Open Access Research Article
ONLINE STREAMING AND RECORDING OF COURT PROCEEDINGS
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ONLINE STREAMING AND RECORDING OF COURT PROCEEDINGS
AUTHORED BY- SHERON MATHEW PHILIP,
VARUN RAJ GIRIDHAR AND SARAH SIBY
Abstract:
The
online streaming of court proceedings was an eventuality in the evolution of
the Indian Legal system for which the advent
of the covid- 19 pandemic
set into motion
a wheel that was set back by decades of red tapes As expressed by the Hon’ble CJI
“We’re just trying to explore the possibilities of a live transcript. It is an experiment. Then we will have a
permanent record of arguments. Of course, it will help the judges and the lawyers, but law colleges can also
analyze how arguments are made”. We can infer from this that the transfer of legal proceedings from
offline to online will not be easy or even ostentatious in the first stages. The Legal system is too diverse or
dynamic to be completely uprooted from its conservative procedures that have its pros and cons acquired over centuries.
The most obvious of challenges will be technical
in nature and the rest can be accounted to logistic and practical misgivings to
the ones involved and the ones
affected. This paper tries to address the technical challenges that can and
will hinder the obvious i.e. redefining of the legal system through technological revolution.
Introduction
The
Indian Constitution upholds the social dignity of Indian citizens by
establishing fundamental rights. The
inherent rights guaranteed by the Indian Constitution that extol the esteem of
someone's existence include 'Equality,' 'Freedom,' 'Cultural and academic rights,'
'Freedom of faith,'
and 'Constitutional remedies.' But, to what extent do these
rights complement each other in terms of managing the results and sustaining India's democratic machinery?
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 effect on the overall
public at large or an outsized 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 understand
and receive information, it's by now settled,
might be a facet of Article 19 (1) (a) of the Indian Constitution. Article 21,
on the other hand, confers the Right
to Privacy to a person. There’s a core relation between Article 19 and also
Article 21 which collectively holds the dignity
of the 'Live Streaming
of Supreme Court's proceedings.[1]
Genesis
All
the Courts were functioning through video conferencing throughout the Covid-19
lockdown and even at this instant.
Advocates, the parties, victims etc. are all participating in the court
proceedings during the hearing
through video conferencing. Also, within the model video conferencing rules as
prescribed by the e-Committee of the Supreme
Court, it has been only if the overall public is visiting
to be allowed to appear
at the hearing conducted through video conferencing. The Supreme Court
in Swapnil Tripathi v Supreme Court
of India (2018) has ruled in favor of opening up the apex court through
live-streaming. It held that the
live-streaming proceedings may be a component of the correct to access justice
under Article 21 of the Constitution. However,
the judgment has remained unimplemented. The e-Court Mission
Mode Project was conceptualized with a vision
to transform the Indian Judiciary through ICT enablement of Courts. 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 within
the Hon'ble Supreme
Court in cases which hold constitutional and national importance. She had also focused
on framing of guidelines with relevancy for live streaming. The Hon'ble Court
held the Ratio Decidendi of the case within the purpose that 'live streaming is basically the use of technology to 'virtually' expand the courtroom beyond the physical
four walls of the courtrooms. Technological solutions are often a tool to facilitate actualization of the
correct access to justice bestowed on all and also the litigants, specifically, to produce them virtual
entry within the court precincts and more particularly in courtrooms. within the method, an outsized segment of
persons, be it entrants within the bar, journalists, civil society activists, academicians or students of law
visiting be able to view live proceedings in propria persona on a real-time basis. [1]Opening
the vista of the Courtrooms transcending the four walls to accommodate an oversized
number of viewers
can epitomize transparency, good governance, and accountability. It absolutely was said that since no one can plead ignorance of law, there is a corresponding obligation on the State
to spread awareness about the law and so the developments thereof including the evolution of the law which might
happen within the method of adjudication of cases before this Court.
Whereas
to imbue greater transparency, inclusivity and foster access to justice, it's
expedient to line up infrastructure
and also the framework to enable live-streaming and recording of Proceedings.
