By Shriyanshi[1]

IN THE SUPREME COURT OF INDIA

NAME OF THE CASE	Swapnil Tripathi V. Supreme Court of India
CITATION	Writ petition (C) No. 66 of 2018
DATE OF THE JUDGEMENT	September 26, 2018
APELLATE	Swapnil Tripathi
RESPONDENT	Supreme Court of India
BENCH/ JUDGE	Dipak Misra, A.M. Khanwilkar and D.Y. Chandrachud
STATUTES/CONSTITUTION INVOLVED	Constitution of India; Criminal Procedure Code, 1973; Civil Procedure Code, 1908;
IMPORTANT SECTIONS INVOLVED	Constitution of India: Articles 14,15,19, 21,32,129, 145 and 217   Criminal Procedure Code, 1973: Sections 327   Civil Procedure Code, 1908: Sections 153-B

ABSTRACT

A Public Interest Litigation filed by the petitioners and the interventionists about a cause that has since long time being delayed and was affecting the society at large. It was filed under Article 32 of the Constitution of India seeking live streaming of cases because many do not have access to it and it might be possible that whatever is published by the media in newspapers does not serve the people, therefore, the broadcast of the cases shall help the general public along with the lawyers, advocates, interns and other law spirited people to directly listen to the court.

INTRODUCTION

During an interview, Swapnil Tripathi, the petitioner in the present case, spoke about his decision and his plans to file a Public Interest Litigation in the Supreme Court but he did say few words that were appreciated throughout the law regime, that is, “I sincerely believe that law students are equal and important members of the legal fraternity. Therefore, we should stand up for causes we believe in and challenge notions and practices, which contravene the principles of our Constitution. One such discriminatory practice, was regarding the entry of law interns in the Supreme Court of India.”[2]

Open justice system is not an exotic concept to India and is also an established principle of common law systems. The Black’s Law Dictionary define open court as “…. a court to which the public have a right to be admitted. This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators…” they serve as a basis to keep an eye on the judiciary and its proceedings and thus it allows the litigants and the public at large to have a view of the proceedings and that the judges give fair justice.

The article 145(4) of the Constitution speak about the Supreme Courts to be an open court and the Code of Civil Procedure, 1908 also has this provision, that is, Section 153-B, every civil court that where a suit shall be tried that would be regarded as an open court, on the same line, Criminal Code of Procedure, 1973 also lay down this provision under Section 327 that the place where any criminal proceeding is held, it shall be deemed to be an open court.

The live streaming of cases is an extension of the open courts as it is the right of every citizen to receive information under article 19(1)(a). According to Hegel, the proceedings of the court should be made public as the main focus of the court is justice which is ubiquitous.   

FACTS OF THE CASE

Swapnil Tripathi, a law scholar passionate about the constitutional law filed a Public Interest Litigation under Article 32 of the Indian Constitution. His PIL was regarding the entry of law students in the Supreme Court of India as in one of his internships, he was denied the entry into the court and the Court Registry cited the reason being that the matter was to be heard on a miscellaneous day therefore, the interns were not allowed and this made him take the big step. He, himself drafted the PIL with the notice that it was violating the right to learn of the interns and runs contrary to the regulations laid down by the Bar Council of India.

After he filed the PIL, it was clubbed with the PIL filed by several other petitioners such as Indira Jaising, Mathews J. Nedumpara and others.

They all pleaded for “Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people” should be available for public view and for that there should be live streaming of such cases.

To support their pleading, they relied on the apex court decided case Naresh Shridhar Mirajkar V. State of Maharashtra[3] wherein it was argued that journalists too have a fundamental right to carry on their occupation and a right to attend the proceedings of the court.

ISSUES RAISED BEFORE THE COURT

1. Can live streaming of the specific cases be permitted?
2. If it can be permitted, what all steps have to be taken?
3. Does not getting access to proceedings of the court to the interns or any other citizen who wish to see the arguments and other things of law violate their fundamental right?
4. Can live streaming be permitted with the aid of Information and Communications Technology?

