Although India is on the verge of a judicial revolution with the Supreme Court on the anvil of allowing live-streaming of its proceedings, it is the judges who will decide what the public is permitted to see. This is because the dictum followed by democratic countries all over the world is that justice is delivered before the people. But Indian citizens will be allowed to see only academic arguments like the right to privacy which is decided by a minimum of five judges.
These five or more judges sitting en banc decide weighty legal issues which affect the entire nation but the catch is that the Supreme Court lays down binding law for all lower courts and tribunals throughout India even in benches of lesser strength. This is why litigants would like to see how lawyers react when a judge perennially enters the court late, as Justice Gyan Sudha Misra was alleged to have done, because her husband was ill. Misra retired in 2014 and was late even for her farewell function.
But never mind that. There is a long list of what the public will not be allowed to see with good reason. These include matrimonial and trademark disputes where morbid curiosity needs to be throttled just as juveniles who rape innocent women also need to be protected so they can be reformed which is what the State would have us believe. Never mind the fact that hapless victims like Jyoti Singh or Nirbhaya who were disemboweled by such depraved youth can never be reformed.
Also, live streaming or webcast arguments in the Supreme Court without its written consent, would invite punishment. How long it will take to get this written permission is a matter of conjecture. Hence, if some tech-savvy person decides to cut down or upload actual proceedings of the Supreme Court without its permission, he will face action under both the Copyright Act, 1957 and the Information Technology Act, 2000 apart from attracting a contempt notice.
As if these threats are not sufficiently daunting, the Supreme Court will lay down rules to regulate the way in which equipment is brought into the court for live streaming of its proceedings. The positive aspect is that all proceedings which are live streamed will be archived for posterity so that lawyers, litigants and law students will get access to the webcasts to increase their erudition.
But all these apart, what has escaped video recording was when stalwarts like Soli Sorabjee, Fali Nariman, A G Venugopal, the late Nani Palkhivala and Ram Jethmalani sparred with their adversaries and also the judges. Prashant Bhushan is the son of the redoubtable Shanti Bhushan who was the law minister under Indira Gandhi. The Bhushans are well-known for being outspoken in and out of the court room with Shanti Bhushan having got a contempt notice for alleging that half of the chief justices of India were corrupt. Tragically, when contempt notices are issued by the apex court amid heated exchanges will never be live streamed.
But we have to appreciate the fact that India has joined the comity of nations where justice is delivered in Delhi but can be viewed comfortably ensconced in your home at Bhopal or Mumbai. Just as the proceedings of the Lok Sabha and the Rajya Sabha can be viewed on Parliament’s official news channels.
And so we have to be grateful for India’s attorney-general A G Venugopal for recommending that live streaming of court proceedings only in Constitution-bench matters should be allowed as a pilot project. Indira Jaisingh has been in the limelight for this as well, although there was another lawyer, Mathews Nedumpara who has also been fighting for live telecast and transparency of court proceedings for a long time. But Nedumpara does not have the formidable reputation of Indira Jaisingh who is known to be
outspoken and aggressive as senior lawyers should be. Nedumpara appears in the Bombay, Delhi and Kerala high courts, apart from the Supreme Court. He, too, believes in transparency and judicial accountability which is why he launched the National Lawyers Campaign for Judicial Transparency and Reforms seeking live telecast of court proceedings and that judicial vacancies should be advertised so that all lawyers can apply for them and the selection process turns transparent.
His petition was dismissed by a non-speaking order which means there were no reasons given although the three-judge bench remarked his petition had made allegations against judges. Justice Chandrachud, who was part of the three-judge bench, told Nedumpara that he had come across a WhatsApp message where Nedumpara had made a Bombay high court judge a respondent in a certain case. But that is no reason to dismiss Nedumpara’s petition who could have been heard with Indira Jaisingh.
And so, although the Supreme Court has restricted telecast and live streaming of its proceedings only to its Constitution-bench matters, we have to applaud the momentous decision which will slowly put an end to an ignominious era when occasionally even a few chief justices like a former chief justice of the Bombay high court M B Shah did not allow notes to be taken by reporters in open court. He had told journalists in 1999 to “wait until the orders are signed and pronounced in the court,” little realising that journalists have daily deadlines to meet.
The media plays a vital role in allowing the people to judge judges which is perhaps what some judges do not want.
Olav Albuquerque holds a PhD in law from the University of Mumbai and is a lawyer-cum-journalist of the Bombay high court.