 Fed L Rev 385. (ii) The promotion of full, fair and accurate reporting of court proceedings; (iii) The duty of judges to give reasoned decisions; and (iv) Public access to judgments of courts.9 The principle of an open court is a significant procedural dimension of the broader concept of open justice.
Open courts allow the public to view courtroom proceedings. Black’s Law Dictionary defines an “open court” as follows: “… a court to which the public have a right to be admitted… This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators…”10 The idea of open courts is crucial to maintaining public confidence in the administration of justice: “The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law.”11 Open courts ensure a check on the process of adjudication in judicial proceedings. Bentham regarded publicity about courtroom proceedings as a mechanism to prevent improbity of judges: “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. … It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order…”12 9 Ibid. 10 Black’s Law Dictionary, 6th Edition, 1990, page 1091.
The Black’s Law Dictionary, 10th Edition, 2014, page 1263 defines an “open court” thus: “1. A court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business… The term is distinguished from a court that is hearing evidence in camera or from judge that is exercising merely magisterial powers. 2. A court session that the public is free to attend…” 11 Supra note 7. 12 Supra note 2 at page 316-317.
6. Lord Diplock, speaking for the House of Lords in AG v Leveller Magazine, remarked that open courts are a safeguard against judicial arbitrariness or idiosyncrasy.13 Open courts, in his view, help build public confidence in the administration of justice.14 The public’s trust in the judicial system depends on their perception of how courts function. Open courts make it possible for the public to develop reasonable perceptions about the judiciary, by enabling them to directly observe judicial behaviour, and the processes and outcomes of a case. In the decision of the High Court of Australia, in Grollo v Palmer,Gummow J dwelt on the idea of open courts: “An essential attribute of the judicial power of the Commonwealth is the resolution of such controversies … so as to provide final results which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning. An objective of the exercise of the judicial power in each particular case is the satisfaction of the parties to the dispute and the general public that, by these procedures, justice has both been done and been seen to be done.”15 The Ministry of Justice in the UK, in its proposal to permit broadcasting of court proceedings, has succinctly articulated the need for open courts: “Few people have direct experience of court proceedings, and overall public understanding of the criminal justice system is limited. Most court sittings take place when many people are at work. Many people, therefore, currently base their views on how the system is portrayed on television, or in films. These dramatised accounts rarely portray what happens in court accurately. With the range of technology now available, it should be easier for people to access better information on court proceedings.”16 13 House of Lords, as per Lord Diplock in AG v Leveller Magazine, [1979] AC 440, at page 450. 14 Ibid. 15 High Court of Australia, as per Gummow J in Grollo v Palmer, [1995] HCA 2. 16 Ministry of Justice, UK, Proposals to allow the broadcasting, filming, and recording of selected court proceedings, making recommendations, 2012.
Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/217307/broadcasting-filming-recording-courts.pdf In the decision of the US Supreme Court in Richmond Newspapers, Inc. v Virginia, Burger CJ observed: “The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioural scientists, that public trials had significant community therapeutic value… … People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”17
7. Public confidence in the judiciary and in the process of judicial decision making is crucial for preserving the rule of law and to maintain the stability of the social fabric. Peoples’ access to the court signifies that the public is willing to have disputes resolved in court and to obey and accept judicial orders. Open courts effectively foster public confidence by allowing litigants and members ofthe public to view courtroom proceedings andensure that the judges apply the law in a fair and impartial manner. B Indian Jurisprudence
8. The concept of open courts is not alien to the Indian legal system. The Constitution adopts the concept in Article 145(4), which states that the Supreme Court shall be an open court: “(4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open Court.” The Code of Civil Procedure, 1908 (“CPC”) and the Code of Criminal Procedure, 1973 (“CrPC”) extend the principle of open courts to all civil and criminal courts in India. Section 153-B of the CPC provides that every civil court which tries a suit shall be deemed to be an open court: “Section 153-B. Place of trial to be deemed to be open court.- The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them: 17 Supreme Court of United States in Richmond Newspapers, Inc. v Virginia, 448 US 555 (1980). Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.” Similarly, Section 327 of the CrPC also mandates criminal courts to be open: “Section 327. – Court to be open.- “[(1)] The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them: Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room orbuilding used by the Court.” Hence, all courts in India are open to the public and function as open courts, except when the administration of justice requires public access to the court to be restricted. The principle of open courts in India recognises exceptions which are in the interest of fair administration of justice.
