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SWAPNIL TRIPATHI vs. SUPREME COURT OF INDIA,[WRIT-PETITION (CIVIL) NO. 1232 of 2017]

Updated: Aug 19, 2020


BY- SREYASI BHATTACHARYA

(HERITAGE LAW COLLEGE)


ABSTRACT:

The concept of open courts is not alien in the Indian legal system. It has always been claimed that in India, courts are open to every person who wish to attend the hearing but it has been seen that many who are interested may not be able to witness the hearing due to lack of time and resources. On account of such limitations, certain petitions were filed to allow live-streaming of the proceedings. The Supreme Court of India upheld in the case that the proceedings which have national and constitutional importance should be live-streamed to the public. This case aimed to allow live-streaming where the public has the right to access to justice in the constitution without overcrowding the courtrooms. It also aimed towards having transparency in the judicial process.


FACTS OF THE CASE:

v Swapnil Tripathi was a fourth-year law student. During his internship period, he wanted to attend the proceedings of the matter he worked on but an entry pass was denied by the Court Registry stating the matter was listed on a miscellaneous day and therefore, interns were not allowed. Miscellaneous days are Monday and Friday when new matters are heard in the court. According to a notice circulated, law interns were not allowed in the Supreme Court premises on the respective days.


v In 2017, when Swapnil Tripathi was denied entry once again, he finally decided to file a Public Interest Litigation petition in the Supreme Court of India against this rule stating that the notice violated ‘Right to Learning’.


v The petition was filed for striking down the notice or as an alternative a live-streaming room should be created so that the interns could watch the proceedings live.

v After the petition filed by Swapnil Tripathi, there were similar petitions filed by individuals and groups including Indira Jaising, Mathews J. Nedumpara, and Centre for Accountability and Systematic Change which were later, clubbed together.


The petitioners and interventionists had sought the declaration that the Supreme Court case proceedings which are of constitutional importance to have an impact on a large number of people should be live-streamed in a way which would be easily accessible for public viewing(para.1). The court, also, had imposed a set of guidelines which were to be followed on when such live-streaming should be used.


ISSUE OF THE CASE:

The issues of the case were:

v Whether there should be the dissemination of proceedings before the court with the aid of Information and Communications Technology (ICT).

v Our legal system subscribing to the idea of open justice. The live-streaming of court proceedings has its origin in this principle.

v Whether an open court system should be introduced in India and if so, under what circumstances?


CONTENTION OF THE PARTIES:

The petitioners and interventionists including Swapnil Tripathi (Swapnil Tripathi v. Supreme Court of India) with Indira Jaising ( Indira Jaising v. Secretary General & Ors.), following Mathews J. Nedumpara (Mathews J. Nedumpara & Ors. v. Supreme Court of India & Ors.) and Centre for Accountability and Systematic Change (Centre for Accountability and Systematic Change & Ors. v. Secretary General & Ors.) ‘claiming to be ‘public-spirited persons’ wanted to seek a declaration that the Supreme Court cases of constitutional importance which would have a great influence on the public should be live-streamed in a manner that is easily accessible for public viewing.

The ‘Right to Access to Justice’ flowing from Article 21 would be said to be valid and meaningful only when the public would have access to such proceedings.


ARGUMENTS:

Considering all the development and recognising the need for delivery of justice and more transparent administration, the court had laid down certain parameters after taking into account the proposal made by the Attorney General. These parameters had also factored in the strength and weakness of live-streaming in several other countries.

It is important to balance the ‘dignity and majesty’ of the Supreme Court keeping in mind the right to privacy of the litigants and the witnesses whose cases were set down for hearing with a few exceptional categories of cases to which live-streaming of the proceeding would not be so desirable. The system of live-streaming might also hamper the confidentiality of the matter. Apart from this, there are certain exceptional cases like national security, sexual offences and matrimonial disputes for which live-streaming should not be allowed as it may flare up the temper of the people.

LEGAL PROVISIONS:

Article 19(1)(g) of the Constitution- to practise any profession and carry any occupation

Article 19(1)(d) of the Constitution- one has the right to attend the hearings in the court

Article 19(1)(a) of the Constitution- guarantees the right to freedom of speech and expression: reference to the Naresh Shridhar Mirajkar vs. the State of Maharashtra.

