A.M. Khanwilkar, J.
1. The petitioners and interventionists, claiming to be public spirited persons, have sought a declaration that Supreme Court case proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live streamed in a manner that is easily accessible for public viewing. Further direction is sought to frame guidelines to enable the determination of exceptional cases that qualify for live streaming and to place those guidelines before the Full Court of this Court. To buttress these prayers, reliance has been placed on the dictum of a nine-Judge Bench of this Court in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors., (1966) 3 SCR 744 [LQ/SC/1966/75] which has had an occasion to inter alia consider the arguments of journalists that they had a fundamental right to carry on their occupation under Article 19(1)(g) of the Constitution; that they also had a right to attend the proceedings in court under Article 19(1)(d); and that their right to freedom of speech and expression guaranteed under Article 19(1)(a) included their right to publish a faithful report of the proceedings which they had witnessed and heard in Court as journalists. The Court whilst considering the said argument went on to emphasise about the efficacy of open trials for upholding the legitimacy and effectiveness of the Courts and for enhancement of public confidence and support. It would be apposite to reproduce the relevant extract from the said decision propounding about the efficacy of hearing of cases in open courts, in the following words:
“20….. It is well-settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court room. As Bentham has observed :2. Indeed, the right of access to justice flowing from Article 21 of the Constitution or be it the concept of justice at the doorstep, would be meaningful only if the public gets access to the proceedings as it would unfold before the Courts and in particular, opportunity to witness live proceedings in respect of matters having an impact on the public at large or on section of people. This would educate them about the issues which come up for consideration before the Court on real time basis.
"In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity. (Scott v. Scott [(1911) All. E.R. 1, 30]) ”
3. As no person can be heard to plead ignorance of law, there is corresponding obligation on the State to spread awareness about the law and the developments thereof including the evolution of the law which may happen in the process of adjudication of cases before this Court. The right to know and receive information, it is by now well settled, is a facet of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness Court proceedings involving issues having an impact on the public at large or a section of the public, as the case may be. This right to receive information and be informed is buttressed by the value of dignity of the people. One of the proponents has also highlighted the fact that litigants involved in large number of cases pending before the Courts throughout the country will be benefitted if access to Court proceedings is made possible by way of live streaming of Court proceedings. That would increase the productivity of the country, since scores of persons involved in litigation in the courts in India will be able to avoid visiting the courts in person, on regular basis, to witness hearings and instead can attend to their daily work without taking leave.
4. As the debate has actuated momentous issues, we had requested the learned Attorney General for India, Shri K.K. Venugopal to collate the suggestions given by him as well as the petitioners and interventionists and submit a comprehensive note for evolving a framework, in the event the relief claimed in the writ petition(s) was to be granted. We shall advert to the same a little later.
5. We have heard Mr. K.K. Venugopal, learned Attorney General for India, Ms. Indira Jaising, learned Senior Advocate, Mr. Virag Gupta learned counsel, Mr. Mathews J. Nedumpara, learned Advocate and other petitioners/intervenors appearing in-person.
6. Indisputably, open trials and access to the public during hearing of cases before the Court is an accepted proposition. As regards the pronouncement of judgments by the Supreme Court, there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open Court. Indeed, no such express provision is found in the Constitution regarding “open Court hearing” before the Supreme Court, but that can be traced to provisions such as Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC) which read thus: Section 327 CrPC
“327. 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.7. Notably, in Naresh Shridhar Mirajkar (supra), this Court, in no uncertain terms, expounded that open trial is the norm but, at the same time, cautioned that there may be situations where the administration of justice itself may make it necessary for the Courts to hold in-camera trials. Applying the underlying principles, it may be appropriate to have a proper and balanced regulatory framework before the concept of live streaming of Court proceedings of this Court or any other courts in India is put into action.
(2) Notwithstanding anything contained in sub-section (1), the inquiry into the trail 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 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 trail proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.]”
Section 153-B CPC
“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.”
8. Indubitably, live streaming of Court proceedings has the potential of throwing up an option to the public to witness live court proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions of Courts; and would also provide them with a more direct sense of what has transpired. Thus, technological solutions can be a tool to facilitate actualization of the right of access to justice bestowed on all and the litigants in particular, to provide them virtual entry in the Court precincts and more particularly in Court rooms. In the process, a large segment of persons, be it entrants in the legal profession, journalists, civil society activists, academicians or students of law will be able to view live proceedings in propria persona on real time basis. There is unanimity between all the protagonists that live streaming of Supreme Court proceedings at least in respect of cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning, as is suggested across the Bar.
