CASE ANALYSIS OF
SWAPNIL TRIPATHI V. SUPREME COURT OF INDIA
BY
BHAVIK JAIN
INTERN
2nd YEAR,
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,
PATIALA
Mob- 7014069870
[email protected]
26th APRIL 2020
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BACKGROUND OF THE CASE
There are large number of cases pending in Indian courts and considering this situation, it might
not be possible for all the interested people to attend thesessions of apex court because of
infrastructural restrictions, security reasons, time constraints and other formalities involved in
courts. On any given day, Supreme Court is heavily packed with Advocates, litigants, staff
members, government officials and police officers and because of this, law students and interns
are unable to attend the courts sessions. Various petitions have been filed in the Supreme Court
for the live streaming of the sessions of the court.
Many petitioners claimed that cases of national importance that affect the public at large should
be displayed for live streaming and it was upheld in the case of Swapnil Tripathi v. Supreme
Court of India1. It was also put forward that the apex court should determine the criteria for
determining the cases that should be streamed and the exceptional cases that do not fall within
this ambit. People representing public interest argued that this step would further help the
government to promote transparency and open justice system.
In this matter the court also agreed that this process would help people to easily access the
proceedings and re-establish their faith in the justice system. It was also put forward by the
petitioners that this concept of live streaming carved out from the right of access to justice
guaranteed by the Constitution of India.
Considering these demands the court said that the right granted would not be absolute but it will
have certain restrictions. The court insisted that only a few category of cases will be streamed in
order to maintain the confidentiality.The court said that it won’t stream matters related to sexual
harassment, matrimonial cases, and POCSO cases as these are sensitive cases and they need to
be handled with diligence, any disruption of privacy in these can have disastrous effects. The
Court also agreed that they would set some guidelines that would be used for regulating the live
streaming.
The court also ordered that for live streaming of a case, prior information from the concerned
court in writing should be obtained after following the due procedure, however that court will
have power to revoke the proceedings at any stage Suo moto.
1
Swapnil Tripathi v. Supreme Court of India, [2018] 10 SCC 639.
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BRIEF FACTS OF THE CASE
In 2017, various activists, lawyers and groups (Swapnil Tripathi, Indira Jaisingh, Mathewes J.
Nedumpara and the Centre for Accountability and Systematic Change) filed a petition before the
apex court under Article 32 of the Indian Constitution seeking permission that the apex court
should allow live streaming of cases that have an impact on a large number of people and are of
constitutional importance, so that people can easily access the justice system and therefore make
this process more transparent. Article 32 deals with the constitutional remedies and writs and this
article gives power to a person to move to the Supreme Court if he/ she believes that their
fundamental right has been violated.Moreover the petitioners sought guidelines/ criteria from the
courts on the basis of which it will decide what cases are appropriate and suitable for streaming,
considering the sensitivity of each case. The petitioners in this case based their arguments on the
decision given in the case of Naresh Shridhar Mirjkar v. State of Maharashtra 2. In the above
case it was held that the journalists had the right to publish the reports of the court under Article
19 of the Constitution, andthe court also stressed on the open trials for upholding the credibility
and transparency of the justice system.
PETITIONERS’ ARGUMENTS
a) Article 21 guarantees the Right of Access to Justice and this right would be effective only
if public gets access to the court proceedings.
b) Matters that affect public at large or a large group of people having constitutional
importance should be live streamed.
c) It would be easy for the general public to view the proceedings.
d) It would reduce the unwarranted crowd at the apex court.
e) It would incentivize the learning process for law students and interns.
f) It would make public aware about the contemporary issues that are dealt by the honorable
court.
g) This step would further concretize the confidence of public in the judicial process and
transparency.
2
Naresh Shridhar Mirjkar v. State of Maharashtra, [1996] 3 S.C.R 744.
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RESPONDENT’S ARGUMENTS
a) Cases dealing with sensitive issues like sexual harassment, rape and matrimonial issues
won’t be streamed.
b) The honorable apex court shall lay the model guidelines for conducting live streaming of
cases.
c) Due permission from the concerned authority must be taken prior to the live streaming of
cases.
d) At any given point of time, the permission given can be revoked by the concerned
authorities if they have a genuine reason to believe that there is violation of any
procedure.
e) There should be a proper regulatory committee and framework that would be looking
after this process.