9. Various judgments of this Court have reinforced the importance of open courts. The earliest and most significant judgment on this aspect is the decision of a nine-judge Bench in Naresh Shridhar Mirajkarv State of Maharashtra18 (“Mirajkar”). While upholding an oral order of the High Court prohibiting the media to publish the evidence of a witness in a defamation suit, the majority emphasised the importance of open courts. Chief Justice Gajendragadkar, speaking for the majority observed: “20… It is well settled that in general, all cases brought before the courts, whether civil, criminal, or others, must be heard in open court. 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, 18 (1966) 3 SCR 744. objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the court-room.” Justice Gajendragadkar then quoted from Bentham (as noted in Scott v Scott19): “20… In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. 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.” Even in his dissenting opinion, Justice Hidayatullah (as the learned judge then was) agreed with the majority on the importance of an open court system: “90. …As we have fortunately inherited the English tradition of holding trials (with a few exceptions to which I shall refer later) in public, I shall begin with the English practice. It has always been the glory of the English system as opposed to the Continental, that all trials are held ostiisapertis, that is, with open doors. This principle is old… it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of Justice and that in proportion as publicity had place, the checks on judicial injustice could be found.…” Justice J C Shah elaborated on open justice but also recognised the need to restrict access to protect the administration of justice, in cases where it becomes necessary: “129…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. But hearing of a cause in public which 19 Supra note 1. is only to secure administration of justice untainted must yield to the paramount object of administration of justice. If excessive publicity itself operates as an instrument of injustice, the court may not be slow, if it is satisfied that it is necessary so to do to put such restraint upon publicity as is necessary to secure the court’s primary object…” Quoting Hegel in “Philosophy of Right,” Justice Bachawat added that: “140 … A court of justice is a public forum.
It is through publicity that the citizens are convinced that the court renders even-handed justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation. 141. …Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is a universal belonging to all.” Key takeaways emerge from the opinions in Mirajkar: (i) Open courts serve as an instrument of inspiring public confidence in the administration of justice; (ii) Open courts act as a check on the judiciary; (iii) Publicity of the judicial process is the soul of justice; (iv) Open justice must yield to the paramount object of the administration of justice, in case it becomes necessary to restrict access in the facts of a particular case;and (v) Open courts are essential for the objective and fair administration of justice.
10. Almost two decades later, in Olga Tellis v Bombay Municipal Corporation,20 a Constitution Bench of this Court held that eviction of slum-dwellers violated their right to earn a livelihood. Chief 20 (1985) 3 SCC 545. Justice Y V Chandrachud reiterated the value of a hearing, in emphasising the principle that justice must also be seen to be done: “47…justice must not only be done but must manifestly be seen to be done… The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done… …Whatever its outcome, such a hearing represents a valued human interaction in which the affected person experiences at least the satisfaction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way. Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. Justice Frankfurter captured part of this sense of procedural justice when he wrote that the “validity and moral authority of a conclusion largely depend on the mode by which it was reached…No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.” These observations have been made in the context of analysing the importance of the right to be heard. But Olga Tellis emphasised that not only the ends, but also the means of justice are important. The purpose behind an open court system is to grant the affected party and the public an opportunity to observe justice being dispensed. The process by which justice is rendered has an important bearing on the confidence which it inculcates in society. Knowledge of the process is a confidence builder.
11. In Life Insurance Corporation of India v Prof. Manubhai D. Shah,21 this Court examined the right claimed by a citizen to contribute to an in-house magazine published by an instrumentality of the State. Writing for the two-judge Bench, Justice A.M. Ahmadi (as the learned 21 (1992) 3 SCC 637. Chief Justice then was) dwelt on the significance of disseminating information in a democracy: “8. …The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy… …It cannot be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution…”
12. More recently, in Mohd. Shahabuddin v State of Bihar,22 a two-judge Bench of this Court was examining a challenge to a notification by the Patna High Court declaring the premises for conducting a trial.Justice M K Sharma, in his concurring opinion, described open courts: “215… In my considered view an “open court” is a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial proceedings…” Through these judicial decisions, this Court has recognised the importance of open courtrooms as a means of allowing the public to view the process of rendering of justice. First-hand access to court hearings enables the publicand litigants to witness the dialogue between the judges and the advocates and to form an informed opinion about the judicial process.
13. The impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings. This is due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may not be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in theelectronic media. When the description of cases 22 (2010) 4 SCC 653. is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public’s right to know. Courts, though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them. C Technology and Open Court
14. In the present age of technology, it is no longer sufficient to rely solely on the media to deliver information about the hearings of cases and their outcomes. Technology has become an inevitable facet of all aspects of life. Internet penetration and increase in the use of smart phones has revolutionised how we communicate. As on 31 March 2018, India had a total of 1,206.22 million telecom subscribers and 493.96 million internet users.23 Technology can enhance public access, ensure transparency and pave the way for active citizen involvement in the functioning of state institutions. Courts must also take the aid of technology to enhance the principle of open courts by moving beyond physical accessibility to virtual accessibility.