9. Live streaming of Court proceedings is feasible due to the advent of technology and, in fact, has been adopted in other jurisdictions across the world. Live streaming of Court proceedings, in one sense, with the use of technology is to “virtually” expand the Court room area beyond the physical four walls of the Court rooms. Technology is evolving with increasing swiftness whereas the law and the courts are evolving at a much more measured pace. This Court cannot be oblivious to the reality that technology has the potential to usher in tangible and intangible benefits which can consummate the aspirations of the stakeholders and litigants in particular. It can epitomize transparency, good governance and accountability, and more importantly, open the vista of the court rooms, transcending the four walls of the rooms to accommodate a large number of viewers to witness the live Court proceedings. Introducing and integrating such technology into the courtrooms would give the viewing public a virtual presence in the courtroom and also educate them about the working of the court.
10. We must hasten to add that our attention was invited to the decision taken by the Advisory Council of the National Mission of Justice Delivery and Legal Reforms on the proposal to initiate audio video recording on an experimental basis in the Courts. In its meeting held on 26 th August, 2014, it was noted that audio video recording of Court proceedings was proposed in the Policy and Action Plan Document for Phase II for the e-Courts Mission Mode Project. However, in the meeting of the E-Committee held on 8 th January, 2014, the issue was taken up but was deferred as it required consultation with Honble Judges of the Supreme Court and the High Courts. Indeed, consultation with the Honble Judges of the Supreme Court and the High Courts may become essential for framing of rules for live streaming of Court proceedings so as to ensure that the dignity and majesty of the Court is preserved, and, at the same time, address the concerns of privacy and confidentiality of the litigants or witnesses, matters relating to business confidentiality in commercial disputes including prohibition or restriction of access of proceedings or trials stipulated by the Central or State legislations, and, in some cases to preserve the larger public interest owing to the sensitivity of the case having potential to spring law and order situation or social unrest. These are matters which may require closer scrutiny. While doing so, the modules adopted by courts in other jurisdictions may be useful. The position in some of the Courts in other jurisdictions (arranged in alphabetical order) as culled out from the material pointed out to us, is as follows:
I. Australia
1. High Court: Allows recordings of its proceedings to be published on its website .
Since 1 st October, 2013, the High Court of Australia, which is its apex court, has made available on its website audio- visual recordings of all full-court hearings held in Canberra .
a. The content of the coverage is vetted and recordings are posted usually within day or two of the hearing;
b. The High Court has issued certain terms for use of such recordings on its website, which include restrictions on recording or copying without prior permission of the Court and retention of copyright over the proceedings by the Court ;
c. The High Court permits members of the public to take photographs inside courtrooms when the Court is not in session, for private purposes. Audio-video recording of Court proceedings by private parties is expressly banned. The Court however, on certain occasions, permits film crews to film parts of proceedings like the arrival of the Justices and them sitting at the bench, the Court staff positioned in the Court, and the barristers and solicitors at their tables in the courtroom. Such permission is granted on a case-to-case basis and subject to certain conditions imposed by the Court ;
2. Lower Courts : There are no statutory restrictions on media coverage of lower court proceedings and permission for broadcast of hearings differs from court to court.
a. Federal Court of Australia: Allows the media to broadcast proceedings on a regular basis and also publishes videos of certain judgment summaries on its website.
i. In the Federal Court of Australia (having appellate jurisdiction), television camera coverage is coordinated and supervised by the Courts Director of Public Information.
ii. The Court itself has not imposed any rigid conditions on recordings. Most recordings are permitted on an ad-hoc basis and on certain conditions, including that the proceedings are not disturbed, that no artificial lighting is used, that cameras remain in fixed positions once proceedings have commenced, and that the Court retains the right to veto the use of any part or of all footage recorded.
iii. The website of the Federal Court also contains a video archive of certain judgment summaries, accompanied by text versions .
iv. Rule 6.11 of the Federal Court Rules, 2011 9 seems to indicate that private parties may also take recordings of proceedings, subject to restrictions laid down therein.
b. Supreme Courts: Permission for broadcast varies, depending on the court.
i. The Supreme Courts (having trial jurisdiction) for the various Australian districts differ on permission for media broadcasting. For example, the Queensland Supreme Court allows for a live or delayed broadcast of only „judgment remarks and has also issued practice directions in that regard .
ii. Filming court proceedings is permitted in certain situations in certain Supreme Courts like New South Wales , Northern Territory , Western Australia and Tasmania, after an application is made to the presiding Judge or to the registrar in some courts.
c. Trial Courts: Rarely admit cameras and when they do, allow recording mostly for ceremonial events or for stock footage.
