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Sunday, Sep 25, 2022

Why we should, and should not live stream Supreme Court proceedings 

Judges may not ask questions or make comments that could be perceived as unpopular, and lawyers could start grand-standing. Clips of proceedings may be circulated without context. Adequate precautions are needed; still it is critical to experiment and innovate.

The Supreme Court, last month, live-streamed its proceedings for the first time. (Express Photo: Tashi Tobgyal)

From September 27 onward, all proceedings of Supreme Court Constitution Benches will be live-streamed, a full court meeting of the top court has decided. A full court meeting is attended by all judges of the court. The meeting, presided over by Chief Justice of India (CJI) U U Lalit, was held on Tuesday (September 20), at which the decision was taken unanimously.

Senior Advocate Indira Jaising had written to the judges of the court earlier this month seeking live streaming of proceedings in matters of public and constitutional importance. Back in 2018, the Supreme Court had ruled that live telecast of court proceedings was part of the right to access justice under Article 21 of the Constitution.

Several of the country’s High Courts already live-stream their proceedings through their YouTube channels. Last month, the Supreme Court live-streamed its proceedings for the first time.

Thereafter, Supreme Court advocate Shadan Farasat wrote an article for The Indian Express, explaining the case both for and against the live-streaming of court proceedings.

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History was made on August 26 (2022) when the proceedings from the Chief Justice’s Court in the Supreme Court (SC) were live streamed. In the ‘Swapnil Tripathi’ judgment, in September 2018, the SC had cleared the deck for live streaming of cases of national and constitutional importance.

The case for live streaming of SC cases of constitutional/national importance is quite strong. Such cases impact various aspects of people’s lives. Therefore, the public’s ability to participate in this conversation by watching these proceedings will not just increase legal literacy but potentially enhance the public’s continuous engagement with the Constitution and laws.

Such direct engagement is better than a process mediated through some Delhi-based lawyers or court reporters, especially when inexpensive technology allows such live access.

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But even as we proceed, there are reasons to be cautious.

With the advent of social media, every citizen became a potential journalist. This was seen as empowering initially because news/views could not be curtailed by the vested interests of editors and news establishments. Yet, with more than a decade’s experience, the increasing realisation is that lack of editorial control has in fact meant informational anarchy, with fake news and propaganda dominating YouTube and social media feeds.

There is a growing consensus that, contrary to the initial hope, social media has on the whole weakened democracy. At Stanford University, in April 2022, former US president Barack Obama flagged that “you just have to flood a country’s public square with enough raw sewage. You just have to raise enough questions, spread enough dirt, plan enough conspiracy theorising, that citizens no longer know what to believe”.

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Indications already exist that snippets of the judicial process, once available in the public domain, are already open to both sensationalism and disinformation.

Some of the High Courts, such as Gujarat, Karnataka, and Patna, have made their live streamed archived videos available. They are seeing spliced videos of their proceedings splashed over YouTube with titles that scream, “Young lady lawyer’s confidence in court! Will she win?”, “Husband’s secret revealed when wife approached High Court”, “Angry avatar of Justice….”.

Added to this are videos shared through WhatsApp which take a clip of a few seconds clip from a question/observation by a judge or lawyer and make propaganda videos, often demonising the professional. Most such videos are anonymous and avoid any accountability.

As any practising advocate will testify, an argument before a court is a comprehensive process and needs to be viewed as a whole, and not through individual questions/comments in this process. If portions of the proceedings can be circulated in short, misleading capsules on social media, judges and lawyers alike may self-censor during live-streamed proceedings. That will have the undesirable effect of sanitising the oral proceedings and preventing genuine courtroom engagement.

Judiciary must have credibility in the eyes of the public as an institution, but decisions in individual cases are not expected to be popular. This makes sense as the Constitution requires the judiciary to undo laws and decisions that are unconstitutional, even though made by a popular government. The judges of constitutional courts are sworn to constitutional morality and not popular morality. They are required to “uphold the Constitution” as per their oath.

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Introduced without safeguards, live streaming has the potential to have two sub-conscious effects on judges.

First, during hearings judges may not ask questions or make comments that could be perceived as unpopular. Second, there is an increasing trend of oral observations of the court, which are not binding on parties replacing reasoned judgment and orders that are consequential. Live streaming may accentuate this trend, with the reportage being focused on the oral process, rather than the final verdict.

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Similarly, lawyers, aware of their new audience, may choose to grandstand and play to the gallery, especially in a case they expect to lose. Thus, live streaming has the potential to simultaneously suppress desirable speech and enhance undesirable speech within the courtroom.

An argument in favour of live streaming is that it will bring discipline and improve how judges and lawyers conduct the proceedings, as they are aware that the public is watching. This is indeed possible, but one only needs to look at Parliament for an example of the exact opposite.

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However, we must experiment with live streaming of SC proceedings, for wholesale rejection of change is a recipe for stagnation. The solution may lie in carefully determining how the live streaming proceeds.

Careful selection of cases for live streaming, not uploading archived stream on the SC website until it is legally/technologically possible to ensure that such videos cannot be spliced and other similar measures that reflect an understanding of how the public consumes (dis)information will ensure that live streaming enriches constitutionalism across the country.

A hasty and wholesale introduction on the other hand is likely to land the SC right in the middle of the majoritarian and toxic information swamp that prevails in the country.

This column first appeared as an opinion column in The Indian Express on August 29, 2022.

First published on: 21-09-2022 at 02:23:32 pm
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