15. The importance of making justice accessible to the common citizen in its truest sense was explained by Lord Neuberger in his Judicial Studies Board speech (2011): “…if justice is seen to be done it must be understandable. Judgments must be open not only in the sense of being available to the public, but, so far as possible given the technical and complex nature of much of our law; they must also be clear and easily interpretable by lawyers. And also to non-lawyers. In an age when it seems more likely than ever that citizens will have to represent themselves, this is becoming increasingly important.”24
16. This Court and the High Courts in India have pro-actively adopted technology to make the judicial process more accessible,organised, transparent, and simple. For instance, many courts in the country, including this Court, now have display boards in the court premises and on their official websites which enable legal practitioners 23 Telecom Regulatory Authority of India, The Indian Telecom Services Performance Indicators January-March, 2018. Available at: https://trai.gov.in/sites/default/files/ PIReport27062018_0.pdf 24 Neuberger, Lord of Abbotbury (Master of Rolls) 2011, ‘Open justice unbound?’, Judicial Studies Board Annual Lecture, 16 March 2011. Available at: http:// netk.net.au/judges/neuberger2.pdf and the public to view the progress of the cause list. This Court and the High Courts maintain websites where they upload cause lists, daily orders, and judgments. They also maintain an archive of previous judgments, allowing users to search for a specific judgment using various inputs.
17. Recent judgments of this Court also indicate the willingness of this Court to adapt to modern technology for the advancement of justice. In Krishna Veni Nagam v Harish Nagam,25 this Court had taken into consideration technological developments to regulate the use of video conferencing for certain categories of cases. Justice A.K. Goel on behalf of himself and Justice Lalit directed: “16. The advancement of technology ought to be utilised also for service on parties or receiving communication from the parties. Every District Court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/ manager of a District Court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/information officer in every District Court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants.” In Santhini v Vijaya Venketesh,26 where this Court was re-considering the issue of permitting video-conferencing for matrimonial disputes, one of us (D Y Chandrachud, J.) in his dissenting opinion, discussed the importance of using technology to enhance the delivery of justice: “89. Technology must also be seen as a way of bringing services into remote areas to deal with problems associated with the justice delivery system. With the increasing cost of travelling and other expenses, videoconferencing can provide a cost-effective and efficient alternative. Solutions based on modern technology allow the court to enhance the quality and effectiveness of the administration of justice. The use of technology can maximise efficiency and develop innovative methods for delivering legal 25 (2017) 4 SCC 150. 26 (2018) 1 SCC 1. services. Technology-based solutions must be adopted to facilitate access to justice… Repeated adjournments break the back of the litigant. We must embrace technology and not retard its application, to make the administration of justice efficient.” C.1 ICT in Indian courts27 Technology has made modernity possible.
The interplay between technology and law has allowed dissemination of legal information with a veritable click of a button. We have designed processes and systems to suit the unique requirements of our judicial system. The Indian judiciary has incorporated Information and Communication Technology (ICT) under the aegis of the e-Courts Integrated Mission Mode Project (e- Courts Project). This has been a part of the National e-Governance Plan (NeGP) which has been implemented in all High Courts and the District Courts of India. It was based on the ‘National Policy and Action Plan for Implementation of Information and Communication Technology’ prepared by the e-Committee of the Supreme Court of India in 2005. The 2005 e-Committee Report proposed three phases for implementation of the e-Courts Project. The e-Committee of the Supreme Court of India and the Department of Justice, Government of India, through a proper management of the e-Courts Projecthave ensured efficiencyin the judicial process across 21,000 courts in the district judiciary in India.Phase-I of the e-Courts Project was approved in 2010 and enabled computerisation of 14,249 courts in the district judiciary by 2015.
The objective of the ongoing Phase—II of this project is to enhance judicial service delivery for litigants and lawyers by improving infrastructure and providing technology-enabled judicial processes. It involves improved ICT infrastructure, videoconferencing, improved access across seven platforms including a web portal, app, judicial service centers and kiosks. The e-Courts Projectalso includes capacity building of officers, ICT provisioning of District Legal Service Authorities, Taluka Legal Service Committees, State Judicial Academies and judicial process re- engineering.Currently, the e-Courts project caters to more than 21,000 courts and has been implemented in more than 600 districts, 3,000 court complexes and 6,400 establishments. 27 The websites of Department of Justice, Government of India (doj.gov.in/) and E- courts services(ecourts.gov.in/) contains fair amount of information on the ongoing e-Courts Project.
C.2 Technology and Implementation One of the objectives of the e-Courts Project is to make the ICT infrastructurecomprising of computer hardware, Local Area Network (LAN), Wide Area Network (WAN), information kiosks,UPS, renewable energy-basedpower backup and other peripherals available in the district judiciary. The e-Courts Project is developed on Open Source Technology by the National Informatics Centre (NIC), a Central Government department under the Union Ministry of Electronics and Information Technology. A single unified Case Information System (CIS) Software has been developed and made available to the entire district judiciary in India, for catering to the diversified requirements of the country in terms of local procedures, practices and languages. CIS Version 3.0 has been made available in all the district and taluka courts. 15 High Courts are already equipped withCIS Version 1.0.
The e-Committee carried out extensive capacity building exercises to train judicial officers and administrative staff. The project is manned and managed by the court staff and the staff is trained in the use of computers.Some of them are also selected to be trained as system administrators. C.3 Platforms created for service delivery (i) e-Courts Portal: Online mechanisms28 (websites) are available for stakeholders such as litigants, advocates, government agencies, and the police to track case status, view cause lists, judgments and daily orders. The services.ecourts.gov.in portal is a one stop access point where a person can locate a case from any court across the country by using different search criteria available on the website. Data is available on the portal for disposed of and pending civil and criminal cases across the country. The portal also contains judgments and orders of the district judiciary.