II. Brazil
1. Supreme Court: Allows live video and audio broadcast of Court proceedings, including the deliberations and voting process undertaken by the judges in court.
a. The Brazilian congress enacted a law, which was sanctioned by the President on 17 th May, 2002, enabling the creation of a public television channel, TV Justiça, dedicated to the judiciary.
b. From 14 th August, 2002 onwards, Supreme Court proceedings have been telecast live on TV Justica . A separate radio channel, Radio Justica 17 broadcasts audio proceedings.
c. Both the television and radio stations are owned by the Brazilian judicial branch and operated by the Supreme Court.
d. There are also two YouTube channels, one titled „Tv Justica which shows discussions and commentaries on the judicial system and the other titled „STF , which broadcasts live proceedings of hearings before the Supreme Court.
2. Lower Courts:
a. Superior Court of Justice: This Court is the highest appellate court in Brazil for non-constitutional questions of federal law. Proceedings are broadcast on the TV Justica channel;
b. Trial Courts: Do not show broadcast of proceedings.
II. Canada
1. Supreme Court : Allows broadcast and live streaming of its proceedings.
a. The Canadian Supreme Court has permitted media coverage of its proceedings since 1994, on public broadcast service provided by the Cable Parliamentary Affairs Channel (CPAC) . A formal agreement between the Court and the CPAC governs this media coverage.
b. The Supreme Court retains copyright over the broadcast material, and has ultimate say in use of the coverage. Only the Courts own sound facilities can be used for recording, and permanently installed cameras within the courtroom are used for visual coverage. The agreement between the Supreme Court and CPAC also requires broadcast of proceedings to be accompanied by explanations of each case and the overall processes and powers of the Court.
c. The Supreme Court has also started broadcasting/webcasting live video streams of court hearings on its website since 2009 and has an archive of its previous broadcasts .
2. Lower Courts
a. Federal Courts: Permit media coverage by broadcasters The Federal Court of Appeal allows audio-video media coverage of proceedings as per published guidelines The Federal Court also has its own set of guidelines regulating coverage of proceedings A written application has to be made for permission to record proceedings but the general policy is to allow such applications if they are made within a reasonable time.
b. Courts of Appeal Courts of Appeal in the provinces allow or deny permission to broadcast court proceedings based on their own guidelines .
c. Courts of first instance/Trial Courts: Broadcast of proceedings is rare. Although each province maintains its own guidelines for coverage, in practice, approval for broadcast of proceedings is rarely given.
IV. China:
Live streaming and recorded broadcasts of court proceedings are being implemented across the judiciary, from the trial courts right up till the Supreme Peoples Court of China.
1. Supreme Peoples Court:
a. The Supreme Court has allowed proceedings of its public hearings to be broadcast live from July 2016 onwards. These broadcasts are governed by the 2010 regulations issued by the Supreme Court, „Provisions on the Live Broadcasting and Rebroadcasting of Court Trials by the Peoples Courts These regulations focus on the type of cases to broadcast.
b. Additionally, cases involving matters like review of death sentences and review of decisions on foreign arbitral awards are not broadcast. Politically sensitive cases are broadcast at the discretion of the Court.
c. The 2010 Regulations have been supplemented by The Peoples Court Courtroom Rules, 2016 . These new rules indicate that court proceedings can only be broadcast by the official Court machinery and that other parties are restrained from recording court proceedings in any manner .
d. These regulations are rules are silent on taking consent from parties involved the matter.
2. Lower Courts:
a. Proceedings of several courts, including High Courts and family courts, have been made available on a centralised, official website, the Chinese Open Trial Network from September 2016 onwards, in consonance with the aforementioned Peoples Court Courtroom Rules, 2016. Majority of the cases being broadcast are civil in nature, with some criminal and administrative matters also being made available.
b. Proceedings of around 3500 lower courts have been made available on the website, with many videos available in High Definition (HD) format. In 2017 alone, more than 1.27 million trials had been broadcast on the website.
c. Some High Courts also make their proceedings available on their own websites .
