Comments on Rules on Live-Streaming and Recording Of Court Proceedings

The e-Committee of the Supreme Court has released the Draft Model Rules for Live-
Streaming and Recording of Court Proceedings with the aim to imbue greater
transparency, inclusivity and foster access to justice. A sub-committee consisting of
judges of the Bombay, Delhi, Madras and Karnataka High Courts was constituted to
frame model live streaming rules which took into account the principles pronounced
by the Supreme Court in the case of Swapnil Tripathi vs Supreme Court of India,
(2018) 10 SCC 639 in terms of which the Court had noted that transparency was
extremely important in the judicial sphere.

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. 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. 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 dissemination of information in the widest possible
sense, imparting transparency and accountability to the judicial process.

The earliest and most significant judgment on this aspect is the decision of a nine-
judge Bench in Naresh Shridhar Mirajkar v State of Maharashtra, 1967 AIR 1 1966
SCR (3) 744, 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). 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
emphasized the importance of open courts. Chief Justice Gajendragadkar, speaking
for the majority observed “…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, 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.”
Key takeaways emerge from the opinions in N. S. Mirajkar’s case:
a. Open courts serve as an instrument of inspiring public confidence in the
administration of justice;
b. Open courts act as a check on the judiciary;
c. Publicity of the judicial process is the soul of justice;
d. 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
e. Open courts are essential for the objective and fair administration of justice.

Subsequently, the Hon'ble Supreme Court of India on 26.09.2018 through the Writ
Petition (Civil) No. 1232 of 2017, (Swapnil Tripathi vs Supreme Court of India on 26
September, 2018) 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 of constitutional and 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, by now
settled, is a facet of Article 19 (1) (a) of the Indian Constitution. The Article 21, on
the other hand, confers Right to Privacy to an individual. There is a correlation in
between Article 19 and Article 21 which collectively holds the dignity of the 'Live
Streaming of Supreme Court's proceedings'.

Benefits:
 The idea of “Open Court” as upheld by the Constitutional Bench as far back
as in the sixties must be understood in its present-day context. What was an
open court in the sixties also extends today arguably to the virtual world
made possible by ubiquitous technology. Hence, an open court in today’s
context will be a court whose proceedings are open to the public or are in the
public domain by means of live, recorded, or protected webcasting. There is
no doubt that such an open court whose proceedings may be seen and
scrutinized by the public, litigants, legal fraternity, or law students will “serve
as an instrument of inspiring public confidence in the administration of
justice” as observed by the Court in the N. S. Mirajkar’s case. It appears to
be a technology-enabled idea of openness whose time has come. Such an
open court will go a long way in enhancing the judicial standards as well as
the transparency and accountability of the justice delivery mechanism.
 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 lawyes 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.
 Live-webcast or streaming is the fastest method for communicating and is
most suited for connecting geographically dispersed audiences. Live-
streaming will have the ability to reach a wide number of audiences with the
touch of a button. This will help reduce misinformation and misunderstanding
about the judicial process.
 It will reduce the need for litigants to travel to the courts to observe the
proceedings of their cases.
 Live-streaming will be 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
 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.

World Best Practices: 1

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.
United Kingdom: The Supreme Court of UK permits broadcasting of its courtroom
proceedings. 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.” Three national broadcasters- BBC, ITN, and Sky
News are permitted to film and broadcast the Supreme Court proceedings, “in
accordance with the protocol which has been agreed with.” The protocol prohibits
recording of certain types of proceedings like private discussions between litigants
and their counsel. The footage is only allowed to be used for informational purposes
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in programs like news, current affairs, education, and legal training. However, any
broadcasting which may detract from the seriousness or integrity of the
proceedings, like entertainment programs, satirical programs, political party
broadcasts, and advertising or promotion, is not permitted. 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.”

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. 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:’ “It is
thus important to emphasize 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.”

Canada: The Canadian Supreme Court is considered a pioneer of adapting itself to

technology and permitting audio-visual broadcasting of its proceedings. 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.” The Canadian Supreme Court permits the Canadian Parliamentary
Press Gallery to live broadcast all appeals before it. The Canadian Parliamentary
Affairs Channel (CPAC) is also allowed to televise the appeal hearings of the Court,
but at a later date. The broadcasts are subject to guidelines which ensure that the
Court retains control over the filming process. Although the CPAC decides which
cases to broadcast, the Supreme Court has the discretion to prohibit the filming of
specific appeals. The CPAC is permitted to share the broadcast feed with other
television networks, for use as snippets in news programs. At present, four cameras
are installed in the Supreme Court. The appeal hearings have been broadcast since
2009 and are archived on the Court’s website. The cameras are installed by the
Court and are operated by the Court’s employees. Outside cameras are not
permitted except for special events. The copyright over the proceedings is retained
by the Court. Before any case can be filmed, the Supreme Court requires parties to
consent to the recording and televising of the proceedings. 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.

Australia: Australia follows an open court system, with courts in all Australian

jurisdictions admitting television cameras into courtrooms. Since 2013, audio-visual
recordings of the High Court of Australia have been made available to the public.
The entire process of filming and broadcasting is carried out by the Court staff.
Transcripts of the hearings are made available within a day or two of most
hearings. The High Court has stated that initially the recordings will be available
after a few business days, however, the Court will endeavor to reduce the number
of days. Apart from the High Court, most Australian courts do not maintain a
consistent policy on admitting television cameras into the courtroom. Filming is
permitted on an ad hoc basis and is usually restricted to the recording of file and
overlay footage or ceremonial sittings.

