“Publicity is the very soul of justice, it plays a vital role in the rule of law. Open justice is a safeguard against judicial arbitrariness or idiosyncrasy and maintains the confidence of the public in the administration of justice. Where there is no publicity, there is no justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the Judge himself whilst trying under trial.”
Jeremy Bentham, Jurist
“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”
Lord Atkinson in Scott v. Scott
What proved to be a groundbreaking verdict by the Supreme Court in 2018 in Swapnil Tripathi v. Supreme Court of India, it could translate into reality only recently with very few of the High Courts of the country following suit and starting real-time live streaming of proceedings with the Karnataka High Court being the latest entrant in the fray. Though the constitutional necessity of live streaming of court proceedings was pronounced in 2018, it was only in the later half of 2020, when Gujarat High Court pioneered in practice by starting live transmission in October 2020. As on 15-5-2021, the said YouTube channel live streaming the court proceedings of Chief Justice’s Court had been touching around 35 lakh views, with a whopping 60 thousand odd subscribers approx. This globally available channel has 100 (odd) videos available to be accessed anytime by anybody for its viewers.
In two parts of this article, we thus trace out the nuances associated with live screening of court proceedings; the sinking challenges and opportunities brimming with the possibilities of transforming the Indian justice dispensation system into an affordable, accountable, accessible and acceptable one for the citizens of the country. The article shall be staggered under the following heads to the make the whole read interesting and engaging.
- The Prelude – “Open Courts” and “Publicised Justice”
- Indian Context to “Open Courts”
- Statutory Canons recognising “Open Courts”
- Innovative Instances from Early 21st Century
- Swapnil Tripathi Judgment and its Trail in 3 Years
- Exceptions to Live Streaming and Visibility of Courts
- Video Conferencing Rules of Various High Courts
- Oral Proceedings and the Right to Report of Journalists
- The Epilogue
- The Prelude – “Open Courts” and “Publicised Justice”
Under the Indian Constitution, the courts, especially the constitutional courts like the High Court and the Supreme Court have an eminent role to play. The Indian Constitution was nurtured in the glory of common law ushered in by the British along with them, which had always followed the venerated practice of “open courts” and “publicised justice”.
Common law has always treated court as a “seat of service” rather than as a “place of status” . In India neither the Civil Procedure Code, 1908, Criminal Procedure Code, 1973 nor for that matter General Clauses Act, 1897 defines the content of the term “court”. However, a profound research aimed at discovering its meaning leads one to the general glossary of the Legislative Department, Ministry of Law and Justice, defining “court” as a “place” where justice is administered. Section 3 of the Evidence Act, 1872 defines “court” to include all Judges, Magistrates and all such persons legally authorised to take evidence. Section 20 of the Penal Code, 1860 succinctly explains “court of justice” as – a Judge who under law is empowered to act judicially alone or a body of Judges to act judicially as a body, and when such Judge or collegium of Judges acts judicially.
The dictionary of the US Federal Judiciary elaborates “court” as a government entity authorised to resolve legal disputes, whilst Black’s Law Dictionary states it to mean a governmental body consisting of one or more Judges sitting to adjudicate disputes or a place where justice is judicially administered. It is, therefore, beyond any cavil of doubt that the lowest common denominator of all the definitions across the globe imply “court” as a government entity comprising Judges handling the administration of justice. Ergo “court” is a “seat of service” rather than a “place of status” or a position. To this “seat of service”are attached duties and obligations, much higher than other wings of the executive, obliging its incumbents to act judicially with a scintillating conscience for administering justice.
“Open court” had thus been the bedrock of the British system, wherein originally all trials were held “ostis apertis” i.e. with open doors and windows. The practice of “open court” or “open judicial proceedings” was established during the 17th century, when in 1612 AD, Lord Coke lauded the great principle that all causes must be heard, ordered and determined openly. An “open court” with a “transparent justice” has always been trusted to deter judicial arbitrariness idiosyncrasies in the delivery of justice, a problem which the judicial system of every developing country has to pass through to mature. “Open court” principle is supported for three reasons: firstly, it assists in the search for truth and is informative and educational for the public. Secondly, it enhances accountability and deters misconduct on those delivering justice. Thirdly, it has a therapeutic function offering a mental assurance that justice has been done. “Open justice” had its origins in England before the Norman conquest, when free men in the community participated in the public dispensation of justice.
