In a bizarre reply to an RTI filed by this author on behalf of The Logical Indian, the Supreme Court of India has said that the judgement pronouncing implementation of live streaming of court proceedings is "under consideration of the Registry". In September 2018, a 3-Judge bench in the Swapnil Tripathi Vs. The Supreme Court of India had unanimously held that people's ability to view live broadcasts of its proceedings flowed from the right of access to justice under Article 21 of the Indian Constitution. Further, the judgement noted that publishing court proceedings is an aspect of Article 129 and that open courts help foster public confidence in the judiciary. India is the only country amongst other leading constitutional democracies that maintains neither audio or video recordings, nor even a transcript of its court proceedings. The judgement had opened doors for extending such live-streaming facility of all cases even in the High Courts and lower courts of the country.
However, 2 years on and the SC does not seem to be moving in that direction with a speed expected of it. RTI filed by this author contained 16 pointed questions on the matter but it solicited no response. The Court dodged queries seeking to know details of the exact work that has been done till date and reasons for the delay in implementing this order. The judgement had noted that the Supreme Court Rules, 2013 have to be suitably amended to provide for the regulatory framework for live-streaming of Court proceedings. The RTI sought to know whether any such amendments have happened or draft has been prepared, but the Court dodged them as well.
Registry says "Matter under consideration"; Lawyers say "No power to do so"
The most startling revelation is, however, the judgement being "under consideration" of the Registry. This is unheard of since the "matter" has been well settled and a full and final verdict has been passed. In such a situation, it is unclear how the Registry can keep this matter pending due consideration at all and for such a long period of time.
"The registry cannot sit in judgement over the judgement. Courts cannot refuse to implement their own judgements. There has been too much delay in implementing it, almost defeating the judgement", said Senior Advocate at the Supreme Court Indira Jaising while talking to this author. "In the pandemic, it's more important than ever before to live stream since even minimal openness is not available", Jaising lamented while informing this author that she plans to take up this matter on the judicial side.
However, in February this year, a SC bench headed by the now retired Justice Arun Mishra, whose controversial tenure "epitomized the worst tendencies of the current Supreme Court", while hearing a petition filed by Jaising, had said that the Supreme Court administration cannot be forced to take action on the basis of guidelines (Swapnil Tripathi judgement). The matter was then ordered to be listed before the Chief Justice of India on the administrative side. Since then, no satisfactory action has been taken, despite a Supreme Court Bar Association's resolution of April 2, urging the top court, inter alia; to begin to live stream the court proceedings which are taking place through video conferencing.
Jaising also said that the technical support is now available as the courts are now functioning virtually due to the pandemic. "We need live streaming as we live under an open court system and open justice is part of the rule of law. Journalists, ordinary people and all of us will have greater confidence in courts if they can listen to interactions between lawyers and judges. Issues of notional importance are being dealt with in court hence it's important to live stream".
Madras High Court advocate MV Swaroop, while speaking to this author said- "The Registry has no power to "consider" judgments, especially when the judgment itself is so clear and not open to any interpretation". He expressed his surprise that even during this pandemic, when the Supreme Court is run on video conferencing anyway; it has not started live streaming proceedings.
Why is the Supreme Court hesitant to implement its own judgement?
It is said that necessity is the mother of invention. Had the pandemic not struck us (though it shouldn't have); it may have taken years for our courts to adopt the digital hearing system. The judiciary has been presented with an opportunity to ensure access to justice for all its citizens, ensure transparency in its functioning and reach a wide cross-section of Indian society. Then why is it not accepting this opportunity with open arms?
While the Supreme Court has disappointed by delaying and therefore refusing to implement its own judgement, some High Courts have shown the way. For instance, according to MV Swaroop, the Madras High Court puts up the video conferencing links publicly on its website and no one has been barred from watching the hearings. "This is the right way to go about things, because Courts are public places, and effective dispensation of justice demands that proceedings are open to public scrutiny. I hope that all High Courts follow this lead", Swaroop said.
The Supreme Court in its judgement had observed that live streaming should be accepted "so as to uphold the constitutional rights of public and the litigants". The Court had also remarked, that it's well settled that Article 19(1) (a) of the Constitution confers the right to know and receive information and therefore the public is entitled to witness Court proceedings. The Court had then proposed live-streaming cases of constitutional and national importance as a pilot project, including Constitution Bench cases. Many important cases are disappointingly pending in the Supreme Court for many months now, including challenges to abrogation of Article 370, Citizenship Amendment Act, Unlawful Activities Prevention Act, Electoral Bonds scheme, Habeas Corpus petitions (which are the most urgent type of case), etc. If the Swapnil Tripathi judgment is implemented by the Court, citizens would have an opportunity to witness history.
But, the hesitation of the Supreme Court to effectuate its own judgement is akin to partly denying people their fundamental rights under Article 19(1) (a) and Article 21 of the Constitution.