ARTICLE 21
The Honorable Court observed that the Right of Access to Justice emerges from Article 21 of the
Constitution which deals with protection of Right to life and Personal Liberty. This right would
be meaningful if it is implemented in a rightful manner and the public gets a simple way to
access the judicial procedure and the live streaming of cases would be a major step in this
direction. In the case of Chandler v. Florida3 it was opined that live streaming of cases
promotes open justice system but there should be certain guidelines to regulate the live streaming
of the court proceedings.
The court also held that it is a well settled principle that the Article 19(1)(a) empowers the public
to obtain information and the right to know and through this Article the public is empowered to
witness the court proceedings. Ignorance of law cannot be pleaded by anyone so it duty of the
courts to make people aware and educate them about various legal developments. In Naresh
Shridhar Mirajkar v. State of Maharashtra,4, relied on Scott v. Scott5, cited that the live
streaming of the courtroom hearing can be made available due to the advancement in technology.
3
Chandler v. Florida, [1981] SCC OnLine US SC 19.
4
Naresh Shridhar Mirjkar v. State of Maharashtra, [1996] 3 S.C.R 744.
5
Scott v. Scott, [1913] All ER Rep 1 (HL).
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The court accepted that event though there is no express provision in our Constitution regarding
live streaming of cases but Article 145(4) did spell out that all the judgments should be delivered
in open courts.
Section 153-B of the Civil Procedure Code, 1908 and Section 327 of Code of Criminal
Procedure, 1973 requires courts to be open.
LIVE STREAMING LAWS IN VARIOUS COUNTRIES
There are various other countries in which live streaming of cases is allowed by the authorities.
The countries are listed as follows:
1) Australia:
a) The recording of proceedings of High Court of Australia are published on its official
website from time to time.
b) The audio-visual recordings of the court proceedings of The High Court of Australia are
available on its official website since 1st October, 2013, held in Canberra.
c) The High Court has laid out certain terms and conditions in which the recordings are to
be used, these include copyright restrictions and prior permission has to be obtained from
the court and concerned authorities.
d) The content of the coverage is carefully scrutinized and it is generally posted after one or
two days of the hearing.
e) The court retains the copyright over the recordings.
f) Public can take photograph from inside the courtrooms when the court is not in session
for their personal use only after taking due permission from the authorities.
g) Private parties are expressly banned from taking audio-video recordings of the court
hearings.
2) Brazil:
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a) The Supreme Court of Brazil also allows the live streaming of the court proceedings,
discussions, even including the voting process in the court undertaken by the judges.
b) On 17th May, 2002, a law was enacted by the Brazilian Congress, which was sanctioned
by the President that led to creation of a TV channel for broadcasting the court
proceedings.
c) From 14th August, 2002, a separate radio channel, Justica 16 is broadcasting the Supreme
Court proceedings.
d) The Judicial Branch owes both the radio stations and TV channels and they are operated
by the Supreme Court.
e) Trial court in Brazil does not broadcast any proceedings.
3) China:
a) Live streaming of the cases has been allowed by the Supreme People’s Court of China
from July 2016 onwards.
b) Supreme Court governs these proceedings through 2010 regulations.
c) They broadcast only those cases that are of higher public importance, greater social
implications, legal and educational significance.
d) Politically sensitive cases, matters reviewing death sentence and foreign arbitral awards
are broadcasted only on the discretion of the courts.
e) The 2010 regulations laid out that only the authorities can broadcast the proceedings and
other private parties do not have a right to take audio-visual recordings of the court
proceedings.
f) There is no such express provision mandating to take consent from the parties involved.
4) England:
a) Until 2005, taking audio or visual recording of the court proceedings amounted to
contempt of court in England.
b) Currently the Supreme Court allows the media to live stream the court proceedings and
for that matter they are also recorded.
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c) But under Section 41 of Criminal Justice Act, 1925, no one is allowed to take photograph
for the purpose of publishing, of any judge, witness or any party in the proceedings in the
court, whether it being a civil or criminal case, if anyone does so, he must be fined no
more than fifty pounds.