(ii) Mobile App: e-Courts Services mobile app available on Android and iOS provides facility for all stakeholders including advocates and parties, to create a portfolio of cases in which they are associated and track them for future alerts. A facility to search 28 Online services are available at –(i) ecourts.gov.in, (ii) services.ecourts.gov.in and (iii) districts.ecourts.gov.in the case by a QR Code is also provided and the App has been downloaded multiple times. (iii) SMS Push: Litigants and advocates get an SMS alert on their cell phones, in case of any adjournment, scrutiny, registration, transfer of case, disposal, uploading of orders, etc. (iv) SMS Pull:This facility allows advocates and litigantsto send the CNR number (which is a unique number tagged for every single case in the country) and receive a response with the current status of the case. (v) Automated e-Mails: Litigants, advocates and police stations receive information on regular e-mails in relation to thecause lists, transfer of cases, disposal, copies of orders and judgments.
(vi) Touch Screen Kiosks and Service Centre: Dissemination of case status has been made simplewith the installation of touch screen kiosks in various court complexes across the country. This allows litigants and advocates to view their case status at the touch of a button. The same information can also be obtained from Judicial Service Centres established in court complexes. (vii) E-Payment:In order to facilitate ease of payments, online payment of court fees, fines, penalties and judicial deposits through the epay.ecourts.gov.in has been facilitated. Citizens can make payments online without the use of cheques, cash or stamps,with the help of this portal. (viii) E-Filing:For convenience, facility for online filing of cases and case papers with the court registry has been provided. This facility is integrated with standard application software across all the districts and subordinate courts.
C.4 National Judicial Data Grid The NJDG is a public portal that provides a database of pending and disposed of cases in various High Courts and District Courts across India.The NJDG portal njdg.ecourts.gov.in provides transparency in the judicial system to all citizens by allowing them to view statistics of cases pending before various courts.The World Bank has also acknowledged NJDG as a significant innovation. It serves as a national judicial data warehouse that may be used to shape legislative policy. C.5 Other facilities created to speed up justice delivery (i) NSTEP: National Software and Tracking of Electronic Process, is a mechanism that consists ofa centralised service tracking application and a mobile app for court bailiffs. NSTEP has been created for speedy delivery of process and to reduce inordinate delays in judicial procedures. The mobile app, equipped with GPS location tracking assists the bailiffs in real- time and transparent tracking of services.
The mobile app also has the facility to record the photo and signature of the receiver. In case of non-service of notice or communication, the mobile application instantly communicates it to the central NSTEP server. (ii) Video Conferencing: In an effort to speed up the judicial process, video-conferencing facilities connecting courts and jails have been established in 488 courts and 342 jails across India. C.6 Concept of Video-Streaming/Web-Cast Advancement in technology and increased internet penetration has facilitated transmission of live or pre-recorded video feed to devices like computers, tabs and mobiles. Live-webcast or streaming of court proceedings in real time can be implemented through available technological solutions. Live-webcast or streaming is the fastest method for communicating and is most suited for connecting geographically dispersed audiences. C.7 Virtual reality as an extension of the open court The time has come for this Court to take a step further in adopting technology and to enable live-streaming of its proceedings.
Live-streaming of courtroom proceedings is an extension of the principle of open courts. Live-streaming will have the ability to reach a wide number of audiences with the touch of a button. It will enable litigants and members of the public to have a virtual experience of courtroom proceedings even outside the courtroom premises.
18. There are multiple reasons why live-streaming will be beneficial to the judicial system: a. The technology of live-streaming injects radical immediacy into courtroom proceedings. Each hearing is made public within seconds of its occurrence. It enables viewers to have virtual access to courtroom proceedings as they unfold; b. 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 decisions are made. It will help bring the work of the judiciary to the lives of citizens; c. 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. Society will be able to view court proceedings first hand and form reasoned and educated opinions about the functioning of courts.