These Rules are framed by the state
supreme court of *Judicature* within the exercise of powers under Article 225
or relevant statute where applicable,
and Article 227 of the Constitution of India. These Rules will apply to the tribunal of *Judicature* and to the courts
and tribunals over which it has supervisory jurisdiction.
Terminology
Archival Data:
Data
archiving is that practice of identifying data that's not active and moving it
out of production systems into
long-term storage systems. Archival data is stored in order that at any time it
may be brought back to service.
Device for Communication:
Denotes
a wired or wireless hardware
device capable of delivering analogue
or digital signals
via the phone and other communication
methods.
Designated Officer:
Means the Registrar (IT) or the other officer
mandated to hold out the function of granting access
to copies of Recordings under these Rules.
Hardware:
Means
and includes equipment to be installed for Live-streaming and Recording of
Proceedings or any ancillary activity.
IT Committee:
Means and includes a committee constituted by the judge to cope with
matters concerning information and communication technology, also stated because the court Computer
Committee or e-Committee.
Live-stream:
Means and includes a live television link, webcast, audio-video transmissions via electronic means or other arrangements whereby anyone can view the Proceedings as permitted
under these Rules.
Proceedings:
Mean and include judicial
proceedings, administrative proceedings, Lok Adalat proceedings, full-court references, farewells and other meetings and events organized by the Court.
Recording:
Means
audio and video data of Proceedings stored in electronic format, whether or not
it's Live-streamed Recording Device:
Means and includes
a tool capable of recording images or sound, including but not limited
to camera, audio recorder, video recorder, mobile telephone, or screen recorder.
Registrar
(IT):
Means
and includes any officer so designated by the judge of the tribunal Remote
Location:
Means and includes
a geographical location,
different from the Court Premises,
from where Proceedings are conducted.
Transcript:
Means the official written account of the
Proceedings published as per the directions of the Court.[2]
Technical professionals
A
dedicated room (DCR) shall be founded for each court complex. The DCR shall,
inter alia, comprise a political
candidate of the Court, technical and video recording experts. The DCR will
monitor and track Proceedings as they
are Live streamed, recorded, and transcribed. The DCR shall make sure that
nothing uncivil or inappropriate is streamed within
the property right.
The coverage of Proceedings are going to be coordinated by the technical experts
under the direct supervision of the Registrar (IT) or her/his nominee. The Registrar (IT) and/or their nominee shall be subject to the directions of the IT Committee for the general
implementation of Live-streaming and Recording of Proceedings.
Technical
expert(s) should be appointed/deputed at each of the Court Premises to
facilitate the Live- streaming of
Proceedings, in addition to the Court Master and court employees connected to
the Bench. The technical expert(s) will work under the supervision of the DCR's overall oversight.
Streaming and Archives
Subject
to the exclusions contained within these Rules, all Proceedings are
Live-streamed by the Court. The following are to be excluded
from Live-streaming:
i. Matrimonial matters,
including transfer petitions
arising thereunder.
ii. Cases concerning sexual offences, including
proceedings instituted under Section 376, Indian code,
1860 (IPC).
iii. Cases concerning gender-based violence
against women.
iv. Matters registered
under or involving the Protection
of youngsters from Sexual Offences
Act, 2012[3](POCSO)
and under the Juvenile Justice (Care and
Protection of Children) Act, 2015.
v. In-camera proceedings as defined under Section 327 of the Code of Criminal. Procedure,
1973 (CrPC) or Section 153 B of the Code of
Civil Procedure, 1908 (CPC).
vi. Matters
where the Bench is of the view, for reasons to be recorded in writing that
publication would be antithetical to the administration
of justice.
vii. Cases, which within the opinion of the Bench, may provoke enmity amongst communities likely to guide to
a breach of law and order.
viii. Recording of evidence, including
cross-examination.
ix. Privileged
communications between the parties and their advocates; cases where a claim of
privilege is accepted by the Court; and non-public discussions between advocates.
x.
the opposite matter during which a
specific direction is issued by the
Bench or the magistrate.