5) Canada:
a) The Supreme Court of Canada allows the live streaming and broadcasting of its
proceedings.
b) Since 1994, the Supreme Court of Canada has permitted audio-visual recordings of the
court hearing. A formal agreement between the news channel and the court is formulated
for broadcasting the information.
c) The apex court has the final authority over decision as to what all material is to be
published and it also has the copyright over the material that is being broadcasted by the
news channel.
d) It has been laid out by the court that only the default cameras that are set up in
courtrooms can and no other device from outside can be used for audio or video
recordings.
e) The channel broadcasting the court proceedings is also required to explain the
proceedings and other procedures and formalities of the court.
f) Since 2009, the Apex court has started live streaming of the court proceedings on its
official website and a systematic record of prior broadcasted proceedings is also
maintained.
g) The Federal Courts also permit broadcasting the proceedings of the court based on the
guidelines issued by the courts.
6) International Criminal Court (ICC):
a) The International Criminal Court also allows the live streaming of the court proceedings.
b) These proceedings are broadcasted after 30 minutes of actual court proceedings so that
there is no leak of any secret information and the ICC can keep a check on it.
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c) The ICC broadcasts all the programmes related to cases, press conferences, outreach
programmes on its official channel and also on its YouTube channel.
d) The viewers can follow various cases through the official website, on which the ICC even
posts the summary of the proceedings.
AMENDMENTS IN SUPREME COURT RULES, 2013
The Apex Court decided to amend the Supreme Court Rules, 2013 as per the conditions suitable
for broadcasting. The court made necessary amendments in the regulatory framework
considering the fact that this situation does not lead to miscarriage of justice or leak of any
sensitive information.
In this case, the court upheld the constitutional and fundamental rights of the petitioners and
litigants. While considering the idea of live streaming of the proceedings the court took into
consideration various aspects like administration of justice, privacy of the parties involved in the
proceedings, open justice system, fundamental rights of the petitioners and maintaining the
decorum of the court.
While considering the arguments of the petitioners, the honourable court made required changes
in the rules as per the guidelines that were laid down by the committee. The process of live
streaming would also educate and make public aware about the contemporary legal issues. 6
There are various ways in which live streaming will benefit the common public and the
judiciary:
1. With the help of this process, within few seconds the courtroom proceeding is telecasted to the
public and they will not have to wait for the decision. They will know it as soon as the judge
declares the judgement.
2. Our constitution gives us the right to information and by the way of live streaming people can
exercise this right and they will get to know how the court proceedings take place and how the
decisions are taken by a judge.
6
Estes v. Texas,[1965] SCC Online US SC 125.
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3. People will not have to wait for the reports from the media and news agencies instead they can
directly see the proceedings without any hindrance. This whole process would make the judicial
functioning more transparent and credible as they will get the direct, first-hand and unbiased
information without the intervention of the journalists and the media agencies. In this can
educate and make themselves aware about the latest socio-legal developments.
4. Further the step would serve academic and educational purpose as well as law graduates and
interns would be able to witness the live court proceedings and get well versed with the ground
reality of the courtrooms. They would know about the bar and bench relations. It will inculcate a
sense of dedication in the budding lawyers, learn about various formalities of the Supreme Court,
improve their oratory skills and how the judges interpret the law. It will further expand the ambit
of the judgements given by the Supreme Court as it can easily reach remote parts of the country
with the help of technology.
5. It would help people to understand the way in which the judicial and legal system of our
country works as a part of the democracy and it will even promote the research skills among the
law students.
6. The proceedings of the court would not be just limited to the physical walls of the courtrooms
but it will reach to lakhs of people beyond these four walls. It will reduce the unwarranted
congestion in the courtroom premises that creates chaos insides the courts. People will not have
to appear in courts every now and then, instead they can watch the proceedings from outside the
court which will further help them to save their time and effort.
7. It will further promote the transparency and accountability of the judiciary and increase public
participation in the judicial processes. People will also get to know why there is so much delay in
decision making by the courts and what reasons for the adjournments are.
