Attorney General of India has pushed for live-streaming court proceedings to make hearings accessible to all. But CJI sounded a cautionary note, saying it was susceptible to “abuses.”

Why such demands?

• In a first in India, the Gujarat High Court has begun live streaming of Court Proceedings on YouTube.
• The issue of live-streaming came up as a Special Bench led by the CJI was taking stock of the virtual court system initiated soon after the pandemic lockdown.

Live-streaming of Court

• Justice Chandrachud was one of the three judges on the Bench that gave the verdict on live-streaming in September 2018.
• In fact, he had noted in his separate opinion that live-streaming of proceedings would be the true realization of the “open court system.”
• His suggestions were later adopted as guidelines in the September 2018 judgment.

Why there should be live-streaming?

• Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
• Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
• Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
• More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. 
• This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
• Academic help: Live streaming may also be a help for academic purposes.

Issues with live-courts

The Parliamentary Standing Committee (PSC) of the Department of Personnel, Public Grievances and Law and Justice have tabled its report on the functioning of Virtual Courts and Digitization of Justice Delivery in Parliament.

Following are the four key considerations and recommendations of the committee as far as mainstreaming of virtual courts is concerned:

(1) The question of access:

• A large number of litigants and advocates lack internet connectivity and requisite infrastructure and means to participate in virtual hearings and the process. This has serious implications.
• The obvious one being that a large chunk of our citizenry is vulnerable to being excluded from the process of justice delivery owing to factors beyond their control.
• The committee also opined that the judiciary considers solutions such as mobile video conferencing facilities to allow for meaningful participation from those living in remote geographies.

(2) The degree of comfort:

• A highly underrated but equally consequential factor is whether everyone, even if access to reliable internet connectivity is universal, is comfortable and well versed with the new tools and mediums of justice delivery.
• Big, well-to-do law firms and advocates in urban areas would face no issues as compared to those participants in rural areas given the digital divide.

(3) The idea of open courts itself:

• Virtual courts allegedly threaten the constitutionality of Court proceedings and undermine the importance of Rule of law which forms a part of the basic structure of the Constitution.
• Expressing concern over the opaqueness of such hearings, critics state that virtual courts are antithetical to the open court system given the limited access that they allow for.

(4) The question of Privacy and Data Security:

• This is where the report makes some interesting and innovative suggestions vital to the performance of any digital justice delivery mechanism.
• It also took note of the fact that most virtual court proceedings in India currently take place using third-party software or platforms and a few of them have already been rejected earlier on grounds of being unsafe to use.
• The committee noted how courts across the world have had instances of intrusion and data privacy or security concerns while adapting to an entirely virtual mode of conducting hearings.

Still, digital records are necessary

• Litigants depend on the information provided by lawyers about what has transpired during the course of hearings.
• When the description of cases is accurate and comprehensive; it serves the course of open justice.
• Again, if a report on a judicial hearing is inaccurate, it impedes the public’s right to know.

Best examples

• Internationally, constitutional court proceedings are recorded in some form or the other.
• In Australia, proceedings are recorded and posted on the high court’s website.
• Proceedings of the Supreme Courts of Brazil, Canada, England and Germany are broadcast live.
• The Supreme Court of the US does not permit video recording, but oral arguments are recorded, transcribed, and available publicly.
• And democracies aside, in China, court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.

Significance of open-courts

• India stands alone amongst leading constitutional democracies in not maintaining audio or video recordings or even a transcript of court proceedings.
• Court hearings can be turning points in the life of a nation: ADM Jabalpur comes readily to mind. More recently, there is any number of cases where the Supreme Court’s judgments have changed citizens’ lives.
• Ayodhya, Aadhaar, Section 377, Sabarimala, NRC and the triple talaq judgments are among them.

Various moves for accessibility

• Over the last few years, the Supreme Court has taken steps to make justice more accessible. The Court started providing vernacular translations of its judgments.
• Non-accredited journalists were permitted to live-tweet court proceedings. During the lockdown, journalists have been permitted to view virtual court proceedings in real-time.

Way forward

• There should be live-streaming cases of constitutional and national importance as a pilot project, including Constitution Bench cases.
• Matrimonial cases and those involving national security could be excluded.
• There must be a reasonable time-delay (say 10 minutes) between the live court proceedings and the broadcast to ensure any information which ought not to be shown, as directed by the court, can be edited from being broadcast.
• The judiciary must also employ a press officer to liaise with the media, and issue simultaneously one or two page summaries of its judgments to facilitate greater public understanding.
• There has to be a greater reliance on written briefs and the significance accorded to them, time limits for oral arguments, and a greater emphasis on preparation in advance.

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