Article 21- no citizen should be denied his/her life and liberty.

Section 327 of Code of Criminal Procedure,1973 where it explains the court to be open for the public which they may have access to.

Section 153-B of the Code of Civil Procedure where the place of the trial is considered to be an ‘Open Court’.

JUDGEMENT:

The decision was herd by the then Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Dr Justice D.Y. Chandrachud. The judgement was first delivered by A.M. Khanwilkar, J. and Chief Justice Dipak Misra. Dr D.Y. Chandrachud, J gave a separate concurring judgement.


The court agreed to the suggestion that the Supreme Court should be live-streamed in a manner which would be easily accessible for public viewing. To further ‘buttress these prayers’, the court relied on the dictum of a nine-Judge Bench in case of Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Anr, [1967 AIR, 1 1966 SCR(3) 744], where it had an occasion to inter alia considering the arguments of the journalist that they had a fundamental right to carry their occupation under Article 19(1)(g) of the Constitution; they also had the right to attend proceedings of the court under Article 19(1)(d), and their right to freedom of speech and expression which has been guaranteed under Article 19(1)(a) of the Constitution. The court expounded that open trial is the norm, yet there might come situations where the administration would make it necessary for the trials to be held in-camera. Thus, the court held that applying the underlying principles, it might to appropriate to have a proper and balanced regulatory framework before the live-streaming of trials is brought into action.


Further, the court emphasised about the effectiveness of open trials for upholding the legitimacy of the courts saying the cases brought whether civil, criminal or any other must be heard in open courts. The public trial in open courts has been held essential for the healthy, and fair administration of justice.


The case of Scott v. Scott [1913 AC 417 1911-1913) All ER Rep 1(HL)] was referred where the court quoted Bentham saying “In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportions as publicity has taken place where any of the checks applicable to judicial injustice operate”. Publicity is said to be the soul of justice.it is explained that where there is no publicity there is no justice.

Indisputably, the open trials and access to the public during the hearing of cases before the court was accepted.


The Supreme court for a closer and better understanding referred to different jurisprudence like Australia, Brazil, Canada, Ireland, South Africa, Scotland, the United Kingdom, the United States of America and many other concerning the case of Estas v. Texas [1965 SCC Online US SC 125:14 L Ed 2d 543: 381 US 532(1965) where the US Supreme Court held that camera coverage despite defendant"s objection violated defendant's constitutional rights, though the question remained open for whether broadcasting of courtroom trials was innately prejudicial to a fair trial. The question was answered in the case of Chandler v. Florida, 1981 SCC Online US SC 19:66L Ed 2d 740:449 US 560 (1981), where the court held that as the camera coverage in the case of Estas was not absolute, it was left on the states to frame rules for broadcasting as televising a criminal trial did not make the trial unfair for the defendant.


The Attorney General gave certain comprehensive guidelines based on the recommendations given by the petitioners which are listed under:

  • First, the Live Streaming of Court hearings has been introduced as a Pilot project in Court No. 1 and also limited to Constitutional bench references.

  • A media room was designated in the premises itself for interns, litigants, lawyers, public to view the court proceedings.

There were certain limitations to the guidelines listed which were to safeguard the broadcasts and recordings for securing the access to justice. Some of the recommendations have been explained under as follows:

  • The court must have the power through which the court might disallow broadcast, stop or suspend live streaming if it is seen the broadcasting violates the rights of the parties to a fair trial.

  • The courts may also lay down guidelines which would show which matters have national and constitutional importance.

  • The broadcasting must not be allowed in cases including:

  1. Matrimonial matters;

  2. Matters which include interests of the juvenile;

  3. Sexual offences;

  4. Where there involves the safety of the victims or the witnesses;

  5. Matters of National Security;

  6. Matters which might provoke enmity among the communities.

  • The use of the footage would be limited to the purpose of news, educational purposes and articles.

Dr D.Y. Chandrachud, J. delivered a different concurring opinion where he authorized saying "sunlight is the best disinfectant". He stated certain key points which emerged out of the case of Mirajkar which are given under:

1) Open courts act as a check on the Judiciary;

2) The open court is an instrument that generates public confidence in the administration of justice.


Dr D.Y. Chandrachud referred to the case of Olga Tellis v. Bombay Municipal Corporation [ (1985) 3SCC 545] where the dwellers violated the right to earn a livelihood. He held that the appearance of justice is the disappearance of injustice.