8. This step will promote open justice system as live streaming will bridge the gap between
courtrooms and the public. Therefore it will help people to form unbiased opinion about the
judicial processes without any intervention.
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A large number of countries broadcast the court proceedings although there are few
precautionary measures that they have in common like they have a minimum amount of time
after which a video is broadcasted, conducting the pilot survey before telecasting particular type
of cases, the copyright of the streamed videos remains with the court, specific category of cases
are exempted considering the sensitivity of the case, empowering the presiding judge to regulate
the live streaming of a case. Also every country has certain specific restrictions that is only
limited to its territorial jurisdiction. The idea of live streaming is not new for the legal system of
India.7 This was further decided in case of LIC v. Manubhai D Shah8.
There are certain extensive guidelines that have been laid down by the honourable Supreme
Court:
1. The guidelines laid down for live streaming should be in pursuance with the Article 145(1).
There rules should be framed after considering the formalities and procedure of the court.
2. Certain cases should be exempted from the live streaming like cases dealing with sexual
harassment or matrimonial disputes.
3. Cases will be broadcasted after a minimal amount of delay so that so that any information that
is sensitive and confidential can be screened out before broadcasting is done.
4. Only the people and the agencies that are duly authorized by the apex court as prescribed in
the modal guidelines can carry out the process of live streaming. The live streaming will be done
on the official website of the Supreme Court with the help of Ministry of Electronics and
Information Technology and National Informatics Centre (NIC).
5. The Supreme Court shall be the sole authority having copyright over the audio-visual
recordings.
6. None of the audio- visual recorded material can be used for any commercial or private
purposes.
7
Olga Tellis v. BMC, [1985] 3 SCC 545.
8
LIC v. Manubhai D Shah, [1992] 3 SCC 637.
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7. There shall be archives of the broadcasted recordings on the official website of the court.
The extensive guidelines laid down are of persuasive nature and they shall adhere to the Supreme
Court Rules, 2013 under Article 145(1) including (i) the category of Cases that are to be
streamed, (ii) due authorisation for live broadcasting, (iii) time slots when the live streaming will
be done, (iv) media agencies that are authorised for broadcasting the court proceedings, (v)
setting guidelines regarding the usage of information. With just a click, people can access the
proceedings of the Supreme Court. Modernisation has been made possible because of the
technology, this was said in case of Santhini v. Vijaya Venketes9and it was also affirmed in
case of Krishna Veni Nagam v. Harish Nagam10.
CATEGORY OF CASES THAT CAN BE LIVE STREAMED
1. Cases under the following categories are exempted from live streaming:
a) Matrimonial matters,
b) Cases involving sensitive matters like that of sexual harassment or rape,
c) Matters pertaining to juveniles, Prevention of Children from Sexual Offences(POCSO)
cases.
2. Except the above-mentioned categories, the Presiding Judge of every court shall have the
power to discontinue or disallow the live streaming of any particular case depending upon the
circumstances of each case, its sensitivity for the administration of justice. The judge is required
to inform about this decision in advance.
3. In circumstances when the parties object against the live streaming of the case on the basis of
privacy or considering the sensitivity of the case, the judge has the ultimate authority to decide
whether that particular case should be broadcasted or not.
4. There are also other events that can be live streamed in addition to the courtroom proceedings
including valedictory ceremonies of the retiring judges of the Supreme Court and oath
9
Santhini v. Vijaya Venketes, [2018] 1 SCC 1.
10
Krishna VeniNagam v. Harish Nagam, [2017] 4 SCC 150.
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ceremoniesof the newly appointed judges, judicial conferences, ceremonies organized by the
Supreme Court for the felicitation of the judges, members of bar association and senior
advocates.
The live streamed videos are available on the official website of the apex court. By the end of
each day, the recordings that are broadcasted on a particular day are made available on the
official website of the court. The audio visual recording commences as soon as the honourable
judges arrives in the court and it goes on till the proceedings gets over. The presiding judge is
empowered to stop the live streaming at any moment he feels necessary for the sake of justice.