ARGUMENTS FROM THE PETITIONER SIDE

• The learned counsel prayed that there should be live streaming of cases that hold constitutional importance as well as national.
• It was further added that there should be proper infrastructure for live streaming of the proceedings.
• Further, they relied on the case of Naresh Shridhar Mirajkar V. State of Maharashtra[4], where it was opined that open trial is a norm and held that it is a fundamental right under Article 19.
• The counsel further held that the restrain on the entry of interns to the courts violates their right to learn in addition to violation of Article 14 of the Indian Constitution and on miscellaneous days, the courts are highly congested.
• The counsel further held that it is everyone’s right to access justice under Article 21 of the Constitution but in practice, it cannot be accessed because all those interested lose out on the basis of time, resources and they cannot travel distances to hear the court every single day.
• In addition, it was held that live streaming would help the public at large to educate them about issues which are raised before the court and provide them with an overview.
• The counsel further referred to jurisdictions of other courts such as Australia, Brazil, Canada, England and other countries where broadcasting of the cases is held and are also uploaded on their official website for reference.

ARGUMENTS FROM THE RESPONDENTS SIDE

• The learned counsel from the respondent agreed with the live streaming of the cases.
• Yet, he argued that there should be channelizing of cases that would be allowed to broadcasted.
• He further stated that there should be comprehensive guidelines for live streaming of the cases concerned.
• Contending on the manner, he further stated streaming of the cases on the internet should be in a progressive and structured manner, that is, it does not bar the dignity of the court and therefore, the entire project should be phased out.
• He further made certain recommendation, that is, permission of court should be there in advance, permission should also be obtained from the parties participating in the case and if there is no unanimity between them, the court shall take the decision which will be “non- justiciable and non-appealable”
• He further contended that permission granted by the court could be revoked at any time, a delay of ten minutes to be permitted so that information ought not be shown can be edited.
• Finally, he stated there should be a module for live streaming of the cases.

RELATED PROVISIONS

CONSTITUTION OF INDIA

• ARTICLE 14: “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”[5]
• ARTICLE 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
•       The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them[6]
•       No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
•  access to shops, public restaurants, hotels and palaces of public entertainment; or[7]
•  the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public[8]
•  Nothing in this article shall prevent the State from making any special provision for women and children[9]
• Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes[10]

• ARTICLE 19:

Protection of certain rights regarding freedom of speech etc

1.  All citizens shall have the right[11]
2.  to freedom of speech and expression;[12]
3.  to assemble peaceably and without arms;[13]
4.  to form associations or unions;[14]
5. to move freely throughout the territory of India;[15]
6. to reside and settle in any part of the territory of India; and[16]
7. omitted[17]
8.  to practise any profession, or to carry on any occupation, trade or business[18]
9. Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence[19]
10.  Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause[20]
11.  Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause[21]
12. Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe[22]
13.  “Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,

          (i) the professional or technical qualifications necessary for practising any profession       or carrying on any occupation, trade or business, or

           (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise”[23]

• ARTICLE 21: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”[24]

• ARTICLE 32:  Remedies for enforcement of rights conferred by this Part
•  The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed[25]
•  The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part[26]
• Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )[27]
•  The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[28]

• ARTICLE 129:

“Supreme Court to be a court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”[29]

• ARTICLE 145:

Rules of Court, etc

1. “Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including

      a.  rules as to the persons practising before the Court,

b.  rules as to the procedure for hearing appeals, and other matters pertaining to appeals including the time within which appeals to the Court are to be entered;

      c.  rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;

cc. rules as to the proceedings in the Court under Article 139A;

• rules as to the entertainment of appeals under sub clause (c) of clause (1) of Article 134;
•  any judgment pronounced or order made by the Court may be received and rules as to the conditions the procedure for such review including the time within which applications to the Court for such review are to be entered;
•  rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceeding therein;
•  rules as to the granting of bail;
•  rules as to stay of proceedings;

 rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;

1. rules as to the procedure for inquiries referred to in clause (1) of Article 317”[30]

2.  Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts[31]

3. “The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion”[32]

4.       No judgment shall be delivered by the Supreme Court save in open Court, and no report   shall be made under Article 143 save in accordance with an opinion also delivered in open Court. [33]

•  No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion[34]
• ARTICLE 217:

Appointment and conditions of the office of a Judge of a High Court

1. “ Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years Provided that

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India”[35]

2.  “A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession; Explanation For the purposes of this clause

(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be”[36]

3.  “If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final”[37]

CRIMINAL CODE OF PROCEDURE, 1973

• SECTION 327:
• Court to be open.
•  “[38] The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open

Court, to which the public generally may have access, so far as the same can conveniently contain them: Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.”

