Swapnil Tripathi vs Supreme Court of India

1. Open trials and access to the public during hearing of cases before the Court is an accepted proposition. As regards the pronouncement of judgments by the Supreme Court, there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open Court. Indeed, no such express provision is found in the Constitution regarding “open Court hearing” before the Supreme Court, but that can be traced to provisions such as Section 327 of Cr.P.C. and Section 153-B of CPC. [Para 6][71-E-F]

2. Live streaming of Court proceedings has the potential of throwing up an option to the public to witness live court proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions of Courts; and would also provide them with a more direct sense of what has transpired. Thus, technological solutions can be a tool to facilitate actualization of the right of access to justice bestowed on all and the litigants in particular, to provide them virtual entry in the Court precincts and more particularly in Court rooms. In the process, a large segment of persons, be it entrants in the legal profession, journalists, civil society activists, academicians or students of law will be able to view live proceedings in propria persona on real time basis. [Para 8][73-B-C]

3. Live streaming of Court proceedings is feasible due to the advent of technology and, in fact, has been adopted in other jurisdictions across the world. Live streaming of Court proceedings, in one sense, with the use of technology is to “virtually” expand the Court room area beyond the physical four walls of the Court rooms. Technology is evolving with increasing swiftness whereas the law and the courts are evolving at a much more measured pace. Introducing and integrating such technology into the courtrooms would give the viewing public a virtual presence in the courtroom and also educate them about the working of the court. [Para 9][73-E-G]

4. By providing “virtual” access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants. Open justice, after all, 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. [Para 12][102-G-H]

5. Publication of court proceedings of the Supreme Court is a facet of the status of this Court as a Court of Record by virtue of Article 129 of the Constitution, whose acts and proceedings are enrolled for perpetual memory and testimony. Further, live streaming of court proceedings in the prescribed digital format would be an affirmation of the constitutional rights bestowed upon the public and the litigants in particular. [Para 13][103-A-B]

6. 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 whose cases are set down for hearing, as also other exceptional category 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. [Para 13][103-C]

7. In case of conflict between competing Constitutional rights, a sincere effort must be made to harmonise such conflict in order to give maximum expression to each right while minimizing the encroachment on the other rights. In terms of Section 327 of CrPC and Section 153-B of CPC, only court-directed matters can be heard in camera and the general public can be denied access to or to remain in the court building used by the Court. Until such direction is issued by the Court, the hearing of the case is deemed to be an open court to which the public generally may have access. The access to the hearing by the general public, however, would be limited to the size and capacity of the court room. By virtue of live streaming of court proceedings, it would go public beyond the four walls of the court room to which, in a given case, the party or a witness to the proceedings may have genuine reservations and may claim right of privacy and dignity. Such a claim will have to be examined by the concerned Court and for which reason, a just regulatory framework must be provided for, including obtaining prior consent of the parties to the proceedings to be live streamed. [Para 13][103-D-F]

8. The Court agrees with the comprehensive guidelines for live streaming of Court proceedings in the Supreme Court suggested by the Attorney General for India. 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. The entire project will have to be executed in phases, with certain phases containing sub-phases or stages. [Para 14][103-G-H; 104-A-B]

9. Until a full-fledged module and mechanism for live streaming of the court proceedings of the Supreme Court over the “internet” is evolved, it would be open to explore the possibility of implementation of Phase-I of live streaming in designated areas within the confines of this Court via “intranet” by use of allocated passwords, as a pilot project. It may be desirable to keep in mind other measures to be taken for efficient management of the entire project. [Paras 15, 16][105-D, G]

10. Thus, 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. In recognizing that court proceedings ought to be live streamed, this Court is mindful of and has strived to balance the various interests regarding administration of justice, including open justice, dignity and privacy of the participants to the proceedings and the majesty and decorum of the Courts. [Para 18][107-C-D]

Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ors. [1966] 3 SCR 744 – relied on. Per Dr D Y Chandrachud, J. (Concurring) :

1.1 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. [Para 3][108-F] House of Lords in Scott v Scott, [1913] A.C. 417 at 473; R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, Cunliffe Emma, “Open Justice: Concepts and Judicial Approaches”, (2012) 40 Fed L Rev 385 – referred to.

1.2 The principle of open justice encompasses several aspects that are central to the fair administration of justice and the rule of law. It has both procedural and substantive dimensions, which are equally important. Open justice comprises of several precepts: The entitlement of an interested person to attend court as a spectator; The promotion of full, fair and accurate reporting of court proceedings; The duty of judges to give reasoned decisions; and Public access to judgments of courts. [Para 5][109F-G; 110-A-B]

1.3 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. The idea of open courts is crucial to maintaining public confidence in the administration of justice. Open courts ensure a check on the process of adjudication in judicial proceedings. Publicity about courtroom proceedings is a mechanism to prevent improbity of judges. [Para 5][110-B, C-D, E]

1.4 Open courts are a safeguard against judicial arbitrariness or idiosyncrasy. It helps build public confidence in the administration of justice. 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. [Para 6][111A-B]

1.5 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 of the public to view courtroom proceedings and ensure that the judges apply the law in a fair and impartial manner. [Para 7][112-D-E, F]

AG v. Leveller Magazine [1979] AC 440; Grollo v. Palmer [1995] HCA 2; Richmond Newspapers, Inc. v. Virginia 448 US 555 (1980) – referred to.

