Three years after SC’s yes and many debates later, we may get to watch live trials

Hoping that the relevant rules will be formulated “expeditiously”, a three-member Bench of the Supreme Court, headed by the then chief justice of India Dipak Misra had, in September 2018, set the ball rolling for live streaming of court proceedings. However, it took three years for that to become a reality. Earlier this week, the e-committee of the Apex Court released the draft model rules for live streaming and recording of court proceedings to usher in “greater transparency, inclusivity and access to justice”. The Narendra Modi government has invited suggestions on the said draft model rules by June 30. On the other hand, Supreme Court judge, Justice DY Chandrachud, chairperson of the e-committee, has written a letter to all chief justices of the High Court calling for suggestions on the draft model rules.

According to legal experts, after receiving suggestions from all high court judges and concerned stakeholders, the rules will be taken before the full court of the Supreme Court and, once cleared, will be notified. Citing several reasons how live streaming will be beneficial to the judicial system, the three-member bench on September 26, 2018 had held “above, all sunlight is the best disinfectant”. With the long pending demand for bringing judiciary on a par with Parliament on the barometer of transparency, ET takes a look at how long it may take for the sunshine to reach the court rooms.

FLIP-FLOP

Senior advocate Indira Jaising, on whose petition the Supreme Court in September 2018 had paved the way for live streaming of court proceedings, laments the time the Apex Court has taken to frame the draft rules.

However, she appreciates the fact that the rules, when notified, will not only be applicable to high courts but also the lower courts. Jaising however contends that the archiving of live streaming of proceedings should be much longer than six months (as suggested in the draft rules) and no delay in live streaming of court proceedings.

Speaking to ET, Jaising said once implemented the live streaming of court proceedings will turn out to be a “measure of accountability in transparency in the justice delivery system”. She added that she has filed several applications, over the past year, in the Supreme Court seeking immediate implementation of the Supreme Court de- cision of September 2018 but to no avail.

In fact, one such application moved by Jaising in February 2020 was rejected by the Supreme Court referring the matter before the then Chief Justice on the “administrative side”. In October last year, the then chief justice of India SA Bobde had expressed his reservations over the implementation of live streaming saying that it might be misused. “In principle, I agree that there should be live streaming. But, in practice, you must hear me. As CJI, I have to deal with so many complaints over the virtual court proceedings,” Bobde had said. In August 2019, the Supreme Court had turned down a plea seeking live streaming or audio/video recording of the day-to-day proceedings in the Ayodhya dispute case saying it was not feasible at the moment.

VIRTUAL COURTS SHOULD BE THE PRIORITY: HC JUDGES
ET spoke to three judges from different high courts, including a chief justice, on the issue. While all welcomed the move, one of them flagged the lack of infrastructure. Another struck a word of caution over “diversion of energy” from virtual courts to live streaming of court proceedings. The third high court Judge opined that proceedings of only a select few courts, and not cases, should be made live. “While I appreciate that the Hon’ble Supreme Court has taken a step towards the right direction, but the need of the hour (due to pandemic) is that we make our existing infrastructure robust enough to further the cause of dispensation of justice. My apprehension is that there might be an unwanted diversion of energies which may hamper the cause of justice,” said a senior high court judge.

The second high court judge said, “There is a general feeling among some judges that they might be guarded in passing verbal observations which they would otherwise make, in the absence of cameras, to elicit a response from parties. Besides, keeping in mind the mammoth infrastructure required to make this a reality it would be best if such live streaming is confined only to courts which preside over constitutional cases or cases of public importance”. Another high court judge added, “It needs to be appreciated that there are still few high courts in the country where scanning of old records is incomplete till date. Scanning of records is imperative for holding virtual hearings. It would be in the interest of justice if preference is given to enabling the infrastructure in all courts in the country for a smooth functioning of virtual court hearings”. He underlined the “technology divide” in the district courts of the country.

STILL A LONG WAY AHEAD: EXPERTS
“The Covid pandemic has forced the hands of the court to finally implement the decision to live stream court proceedings. This is long awaited and unavoidable. However, the court has to weigh in several considerations to strike the right balance between preserving the sanctity of judicial proceedings, on the one hand, and promoting transparency in the administration of justice, on the other. While framing draft guidelines is certainly a milestone event in this journey towards revolutionising court proceedings, the end of the road is still a long way ahead with many a hurdle to cross,” said senior advocate Sanjoy Ghose.

Former additional solicitor general (ASG) of India and senior advocate Mohan Jain insists that the Supreme Court must bring itself at par with Parliament on transparency standards. “It must be lauded that the Supreme Court has rolled out draft model rules for the live streaming of court proceedings. However, it would be better if the Supreme Court sets an example by launching it itself setting a precedent for all the high courts ushering in transparency”.

READY WHEN SC IS: GOVT STAND
A senior government official on condition of anonymity said: “The government’s role in this endeavour is that of an enabler. There is no doubt that the entire exercise will entail a large amount of infrastructure. But the same is doable and can be achieved in phases”. Attorney General KK Venugopal, in August 2018, during one of the hearings of the case which led to the Supreme Court’s order on the live streaming of court proceedings had said “Live streaming of court proceedings should be introduced as a pilot project in court No. 1 and only in Constitution bench references.

The success of this project will determine whether or not live streaming should be introduced in all courts in the Supreme Court and in courts pan India”. Union law minister Ravi Shankar Prasad had, in January 2018, assured the Parliament of support should the Supreme Court notify live streaming of court proceedings. “I would like to tell the house very clearly that the day the Supreme Court will tell us that they want to live telecast the proceedings, we will give everything that is required, as we have done in the case of ecourts or video-conferencing in many district courts,” Prasad had assured the Parliament in January 2018.

The Parliamentary Panel on Law and Justice in September 2020 had stressed on the need for upgradation of infrastructure, especially in district courts to make virtual courts a success. In its report, the panel had recorded such difficulties being experienced by lawyers and Bar Associations of various high courts. “There are 38 judges in the Calcutta High Court but there is not sufficient infrastructure to enable all hon’ble judges to undertake virtual hearings. For example, on August 3, 2020, only eight hon’ble judges were able to take up matters virtually both in division bench as well as singly,” the association representatives had said. Others had raised concerns over the crashing of the server during peak hours and the disruption of entire proceedings owing to one technical glitch.