•  “Notwithstanding anything contained in sub- section (1), he inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in camera: Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court.”[39]
•  “Where any proceedings are held under sub- section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with’ the previous permission of the court.] CHAP PROVISIONS AS TO ACCUSED PERSONS OF UNSOUND MIND. CHAPTER XXV PROVISIONS AS TO ACCUSED PERSONS OF UNSOUND MIND.”[40]

CIVIL PROCEDURE CODE, 1908

• SECTION 153- B:

“Place of trial to be deemed to be open Court. – The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them:

Provided that the presiding Judge may, if he thinks fit, order at any state of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.”[41]

JUDGEMENT

The honourable court allowed the writ petitions so filed and accepted that Article 21 covers the right to get access to justice and educate people regarding the constitutional and national importance cases therefore, it is the duty of the State to spread awareness. Adding on, it held that Article 19(1)(a), a fundamental right of the Constitution includes the “right to know and receive information” hence, the public is allowed to witness the proceedings of the court. Article 145(4) of the Constitution encompasses that the hearings and pronouncements shall be done in open courts as has been held in Naresh Shridhar Mirajkar V. State of Maharashtra[42] and not only this provision but it can also be traced to Section 327 of the CrPC, 1973 and Section 153-B of the CPC, 1908. It stated that the open justice concept is not an out of the box concept and it includes the person to attend the hearing as a spectator, promotion of accurate reporting of court proceedings, the judges’ duty to give fair judgements; and access to the public. In Attorney General V. Leveller Magazine Ltd[43], it was held by the House of Lords that “open courts are a safeguard against judicial arbitrariness or idiosyncrasy.” Open courts, in his view, help build public confidence in the judicial system.”

The court referred to various foreign takes on live streaming and discussed a handful cases, one of them being Van Breda V. Media 24 Ltd.[44] From South Africa which was a landmark judgement, it was ruled that “the Supreme Court allowed for broadcast of proceedings in criminal trials, holding that courts should not restrict the nature and scope of broadcast of court proceedings unless prejudice was demonstrable and there was a risk that such prejudice would occur.”

In Estes V. Texas[45], the case from the United States referred to by our court laid down rules but, in this case, though the defendant objected to the use of camera coverage, it was still covered and violated its constitutional rights, yet the question that remained was “whether the courtroom broadcasting was inherently prejudicial to a fair trial?” And this was replied to through the case of Chandler[46], where it was held that “the restriction on camera coverage imposed in Estes case was not an absolute, universal ban and left it to the States to frame rules for permitted television recordings, since televising a criminal trial did not automatically make the trial unfair to the defendant.” The court returns to its judgement stating that it accepts the recommendation made by the learned Attorney General and respondent as held in Scott V. Scott[47], “While the broad principle is that the courts must administer justice in public, the chief object of the courts of justice must be to secure that justice is done.” There are specific cases where broadcasting should not be permitted, such as matrimonial matters, cases that revolve around juveniles and their protection, national security cases, protection of intimidating witnesses, matters that involve sexual assault or rape, matters that elicit sentiments among communities, footage would not be used for media outlets or commercial purposes, written permission of the Supreme Court if India before it is published or posted, unauthorised use would be penalized under the Copyright Act, 1957 and the Information Technology Act, 2000, speedy hearings and lawyers to abide by the time- limit, like the Court of Appeal in England, “the Supreme Court should lay down guidelines for having only two camera angles, one facing the judge and the other- the lawyer.” The camera should not focus on the papers of the lawyers” and there should be no streaming of the talks between the advocate and the client in between the arguments. The court further added that there should be amendment in the Supreme Court Rules, 2013 according to the things listed above.

The use of technology has advanced in the whole world and therefore in many of its previous cases, this court has laid down the use of technology to regulate the videoconferencing of the cases such as Krishna Veni Nagam V. Harish Nagam[48] and hence Indian Judiciary has incorporated information and communication technology under the umbrella of the e-Courts Integrated Mission Mode Project (eCourts Project) and it has been implemented in all High Courts and District Courts, it also laid down there are several platforms such as eCourts Portal, Mobile App of eCourts, SMS Push, SMS Pull, automated e-mails, touch screen kiosks, service centres, e-payment and e-filing for delivery of services.

