Screening Virtual Court Proceedings From Media: An Invitation To Opaqueness
Access to justice is a fundamental right[1] under Article 21 of the Indian Constitution. But justice should not only be done but seen to be done[2] and any conduct which casts doubt on the impartiality, independence and transparency of justice delivery system must be shunned. As corollary thereof judicial proceedings in India, both civil[3] and criminal[4], are generally held in open...
Access to justice is a fundamental right[1] under Article 21 of the Indian Constitution. But justice should not only be done but seen to be done[2] and any conduct which casts doubt on the impartiality, independence and transparency of justice delivery system must be shunned. As corollary thereof judicial proceedings in India, both civil[3] and criminal[4], are generally held in open courts which are accessible to public. The rule admits few exceptions like in cases which concern the intimate and private life of an individual including the trial of sexual offences[5] and civil proceedings in matrimonial disputes[6]. Even when otherwise closed spaces, like jails, have been designated as courts for the purpose of trial of offences, like in the case of trial of Kehar Singh, Satwant Singh and Balbir Singh for assassination of Smt. Indira Gandhi within Tihar Jail[7] the deemed court has been accessible to members of public if they so desired.
The Covid-19 pandemic induced restrictions have, however, given a serious blow to the concept of open courts as the courts have become virtual e-courts and links for video conferencing are available not with public but with the parties to the case and their advocates only. With no mechanism in place to ensure live streaming of proceedings despite holding live streaming of proceedings to be a part of access to justice and an extension of the principle of open courts[8] perhaps due to administrative sluggishness, the opaqueness in digital justice delivery system writs large. The complete darkness has, however, been prevented primarily by allowing media to witness and report judicial proceedings. The protocols and rules providing for virtual hearing by Supreme Court of India and various High Courts have allowed limited members of media to have access to the link for video conferencing of the case to observe the same. It is pertinent to mention that while such rules prohibit broadcasting, rerecording, copying or storing of proceeding of courts in any manner they do not prohibit reporting of the proceedings. In fact it is the relentless reporting of cases by online law portals that have kept the judiciary on its tenterhooks. The reporting of cases, at times to the chagrin of the Judges[9], during pandemic assumes much importance as it coincides with credibility of Indian judiciary hitting its nadir, it facing flak for being executive minded and the government bent on muzzling any voice of dissent through misuse of police power and criminal law.
Notwithstanding the immense importance of reporting of court proceedings, a recent order passed by Justice Suresh Kumar Kait of the Delhi High Court in the matter of Satyam Kumar Sah v NCB[10] on 21.09.2020 seems to undo the system of checks and balances by media on select judicial proceedings. Justice Kait has directed that in case the petition is filed for quashing the Registry of Delhi High Court should not provide the link to video conferencing to any other person or correspondent. Only concerned advocates, IO, parties in person and persons specifically directed by the Court should join the proceedings and no one else. Further, advocates have been forbidden from sharing the link with anyone else except the Senior Advocates or the advocates appearing on their behalf. The order has been passed in light of an unpleasant situation which occurred during the virtual hearing of this case. According to the order, certain unidentified persons joined the proceedings through video conferencing and could be heard talking continuously, thereby, creating hindrance in hearing the submissions of counsels and proper justice dispensation.
It is submitted that despite the hindrance caused to online justice dispensation, the order passed by Justice Kait in the abovementioned case is illegal as being without jurisdiction and in ignorance of High Court of Delhi Rules for Video Conferencing for Courts 2020. To observe the requirement of an open Court proceeding, Rule 16 of the said rules permits persons who are not parties to the case to view the proceedings. Such a person shall continue to remain present only if ordered so by the Court. Further, Rule 18 empowers the High Court to relax any rule if it is satisfied that its operation is causing undue hardship. In the present case, the Court should have simply asked the miscreants to leave the Court and in case of their wilful disobeyance used its power of contempt under Contempt of Court Act, 1971 to punish them. In alternative, the Judge should have raised the matter of sharing of video links with media outlets as source of hindrance in proper dispensation of justice on the administrative side and asked the High Court to relax the provisions of Rule 16 under Rule 18 rather than usurping the administrative powers unto itself.
Judicial propriety demands no amalgamation of judicial and administrative functions. A judge acting judicially cannot pass an order on the administrative side. Recently, a single Judge of the High Court of Punjab and Haryana while hearing a bail application and another for cancellation of bail passed orders directing its registry to ensure availability of technical persons at the time of hearing of cases through video conferencing and for certain functions to be performed by that technical person with respect to file management on the system of the concerned judge. The said directions were challenged by the High Court registry and the division bench of Punjab and Haryana High Court while setting them aside held that they were passed without jurisdiction. A judge acting judicially in a criminal matter could not have passed order on the administrative side. The Court held, "Judicial powers cannot be invoked to run the administration of the High Court, which task vests in the Chief Justice or in the Full Court of the High Court and is regulated by Rules and instructions issued in that regard. Running of the High Court on the administrative side cannot be permitted to be taken up by each and every Judge on the judicial side as he thinks fit as that would lead to collapse of the system of the administration of the High Court".[11]
The effect of Justice Kait's order amounts to information blackout and consequent gagging of media in quashing cases before the High Court of Delhi. The directions are also in conflict with people's right to know and make the functioning of court susceptible to undemocratic means. It is earnestly hoped that registry of Delhi High Court will file for recalling of the impugned order at the earliest to avoid large scale miscarriage of justice.
[1] Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509.
[2] Rex v. Sussex Justices, [1924] 1 KB 256.
[3] Section 153B, The Code of Civil Procedure, 1908.
[4] Section 327 (1), The Code of Criminal Procedure, 1973.
[5] See Section 327(2), The Code of Criminal Procedure, 1973 and Section 37, Protection of Children from Sexual Offences Act, 2012.
[6] See Section 22, Hindu Marriage Act, 1955 and Section 11, Family Courts Act, 1984.
[7] Kehar Singh v State (Delhi Administration), AIR 1988 SC 1883.
[8] Swapnil Tripathi v Supreme Court of India, AIR2018SC 4806.
[9] https://www.opindia.com/2020/08/bar-bench-and-livelaw-are-reporting-one-sided-and-incorrectly-justice-mishra-prashant-bhushan/ last accessed on 28th September, 2020.
[10] Order dated 21.09.2020 in CRL.REV.P. 546/2017 before High Court of Delhi.
[11] Punjab and Haryana High Court through its Registrar (Computerization) v Zahur Haider Zaidi, LPA Nos. 401 and 402 of 2020 (O&M) before High Court of Punjab and Haryana.