The
Recordings are archived. Recordings are also uploaded, wholly or partly, on the
Courts’ website or made available on
other digital platforms, as directed by the Court. Access to copies of the
Recordings not uploaded are going to
be sanctioned by the Designated Officer, who will act as per law. An
application for copies of
Recordings shall be made within the form prescribed in Schedule III. The
Archived Data should ordinarily be retained by the Court for a minimum of six months,
subject to special
directions issued by the concerned Bench in an exceedingly
particular case. The jurist may issue practice directions regarding the cases and
also the period that archived data are preserved.
Disclaimers, Prohibitions and Restrictions
Disclaimers:
i. The
daily cause list published on the web site of the Court shall contain
requisite information and disclaimer
regarding Live-streaming.
ii. The
Archival Data shall not constitute the official record
of the Court Proceedings unless otherwise directed
by the Bench.
Prohibitions and Restrictions on usage of the Recording or Live -stream:
i. No person/entity (including print and
electronic media, and social media platforms) apart from an authorized person/entity shall record,
share and/or disseminate Live-streamed Proceedings or Archival Data. This provision
shall also apply
to all or any messaging applications. Any person/entity acting contrary to the current provision
are going to be prosecuted as
per law.
The
Court shall have the exclusive copyright within the Recordings and Archival
Data. Any unauthorized usage of the
Live-stream are going to be punishable as an offence under the Indian Copyright
Act, 1957, Information Technology Act 2000[4], and other provisions of law, including the law of Contempt.
ii. Any
party/ litigant-in-person accessing the Live-stream are bound by these Rules.
iii. The
Live-stream shall not, without the prior written
authorization of the Court, be reproduced, transmitted, uploaded, posted, modified, published, or re-published in any form.
iv. The
employment of authorized recordings in their original form is also permitted by the Court, inter-alia to disseminate news and for training,
academic and educational purposes. Authorized recordings handed over for the aforesaid purposes shall
not be further edited or processed. Such Recordings won't
be used for commercial, promotional purposes or advertising
in any form.
v. Nobody shall use a Recording Device
for recording or for transcribing the proceedings, aside from those authorized by the Court.[5]
Use of Communication Device or Recording Device
during proceedings:
i. someone must not use a Communication
Device or a Recording Device to disturb Proceedings in an exceedingly manner that will cause concern
to a witness or other participants within the proceedings or allow an individual who isn't a participant
to receive information about the proceeding or the hearing to which the person is
not otherwise entitled.
ii. During Proceedings, all personnel shall follow the instructions of the
Presiding
Judge, adhere to courtroom etiquettes and discipline, and shall not engage
within the following actions- audio and/or video, taking screenshots or using mobile communication tools to relay the Proceedings.
iii. Violation
of Sub-Rules (i) and (ii) will lead to prosecution as per law. Additionally,
the Bench may direct seizure
of the Communication Device or Recording
Device.
Restrictions on Media:
For the Notion:
l.
There's no clear and convincing evidence that television cameras within the
courtroom negatively affect courtroom personnel nor places undue hardship unproved participants.
2.
Modern
technology has made television equipment less cumbersome, allowing deployment in an
exceedingly relatively discreet an
unobtrusive fashion.
3.
The general
public has become so aware
of television as a fact of existence that the presence
of television cameras
in the courtroom wouldn't cause court participants to retort in a very discriminatory or fundamentally unfair fashion, and wouldn't
hamper the free flow of knowledge.
4.
Court participants would perform in a
very more professional fashion,
knowing that the proceedings are being televised.
5.
Because
the public witnesses the televised professional proceedings of the courtroom,
the courts' image would be bolstered.
6.
By
expanding the trial audience and educating the general public with reference to
the judicial process, public
understanding and confidence within the courts would increase, while myth and
mystique would dissipate.
7. The courtroom could be a public forum, and also the public 'has the right to know'.
Against the Notion:
l. The trial participants' primary
audience would shift from the case at hand to the external
public.
2.
Courtroom distractions would increase, and witnesses,
already uncomfortable and stressed thanks to
having to appear in court, would be further
stressed, thus hampering the free flow of knowledge.
3. Jurors,
concerned with being on television, would not target the trial proceeding to
the extent that they should.
