The judgement that Supreme Court proceedings must be televised is a good one. But some creases need to be ironed out.
To a casual viewer, last week was definitive proof that the Indian Supreme Court exists. The Court was in the news all week, each day bringing with it a new judgement on issues as wide-ranging as the constitutionality of Aadhaar, the entry of women into the Sabarimala temple, the criminalisation of adultery, etc. In one of its judgements, it held that Supreme Court proceedings that pertain to matters of great importance must be live-streamed. While most of the other judgements that were delivered last week had their detractors, it is difficult to see this one garnering much opposition.
I have written about this issue before in the context of the publication of the transcripts of court proceedings. In particular, I said the following:
There are several positive effects that can be anticipated from such a move. One, it will help provide an unvarnished account of judicial proceedings. Two, it will provide a valuable insight into the way judges perform. Three, it will shed light on the positions that the State is adopting in various cases. And four, it would be a great tool to educate the general public about judicial processes.
The Court touched upon some of these benefits as it considered the reasons why live streaming of court proceedings ought to be permitted. It also took an extensive look at other jurisdictions where live streaming has been implemented to underscore the feasibility of such a measure.
In addition, the Court attempted to justify its decision as part of a rights-based framework. It considered the importance of open courts and a right of access to justice under Art. 21 and Art. 145 of the Indian Constitution. A minor grouse on this point is that this discourse on rights is often overshadowed by the discussion of the benefits and the study of other jurisdictions.
Of more serious concern is the way in which this live streaming will be operationalised, primarily through a set of guidelines presented by the Attorney General during the course of the proceedings. There is a need for more clarity on a few positions. One, a plain reading of the guidelines suggests that the live streaming will have a limited dissemination. Two, the requirement of taking the consent of litigants before live streaming is problematic. And three, the lack of a clear position on the publication of transcripts of the court proceedings is a missed opportunity.
The guidelines state that the footage from live streaming can only be used for certain purposes, namely, that which fits within the boundaries of news, current affairs, and education. In addition to these end-use restrictions, the guidelines mandate the need for prior written authorisation from the Supreme Court if a recording is to be, “reproduced, transmitted, uploaded, posted, modified, published or republished to the public.”
The position taken here is problematic. Does the need for prior written authorisation apply if the footage is used for news, current affairs, or educational purposes? A plain reading of the guidelines suggests that it does. If this is the case, then the measure runs counter to one of the stated aims of introducing live streaming: of widely disseminating the proceedings of the Supreme Court. Mandating that every news agency, publication outlet, and public-spirited individual posting a recording of the court proceedings on a public forum seek prior written permission from the Court is a step too far. Instead, the guidelines should simply retain the end-use restrictions and initiate proceedings against anyone violating them for commercial ends.
While the guidelines are silent on the matter, one of the opinions in the judgement recommends that the consent of the litigants to a particular case be taken before the proceedings are live streamed. On a practical note, how likely are individuals to consent to such live streaming? If they are not, there is a real risk of the whole initiative falling flat.
This is not to say that the opinion of a litigant is of no consequence. In fact, the judgement itself carves out exceptions to live streaming in certain cases, including but not limited to matrimonial matters, matters related to juveniles, etc. Further, the scope of the live streaming is restricted to cases that are of constitutional and national importance. There are also restrictions built in on what can be recorded; for instance, the cameras can only be trained on the judges and the lawyers arguing the case and not on the litigants or witnesses.
Keeping in mind these protections, a trade-off between a litigant’s opinion about live streaming and the benefits to the public at large must be made. This could take the form of providing the litigant with the opportunity, before the proceedings commence, of objecting to it. The judges can then decide on the merits of such an objection. This would be a better procedural step instead of the requirement for taking consent at the outset.
Finally, the judgement is largely silent on the issue of transcripts. The guidelines state that the Supreme Court may provide for such a facility in the future. This is inadequate. The publication of transcripts must be looked at as a complementary measure. While live-streaming will provide the opportunity of having real-time access to court proceedings, the value of published transcripts will be more in the longer run. It will be easier to parse through a written record of court proceedings than view a recording of the same.
This judgement is a positive one. It will increase the ordinary layperson’s access to the highest court in the country and provide everyone with an invaluable glimpse into how the judiciary functions. That said, the proposal to bring this into effect is not perfect. If the few creases it has can be ironed out before it is implemented, the true value of the judgement can be realised.