SWAPNIL TRIPATHI V. SUPREME COURT OF INDIA, 2018

Case Briefing: Swapnil Tripathi v. Supreme Court of India, 2018

Swapnil Tripathi v. Supreme Court of India (WRIT PETITION (CIVIL) NO. 1232 OF 2017) and connected petitions, including Indira Jaising v. Secretary General & Ors. (WRIT PETITION (CIVIL) NO. 66 OF 2018), Mathews J. Nedumpara & Ors. v. Supreme Court of India & Ors. (WRIT PETITION (CIVIL) NO. 861 OF 2018), and Centre for Accountability and Systemic Change & Ors. v. Secretary General & Ors. (WRIT PETITION (CIVIL) NO. 892 OF 2018).

Citation: 2018 INSC 862 (25 September 2018).

Court/Bench: Constitution Bench of the Supreme Court of India. Justices: A.M. Khanwilkar, J. delivered a judgment, and Dr. Dhananjaya Y. Chandrachud, J. delivered a separate judgment.

Facts:

The petitioners and interventionists, claiming to be public-spirited persons, sought a declaration that Supreme Court case proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live-streamed in a manner that is easily accessible for public viewing. Further direction was sought to frame guidelines to enable the determination of exceptional cases that qualify for live streaming and to place those guidelines before the Full Court of this Court.

The prayer relies on the principle of open justice, which is well-settled. Public trial in open court is essential for the healthy, objective and fair administration of justice. It serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. The right to know and receive information is a facet of Article 19(1)(a) of the Constitution, justifying the public’s entitlement to witness proceedings involving issues having an impact on the public at large.

The existing open court system’s impact is diminished because a large segment of society rarely has an opportunity to attend court proceedings due to constraints like poverty, illiteracy, distance, cost and lack of awareness. Logistical issues and infrastructural restrictions deny the public the opportunity to witness live proceedings in person. The use of technology to relay or publicise the live court proceedings can be a way forward to consummate their aspirations.

Issue(s):

The core issue was whether there should be a declaration that Supreme Court case proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live-streamed.

Rule of Law:

• Principle of Open Justice: All cases brought before the Courts must generally be heard in open Court. Open justice is the “very soul of justice” and “the keenest spur to exertion, and surest of all guards against improbity”. This rests on a high pedestal in a liberal democracy.
• Article 145(4) of the Constitution: Stipulates that judgments of the Supreme Court shall be delivered in open Court.
• Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC): Mandate that criminal and civil courts, respectively, shall be deemed to be an open Court, to which the public generally may have access.
• Article 21 of the Constitution: The right of access to justice flows from Article 21 of the Constitution.
• Article 19(1)(a) of the Constitution: The right to know and receive information is a facet of Article 19(1)(a) of the Constitution.

Holding:

The Supreme Court held that live streaming of court proceedings is an extension of the principle of open courts and is manifestly in public interest. Live streaming has the potential of actualizing the right of access to justice and the right to an open trial.

The Court directed that the project of live streaming must be implemented in a progressive, structured and phased manner, with certain safeguards. The Supreme Court Rules, 2013, must be suitably amended to provide for the regulatory framework.

Reasoning:

1. Purpose of Open Courts and Constitutional Rights: Public confidence in the administration of justice is of such great significance that courts must generally hear causes in open and permit public admission. Publicity is considered the “very soul of justice” and “the keenest spur to exertion, and surest of all guards against improbity”. It keeps the Judge himself while trying under trial. The right of access to justice, combined with the right to know and receive information, justifies the public’s entitlement to witness court proceedings. Live streaming provides a way to “virtually” expand the Court room area beyond the physical four walls of the courtrooms.

2. Benefits of Live Streaming: Live streaming can give the viewing public a virtual presence in the courtroom, provide them with a more direct sense of what has transpired, and educate them about the working of the court. It will reduce reliance on second-hand narratives, and serves an educational purpose for law students and academicians. Live streaming enhances the accountability of judicial institutions. The Court stated that “Sunlight is the best disinfectant”, and live streaming will impart transparency and accountability to the judicial process.

3. Necessity of Regulatory Framework (Safeguards and Phasing): The Court acknowledged that the administration of justice may sometimes require in-camera trials. The right to open justice must yield to the paramount object of the administration of justice if excessive publicity operates as an instrument of injustice. Therefore, a proper and balanced regulatory framework is necessary.

The Court generally agreed with the comprehensive guidelines suggested by the Attorney General and mandated implementation in phases:

• Pilot Project: To begin with, only a specified category of cases or cases of constitutional and national importance being argued for final hearing before the Constitution Bench will be live-streamed as a pilot project.
• Prior Consent and Discretion: Prior consent of all the parties to the concerned proceedings must be insisted upon. If there is no unanimity, the concerned Court can take the appropriate decision for live streaming, having due regard to the objections raised. The discretion exercised by the Court shall be final, non-justiciable, and non-appealable.
• Exclusion of Sensitive Matters: The discretion of the Court will be guided by considerations including, but not limited to, the sensitivity of the subject matter (e.g., cases which may arouse passion or social unrest amongst section of the public), and specific exclusions for matrimonial matters, cases involving sensitive issues like sexual assault, and matters where children and juveniles are involved.
• Revocation: The concerned court retains the power to revoke the permission at any stage of the proceedings suo motu or on an application, if the cause of administration of justice should suffer.
• Time Delay: There must be a reasonable time delay (say ten minutes) between the live court proceedings and the broadcast, in order to ensure that any information which ought not to be shown can be edited from being broadcast. (Note: Dr. Chandrachud, J.’s guidelines suggested a two-minute delay, while the Attorney General suggested a delay similar to the UK’s, mentioning 70 seconds).
• Camera Focus and Ethics: The focus of the cameras in the courtroom will be directed only towards the Justices/Bench and the arguing advocate(s). There shall be no broadcast of any interaction between the advocate and the client even during arguments.
• Copyright and Use: This Court must retain copyright over the broadcasted material. Reproduction, re-broadcasting, transmission, publication, or modification of any part(s) of the original broadcast is prohibited. Unauthorized use can lead to proceedings under the Indian Copyright Act, 1957, the Information Technology Act, 2000, and the Contempt of Courts Act, 1971.