India: "The Live Streaming Of Supreme Court's Case Proceedings": A Hide And Seek Of Article 19 And Article 21?

Last Updated: 19 March 2019
Article by Ritika Khatua

Introduction:

The Constitution of India confirms the social dignity of an Indian Citizen by underpinning the fundamental rights. Right to 'Equality', 'Freedom', 'Cultural and Educational rights', 'Freedom of religion' and 'Constitutional remedies' are the intrinsic rights granted by the Indian Constitution which espouse the esteem of a human being. But, how far do these rights complement each other to the point of regulating the implications and supporting the democratic machinery in India?

The Hon'ble Supreme Court of India on 26.09.2018 through the Writ Petition (Civil) No. 1232 of 2017 with Writ Petition (Civil) No. 66 of 2018, Writ Petition (Civil) No. 861 of 2018 and Writ Petition (Civil) No. 892 of 2018 allowed the 'Live Streaming of Supreme Court case proceedings on issues being constitutional and of national importance having an impact on the public at large or a large number of people'. The Constitution of India through Article 19 (1) (a) confers right to freedom of speech and expression to a citizen. Right to know and receive information, it is by now settled, is a facet of Article 19 (1) (a) of the Indian Constitution.1 The Article 21, on the other hand, confers Right to Privacy to an individual. There is a core relation in between the Article 19 and the Article 21 which collectively holds the dignity of the 'Live Streaming of Supreme Court's proceedings'.

Genesis and Implementation of the Concept of Live Streaming in the Hon'ble Supreme Court of India:

The Learned Attorney General of India Mr. K. K. Venugopal submitted his proposition for live streaming of court proceedings. Mr. Venugopal was retorting to the Writ Petition No. 66 of 2018 filed by Senior Advocate Indira Jaising, who was seeking a declaration for allowing live streaming of the case proceedings in the Hon'ble Supreme Court in cases which hold constitutional and national importance. She had also focused on framing of guidelines with respect to live streaming. The Hon'ble Supreme Court through a number of hearings interpreted the current scenario of live streaming in courts throughout the world, assessing the Indian perspective as well. The Hon'ble Court held that "Indisputably, open trials and access to the public during hearing of cases before 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 32s of the Code of Civil Procedure, 1973 and Section 153- B of the Code of Civil Procedure, 1908".2

The Hon'ble Supreme Court also threw light and quoted the allowance of live streaming of case proceedings in the International Criminal Court and in the Supreme Courts of Brazil, Canada, Israel, China, England, Germany, Ireland ( Northern), South Africa, New Zealand and Ireland (Republic) whereas USA does not permit the same.

The Hon'ble Court held the Ratio Decidendi of the case in the point that 'live streaming is basically the use of technology to 'virtually' expand the courtroom area beyond the physical four walls of the courtrooms. 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 courtrooms. 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 a real-time basis. Opening the vista of the Courtrooms transcending the four walls to accommodate a large number of viewers can epitomize transparency, good governance, and accountability. It was said that since no person can plead ignorance of law, there is a corresponding obligation on the State to spread awareness about the law and the developments thereof including the evolution of the law which may happen in the process of adjudication of cases before this Court'.3

Reliance has been placed on the dictum of a nine-Judge Bench in Naresh Shridhar Mirajkar and Ors Vs. The state of Maharashtra and Ors4, wherein the occasion arose to inter alia consider the contentions of journalists that they had a fundamental right to conduct their occupation under Article 19(1)(g) of the Constitution and had a right to attend the proceedings in the Court under Article 19(1)(d) and also had a right to publish realistic reports of the proceedings which they had witnessed and heard in the court as journalists under Article 19(1) (a). The Court contended that 'publicity is the very soul of justice'.5 The decision of the Advisory Council of the National Mission of Justice Delivery and Legal Reforms on the application to initiate audio video recording on an experimental basis in the Courts was also dragged into attention by the Hon'ble Supreme Court. The publication of Court proceedings of the Hon'ble 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. Hence, live streaming of court proceedings in the prescriber digital format would be an affirmation of the Constitutional rights bestowed upon the public and the litigants in particular.6

