One of the most unprecedented crisis ever in modern human history unfettered its wings in the form of a virus transmission namely Covid-19. The pandemic shook all spheres of life ranging from regular personal issues to the most intriguing aspect of our life. The Legal field was no exception to this havoc and it too bore the brunt of the pandemic. It compelled the justice delivery system to turn its recourse from traditional instruments of justice delivery to modern ones. In order to cope with the complicated demand system and ensure speedy and accessible delivery of justice, the virtual courts evolved to the fullest. It would be necessary to observe that even though they were present before the pandemic, covid-19 caused their application. Even after the retrieval of the pandemic, the ever arching presence of technology-assisted tools such as video conferencing and virtual courts are like to stay long after given their immense benefits of time-saving, speedy trials, social distancing norms, and technical benefits. However, as we know everything comes at a cost, this becomes more relevant in this case where the queen card is technology.1
Starting from the very conception, nearly all the aspects in this technology-driven process suffer from myriad glitches. In the present scenario of virtual proceedings, only lawyers and their respective clients can view the same. The general public is barred from participating in the process. This completely goes against the notion of open courts and access to justice because these ultimately erode the rule of law as the very credibility and transparency depend on the open and fair judicial trials. Moreover, poor audio-video quality, manipulation of testimonials and evidence, power backup and connectivity issues, irregular code of conduct by the stakeholders, difficulty posed in cross-examination of witnesses, and multiple other issues that have crept into the system have further accentuated the discrepancies and complications of the ongoing virtual process.
The words of Adv. Dushyant Dave who quoted, “Performance of virtual courts through the medium of video conferencing has been not only far from satisfactory, but utterly disappointing.” presents a stark contrast as to actual requirements of setting up the requisite infrastructure and the ground reality.
One of the pertinent questions that arise is how to retain the public trust and confidence in the ongoing convoluted circumstances when the very concept of open courts and access to justice have been endangered by the advent and ramifications of covid-19? One of the notable answers to this question could be the live streaming of cases in matters of constitutional and national public interest which had been laid down in the case of Swapnil Tripathi vs Supreme Court Of India2. The case lays down the groundwork required for setting up virtual courts, thus, paving way for the establishment of online norms and infra for live streaming.
BRIEF FACTS OF THE CASE
In 2017, Swapnil Tripathi, a law student, filed a writ petition under Article 32 of the constitution and was joined by 3 others, seeking declaration for the live streaming of the cases of constitutional importance and affecting the public at large in a manner that is accessible for public viewing. It further sought guidelines for laying down criteria for determining the cases that qualify for live streaming and also chalking out the list of exceptional cases. In order to buttress his case, the petitioner relied on the case of Naresh Shridhar Mirjkar v. the State of Maharashtra3 wherein the court emphasized the efficacy of open trials for upholding the legitimacy, effectiveness of the courts, and enhancement of public confidence and support.
Whether there should be live dissemination of the cases with aid of ICT( information and communication technology) and, if they are to be introduced in India, then under what conditions?
The decision was delivered by a 3 judge bench of the Supreme Court of India wherein Justice Khanwilkar delivered the majority judgment on behalf of himself and CJI Dipak Misra. Justice D.Y Chandrachud gave a different concurring judgment. The bench ruled that the cases of the constitutional and national importance of public matter should be live-streamed in a manner consistent with the guidelines as prescribed by the honorable Supreme Court of India.
The Judgement is held to be significant, for it opens the door that provides open access to justice, public information and ensures transparency of the judicial process. The judgment has opened the application of live stream even to the most bottom tiers of judicial institutions i.e. lower courts thereby enhancing the efficiency and effectiveness of the entire judicial ecosystem. The court held that the right to view the live broadcast of the above-mentioned cases flowed from the right to access to justice which is derived from Article 21 Right to life and liberty thereby underlining the concept of open courts. However, this right is not absolute and is subject to the provisions of model guidelines framed for this purpose. The SC shall hold the broadcast and archive rights exclusively. The court concluded that live streaming of cases would uphold the constitution values, infuse public confidence into the judicial machinery, and uphold the values of democracy and integrity. However, there is a compelling need to balance the administration of justice and the virtues of privacy and dignity of the stakeholders involved. The other benefits involve:
- It would infuse radical immediacy of the court proceedings and espouse public awareness regarding matters of national importance.
- It would reduce public reliance upon second-hand narratives and ensure the credibility of the system.
- It would literally eliminate the space and the time constraints by removing physical barriers and decongesting the courtrooms, thereby, greatly aiding in keeping infections at bay.
- It would drastically enhance the accountability and credibility of the judicial process, thus, promoting democracy.
While allowing such streaming, the majesty, integrity, and decorum of the courts as well as of the stakeholders involved, should not be compromised. Given in this unprecedented crisis of covid19 and the post covid world, live streams would be an imperative tool for the purpose of serving justice and fulfilling the notion of open courts thereby promoting technological prowess.
- (2018) 10 SCC 628
- 1966 3 S.C.R 744
This article is written by Riya Ganguly, 2nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.