Thus, it was held that live streaming of cases will help the general public and is and extension of the open courts, it will be carried out by the person or agency appointed by Chief Justice of India and will be hosted on its website under the shade of the National Informatics Centre and the Ministry of Electronics and Information Technology. There would be one or more broadcast rooms or a hall within the walls of the Supreme Court, multiple screens shall be installed and special arrangements to be made for differently abled. Hence, the petition being allowed, and a model prepared for the live streaming of specific cases, the judges penned down their judgement.

CONCLUSION

A highly commendable job by the petitioners and it was also backed by the respondents for the live streaming of the cases. The points raised were extremely rational, logical and well grounded. There are people who wish to attend the hearing of a particular case but are unable to do so because of the crowd in the court and the long distances they have to cover to attend the hearings, hence the apex court allowing the petition was lauded by the public as they now would now be able to easily access the arguments and the decisions from anywhere and everywhere of the country as the same would be uploaded on official website as well as the app developed. As Bentham stated, “…. the doors of all public establishments ought to be, thrown wide open to the body of the curious at large- the great open committee of the tribunal of the world.”

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[1] Author is 3^rd semester student, Amity Law School, Lucknow

[2] SCC ONLINE BLOG, https://www.scconline.com/blog/post/2019/05/01/swapnil-tripathi-on-his-experience-of-arguing-in-the-supreme-court-against-the-bar-imposed-on-interns-in-entering-court-rooms/ (last visited Jul.13, 2022).

[3] Naresh Shridhar Mirajkar V. State of Maharashtra, (1966) 3 SCR 744.

[4] Id.

[5] INDIA CONST. art. 14.

[6] INDIA CONST. art. 15, cl.1.

[7] INDIA CONST. art. 15, cl.2(a)

[8] INDIA CONST. art. 15, cl.2(b).

[9] INDIA CONST. art. 15, cl.3.

[10] INDIA CONST. art. 15, cl.4.

[11] INDIA CONST. art. 19, cl.1

[12] INDIA CONST. art. 19, cl.1(a).

[13] INDIA CONST. art. 19, cl.1(b).

[14] INDIA CONST. art. 19, cl.1(c).

[15] INDIA CONST. art. 19, cl.1(d).

[16] INDIA CONST. art. 19, cl.1(e).

[17] INDIA CONST. art. 19, cl.1(f).

[18] INDIA CONST. art. 19, cl.1(g).

[19] INDIA CONST. art. 19, cl.2.

[20] INDIA CONST. art. 19, cl.3.

[21] INDIA CONST. art. 19, cl.4.

[22] INDIA CONST. art. 19, cl.5.

[23] INDIA CONST. art. 19, cl.6.

[24] INDIA CONST. art. 21.

[25] INDIA CONST. art. 32, cl.1.

[26] INDIA CONST. art 32, cl.2

[27] INDIA CONST. art. 32, cl.3.

[28] INDIA CONST. art. 32, cl.4.

[29] INDIA CONST. art. 129.

[30] INDIA CONST. art. 145, cl.1.

[31] INDIA CONST. art. 145, cl.2.

[32] INDIA CONST. art. 145, cl.3.

[33] INDIA CONST. art. 145, cl.4.

[34] INDIA CONST. art. 145, cl.5.

[35] INDIA CONST. art. 217, cl.1.

[36] INDIA CONST. art. 217, cl.2.

[37] INDIA CONST. art. 217, cl.2.

[38] The Criminal Code of Procedure, 1973, §327(1), No.2, Acts of Parliament, 1973(India).

[39] The Criminal Code of Procedure, 1973, §327(2), No.2, Acts of Parliament, 1973(India).

[40] The Criminal Code of Procedure, 1973, §327(3), No.2, Acts of Parliament, 1973(India).

[41] The Civil Procedure Code, 1908, §153(b), No.5, Acts of Parliament, 1908(India).

[42] Naresh Shridhar Mirajkar V. State of Maharashtra, (1966) 3 SCR 744.

[43] Attorney General V. Leveller Magazine Ltd., 1979 AC 440.

[44] Van Breda V. Media 24 Ltd., 2017 ZASCA 97.

[45] Estes V. Texas, 1965 SCC On Line US SC 125.

[46] Chandler V. Florida, 1981 SCC On Line US SC 19.

[47] Scott V. Scott, 1913 AC 417.

[48] Krishna Veni Nagam V. Harish Nagam, (2017) 4 SCC 150.