V. England:
1. Supreme Court:
The media is permitted to broadcast court proceedings and hearings are live streamed and recorded.
a. Till 2005, recording of court proceedings was a crime and also amounted to contempt of court .
b. With the implementation of the Constitutional Reforms Act, 2005 , the Supreme Court was exempted from the prohibition imposed under the Criminal Justice Act, 1925. The Crime and Courts Act, 2013 also exempted recording of Supreme Court proceedings from the ambit of the Contempt of Court Act.
c. Since its inception, the Supreme Court has given broadcasters access to footage of its hearings. These hearings are governed by protocols with such broadcasters. The Supreme Court has also issued a practice note which broadly sets out the scope and structure of such broadcasts .
d. The Supreme Court allows for hearings to be live streamed on its own website with a delay of around one minute and also has a Youtube channel which shows selected broadcasts from the live stream . Broadcast of proceedings is subject to the discretion of the Law Lords, who reserve the right to withdraw coverage for sensitive appeals.
2. Lower Courts:
The Crime and Courts Act, 2013 amended the existing laws to facilitate broadcasting in courts and tribunals by providing exceptions to the Criminal Justice Act, 1925 and prescribing conditions subject to which recordings could be made. Broadcast of court proceedings is allowed in a limited number of courts across the country.
a. Court of Appeal for England and Wales :The Court broadcasts its proceedings live with a 70-second broadcast delay system
i. The broadcast system is operated by a specialist video journalist who takes orders from the court.
ii. The broadcast is conducted by cameras, some of which are operated completely wirelessly, and can be moved from court to court. Subject to the judges approval, the video journalist can take his cameras into any of the courtrooms in which the Court of Appeal may sit.
iii. Lawyers arguments and judges comments appear in the broadcast but defendants, witnesses and victims are not shown.
iv. Footage can be used for news and current affairs but not in other contexts such as comedy, entertainment or advertising.
b. Crown Court: The Crown Court (Recording) Order, 2016 partially lifts the prohibition on recording proceedings in order to facilitate a pilot project of recording sentencing remarks in the Crown Courts. Since then, several Crown Courts have trialled broadcast of proceedings.
VI. European Court of Human Rights (ECHR)
1. The ECHR allows for broadcast of court proceedings, as a corollary of its court rules, which set out that all hearings are public .
2. All the Courts public hearings are broadcast on the Courts website 46 . Hearings held in the morning can be viewed in the afternoon while those held in the afternoon are available during the evening.
3. All the Courts public hearings since 2007 have been filmed and can be viewed, with interpretations available in French and English.
VII. Germany:
Germany has passed legislation which allows for live broadcasting of court proceedings in the Federal and Supreme Courts, although actual instances of such broadcasts are rare owing to the strict restrictions imposed by the said legislation.
1. Federal Constitutional Court and Supreme Courts a. Section 169 of The Court Constitution Act forbade radio and television broadcasts of trials, and sound and film recordings made for the purposes of public presentation
b. In October 2017, the German parliament passed the „Act to Increase Media Access in Court Proceedings and to Improve Communication Aid for People with Speech or Hearing Impairments . The amendment act provides for the possibility of broadcasting and recording the pronouncements of the judgments and the sentencing of the Federal Constitutional Court of Justice and the five Supreme Federal Courts. Such broadcast is permissible if the proceedings are deemed to be of historical significance for Germany but can be prohibited to protect the legitimate interests of parties to the proceedings or even of third parties.
c. The recordings will not be made public but will be handed over to the German Federal Archives or a State Archive where they can be accessed subject to certain conditions.
d. Broadcasts of proceedings will happen in separate media rooms. The decision to provide broadcasting in the media room or to even to permit broadcasting or recording at all, is the judges discretion and cannot be appealed.
e. Since there are restrictions imposed by the law regarding broadcast of proceedings and owing to the strict privacy protection granted to parties to proceedings, combined with the narrow scope of what constitutes a case of „historical significance, actual broadcasts of court cases in Germany rarely occur.
2. Lower Courts: The amendment act only mentions the possibility of broadcasting proceedings of the Federal Constitutional Court and Supreme Federal Courts and makes no mention about broadcast of proceedings in lower courts.
