A guest post by the very talented, Satyam, who interned at the Chambers last month.
The live streaming of the court proceedings of the Gujrat Chief Justice’s court via YouTube, which started as an experiment in October last year, culminated into a formal approval to the idea in the form of The Gujarat High Court (Live Streaming of Court Proceedings) Rules, 2021, notified on the 17th July. Many are seeing it as the watershed moment of the Indian Judiciary which would usher in an era of increased transparency and accountability besides promoting greater public interest and trust in the judicial process, while some are also asking questions on its impact on the privacy and sanctity of court proceedings.
The demand for live streaming of court proceedings had been brewing for long, both in the corridors of the courts and in the common public opinion. A three-judge bench of the apex court while ruling in Swapnil Tripathi vs Supreme Court of India (2018) had strongly highlighted the importance of making Justice more visible and accessible to the people. Writing about the recent technological developments like e-filing, e-payments and National Judicial Data Grid among others in areas related to Judicial Administration, Justice DY Chandrachud, in his judgement had emphasised on Lord Hewart’s eternal words – “Justice should not only be done, but should manifestly and undoubtedly be seen to be done” – the core idea behind the livestreaming of proceedings.
The importance given to open trials by the Supreme Court, however, goes back to much earlier than 2018. A nine-judge bench of the court had elaborated on the importance of open court trials for upholding the effectiveness and legitimacy of courts while ruling in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors. The bench had said that trials subjected to public scrutiny act as a check to judicial caprice and create confidence of the public in the impartiality and fairness of the judicial process. The court had also invoked Bentham’s famous statement that “Where there is no publicity there is no justice. Publicity is the very soul of justice”.
Conflicting Concerns of Stakeholders
While speaking at the launch of the live-streaming facility of the Gujarat HC on the 17th earlier this month, CJI NV Ramana had expressed his keenness to implement the concept in the apex court as well. However, he also voiced his concerns on the idea of publicising court proceedings, as it may affect the objectivity of the judge by making judges a topic of widespread public discussion. The CJI is not the only one when it comes to well-founded fears, as several people have raised questions on how publicising judicial proceedings might interfere with and dilute the dignity of judicial institutions besides having the potential of infringing upon the privacy of the parties. Given the reverential status that the judiciary enjoys in the country, and the subsequent stigma that comes with being implicated in a judicial proceeding, privacy is a prime consideration for many parties and witnesses. Some also fear that the publicization of court proceedings would hamper the quality of dialogue between the lawyers and the judges, and lawyers may also start to use the platform to gain undue publicity.
While these are valid concerns, a perusal of the Supreme Court’s holding in previous cases might help in finding a middle ground and allay some of these fears. In the Naresh Sridhar case (supra), the court had said that the concept of public trials cannot be an absolute one, as there was a need to balance interests of different stakeholders by providing in-camera trials in certain cases where the confidentiality of individuals or businesses, or the delivery of Justice itself may be at stake.
In Swapnil Tripathi, the court had explored the statutory provisions dealing with the concept of open courts. Section 327 of the Criminal Procedure Code (CrPC) states that a criminal court will be an open court except in certain sensitive cases where the proceedings will be in-camera. Similarly, s. 153B of the Code of Civil Procedure (CPC) describes civil proceedings to be deemed to ordinarily take place in an open court, while giving discretionary powers to the judge as to the extent of visibility of the proceedings.
Besides the statutory provisions, the bench in Swapnil Tripathi had also interpreted several constitutional provisions as giving effect to the demand of live-streaming court proceedings. The court had observed that article 19(1)(a) of the Constitution relating to freedom of speech and expression includes the right to know and receive information, article 21 includes the right to access Justice, and article 145(4) mandates that no judgement shall be delivered by the Supreme Court except in an open court.
The Gujarat High Court Live Streaming Rules, 2021
The rules have been framed along the lines of the model guidelines issued in the Swapnil Tripathi case, and the draft livestreaming rules published by the SC in May this year. The rules have tried to strike a fine balance between the interests of the key stakeholders and have kept the proceedings of sensitive cases involving Children, Sexual Harassment Victims, Official Secrets Act, etc. out of the purview of live streaming. The rules also give Judges the choice of opting out of the live streaming with a prior intimation to the Chief Justice. The Rules also rule out the use of recordings of the proceedings as evidence and also prescribe action under the Contempt of Courts Act, 1971 and other penal laws in case of violation of the rules and misuse of the platform to garner undue publicity. By incorporating the above stipulations, the Live Streaming Rules have provided sufficient safeguards to protect the privacy of individuals and the sanctity of the process and the institution.
The initiative and the associated rules can be hailed as a good step forward towards the establishment of the ‘Rule of Law’, the foundations of which rest firmly on accessibility to Justice and understanding of the judicial process by the masses. Publicising of Judicial Proceedings will also ensure that law students, budding lawyers, and the common people of India have a ready resource to learn about the technicalities of law. This will also be a step towards fulfilling Dr BR Ambedkar’s dream of engaging the common people in the constitutional processes which he expressed when he said that “The Constitution is not a mere lawyer’s document”.
Satyam is a student of law at University of Delhi, and is exploring dimensions of law and society, and the relationship between these two.
 Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639
 Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744