4. Lawyers
would be tempted to play to the TV cameras instead of specialize in the
essential elements of the case at hand.
5. Television
cameras tend to portray defendants as being guilty and produce a climate of
hostility toward defendants. The
result being, all else held constant, a greater likelihood of guilty verdicts
being returned thanks to the presence of the camera within
the courtroom
6. Television
cameras inherently specialize in court participants and as a result, targets
them for possible community pressure, threats and abuse.
7. A distorted
picture of court proceedings would be portrayed to a good audience, thus further undercutting an already much maligned social institution.
Recent Judicial Trends
Swapnil Tripathi
v. Supreme Court of India, in an RTI response, the Madras tribunal has stated that it's not taken steps to implement the Supreme
Court's directions regarding the live-stream of court proceedings. The Court said that the virtual hearings
are being conducted
through Microsoft Teams platform. It’s further stated
within the reply that as per the
video conferencing rules, except in proceedings which are
ordered to be held in-camera, the Court shall endeavor to produce public
viewing subject to avail ability of the bandwidth.
This response has come on the RTI application filed by Saurav Das, an independent
journalist who sought a response on what actions are taken to measure stream the
Court proceedings pursuant
to the Supreme Court's
directions within the case of Swapnil Tripathi v. Supreme Court of India,
whereby the Supreme Court had decided
to live-stream Court proceedings within the larger
public interest.[6]
Nupur Thapliyal
and Ors. Vs. State of Madhya Pradesh
and ors. During
this case the Madhya Pradesh
High Court informed the
tribunal Judicial that web link to look at court proceedings held via video
conference are going to be made available online soon. This writ was filed on behalf of the journalist, Registrar General of the judicature bringing on the record
minutes of E-Committee meeting of tribunal, stated that the E Committee
has resolved to supply live web links of the hearings happening through virtual mode and video
conferencing to any or all the journalists and people aspiring to access
them. The state supreme court's response came on plea moved by four journalists seeking better access
to the High Court proceedings. The court administration said that it's approved virtual
streaming of court
proceedings through a link to be made available on the Madhya Pradesh tribunal website.[7]
Challenges Faced By
the Public
Globally,
India was ranked 89th out of 149 countries/regions by average internet
connection speed. Over 60 per cent mobile users in India are facing
network problems while accessing internet
across locations. All these
leads to chaos while performing online proceedings as well as when the general
public attends them. There has been an ongoing problem
in rural areas of mobile
network connectivity. The villages are remote, backward because of lack of facilities and poor connectivity. The reason for this are:
1.
Connecting when "roaming" can be a struggle.
If your flight has just landed, several hundred devices power on and try to connect to an overloaded network. On
a train, users find it difficult to hold a conversation even when passing
through areas with moderate cellular
coverage. It's the same on inter-state highways.
2.
Lack internet tower in rural areas. Telecom towers,
with their antennae, are the ubiquitous symbol
of mobile telephony
in India, yet there are too few of them with just 425,000 for the entire
country.
3. Mobile data is patchy in India.
3G isn't everywhere, but even where you get a strong
3G signal, you might
find no data activity. This is a problem for a country with 240 million mobile
internet subscribers - that's
92% of its total internet
subscriber base.
These are the reasons
which makes it difficult for general public in attending
online proceedings.
Challenges Faced By
the Court
1.
The
issue of access: There a number of litigants and advocates who lack internet
connectivity and requisite
infrastructure and means to participate in virtual hearings and therefore the
process. This has serious
implications. The plain one being that an outsized chunk of our citizenry is
liable to being excluded
from the method of justice
delivery thanks to factors beyond their control.
Moreover, such issues are likely to hit lower courts the worst. And this
may have ramifications of its own
since district or subordinate courts are the primary port of require an
unlimited majority. Most virtual
court proceedings in India currently
happen using third party software/platforms which pose a
security hazard and are at risk of hacking and misuse. An exclusive software
for India’s judicature to use and
to handle virtual court hearings
must be developed.
2.