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.
Traditionally, members of the media were only permitted to make hand-written
notes of court proceedings, without the use of any electronic device. From 1996 to
1998, New Zealand conducted a three-year pilot project which covered more than
twenty cases. 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 programs 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.

New Zealand permits media houses to broadcast court proceedings with the
approval of the court. The broadcast is governed by a set of guidelines which
balance the principle of open justice with the need for 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. They also provide for a ten
minute delay in broadcasting audio and video recordings. 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.
United States: The US Supreme Court does not permit video recording or
photography of its proceedings. It releases audio transcripts of the oral arguments
on the same day. Audio recordings of each week’s oral arguments are released on
the court’s website 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. The media needs to take prior approval of the
court to record the proceedings. 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. The video and audio recordings of the federal judiciary are
hosted on YouTube and are also available on the court’s official website. 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.

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. The
court sessions of the Supreme Court (Supremo Tribunal Federal) are broadcast
online on either ‘TV Justica’101 or ‘Radio Justica’ 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 account and a YouTube channel.
The unique feature of the Brazilian Supreme Court is that cameras are permitted
into the conferences where the judges deliberate.
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. The ICC has a
YouTube channel where it broadcasts case proceedings, press conferences, and
informative videos in different languages. In the European Court on Human Rights
(ECHR), all hearings are permitted to be made public, unless specifically disallowed
by the Court. 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.

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.
 
Suggestions for better Implementation:

1. The first case on a similar issue happened in Naresh Shridhar

Mirajkar v State of Maharashtra, 1967 AIR 1 1966 SCR (3) 744. The nine-
judge bench, more than five decades back held: “Open courts serve as an
instrument of inspiring public confidence in the administration of justice;
Open courts act as a check on the judiciary; Publicity of the judicial process
is the soul of justice; 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 Open courts are essential for the objective
and fair administration of justice.”

In the present rules, however, there is no time limit set for implementation
of these rules. It is humbly requested that while the proponents of this
program are in office, the rules should be implemented for better public
good. Hence these rules must clearly spell out the time frame ensuring
functional interoperability.

2. In this very vein, hiring of consultants for effective and timely

implementation of targets may be considered and implemented. The
computerization of the Income Tax department or Indian Railways (RITES)
by outsourcing it to consultants may be considered as precedents.

3. Data Privacy and Security:

With greater reliance on the virtual world, the judiciary would be in

possession of large databases of information. Thus, in addition to the
principle of open courts, the judiciary will also have to make simultaneous
efforts to balance those interests by ensuring data protection. The experience
with applications suggests that data leaks pose a major data protection
issue, which needs to be resolved before virtual courts become a reality.
Some pieces of evidence submitted to the court can contain very personal
sensitive information, much of which can be commercially sellable. There is
thus a need to safeguard these interests of the litigants, to ensure that there
are guidelines and standards in place which mandate encryption of
documents and evidence submitted. Further, the Supreme Court has already
identified the right to privacy as a fundamental right under and the Indian
Constitution. There is, therefore, also a need to put in place a stringent
privacy policy, by clearly outlining to the parties the methods in which their
 data is being stored and utilized by the judiciary. The use of artificial
intelligence, especially necessitate the right to explanation of the litigants –
which allows people subjected to this technology to gain adequate
understanding of its functionality and consequences. Under the Information
Technology (Reasonable Security Practices and Procedures and Sensitive
Personal Data or Information) Rules, 2011 (“SPDI Rules”) issued under
section (2) of section 87 read with section 43-A of the IT Act, certain
safeguards are given for Data Protection. SPDI Rules only apply to bodies
corporate, and persons located in India. Keeping this in mind, the Vision III
should clearly spell the responsibility for data protection and set out ways to
achieve the same including the onus of safe keeping of data.

4. The first Global Parliamentary Report, jointly published by the Inter

Parliamentary Union and United Nations Development Programme in 2012,
examined the evolving relationship between citizens and parliament. The
report identified two broad ways in which legislatures could improve their
engagement with the public. First, to provide more information and improve
public understanding of legislatures, and second, to consult and involve the
public more in the work of legislatures.
a. Since 2006, the Lok Sabha (LS) and later in 2011, Rajya Sabha (RS),
have been broadcasting live proceedings through dedicated TV
channels. This has contributed to a discernible increase in public
interest in parliamentary proceedings, further aided by the parallel rise
in the use of smartphones and social media. Very often, we come
across video snippets, on YouTube, or through WhatsApp, of a
passionate speech made by an MP or an important policy
announcement made in the Parliament. The same then sparks an
animated debate among people and garners significant attention on
social media as well. These channels also air discussions and shows on
wide-ranging topics such as Parliamentary affairs, foreign relations,
legal issues, history, literature, the environment and culture, among
others.2
b. This has led to greater transparency, accountability and public debate
on how the Parliamentarians behave in the August House. This
precedence is bound to influence the judiciary in the same way.

5. The live telecast will ensure that the judges reach the court in time, the
litigants get to know the reason for adjournments, the pendency and reason
for it, and will make the system more accountable to public scrutiny.

6.  The live telecast (or protracted telecast, i.e. made available after a time lag
of an hour or so like done in some countries) will ensure that the judges,
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judicial officers, and all concerned in the courts, particularly at the distant
and far-flung areas, follow the procedures set for conducting the proceedings
of the court, such as adhering to punctuality, decorum, and a certain
minimum level of the outcome, i.e. conducting a minimum number of
hearings, and the disposal of a certain number of cases per court every
month. It will also bring transparency in matters such as the litigating parties
knowing the reason for adjournments, pendency or listing etc. to make the
system fairer to all parties and more accountable to public scrutiny