The Live Streaming of Supreme Court’s Case Proceedings”: A hide and seek of Article 19 and Article 21?
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
SC 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
Ors[4],
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 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 SC Bar
Association room and the SC 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 live streaming, 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 efforts 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.
Contributed by – Ritika Khatua
[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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