“There is a thin line that separates laughter and pain, comedy and tragedy, humor and hurt,” said Erma Bombeck, an American humorist. Measuring against this it seems that some recent events that transpired in our Constitutional Courts have breached this “thin line.”
Two events to highlight this point: One happened in 2021, a Public Interest Litigation (PIL) concerning 5G technologies by Bollywood actor Ms Juhi Chawla. Slapped with a fine of 20 lakhs for filing a frivolous PIL, the Delhi High Court came down heavily on the chorus of noisy fans of Ms Chawla who in the opinion of the court caused disruption by some not-so-melodious singing. The Court also noted the flippancy in sharing the link of the Court proceeding on social media. (Adding to the flames, her fans just made it even worse with their uncalled-live performance.) The present grim and humorless time can surely draw laughter from these gaffes. But on careful scrutiny, one finds the setting of a larger stage of tragicomedy that involves the functioning of our Constitutional Courts—the Supreme Court and the High Courts.
The second one occurred this year (2023), a widely circulated viral clip from the Madhya Pradesh High Court where the level of dialogue between bar and bench went to the lowest of terms. This was an insult to everybody who holds a high opinion on Indian judiciary. It was filmed and now everyone concerned or amused by this can see for themselves the ugly turn our everyday transactions in the top courts have taken.
Such clips are easily available on YouTube and other social media platforms, and it is painful to watch. Chief Justice D Y Chandrachud has also expressed his apprehensions,
“We, as judges, need to be trained ourselves because now we are working in the age of social media. A lot of funny stuff is going in You Tube which we need to control, because this is serious stuff. What happens in the court is extremely serious stuff.”
The Case for Live Streaming Proceedings
Ever since the Supreme Court in Swapnil Tripathi (2018) acceded to live-streaming of the Court’s proceedings—with the added impetus given due to COVID — there was a growing desire for an effective rollout of the model guidelines of the judgment. Nearly all High Courts of the country have either started live-streaming or are about to start the same.
The judgment points out the provisions from the Constitution (Article 145) and reads the principle of Open Court in analogous provisions in the procedural laws while noting that live streaming is a new facility offered by modern-day technology.
The Court also leaned on the experiences of other top Courts across the globe in adopting its stance. The incorporation of novel technology buttressed with the advancement of the right to information that will lead to “radical immediacy,” the benefits of cost-cutting and time-saving, imparting of legal knowledge, strengthening of the rule of law by a better understanding of legal governance among others were the factors that led the court to embrace live-streaming. In the judgment, the Court’s fairly written guidelines have a clear mention of dos and don’ts.
Against this backdrop, the case for live streaming of court proceedings becomes outright obvious. And, that is where it becomes necessary to take some caution. Arguments enumerating the benefits are fine. However, there exists an often-underappreciated downside to such an exposure of the court’s day-to-day proceedings.
Antonin Scalia, the late conservative justice the US Supreme Court, when asked about televising the arguments that initially was an awfully good idea for educating the people, used to answer, “I am all for it”, but, “for every ten person who sat through our gavel to gavel, there would be ten thousand who would see nothing but thirty second takeout from one of the proceeding which I guarantee you would not be representative of what we do. So, they in effect be given a misimpression of the Supreme Court. I’m very sure that would be the consequence.” Minus the visual stimulus, everybody can learn from the tapes of proceedings, opined Antonin Scalia. Other justices have echoed similar apprehensions. But in India, we have a different situation altogether.
We Can Educate by the Means Already Available
To err on the side of caution is a classic orthodoxy. Even what we have today is a clear dominance of liberal jurisprudence, the idea of live-streaming—of all matters—is a bad one. Our constitutional courts do business at a scale unimaginable. On top of it, the Supreme Court and the High Court have been proactive in extending the umbrella of rights to the unprivileged.
The question of standing—which is strictly required in the United States—is not a strict requirement here. That, read with other enabling provisions of the Constitution like Article 32 and 226, has effectively made PILs an instrument of getting the policy matters settled through the Courts. After cases like Vishaka (1997) and DK Basu (1997), a trend is clearly set, the Courts when required are issuing guidelines to fill the gap till appropriate laws are enacted by the legislators.
Exercise of powers at such a scale undoubtedly raises the stakes. And, our Courts are fully aware of the standard of advocacy practiced at the highest levels. Instances of unbecoming conduct that grabbed headlines in recent years should cause alarm to all those interested in the well-being of the institutions. With all that in mind, will it be a wise move on the part of the Courts to put all up for live-streaming?
Educating people about the ways the courts function is noble consideration. However, the same goal can also be achieved by the means already available. We can take the example of a lucid judgment, Vinod Dua (2021) authored by Justice Lalit, where petitioners asked the Supreme Court to quash the FIR and issue guidelines for protecting journalists. The judgment runs around a hundred pages and elucidates the point of law on the matter as well as quotes recent precedents.
Anyone reading the judgment would inevitably gain more than watching live-streaming of court proceedings. Our courts have a tendency to write lengthy judgments. Nevertheless, they do fulfill their objective by giving an all-around perspective on the controversies involved.
Reckless Theatrics Should Not Become the New Normal
In the past few years, a number of online law news platforms have sprung up and have been reporting in detail about the activities of the courts. A wide range of legal materials is easily available. Judgments are available in vernacular languages. Online platforms too will expand in the future and add new language bases.
Perhaps the need for live-streaming is required at the trial courts. With thousands of cases pending, it is practically impossible for litigants to follow a case from inception to the end. Adding to that, live-streaming can be provided for parties who cannot attend in person, including cases pending in the Supreme Court and the High Courts. (Of course, also to appraise the performance of their counsel.) Legal knowledge should not be a luxury. Agreed.
But, we are not living in the 60s anymore. Ninety crores Indians are expected to have active internet by 2025. Also, if we are too eager to record court proceedings, doing it in the American way—using audio recording—would be a lot cheaper and it would also be easily implemented nationwide.
The last thing everybody needs is an unnecessary scandalizing of the Court's proceedings. Reckless theatrics should not become the new normal. Such a risk runs higher for the Supreme Court and the High Courts. Fines will not solve the problem. Unfortunately, our public discourse has degenerated to new heights. Post-truth is effectively a reality. The menace of misinformation cannot be downplayed. In such circumstances, no one will remain untouched. Orthodoxy is an ideology on the verge of extinction. Few keep scrupulous observance. And. They are rightly hesitant in crossing the “thin line.”
At least these concerns should be addressed in a meaningful way because, for some people, including the authors, the Courts are the temple of justice. Poor or rich, these highly intelligent citizens pay great respect to courts. That under no circumstances can be taken for granted.
(Aditya Raj Singh Yadav is an advocate in the Delhi High Court & District and Sessions Courts. Raunak Vuttsya is an advocate in the Supreme Court of India. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)