There shall be a delay of at least two minutes before the live streaming is done. The live
streaming shall be continued until the moment judge asks to terminate the broadcasting. To
ensure that the judges and the advocates are clearly audible during the broadcasting they must
use microphones. In case of Joint Anti- Fascist Refugee Committee v. McGrath 11 it was held
that with the help of live streaming people get to witness the direct interaction between the
judges and the advocates, this makes aware about the functioning of the courts.The recording of
the proceedings is done by the registry under the supervision of National Informatics Centre or
any other organisation that is duly authorized by the apex court. When a judge does not permit
certain part of proceeding to be broadcasted, then that specific portion should not be included in
the official records and it shall be archived separately as “confidential recordings”. In Mohd.
Shahabuddin v. State of Bihar12, the court examined the challenge raised by Patna High Court
declaring the premises for conducting a trial.
No individual person shall be allowed to record the proceedings, only the technical staff and
camera persons that are authorized by the Supreme Court shall be allowed to take audio visual
recordings of the court proceedings. The cameras are allowed to focus on only the judges and the
lawyers while they are arguing and they are not allowed to focus on any other individual present
inside the court. The Supreme Court registry has a record of the audio visual recordings.
JUDGEMENT AT A GLANCE
1. Live streaming flows from Article 21 which guarantees right of access to justice.
11
Joint Anti-Fascist Refugee Committee v. McGrath, [1951] SCC OnLine US SC 48.
12
Mohd. Shahbuddin v. State of Bihar, [2010] 4 SCC 653.
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2. Article 145(4) of Constitution lays down provision for declaring Judgements in open court.
3. Amendments in Supreme Court Rules, 2013.
4. Supreme Court laid down guidelines for regulating the process of live streaming.
OVERVIEW OF THE JUDGEMENT
The Supreme Court while agreeing with the petitioner’s arguments,said that cases dealing with
issues that are of national importance and affect the public at large should be live streamed. This
will promote open justice system and administration of justice in our society. This step would
also reduce the congestion in the courts due to unwarranted crowd and it will create a learning
atmosphere for the law students and interns and even the general public. The court also held that
it is a well settled principle that the Article 19(1)(a) empowers the public to obtain information
and the right to know and through this Article the public is empowered to witness the court
proceedings. Ignorance of law cannot be pleaded by anyone so it duty of the courts to make
people aware and educate them about various legal developments
The apex court requested the Attorney General to frame guidelines in order to regulate the live
streaming procedure. The court also stated that while exercising the right to access of justice
there is a need to protect the privacy of the parties in the case. It was noted that right to access of
justice is a part of Article 21 and it is also the obligation of the courts to make people aware
about the legal developments in the country as no person can claim ignorance of law. It was also
agreed that there is express provision for open court hearing which is laid under article 145(4) of
the constitution. With the use this technology people will able to witness courtroom proceedings
which in turn would also promote accountability, transparency and good governance on behalf of
the government and the judiciary.
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REFERENCES
Swapnil Tripathi v. Supreme Court of India, [2018] 10 SCC 639.
Naresh Shridhar Mirjkar v. State of Maharashtra, [1996] 3 S.C.R 744.
Chandler v. Florida, [1981] SCC OnLine US SC 19.
Scott v. Scott, [1913]All ER Rep 1 (HL).
Estes v. Texas,[1965] SCC Online US SC 125.
Olga Tellis v. BMC, [1985] 3 SCC 545.
LIC v. Manubhai D Shah, [1992] 3 SCC 637.
Santhiniv. Vijaya Venketes, [2018] 1 SCC 1.
Krishna VeniNagam v. Harish Nagam, [2017] 4 SCC 150.
Joint Anti-Fascist Refugee Committee v. McGrath, [1951] SCC OnLine US SC 48.
Mohd. Shahbuddin v. State of Bihar, [2010] 4 SCC 65.
ABOUT THE AUTHOR
Bhavik Jain is a second-year student, pursuing his B.A. LL.B.(Hons.) from Rajiv Gandhi
National University of Law, Punjab. His interest areas include criminal law, constitutional law
and contract law. He is a skilled researcher and he has also participated in National Moot Court
competitions and even won best researcher award as well. By being a part of ProBono India he is
contributing towards the sphere of legal aid and awareness, socio- legal issues and in future
heaims to be a part of judiciary.
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