2. Indian Context to “Open Courts”
In India, “open courts” with a “publicised justice” system came to be judicially acknowledged emphatically in Naresh Shridhar Mirajkar v. State of Maharashtra, where the Court was addressing the submissions of the journalists that they had a fundamental right to attend the proceedings of the Court under Articles 19(1)(a), (d) and (g). A nine-Judge Bench of the Supreme Court then underscored the efficacy of open trials/courts as a means for bolstering the legitimacy and public confidence in the society. Vide para 22, the Constitution Bench did not mince any words whilst observing that “open courts” subject the whole institution to a public scrutiny and gaze, acting as a potent check against judicial caprice or vagaries, infusing fairness, objectivity and impartiality in the overall administration of justice.
The tangible takeaways from the judgment of Mirajkar were thus: “open courts” with a publicised judicial process act as a vital instrument of inspiring public confidence in the administration of justice; the soul of justice demands it to be vocal, visible and veritable: the aforesaid requirement, however must yield to necessity of restricting public access to the proceedings if so required in the special facts of any particular case.
The next stop for this avowed principle of “open courts” was after almost two decades in Olga Tellis v. Bombay Municipal Corpn., wherein a Constitution Bench of the Supreme Court led by the then CJI late Justice Y.V. Chandrachud went on to say that dialogue with the person likely to be affected by the proceedings (or the final outcome of the same) meets the fundamental requirement of “justice must also be seen to be done”. The Court held that such a participative process of decision making and hearing exalts the stature of institution delivering justice. Quoting Justice Frankfurter, the Court stated that propriety and the moral authority of any conclusion largely depends on the mode by which it was reached. Never a better way has been devised for arriving at truth, than to give a person in jeopardy of a serious loss, an opportunity to participate in its decision-making process. Thus, in case of justice not only the ends are important, but also the means through which it is achieved or delivered are of equal importance, one of them being its due and adequate publicity.
In the long line of judgments, which joined the dots completing the picture subsequently reiterating the same principle are LIC v. Manubhai D. Shah, Mohd. Shahabuddin v. State of Bihar, through which the Supreme Court from time to time contributed its bit in affirming the lesser known saying that “courts exist primarily to provide justice to its citizens against the might of the State”. A tension between the court and the executive is always healthy for a vibrant democracy and therefore the discourse which goes on as a part of resolving this tension cannot be far removed from the lives of individual citizens whose livelihood depends on the decision-making executive.
Thus, much before their formal incorporation in the statutes or the Constitutions of the world, “open courts” and “publicised justice” had been pre-existing in the legal narrative. These principles have been cast in stone through judicial recognition in almost every decade of our legal history.
3. Statutory Canons Recognising “Open Courts”
“Open courts” as an imperative constitutional necessity has been embedded in the Indian Constitution vide Article 145(4), which reads that the judgments of the Supreme Court of India shall be delivered only in “open court”.
Article 145(4) of the Constitution of India speaks:
(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.
Somewhat similar expression of a “publicised justice” occurs under Order 18 Rule 4 CPC, 1908, which mandates that recording of evidence of witnesses in any civil proceeding to be administered orally only in “open court” in the presence, direction and under the superintendence of the Judge; Section 153-B CPC, 1908 in the same breath designates any place where a civil court is held for trying any suit (civil) shall be deemed to be an “open court”, where public shall have an access, subject to infrastructural convenience. The criminal laws of our country are not behind and Section 327 CrPC, 1973 also mandates the courts to be open, subject to the discretion of the Presiding Judge or the Magistrate.
Section 153-B CPC, 1908 speaks:
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 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.
Section 327 CrPC, 1973 speaks:
Court to be open.— (1) 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.
(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-B, Section 376-C, Section 376-D or Section 376-E of the Indian Penal Code (45 of 1860) 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:
Provided further that an in-camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.