The
degree of comfort: A highly underrated but equally consequential factor is
whether or not everyone,
whether or not access to reliable
internet connectivity is universal, is comfortable and well
versed with the new tools and mediums of justice delivery. It’s
interesting that the Secretary, Department of Justice stated that 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 concept of open courts: It might threaten the
constitutionality of Court
proceedings and undermine the
importance of Rule of law which forms part of the essential structure of the Constitution.
Remedies for the
Public
The
problems solved by setting up strong network towers in both rural and urban
areas. There by a good amount of
people access online proceedings. Telecom companies like Jio, Airtel, etc.
should collectively take an
initiative. Company like Jio has taken the initiative of providing fiber route
wires in rural areas for fast
network connection and is feasible for public at less cost. At the same time
Airtel is on mission of establishing tower
for providing internet
in all rural areas. Setting
up internet service
center or internet
café in all important points
of every rural and urban
area can help people
in accessing the internet this also help
the law graduates and law students who cannot
physically access the court can access virtually.
Remedies for Court
The
Ministry of Communications should means the implementation of the National
Broadband Mission, with the aim of providing reliable, and consistent connectivity infrastructure to any or all districts and lower courts
across India. The judiciary considers solutions like mobile
video conferencing facilities to permit for meaningful participation from those living in remote
geographies. Training programs
are concerned in each of the 25 High Courts. Twenty-five
master trainers extended training to 461 trainers within the districts, who successively have now been tasked with
training others within the lower courts and within the remaining districts. Another
suggestion is that the Bar Council of India should introduce a computer course
module within the syllabus of three/five-year law programs so on skill students in a number
of these aspects
as an element of their college education and training. The matter
associated with the thought of open court will be resolved
by recording the proceedings and making it easy accessible.
Conclusion
To
quote Isaac Asimov “the saddest aspect of society right now is that science
gathers knowledge faster than society
gathers wisdom”. The Indian Judiciary
is notorious for delayed justice, a result of the incompetent system. According to the latest statistics the
pending cases in the Indian High Courts range
from 59 lakhs and above. It is a reality that these numbers deter people
from taking faith in the judicial mechanism
that were designed to protect the downtrodden. Information Technology has
revolutionized government and private
sectors alike in the past decades. There is no reason the Judiciary should
abstain from taking advantage of the
immense potentials of the IT sector in providing quicker, better justice to the citizens of this nation. There are
obvious concerns in revitalizing a system that inherently is intolerant to change.
But this is no
challenge beyond the reach of
human ingenuity.
The Apex Court has issued guidelines to balance the interest
between the administration of Justice and decorum
of Court. The Court has also allowed the interns to attend the Court
proceedings so they'll learn every
procedure of the Court to facilitate the creation of a generation of legal luminaires more adapted to online courts.
Before
we refit our courts with cameras, more fundamental reforms must be initiated.
Confidentiality and reliability should
be the foundation of an online judiciary
. There is no place for error in matters
concerning the life and
liberty of an individual being held back by technical difficulties. Initiated
with the at most caution and an eye
for detail online courts can fundamentally change the face of our judicial
system. This is not a
solution for the future but a remedy
for the present. 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.
[1] Krishnadas Rajagopal,’Live-Streaming of Court Proceedings crucial for dissemination of information: CJI’ The
Hindu (New Delhi, July 17,2021)
[2] Krishnadas Rajagopal, ’Draft rules for live-streaming, recording of court proceedings out’ The Hindu (New Delhi,
June 7,2021)
[3] Protection of children from sexual offenses
Act,2012
[5] Krishnadas Rajagopal, ’Draft rules for live-streaming, recording of court proceedings out’ The Hindu (New Delhi,
June 7,2021)
[6] Swapnil Tripathi vs Supreme
Court of India
on 26 September [2017] S.C. Civ [2018] 1232(Indian Kanoon)
[7] Nupur Thapliyal and ors v. High Court of
Madhya Pradesh and ors, (Bar and Bench,
16 Jun, 2021)
Article Information
ONLINE STREAMING AND RECORDING OF COURT PROCEEDINGS
Authors: SHERON MATHEW PHILIP, VARUN RAJ GIRIDHAR, SARAH SI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/26
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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