When American lawmakers asked for live audio of court proceedings in 2017, the U.S. Supreme Court declined their request. It feared that the move could impact the quality of dialogue in the courtroom.
Last month, India’s top court, however, decided to not only provide audio-video recordings but also allowed live streaming of proceedings—though with riders. The Supreme Court e-committee released the draft rules to create a uniform framework for it. The move came after the top court gave an in-principle approval to the idea in its verdict on a public interest litigation in 2018.
Supporters in India cite transparency as the biggest benefit. Perhaps why court proceedings are streamed live in countries such as the U.K., Australia, China, South Africa, and the International Criminal Court. Brazil’s Supreme Court even owns and operates a broadcast channel.
The U.S. Supreme Court, however, only provides audio recordings and transcripts of the arguments. While the pandemic forced even the American top court to live stream proceedings in May 2020, it has had reservations.
The U.S. Supreme Court’s apprehension was that it may curtail free-flowing arguments. Justice Sonia Sotomayor of the U.S. highest court explained that in a 2019 interview.
Putting court proceedings under the glare of a camera may change the nature of questions the judges ask and make them more studied or even result in some judges asking less questions, Sotomayor said.
The sentiment was shared by other judges on the court, elucidated in the reply to Congress’ 2017 request to make live audio of the hearings available.
“I am sure you are, however, familiar with the justices’ concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and Justices,” counselor to the Chief Justice of the U.S. Supreme Court said in a reply.
‘Transparency Trumps Concerns’
Those backing live-streaming in India say transparency outweighs concerns.
Making the proceedings open to public may also inhibit the participants from making off-the-cuff remarks during the hearings, said Senior Advocate Indira Jaising, a petitioner in the live-streaming case. She does not believe it will inhibit judges from asking any legal question.
According to Senior Advocate Rakesh Dwivedi, playing to the gallery by the participants happens even now without the presence of cameras. Putting them in camera gaze may actually make them more careful about their demeanor and articulation, he told BloombergQuint.
Courts have always worked under public gaze and live-streaming just expands that public gaze, he said. “Now, one part of it is right that some judges may become reticent whereas there may be some who may like to play to the gallery. But this is nothing new and happens in the court even now.”
The High Court Experience
Some of the courts such as the Gujarat High Court have since last year been streaming some of the proceedings on YouTube for public viewing. Karnataka High Court also streams the proceedings from the Chief Justice’s court room on YouTube.
High courts of Allahabad, Kerala and Delhi upload the recordings of video- conference hearing links on their website for the convenience of lawyers and other parties.
And the experience has been a welcome one even though initially there was a section of lawyers that was apprehensive, according to advocate Prithviraj Jadeja. The concern among lawyers, he said, was whether being watched by a much larger population would make them change the way they argue their cases.
Privacy Concerns, And Protection
The other concerns revolve around misuse and protecting the privacy of the parties involved in sensitive cases.
There have also been worries about misbehaviour, intended or otherwise, as seen in the last one year of proceedings via videoconference. Virtual hearings saw entry of hooka and baniyans in the court proceedings.
Most recently, a hearing in the Delhi High Court was interrupted by an attendee who began singing. Some of the clips made their way on to the social media.
There are more serious fears too. Would live streaming compromise privacy in sensitive cases? How would the court address the chances of the footage being misused or taken out of context?
The Supreme Court’s draft rules have conditions to address these concerns.
The rules give freedom to the bench to disallow live streaming in any case where judges think that would be antithetical to the administration of justice. But the reason has to be recorded in writing.
To protect the privacy of the parties, the rules exclude a list of cases including matrimonial disputes, cases of sexual offences or violence against women as well as proceedings involving offences against children.
The parties will also be allowed to object to live streaming of their cases, but the final decision will rest with the bench.
As far as the concern on misuse of the footage is concerned, there are already provisions in law which anticipate such situations, said Jaising.
The draft rules also bar unauthorised recording, publication or dissemination, and will apply to messaging platforms.
Any violation, the rules say, will be punishable under the Indian Copyright Act,1957 and the Information Technology Act, 2000 and the Contempt of Courts Act.
Dwivedi recounted his experience of hearing top lawyers and landmark verdicts, including the Kesavananda Bharati case—the only matter heard by a 13-judge Supreme Court bench. Live streaming, he said, will allow any student across the country a similar opportunity.
“Any new technology comes with certain challenges and so will live streaming,” he said. “But when you look at the benefit that it will bring to students, teachers and the general public, one cannot but argue that it is a move worth implementing.”