This will help reduce misinformation and misunderstanding about the judicial process; d. 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 the Bench. The archives will constitute a rich source for aspiring advocates and academicians to study legal advocacy procedures,interpretation of the law, and oratory skills, among other things. It will further promote research into the institutional functioning of the courts. Live-streaming and broadcasting will also increase the reach of the courts as it can penetrate to every part of the country; e. Live-streaming will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy; f. 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. It will reduce the need for litigants to travel to the courts to observe the proceedings of their cases; g. Live-streaming is a significant instrument of enhancing the accountability of judicial institutions and of all those who participate in the judicial process. Delay in the dispensation of justice is a matter of serious concern. Live-streaming of court proceedings will enable members of the public to know of the causes of adjournments and the reasons why hearings are delayed; and h. Above all, sunlight is the best disinfectant. Live-streaming as an extension of the principle of open courts will ensure that the interface between a court hearing with virtual reality will result in the dissemination of information in the widest possible sense, imparting transparency and accountability to the judicial process. Major common law jurisdictions across the globe have already embraced the concept of live-streaming and broadcasting courtroom proceedings. It may be useful to look at the evolution of the concept in a few jurisdictions, and the practices followed by them. D Comparative Law
19. This section takes a measured look at the development of the principle of open justice in common law and other jurisdictions. It examines how courts in other countries have addressed concerns of privacy, confidentiality and sensitivity of litigants, witnesses and cases. (i) United Kingdom The Supreme Court of UK permits broadcasting of its courtroom proceedings.29 The Eighth Practice Direction of the Supreme Court permits “video footage of proceedings before the Court to be broadcast where this does not affect the administration of justice.”30 Three national broadcasters- BBC, ITN, and Sky News31 are permitted to film and broadcast the Supreme Court proceedings, “in accordance with the protocol which has been agreed with.”32 The protocol prohibits recording of certain types of proceedings like private discussions between litigants and their counsel.33 The footage is only allowed to be used for informational purposes in programs like news, current affairs, education, and legal training.34 However, any broadcasting which may detract from 29 The live-streaming proceedings of Supreme Court of United Kingdom.
Available at: https://www.supremecourt.uk/live/court-01.html 30 The Supreme Court of United Kingdom, Practice Direction 8, para 8.17.1. Available at https://www.supremecourt.uk/docs/practice-direction-08.pdf 31 Supra note 16. 32 Supra note 30. 33 Ibid. 34 Supra note 16. the seriousness or integrity of the proceedings, like entertainment programmes, satirical programmes, political party broadcasts, and advertising or promotion,is not permitted.35 Further, any still images are always required to be used “in a way that has regard to the dignity of the Court and its functions as a working body.”36 Sky News airs live broadcasts of the UK Supreme Court’s hearings.37 By the end of 2011, the UK Supreme Court permitted journalists to use live text-based communications, including social media platform Twitter, during court hearings.38The presiding judge, however, retains full discretion to prohibit such communications in the interest of justice.39 The UK Supreme Court has its own Twitter handle (@UKSupremeCourt) which it uses to update the public about its judgments.40 It also has a YouTube channel where it showcases short summaries of judgments read out by the judges.41 In 2013, the UK permitted audio-visual coverage of the Court of Appeals (Civil and Criminal).42The broadcast is subject to certain limitations – (a) only the judgments and lawyers’ arguments are permitted to be filmed.
Victims and witnesses are not recorded; and (b) live broadcasts are delivered with a seventy seconds delay.43 According to British legal commentator, Joshua Rozenberg, the seventy seconds delay is favourable and necessary because: “That gives everyone involved just over a minute to work out that something should not be heard or seen in public before the recording leaves the courtroom. The problem could be mild profanity…Somebody might quote information that is protected by a court order or is unreportable for some other reason. Perhaps 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 39 Ibid. 40 The official Twitter handle of UK Supreme Court. Available at: https://twitter.com/ uksupremecourt 41 The official YouTube handle of UK Supreme Court. Available at: https://www.youtube.com/user/UKSupremeCourt 42 Ravid, Itay, Tweeting #Justice: Audio-Visual Coverage of Court Proceedings in a World of Shifting Technology (March 9, 2017). 35(1) Cardozo Arts and Entertainment Law Journal 41 (2017). 43 Ibid. the cameras might catch a glimpse of someone whose face must not be included in court broadcasts, such as the appellant or a witness.”44 The court retains control over the live broadcast.A single video- journalist is authorised to record and regulate the live proceedings45 andis bound by the court’s orders.46Only the appointed journalist or his substitute is permitted to take pictures in court.47The appointed journalist is jointly employed by the four media groups which are funding the project- Sky News, ITN, BBC and the Press Association news agency.48 Only the appointed journalist or his substitute is permitted to take pictures in court.49 Although the appointed journalist has the permission to film any of the fifteen courtrooms in which the Court of Appeals may sit, practically, the media organisations pick only one court at a time for live broadcast.50 The Court of Appeals was opened for broadcasting upon the recommendations of the Ministry of Justice,in its 2012 Report.51 Making a case for extending technological change to the remaining courts in the UK, the Ministry of Justice had reasoned that: “In principle the majority of our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to see what happens in our courts in person. In addition, the extent of press coverage of court cases, particularly in local courts has declined in recent years. In cases of particular interest to the public, there may not be sufficient space in the public gallery for all those who wish to attend.”52 The Ministry had recommended broadcasting the Court of Appeals’ proceedings as they do not involve victims or witnesses: “Cases in the Court of Appeal normally deal with complex issues of law or evidence, and victims and witnesses rarely appear in 44 Joshua Rozenberg, Televising the Courts: The Time Has Come, The Guardian, 23 October 2013. Available at https://www.theguardian.com/law/2013/oct/23/televising- courts-live-broadcasting-joshua-rozenberg 45 Ibid. 46 Ibid. 47 Ibid. 48 Ibid. 49 Ibid. 50 Ibid. 51 Supra note 16. 52 Ibid. order to provide new evidence. Given the complexity of legal issues in Court of Appeal cases, we believe that allowing advocates’ arguments to be filmed in addition to judgments would be more likely to improve public understanding than judgments alone. We are therefore proposing to allow judgments and legal arguments from cases before the Court of Appeal to be broadcast.”53 Live-streaming of the Court of Appeals’ hearings opened the doors to other courts in the UK for broadcasting.