(3) 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:
Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.
If one intends to look at the international scenario, then there also the said norm has been firmly entrenched with international acceptance in the form of Article 6(1) of the European Convention on Human Rights, which provides as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
It would therefore not be out of place to mention that the Constitution-makers as also the Parliament itself has always believed that dispensation of justice must receive a comprehensive public attention, dialect and participation in the said exercise by the citizens for whom it exists. The courts in India not only interpret the law, but interpret it purposively and constructively to take the legislative intention forward to such an extent that it makes the working of such enactments and the machinery thereunder coherent and productive in the interests of its subjects.
4. Innovative Instances from Early 21st Century
Enthusiasm to ensure that justice is dispensed publicly has always been present in varying proportions amongst the Members of the Bench and there had been instances which displayed innovation and ingenuity of its novelty by the Judges concerned towards ensuring that what they do is so done under full public gaze. Some of the instances which I could discover from my tiny expanse of research can be quoted hereinbelow:
- As far back as in 2005 down south, the Hyderabad High Court (erstwhile Andhra Pradesh High Court) allowed the entry of television media with live video recording in the courtroom when special judicial assignments were being taken up in select few courts. However this initiative died down after receiving a lukewarm reception of successive Chief Justices of the High Court, who preferred sticking to the status quo than changing to demanding expectations of the organic society.
- Justice B.K. Somasekhara in an inimitable style of his own allowed the court hearings to go live, when he was conducting proceedings as a Head of the Judicial Commission inquiring into the land acquisition scam of construction of the Yeleru Canal laid between Visakhapatnam and East Godavari Districts. Not to forget, Justice Somasekhara was a sitting Judge when he was heading this inquiry in 1996. The video recordings cross-examining the erstwhile Ministers of Finance and other Cabinet Ministers of the State, especially those at the helm of the creamy portfolios became a subject of intense debate. The inquiry was constituted by the High Court in a spate of writ petitions, more than 100 in number alleging irregularities in payment of compensation. Initiative of Justice Somasekhara to ensure live transmission of the proceedings on national platforms like Doordarshan through the Ministry of Information and Broadcasting could not muster political support. Eventually all the birds of the same feather flock together and failed the next gen efforts of Justice Reddy.
- Through yet another off-the-cuff practice, Justice B. Subhashan Reddy as the Chairman of Andhra Pradesh Human Rights Commission allowed live telecast of his court proceedings in 2005 in cases involving human right infringements. To its viewers, it was a delight to have watched Justice B. Subhashan Reddy’s strict handling of the delinquents in these proceedings, especially government officers, when questions to them elicited squeamishly mumbled answers.
- In 2015, a Division Bench of Madras High Court headed by Justices S. Tamilvanan and C.T. Selvam also live streamed the court proceedings in the contempt case against Bar representatives Advocates Dharmaraj and A.K. Ramasamy. The duo were served with contempt notices for opposing the mandatory helmet ruling through a rally taken out by lawyers in Madurai. The live streaming was arranged through a large sized LED television for the general public.
Thus flame to be transparent and visible to the common man in the judicial process has always remained ignited in some of the incumbents of the high judicial offices, but it was only in Swapnil Tripathithat for the first time all the flowers were garlanded into a comprehensive dicta by the Supreme Court. A judgment for all generations to come was thus handed over to the nation led by the then Chief Justice of India Justice Dipak Misra.
The discussion on the remaining heads shall be undertaken in the subsequent part of this article. As an incomplete discussion would have not done justice with the issue at hand, therefore the next part shall be completing the full round by providing insight into the Swapnil Tripathi judgment and its trail of events. A bird’s eye view of the video conference rules framed by the various High Courts and the ills they are plagued by shall also be undertaken.
†† Utkarsh Sharma, 4th year student at Unitedworld School of Law, Karnavati University, Gandhinagar, Gujarat.
 John Bowring (ed.), The Works of Jeremy Bentham, Vol. VI (London, 1843) 351–352. Also see, Garth Nettheim, The Principle of Open Justice (1984) 8 Tasmanian Law Review 25.
 1913 AC 417, 463.