Should High-Profile Cases Be Live Streamed?
- Yes, Its Time For Courts To Come Out Of the Closet

Raman Swamy

If the great public interest in the Supreme Court hearings in the Aadhaar case is anything to go by, then there is certainly a strong argument in favour of allowing live streaming of court proceedings - or at the very least, online uploading of edited audio-visual recordings of selective portions of the oral arguments in certain important cases.

If one were to judge by the first two days of hearings in the Aadhaar case – especially the very high quality of arguments put forward by petitioners counsel Shyam Divan – the case in favour of providing public access to apex court proceedings becomes even stronger.  Just listening to Divan’s eloquent presentation before the 5-judge Bench is an education - it instantly elevates the clash of opinions over mandatory Aadhaar to a higher plane, touching on elemental aspects of the role of the State in a Democracy and the fragile nature of the Freedoms guaranteed under the Constitution.

Undoubtedly, in the course of the next few days, there will be equally learned and perhaps even more persuasive arguments by counsel on either side of the Aadhaar debate.  But that only makes the case for direct public access even more compelling.  It would amount to a crash course in public education, providing basic knowledge and deeper understanding of the philosophy underlying the social, political, economic and technological conflicts that beset humanity in modern times.   

Not surprisingly, more and more voices are being heard pleading for a mindset change in regard to the veil of secrecy shrouding judicial proceedings. Enlightened citizens are beginning to ask:  If Parliament proceedings can be telecast live, why not Supreme Court hearings?  In the 21st century, transparency is the name of the game and there is indeed no real justification for continuing to cling to archaic concepts of colonial era confidentiality in such matters. 

The current paradox is that in this age of the Internet, Indian citizens have easy access to streaming of live proceedings in some American and European courtroms, whereas what goes on in courts in India are cloaked in secrecy and cosseted in taboos.

Inevitably, this is leading to a pernicious new threat that is poisoning the very concept of free speech and independent media – dangerous distortions of truth and deliberate manipulation of facts are being indulged in for ulterior political motives by certain unscrupulous TV channels and news agencies.  The plague of fake news and doctored analyses has spread its tentacles from the arena of crass politics and distorted economics to the supposedly hallowed terrain of the higher judiciary.

The diabolical attempt to misrepresent the gravity of recent events involving four senior judges is a case in point.  Concerted attempts were made to portray the issues raised by them as little more than a “transient tantrum” and “family quarrel” that could be resolved amicably over a cup of tea.   The narrative was deftly diverted by the media away from the core issue – an early-warning signal from four stalwarts fearlessly flagging the possibility of the judiciary succumbing to external pressures.

Of late, instances of disinformation have become all too frequent. Whenever major cases of public interest -  whether in criminal matters or constitutional issues --  come up before the higher judiciary,  it has become customary for reporters armed with mobile phones to sit inside the courtroom and send out a series of text messages as a sort of running commentary of the progress of arguments and counter-arguments.   These brief SMS texts are immediately flashed on TV screens as so-called “breaking news”.   

Very often this creates utter confusion and leads to a factually incorrect and serious wrong impression being conveyed on the public at large on the outcome.   To give just one example, very recently the judgment in a Ranchi court in the fodder case involving Lalu Prasad was blatantly misreported, retracted and misreported again in a matter of minutes by various news channels.  One channel actually flashed the “bombshell news” that Lalu had been acquitted in the case, with the anchor proudly boasting that her channel was the first to break the news.  Less than two minutes later, without even a token apology, the same anchor announced that a guilty verdict had been pronounced and the RJD leader would in fact be sentenced to a jail term. 

Apart from the danger of “Fake News”, which has now become a cancerous disease of epidemic proportions in the nation media especially in regard to reporting on political developments and economic data,  there is a strong case in favour of permitting the public at large to benefit from closely following court proceedings – or at least selected portions of it.

This is why the PIL filed by senior advocate Indira Jaising seeking live streaming of Court proceedings needs to be considered seriously.  Jaising has pleaded that in cases that are of constitutional and national importance having an impact on the public at large or a large number of people, such access to the public should be allowed.

In her petition, Jaising has pointed out that the Court is hearing, or will be hearing in the near future, a number of such cases which affect the interests of the public at large.   These cases include the ongoing Aadhaar case, women’s right of entry into Sabiramala Temple, decriminalisation of homosexuality, reconsideration of adultery laws, cattle slaughter laws,  and rights of Parsi women to attend her father’s funeral rites. 

The broad thrust of her plea is that, as stakeholders, the public has the right to be informed of such cases and have first-hand access to such information in real time.  The main contentions put forward in the petition are as follows:

·        Right to seek, and receive information in exercise of Freedom of Speech and Expression is guaranteed Article 19(1)(a) of the Constitution. The right to information is a pre-requisite to the fundamental right to be able to freely express their opinions guaranteed under Article 19(1)(a) of the Constitution of India.

·        It is necessary that those who are impacted by the judgments of the Court have a right to be aware of the manner in which decisions are taken. Enabling citizens – especially those unable to approach the Court due to poor socio-economic background – to understand the reasoning in cases affecting their rights is part of their right to dignity and intrinsic value of their right to be heard under Article 21 of the Constitution.

·        If there are countervailing interests of privacy, the Supreme Court can place restrictions on recording of such case proceedings.

·        There is a right to information in real time about the proceedings in Supreme Court of India on all matters of great public importance in exercise of the rights under Article 19(1)(a) of the Constitution of India

·        The cardinal principle of law is that justice must not only be done but also seen to be done. The best possible manner to achieve this goal of open justice is to live stream the proceedings. This way, the arguments of all counsel are heard and recorded, and the concerns of the judges as reflected in the interaction between the counsel and the Court, are recorded accurately and without distortions. Further, it will promote transparency and accountability in administration of justice and will inspire confidence of the public in the judiciary. This is also in line with Article 145 (4) of the Constitution.

·        Live recording of court proceedings would help in maintaining the respect that it deserves as a co-equal organ of the State. It has been emphasised that live streaming is currently being employed in both houses of the legislature. There is no rational reason why proceedings of great public importance on public law should also not be telecast live.

·        Live streaming and/or recording of proceedings of matters of national importance will be of immense archival value, as well as a significant contributor to the educational role of the judiciary.
·        Live streaming of cases would avoid misinformation, conscious disinformation, and misunderstanding of the role of the Court.

Jaising has also drawn attention to the new technology that is available, such as Twitter -  live tweets are already available from the Court rooms to inform people of arguments in real time. However, the petitioner argues that rather than relying on an interpretation by third parties, it is just and necessary that the public can view the proceedings first hand to make up their own minds on the merits of the debate in Court.

In several other countries, the importance of live streaming of court proceedings has already been recognized and also practically implemented -- including in Canada, Australia, UK, New Zealand, South Africa, the European Court of Human Rights and the International Criminal Court, which permit varying degrees of recording court proceedings.

In view of this, Indira Jaising has pleaded for Supreme Court proceedings of cases of constitutional and national importance to be live streamed in a manner that it is easily accessible to the public for viewing.

Further, she has sought directions to be issued to appropriate authorities, including the Registrar of Supreme Court as well as concerned Union Ministries, to frame and place for the consideration of the full court, guidelines to determine which cases qualify as being of constitutional and national importance.

Pending the availability of the infrastructure for live streaming, the petitioner has suggested that proceedings of such cases currently before the Supreme Court be recorded and uploaded on its own YouTube channel, till the time a more formal facility of live streaming is arranged.

Jan 20, 2018

Raman Swamy [email protected]

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