The UK Parliament enacted the Crime and Courts Act, 2013, which, inter alia, enables recording of court proceedings with the approval of the Lord Chancellor and the Lord Chief Justice. This was enacted as a primary legislation to empower the Lord Chancellor, with the Lord Chief Justice, “to set out in secondary legislation the specific circumstances in which the prohibition on cameras in courts…will be disapplied.”54 In 2016, the Ministry of Justice launched a three-month pilot program to experiment with broadcasting the proceedings of eight England and Welsh Crown Courts.55 This was limited to judges’ sentencing remarks and the footage was not made available to the public.56 The question of broadcasting the Crown Court’s hearings is currently pending consideration before the Ministry of Justice, as it involves larger issues of safeguarding witnesses and victims.57 (ii) South Africa In South Africa, the presence of cameras in the courtroom is a recent development and is at a relatively nascent stage.
In 2017, the Supreme Court of Appeal (which is the highest court of appeal in South Africa)set a precedent permitting broadcasting of proceedings in all courts of South Africa.58 Now, the media is permitted to live broadcast the proceedings of all South African courts.While permitting the media to live broadcast the court proceedings, Ponna JA made an interesting observation that it was time for courts to ‘yield to a new reality:’ 53 Ibid. 54 Ibid. 55 Supra note 42. 56 Ibid. 57 The Telegraph, Crown Court sentencing being recorded for pilot projects that could bring judges’ comments to TV, 27 July 2016. Available at https://www.telegraph.co.uk/ news/2016/07/27/crown-court-sentencing-being-recorded-for-pilot-project-that-cou/ 58 The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others (425/2017) [2017] ZASCA 97. “It is thus important to emphasise that giving effect to the principle of open justice and its underlying aims now means more than merely keeping the courtroom doors open. It means that court proceedings must where possible be meaningfully accessible to any member of the public who wishes to be timeously and accurately apprised of such proceedings. Broadcasting of court proceedings enables this to occur.”59 Witnesses are granted the freedom to object to broadcasting their testimony, subject to the court’s final discretion.
This discretion, Ponna JA (speaking for the bench) emphasised, must be exercised by the courts on a case-by-case basis, by conducting an individualised enquiry.60Where the judge finds that the objections of the witness are valid, the court considers alternatives to regular photographic or television coverage.61 (iii) Canada The Canadian Supreme Court is considered a pioneer for adapting itself to technology and permitting audio-visual broadcasting of its proceedings.62 In 1993, the Canadian Supreme Court conducted a successful pilot project, live televising the hearings of three high profile cases. The broadcasts were governed by the following guidelines: “(a) The case to be filmed will be selected by the Chief Justice. (b) The Chief Justice or presiding Justice may limit or terminate media coverage to protect the rights of the parties; the dignity of the court; to assure the orderly conduct of the proceedings; or for any other reason considered necessary or appropriate. (c) No direct public expense is to be incurred for wiring, or personnel needed to provide media coverage.”63 The Canadian Supreme Court permits the Canadian Parliamentary Press Gallery to live broadcast all appeals before it.64 The Canadian Parliamentary Affairs Channel (CPAC) is also allowedto televise the appeal hearings of the Court, but at a later date.65 The broadcasts are 59 Ibid at para 46. 60 Ibid at para 72. 61 Ibid at para 73. 62 Kyu Ho Youm, Cameras in the Courtroom in the Twenty-First Century: e U.S.
Supreme Court Learning From Abroad?, 2012 BYU L. Rev. 1989 (2012). 63 Ibid. 64 Supreme Court of Canada, Access to the Court. Available at https://www.scc-csc.ca/ media/acc-eng.aspx 65 Daniel Stepniak, ‘Audio Visual Coverage of Courts, A Comparative Analysis,’ Cambridge University Press (2008). subject to guidelines which ensure that the Court retains control over the filming process.66 Although the CPAC decides which cases to broadcast, the Supreme Court has the discretion to prohibit the filming of specific appeals.67 The CPAC is permitted to share the broadcast feed with other television networks, for use as snippets in news programs.68 At present, four cameras are installed in the Supreme Court.69 The appeal hearings have been broadcast since 2009 and are archived on the Court’s website.70 The cameras are installed by the Court and are operated by the Court’s employees. Outside cameras are not permitted except for special events.71 The copyright over the proceedings is retained by the Court.72 Before any case can be filmed, the Supreme Court requires parties to consent to the recording and televising of the proceedings.73 Any party seeking to exclude their case from the broadcast must convey the same to the Registrar at least two weeks prior to the hearing date.74 (iv) Australia Australia follows an open court system, with courts in all Australian jurisdictions admitting television cameras into courtrooms.75 Since 2013, audio-visual recordings of the High Court of Australiahave been made available to the public.76 The entire process of filming and broadcasting is carried out by the Court staff.77 Transcripts of the hearings are made available within a day or two of most hearings.78 The High Court has stated that initially the recordings will be available after a few business days, however, the Court will endeavour to reduce the number of days.79 66 Ibid. 67 Supra note 62. 68 Ibid. 69 Ibid. 70 Ibid. 71 Ibid. 72 Supra note 65. 73 Ibid. 74 Ibid. 75 See supra note 65. 76 High Court of Australia, Press Release, 01 October 2013.
