Introduction:
Real-time reporting of court hearings means that anyone who wants to report anything in media from court proceedings which includes everything from the remarks made by any judge, arguments presented by the lawyers, judgements, etc. In India, the concept of real-time reporting of court proceedings is debated a lot nowadays because of the major developments in the field of media and journalism. When looked upon from the perspective of the right to freedom of speech and expression enshrined under Article 19(1)(a) allows media to do real-time reporting of court proceedings but India needs a separate law or how it can come under the existing legal framework is still a question needs an answer from judiciary or legislature.
India’s legal system is based on the belief that unfettered access to the courts is necessary to protect important fundamental liberties. Information about a court proceeding must be available in the public domain under the concept of an open court. Citizens have a right to know what happens in the course of legal processes. The conversation in the courtroom indicates how a judicial hearing will be organised. Oral arguments are built on an open exchange of ideas. During such a discussion, legal arguments are explored and tested. Citizens have a legitimate interest in learning about the court’s arguments, opposing counsel’s responses, and the court’s concerns. The judicial process is accessible to public observation in an open court procedure. Maintaining transparency and accountability requires public scrutiny. The public’s trust in democratic institutions depends on their ability to work transparently.
This article will attempt to resolve a difficult subject on how to balance the powers between the media’s freedom of speech and expression, citizens’ right to knowledge, and the judiciary’s accountability to the public. The ability of a judge to conduct legal processes and engage in dialogue during a hearing, as well as the media’s rights to publish not only judgements but also judicial procedures, have been debated. What are the contours that define judicial behaviour? What are the concerns that courts must be aware of in an age marked by an unbroken flow of data? In a courtroom, what role do the media play? Each of these elements will be discussed in this article
Important Laws
In the Constitution of India under Article 145(4) it is clearly stated that the judgements of the Supreme Court must be delivered in the open Court. But there is no mention of “open court hearings” of Supreme Court. But other laws such as the Code of Criminal Procedure clearly states that “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”[1] and also under Code of Civil Procedure it is clearly stated that “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”[2]. These laws signify the importance of open court hearings. The law related to media’s freedom of speech and expression is guaranteed under Article 19(1)(a) of the constitution of India.
International Scenario
Supreme Courts of Australia[3], Brazil[4], New Zealand[5], England[6], Germany[7], Ireland (Northern)[8], Israel [9], and Canada[10] broadcasts their live proceedings on their website or some other media platform. Supreme Court of Appeal of South Africa also allowed media to broadcast its court proceedings but only in criminal matters after the judgement of The NDPP v. Media 24 Limited and Ors. and HC Van Breda v. Media 24 Limited and Ors.[11] The European Court of Human Rights[12] and the International Criminal Tribunal for the former Yugoslavia[13] are examples of some International Courts which live broadcast their proceedings. Supreme Court of United States of America does not broadcast its proceedings but release audio transcripts and audio recordings of its day to day proceedings on the very same day of hearing on its website[14].
Real Time Reporting of Court Proceedings a Fundamental Right?
The Constitution of India under Article 19(1)(a) guarantees every citizen of India the right to freedom of speech and expression. When it comes to freedom of the press the Supreme Court in the case of Express Newspaper (P) Limited v. Union of India[15] held that “As with all freedoms, press freedom means freedom from and freedom for. A free press is free from compulsions from whatever source, governmental or social, external or internal. From compulsions, not from pressures; for no press can be free from pressures except in a moribund society empty of contending forces and beliefs.” Therefore, the freedom of the press is important to fulfil the objectives of Article 19(1)(a) and restricting press or media from reporting live time proceedings of any court is can amount to a breach of Article 19(1)(a) of Constitution of India.
In the judgement of LIC vs Manubhai D. Shah (Prof.)[16], Supreme Court believes that “in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance”. Therefore, the freedom to inform, distil, and communicate information, as well as to convey ideas and opinions on all issues of interest, is guaranteed by the Constitution in compliance with the regulatory provisions under Article 19(2). An informed citizenry of any country can make better decisions, will understand the laws better which will help in the development of law-oriented society and live time reporting of judicial proceedings can hugely help to achieve this goal.
In the case of Naresh Shridhar Mirajkar vs State of Maharashtra[17], the Supreme Court is of the opinion that “A court of justice is a public forum. It is through publicity that the citizens are convinced that the court renders even handed justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the court proceedings. The publicity generates public confidence in the administration of justice…….Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is universal belonging to all.” These opinions imply that putting a restrain on live time reporting of judicial proceedings may cause in loss of public confidence in the judicial system. Therefore, live time reporting cannot be restricted from this perspective also that justice is for the public and the public has a right to know what happens in a judicial court.
In the recent Supreme Court judgement of The Chief Election Commissioner of India v. M.R Vijayabhaskar & Ors.[18] it was held that “Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact, not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law. Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein lies the importance of freedom of the media to comment on and write about proceedings.” After this judgement, it is very clear that media and people doing the journalism work can report the real-time live proceedings of the court under the right to freedom of speech and expression.