VIII. International Criminal Court (ICC)
1. The ICC allows for live streaming of its proceedings with a 30-minute delay to allow for any necessary redactions of confidential information .
2. The ICC has an official Youtube channel where it publishes programmes concerning cases, proceedings, informative sessions, press conferences, outreach activities and other events at the Court . The channel allows viewers to follow various cases before the ICC, in several languages, through the weekly postings of summaries of proceedings.
IX. International Criminal Tribunal for the former Yugoslavia (ICTY)
1. Court proceedings are available for viewing on the website of the ICTY
2. ICTY also has a Youtube channel where selected clips of guilty pleas, witness testimonies and short documentaries are made available. Additionally, the ICTY has social media accounts in order to „bring the activities of the court closer to the public .
3. The United Nations International Residual Mechanism for Criminal Tribunals (IRMCT), a court created to perform a number of remaining functions previously carried out by the ICTY, amongst others, also contains video recordings of ICTY proceedings on its website and official Youtube channel .
X. Ireland (Northern):
1. Supreme Court:
The United Kingdom Supreme Court has jurisdiction over Northern Ireland and accordingly, hearings of cases which arise in respect of Northern Ireland are live streamed.
a. Just as in England, media coverage of courts in Northern Ireland was prohibited by the Criminal Justice (Northern Ireland) Act, 1945 , which was similar to the original Criminal Justice Act, 1925, and which applied identical restrictions to photography or sketching in the courts of Northern Ireland. Section 9 of the Contempt of Court Act, 1981 also extended to Northern Ireland.
b. With the implementation of the Constitutional Reforms Act, 2005, the United Kingdom Supreme Court was exempted from the prohibition imposed under the Criminal Justice (Northern Ireland) Act. The Crime and Courts Act, 2013 exempted recording of Supreme Court proceedings from the ambit of the Contempt of Court Act .
c. The UK Supreme Court has also sat in Northern Ireland and proceedings of the same have been live streamed on the website of the Court. During the session, the Supreme Court allowed proceedings to be broadcast live in a separate „overflow courtroom within the Court premises.
2. Lower Courts:
Although the government has indicated its intention and willingness to allow court proceedings to be recorded , actual broadcast of lower court proceedings remains restricted.
XI. Ireland (Republic):
Although there are no statutory provisions which prohibit photography or sound, television or video recordings in courts, broadcast of court proceedings, whether photography or audio-video recording, without permission, is restricted as a practice .
1. Supreme Court: Has allowed cameras into the Court on rare instances. The first broadcast of Court proceedings was in October 2017, when the delivery of two judgments of the Supreme Court was broadcast live on the state broadcaster, RTE, using small robotic cameras inside the court room .
2. Lower courts: Do not appear to allow broadcasting of proceedings, as on date.
XII. Israel :
1. Supreme Court: Has approved of live-broadcasting court proceedings.
a. The Israeli Courts Act, 5744-1984 imposes criminal punishment for taking and publishing pictures in a court room unless the court grants permission. The media however can report on events occurring in most Israeli courts, subject to the limitations imposed by the audio- visual coverage mentioned in the Act.
b. Earlier, a legal presumption existed against audio-visual coverage of courts in Israel. In September 2014, a limited pilot was launched to allow live coverage of court hearings at the Supreme Court although there was no formal administrative legislation or regulation issued in that regard.
c. Thereafter, in November 2014, the Chief Justice of Israel approved of live broadcasting of Court proceedings .
2. Lower Courts: Do not generally allow for broadcast of proceedings but exceptions have been made in cases of historical significance.
a. Reporting on court proceedings by media is allowed but broadcast of such proceedings is not. Certain courts allow the media to photograph the judges entering the courtrooms, but request the media to stop recording before hearings begin.
b. Permission has also been given to cover events in honour of retiring judges as also for hearings of quasi-judicial committees.
c. Permission to record and broadcast trial court hearings has been granted on five occasions in Israels history. Two cases involved trials of Nazi personnel and were allowed because the trials were deemed to be of historical significance. One case involved a defamation lawsuit filed against an Israeli newspaper, another was the trial of a man charged with the assassination of the Israeli Prime Minister and the final instance was in 1999 when the Jerusalem District Court allowed the broadcast of the decision given in the criminal case of a former