Justice Chandrachud in W.P. (Civil) No. 1232 of 2017 quoted Jeremy Bentham's Principal of Open Justice and mentioned that the prayer of live streaming of Court proceedings has its genesis in this principle.7

A pilot project was taken up by the Court initially until a full-fledged mechanism of streaming is evolved. The aim was to explore the opportunity of application of Phase-I of live streaming through allocated passwords in limited areas such as dedicated media room for litigants, clerks, and interns, the Supreme Court Bar Association room and the Supreme Court Advocates-on-Record Association room/lounge. The Hon'ble Court also laid down guidelines to safeguard and limit the recording and broadcasting of its proceedings to ensure better access to justice further holding right to modify the guidelines from time to time as deemed fit. However, cases like matrimonial disputes, sexual assaults, matters of national security etc. shall not fall under the purview of live streaming.

In light of the above observations, the Apex Court comprising of a three Judges bench of the then CJI. Dipak Mishra, Justice A.M. Khanwilkar and Justice Dhannjay Y Chandrachud allowed the Writ Petition and the interventionists' applications.

Analysis of the verdict in light of Article 19 and Article 21:

Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution. The Indian Constitution through Article 19 highlights 'Freedom of Speech and expression' as an important pillar of democracy. 'Freedom of press' can be stated as a subset of freedom of speech and expression. Freedom of press means, freedom to propagate ideas by way of circulation of press & media. Significantly, free expression with an unadulterated exchange of ideas is indispensable for regulating the democracy of India. However, the media has its right restricted into the private matters since, right to privacy is another important pillar of democracy, which though the Constitution does not expressly declare as a fundamental right but is an essential ingredient of 'Right to personal Liberty' under Article 21. The right to privacy was first recognized in the case of Kharak Singh vs. State of Uttar Pradesh & Others.8 Through the landmark case of Gobind vs. State of Madhya Pradesh & another,9 right to privacy was incorporated under the umbrella of right to life and personal liberty by the humanistic interpretation and expansion of the Article 21.

Justice Chandrachud quoted that 'above all, sunlight is the best disinfectant'.10 Indeed, proceedings under the eye view of the nation develop a transparent bridge to the Justice. The nation always had the right to know the rationale behind every ruling. But, technology, media, and press play the important vector in creating the other bridge between the media and the court. The common man absorbs what is being fed by the media. The recorded plot can be well expressed through the eye of the transmitter in the way a layman understands, which may or may not be the genuine interpretation at the end. Though guidelines are framed for the purpose of broadcasting, India does not have a bar on the Freedom of Press which is why statutes of defamation have never dominated freedom of expression. Not every matter which is of National or Constitutional importance can be assumed to not have the right to privacy of an individual preserved in it. Though the citizen's right to information has been upheld to a very fair extent, the discretion of a citizen to pick the privacy concern of a case is not. Besides, media never makes an effort to understand the parameter of personal liberty and the importance of the privacy circumference of individuals related to a situation being publicized. Hence, the right to fair transmission of information should be protected by not making any bias through propagating diluted, one-sided or vague news by the press and media. Hence, once the Sun truly reflects without the ambiguity of clouds, disinfection is definite.

Footnotes

1. https://www.sci.gov.in/supremecourt/2017/40426/40426_2017_Judgement_26-Sep-2018.pdf

2. See : Page no. 6 of the Judgment

3. See: Paragraph 9, pages 9 & 10 of the Judgment.

4. 1967 AIR, 1 1966 SCR (3) 744

5. See: Page no. 3 of the Judgment.

6. See: Page no.45, paragraph 13 of the Judgment.

7. See : Paragraph no. 2 of the Judgment

8. 1963 AIR 1295, 1964 SCR (1) 332

9. AIR 1975 SC 1378, 1975 CriLJ 1111, (1975) 2 SCC 148, 1975 3 SCR 946

10. See: Paragraph h of Part D of the Judgment, page 82.

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