Further, the judgement highlighted the importance of media in the reporting of proceedings and judgements of courts by stating that: “The media has over the years, transitioned from the predominance of newspapers in the printed form, to radio broadcasts, television channels and now, to the internet for disseminating news, views and ideas to wide audiences extending beyond national boundaries. The internet, including social media, have refashioned and, in significant ways, revolutionized the means through which information is relayed. At every stage of this transition, new questions have been raised about how court processes will adapt to the change, so that the rights of the parties before the courts and processes of justice are not affected. However, while these are valid concerns, they should never be a good enough reason for Courts to not engage with evolving technology. Technology has shaped social, economic and political structures beyond description. The world is adapting to technology at a pace which is often difficult to catalogue, and many of our citizens are becoming digital natives from a young age. It is understandable that they will look towards modern forms of media, such as social media websites and applications, while consuming the news. This, understandably, would also include information reported about the functioning of courts.”[19] Therefore it is important in the democracy that its citizens should be informed of the judicial proceedings and judgements and real-time reporting by media is a step to achieve this objective.
Judicial Freedom and Real Time Reporting
When we talk about real-time reporting and live to broadcast of judicial proceedings the question which can arise is that will it harm the freedom of the judge to freely express their opinions? In the case of Dr Raghubir Saran vs State of Bihar and Another[20], the Supreme Court is of the opinion that“There is nothing more deleterious to the discharge of judicial functions than to create in the mind of a Judge that he should conform to a particular pattern which may, or may not be, to the liking of the appellate court. Sometimes he may overstep the mark. When public interests conflict, the lesser should yield to the larger one. An unmerited and undeserved insult to a witness may have to be tolerated in the general interests of preserving the independence of the judiciary.” Can the judges of the lower court will think before passing any oral remarks against someone or they may become hesitant to protect their public image if live broadcasting and live reporting are allowed of judicial proceedings? This question doesn’t have an absolute answer. In the judgement of A.M Mathur vs Pramod Kumar Gupta[21], a two-judge bench of Supreme Court held that “Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary.” Therefore, it depends on the judge on how he balances his judicial independence in terms of saying something and where to put judicial constraint. In The Chief Election Commissioner of India v. M.R Vijayabhaskar & Ors.[22], Supreme Court opined that “The duty to preserve the independence of the judiciary and to allow freedom of expression of the judges in court is one end of the spectrum. The other end of the spectrum, which is equally important, is that the power of judges must not be unbridled and judicial restraint must be exercised, before using strong and scathing language to criticize any individual or institution.” A comment made by a judge against any individual or institution may amount to a loss of faith in that individual or institution. Therefore, it necessary for any judge to put judicial constraints whenever required.
Conclusion
From the above discussion, it can be concluded that there is no disadvantage of live broadcasting and live to report of judicial proceedings. It only had advantages and the beneficiaries will be students of law, Young advocates, the whole legal fraternity and the whole citizenry of India. Further e-committee of the Supreme Court of India already released the draft rules for live streaming of proceedings and invited suggestions also.[23]
References:
[1] Section 327, Code of Criminal Procedure
[2]Section 153-B, Code of Civil Procedure, 1973
[3]Audio-visual recordings of Full Court hearings heard in Canberra – Supreme Court of Australia, available at – http://www.hcourt.gov.au/cases/recent-av-recordings, last seen on 06/07/2021
[4]Saber Direito- Youtube Channel of Brazil Supreme Court, available at – https://www.youtube.com/user/TVJustica, last seen on 06/07/2021
[5]In-court media coverage – New Zealand Supreme Court, available at – https://www.courtsofnz.govt.nz/going-to-court/media/reporting-the-courts/ , last seen on 06/07/2021
[6]Supreme Court Live – UK Supreme Court, available at https://www.supremecourt.uk/live/, last seen on 06/07/2021
[7]Section 169, Courts Constitution Act, available at – https://www.gesetze-im- internet.de/englisch_gvg/englisch_gvg.html, last seen on 06/07/2021
[8]Access to UK Supreme Court Hearings in Belfast (Nothern Ireland), available at- https://www.supremecourt.uk/news/access-to-supreme-court-hearings-in-belfast.html, last seen on 06/07/2021
[9]Audio-visual coverage of court proceedings in a world of shifting technology – By Itay Ravid, available at- http://www.cardozoaelj.com/wp-content/uploads/2017/02/35.1-Ravid.pdf, last seen on 06/07/2021
[10]10.3 Appendix C: Supreme Court Media Guidelines, available at- https://www.justice.govt.nz/about/news-and-media/media-centre/media-information/media-guide-for-reporting-the-courts-and-tribunals-edition-4-1/appendices/10-3-appendix-c-supreme-court-media-guidelines/, last seen on 06/07/2021
[11] [2017] ZASCA 97
[12]Webcasts of hearings – European Court of Human Rights, available at – https://www.echr.coe.int/Pages/home.aspx?p=hearings&c, last seen on 06/07/2021
[13]ICTY Court Records, available at- http://icr.icty.org/, last seen on 06/07/2021
[14]Argument Audio – US Supreme Court, available at- https://www.supremecourt.gov/oral_arguments/argument_audio, last seen on 06/07/2021
[15] 1959 SCR 12
[16] (1992) 3 SCC 637
[17] (1966) 3 SCR 744
[18] Civil Appeal No. 1767 of 2021
[19] Ibid.
[20] (1964) 2 SCR 336
[21] (1990) 2 SCC 533
[22] Supra at Note 21
[23]“Right Of Access To Justice Includes Right To Access Live Court Proceedings”; e-Committee Of SC Releases Draft Rules On Live Streaming; Invites Inputs” by LiveLaw, available at – https://www.livelaw.in/top-stories/supreme-court-e-committee-live-streaming-and-recording-of-court-proceeding-175341, last seen on 06/07/2021
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