Available at: http://www.hcourt.gov.au/assets/news/MR-audio-visual-recordings-Oct13.pdf. 77 High Court of Australia, Photography and Recording Guidelines. Available at: http://www.hcourt.gov.au/about/photography-and-recording 78 Ibid. 79 Ibid. Apart from the High Court, most Australian courts do not maintain a consistent policy on admitting television cameras into the courtroom.80 Filming is permitted on an ad hoc basis and is usually restricted to the recording of file and overlay footage or ceremonial sittings.81 (v) New Zealand New Zealand allows wide access to the media in courts and has one of the most progressive live broadcast policies among common law countries.82 Traditionally, members of the media were only permitted to make hand-written notes of court proceedings, without the use of any electronic device.83 From 1996 to 1998, New Zealand conducted a three year pilot project which covered more than twenty cases.84 All courts in New Zealand were covered under the pilot, contingent on two main rules: “1. Material obtained from expanded media coverage which is broadcast shall be presented in a way which gives an accurate, impartial and balanced coverage of the proceedings and of the parties involved. Any such broadcast is to be without editorial comment and to be of at least two minutes duration per news item. 2. There shall be no use of material obtained from expanded media coverage otherwise than for normal news programmes or articles unless prior approval for that use has been given by the trial judge or, where that judge is unavailable, another judge of the relevant court.”85 New Zealand permits media houses to broadcast court proceedings with the approval of the court.86 The broadcast is governed by a set of guidelines which balance the principle of open justice with the need for 80 Supra note 65 at page 210-211. 81 Ibid. 82 See supra note 65. 83 New Zealand, Report to Chief Justice on In-Court Media Coverage (2015), at para 7.
Available at https://www.courtsofnz.govt.nz/In-Court-Media-Review/In-Court- Media-Review/ReporttoChiefJusticeonincourtmediacoverageF6_7_15_ 20150720.pdf 84 Ibid, at para 15. 85 Ibid, at para 14. 86 New Zealand, In-Court Media Coverage Guidelines (2016). Available at: https:// www.courtsofnz.govt.nz/going-to-court/media/rules-and-resources/ INCOURTMEDIACOVERAGEGUIDELINES2016T.pdf a fair trial. They impose upon the media the responsibility to provide “an accurate, fair and balanced report of the hearing” without publishing anything out of context.87 They also provide for a ten minute delay in broadcasting audio and video recordings.88 Under the guidelines, any media outlet wishing to film and broadcast court proceedings is required to seek prior written permission from the court for each case.89 The discretion of the court to grant permission is guided by the following considerations: “a. the need for a fair trial; b. the desirability of open justice; c. the principle that the media have an important role in the reporting of trials as the eyes and ears of the public; d. court obligations to the victims of offences; and e. the interests and reasonable concerns and perceptions of the parties, victims and witnesses.”90 The Supreme Court permits recording of its proceedings in majority of the cases, unless specifically objected to by the parties.91 The Supreme Court’s media guidelines, published upon its establishment in 2004, indicate that audio-visual covering is to be considered as the norm, rather than the exception: “Subject to paragraph (5), all applications to televise or otherwise record proceedings of the Supreme Court will be deemed to be approved unless a party indicates, within 3 days of being advised by the registrar of the application, that the party objects to it.”92 (vi) United States The US Supreme Court does not permit video recording or photography of its proceedings.
It releases audio transcripts of the oral 87 Ibid. 88 Ibid, at para 2.1. 89 Ibid, at para 5.5. 90 Ibid at para 2.3. 91 Supra note 65, at page 347. 92 New Zealand Ministry of Justice, Supreme Court Media Guidelines (2004). Available at: https://www.justice.govt.nz/about/news-and-media/media-centre/media- information/media-guide/appendices/appendix-e/ arguments on the same day. Audio recordings of each week’s oral arguments are released on the court’s website93 at the end of the week. Each Federal Court of Appeals has the discretion to provide audio or video recordings of its proceedings, subject to guidelines framed by the court. Since 2014, the US Court of Appeals for the Ninth Circuit has approved video broadcasting of all cases before it, except those prohibited by law through guidelines.94 The media needs to take prior approval of the court to record the proceedings.95 The presiding judge is granted absolute discretion to limit or terminate media coverage, or direct the removal of camera coverage personnel when necessary, in order to protect the rights of the parties or aid the conduct of proceedings.96 The video and audio recordings of the federal judiciary are hosted on YouTube and are also available on the court’s official website.97 The district and lower courts in each state permit some form of audio or video broadcasting and recording of its proceedings, subject to guidelines and rules.98 (vii) Brazil In 2002, the President of Brazil sanctioned a law enabling the creation of a public television channel dedicated to the judiciary and to the Supreme Court.99 The court sessions of the Supreme Court (Supremo Tribunal Federal) are broadcast online100 on either ‘TV Justica’101 or ‘RadioJustica’102 and operated by the Supreme Court.