Black’s Law Dictionary, 6th Edition, 1990, page 1091;. The Black’s Law Dictionary, 10th Edition, 2014, page 1263 – referred to.

2.1 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. Section 153-B of the CPC and Section 327 of the Cr.P.C. extend the principle of open courts to all civil and criminal courts in India. [Para 8][112-D-E]

2.2 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. [Para 8][112-D-E] Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ors. [1966] 3 SCR 744; Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 : [1985] 2 Suppl. SCR 51 – followed.

Life Insurance Corporation of India v. Prof. Manubhai D. Shah (1992) 3 SCC 637 : [1992] 3 SCR 595; Mohd. Shahabuddin v. State of Bihar (2010) 4 SCC 653 : [2010] 3 SCR 911 – relied on.

Scott v. Scott – referred to.

2.3 First-hand access to court hearings enables the public and litigants to witness the dialogue between the judges and the advocates and to form an informed opinion about the judicial process. A large segment of the society in India 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 the electronic media. When the description of cases 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. [Paras 12, 13][117-F-G; 118-A-B]

3.1 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 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. Supreme Court and the High Courts in India have pro-actively adopted technology to make the judicial process more accessible, organised, transparent, and simple. [Paras 14, 16][118-B-C, D, F-G]

Krishna Veni Nagam v. Harish Nagam (2017) 4 SCC

150 : [2017] 5 SCR 513;

Santhini v Vijaya Venketesh (2018) 1 SCC 1– referred to.

3.2 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. [Para 17][120-C]

3.3 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 Project have ensured efficiency in the judicial process across 21,000 courts in the district judiciary in India. [Para 17][120-E]

3.4 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 with CIS 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. [Para 17][121-C-D]

3.5 Platforms have been created for service delivery such as e-Courts Portal; Mobile App; SMS Push; SMS Pull; Automated E-Mails; Touch Screen Kiosks and Service Centre; E-Payment and E-Filing. [Para 17 C.3][121-E, G; 122-A, B, C, D, E, F]

3.6 The National Judicial Data Grid (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. Other facilities created to speed up justice delivery are (NSTEP) National Software and Tracking of Electronic Process and Video Conferencing. [Para 17 C.4 and C.5][122-G-H; 123-A, C-D]

3.7 Advancement in technology and increased internet penetration has facilitated transmission of live or pre-recorded video feed to devices like computers, tabs and mobiles. Livewebcast or streaming of court proceedings in real time can be implemented through available technological solutions. Livewebcast or streaming is the fastest method for communicating and is most suited for connecting geographically dispersed audiences. [Para 17][123-E]

3.8 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. [Para 17][123-F-G]

3.9 The technology of live-streaming injects radical immediacy into courtroom proceedings. Introduction of livestreaming will effectuate the public’s right to know about court proceedings. It 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. Viewing court proceedings will also serve an educational purpose. Livestreaming and broadcasting will also increase the reach of the courts as it can penetrate to every part of the country. It will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy. It 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. It 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. Livestreaming of court proceedings will enable members of the public to know of the causes of adjournments and the reasons why hearings are delayed. Above all, 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. [Para 18][123-H; 124-A-B, C, D, E-G; 124-B]

4. 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. [Para 20][134-D-F]

5. Live-streaming of court proceedings is manifestly in public interest. It is an extension of the principle of open justice and open courts. However, the process of live-streaming should be subjected to carefully structured guidelines. Initially, a pilot project may be conducted for about three months, by livestreaming 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 livestreaming to cover all cases (except for the ones which are excluded). [Para 21][134-F-G; 135-A-B]

6. 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. [Para 23][135-B-G]

7. 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. 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 would merit that proceedings before the High Courts should also be live-streamed. 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. [Paras 22, 24][135-B-D; 136-B]

8. 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. [Para 25][136-E]

9. 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. [Para 9][137-C-D]

10. Model guidelines are suggested for broadcasting of the proceedings and other judicial events of the Supreme Court of India as regards : Kind of matters to be live-streamed; manner of live-streaming; technical specifications for live-streaming; and archiving. 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. [Para 26][137D-E; 138-D; 139-C-D; 140-A]

11. The Supreme Court shall hold exclusive copyright over videos streamed online and archived with the Registry; and reuse, 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. [Para 26][140-E-F]