Referring to the case of Life Insurance Corporation of India v. Manubhai [1992 (3) S.C.R 595], and Mohd. Shahabuddin v. State of Bihar[(2010)4 SCC 653], the importance of the open court system was important in the Indian Judicial system.


The e-committee also carried out extensive capacity-building exercises to train the Judicial officers.

  • The Court introduced certain Technical specifications for live-streaming which were as follows:

1. Live-streaming shall be conducted by the Supreme Court with their camera-persons or by some authorized agency. A person who is not authorized by the Supreme Court will not be permitted to record any proceeding;

2. Cameras should be focused only on the Judges and Advocates who are pleading before the Bench in the matter of live-streaming;

3. Cameras should not film the media and visitor’s galleries;

4. Cameras are allowed to zoom in on the Bench when any judge is dictating an order or judgment or making any observation or enquiry to the advocate; and

5. The following communications should not be filmed.

a)where discussions are being done among the judges on the Bench;

b) Any judge who is giving instructions to the administrative staff of the courtroom;

c) Any staff member communicating a certain message to the judge or

d) circulation of any document to the judge;

e) Notes being taken down by the judge during the court proceedings; and

f) Notes which are being made by any advocate either on paper or in electronic form for assistance while making submissions to the court.


Another technical specification was the archive room where the audiovisual of the proceedings would be stored. Also, the proceedings of the court which were live-streamed were to be made available on the official website of the Supreme Court.

Finally, Dr D.Y. Chandrachud, J. spoke about the Broadcasting Room where the room or rooms r the hall would be available with multiple screens and other facilities so that the interns, litigants, lawyers and public can view the proceedings.

CONCLUSION:

On September 26, 2018, the Court passed the verdict and agreed to live stream the proceedings. Though there were certain guidelines applied for the proceedings to be live-streamed, but the court held that the live broadcast or the live-streaming of the proceedings should not compromise the integrity of the Indian Judiciary System. The landmark case of Swapnil Tripathi vs. Supreme Court of India was a step taken towards the virtually efficient Indian Judiciary System.


REFERENCES:

CASE REFERENCES:

  • Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr. (1966) SCR(3) 744 from https://india.lawi.asia/naresh-shridhar-mirajkar-and-ors-v-state-of-maharashtra-and-anr/ ;

  • Scott v. Scott from https://www.casemine.com/judgement/uk/5a938b3d60d03e5f6b82ba1f

  • Estas v. Texas, 1965 SCC Online US from https://www.nytimes.com/2013/05/15/us/billie-sol-estes-texas-con-man-dies-at-88.html;

  • Chandler vs. Florida, 1981 SCC Online US SC 19: 66L Ed 2d740: 449 US 560 (1981) from https://supreme.justia.com/cases/federal/us/449/560/;

  • Olga Tellis vs. Bombay Municipal Corporation, [(1985)3 SCC 545] from www.legalserviceindia.com/articles/case.htm;

  • Life Insurance Corporation of India v. Manubhai, [1992(3) S.C.R 595] from https://globalfreedomofexpression.columbia.edu/cases/life-insurance-corporation-of-india-v-manubhai/;

  • Mohd. Shahabuddin Vs. State of Bihar, [(2010)4 Scc 653] from https://www.casemine.com/judgement/in/58117e842713e17947897714

SITE REFERENCE:

  • https://www.scconline.com/blog/post/2019/05/01/swapnil-tripathi-on-his-experience-of-arguing-in-the-supreme-court-against-the-bar-imposed-on-interns-in-entering-court-rooms/;

  • www.civilsdaily.com;

  • http://globalfreedomofexpression.columbia.edu/cases/tripathi-vsupreme-court-of-india/;

  • www.soolegal.com ;

  • www.lawnn.com for the Supreme Court Judgement on Swapnil Tripathi v. Supreme Court of India;

  • http://lawtimesjournal.in/swapnil-tripathi-vs-supreme-court-of-india/ for the case reference of Swapnil Tripathi v. Supreme Court of India;

  • https://www.casemine.com/judgement/in/5bac3abf9eff430ce653197a for the case reference of Swapnil Tripathi v. Supreme Court of India.

[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].

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