Aside from being aired on television and radio, the proceedings can also be streamed online as the Court maintains a Twitter account103 and a YouTube channel.104 93 The official website of the Supreme Court of the United States. Available at: https://www.supremecourt.gov/oral_arguments/argument_audio/2017 94 The United States Court of Appeals for Ninth Circuit, Guidelines for Broadcasting, Recording, and Still Photography in the Courtroom. Available at: h t t p s : / cdn.ca9.uscourts.gov/datastore/uploads/news_media/camera.guidelines. pdf 95 Ibid. 96 Ibid. 97 The official YouTube handle of US Courts. Available at: https://www.youtube.com/ user/uscourts 98 As held by the Supreme Court of the United States in Chandler v Florida, 449 U.S. 560 (1981). 99 Meet the Justice TV. Available at official website: http://www.tvjustica.jus.br/index/ conheca 100 Supra note 62. 101 TV Justica. Available at official website: http://www.tvjustica.jus.br/ 102 Radio Justica.
Available at official website: www.radiojustica.jus.br/ 103 The official Twitter handle of Supreme Court of Brazil. Available at: https:// twitter.com/stf_oficial 104 The official YouTube handle of Supreme Court of Brazil. Available at: https:// www.youtube.com/user/stf The unique feature of the Brazilian Supreme Court is that cameras are permitted into the conferences where the judges deliberate.105 (viii) International Courts 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.106 The ICC has a YouTube channel where it broadcasts case proceedings, press conferences, and informative videos in different languages.107 In the European Court on Human Rights (ECHR), all hearings are permitted to be made public, unless specifically disallowed by the Court.108 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.109
20. On examining the practices followed by the jurisdictions discussed above, 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.
21. 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. However, the process of live-streaming should be subjected to carefully structured 105 Supra note 62. 106 Official website of International Criminal Court. Available at: https://www.icc- cpi.int/ 107 Official YouTube Channel of International Criminal Court. Available at: https://www.youtube.com/user/IntlCriminalCourt/videos 108 Rule 63, Rules of Court, ECHR, 01 Aug 2018. Available at: https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf 109 ECHR, Webcast of hearings. Available at: https://www.echr.coe.int/Pages/ home.aspx?p=hearings&c= guidelines. Initially, a pilot project may be conducted for about three months, by live-streaming only cases of national and constitutional importance in the Chief Justice’s Court. Progressively, as and when the infrastructure is ready, this Court can expand the ambit of live-streaming to cover all cases (except for the ones which are excluded).
22. 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.
23. 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.
24. 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.
25. Comprehensive guidelines for live-streaming of Court proceedings have been submitted byMr K K Venugopal, learned Attorney General of India, Ms Indira Jaising, learned Senior Counsel, MrVirag Gupta, learned Counsel and Mr Mathews J Nedumpara, learned Counsel. These have been duly considered in framing the model guidelines below. The model guidelines are based on the following broad principles: a. Article 145 (1) of the Constitution provides: “Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court…” Determining the modalities for live-streaming of the proceedings of this Court can appropriately be dealt with under the Rules which should be framed in pursuance of Article 145(1). Regulating, generally, the practice and procedure of the Court would extend to formulating Rules for live-streaming. b. Not all cases may be live-streamed.
Certain sensitive cases like matrimonial or sexual assault cases should be excluded from the process of live-streaming; c. Live-streaming will be carried out with a minimal delay to allow time for screening sensitive information or any exchange which should not be streamed; d. The final authority to regulate suspension or prohibition of live- streaming in a particular case where the administration of justice so requires, must be with the presiding judge of each court; e. Live-streaming will be carried out only by persons or any agency authorized under the directions of the Chief Justice of India, or as contemplated in the Rules. The streaming and broadcasting will be hosted by this Court on its website with the assistance of the National Informatics Centre and the Ministry of Electronics and Information Technology; f. The copyright over all the material recorded and broadcast in this Court shall vest with this Court only; and g. The recordings and broadcast may not be used by anyone for commercial purposes. h. Archives shall be maintained of all live-streaming, to be hosted on the web-site of the Court.
26. 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 determineall 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. E Model guidelines for 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 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 authorised 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. D. Archiving 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. F. Miscellaneous 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 compilingof 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.
I would like to acknowledge and appreciate the efforts and assistance rendered by Mr K K Venugopal, the learned Attorney General for India, Ms Indira Jaising, learned Senior Counsel, Mr Mathews Nedumpara, learned Counsel and by the law student, Mr Swapnil Tripathi, who also moved a petition under Article 32. Kalpana K. Tripathy Writ Petitions allowed.