"The Darker Side Of Sunlight"-Court Reporting In The New Age

Recently, while hearing a PIL to regulate cosmetic clinics, a High Court judge made an observation, in a lighter vein, about the centrality of such clinics to the life of many, only to make a quick retraction saying that "what ever we say gets published in the press!" The Supreme Court has also indicated it would consider a request to record/broadcast the Ayodhya Case proceedings. In the age of 24X7 news and hyper active social media, as courts mull over whether live-streaming of proceedings would be a good thing, the travails of the judiciary under constant gaze cannot be ignored.

Historically, the Court strictly controlled what could be put out to the world as its 'word'. Not only did each court have an official reporter (ie the journal which carried the decided cases), the judge delivering the judgment had the right to decide whether her decision was "reportable", meaning precedent worthy. As the sarkari Indian Law Reports, the official chronicler under the Indian Law Reports Act, 1875, started lagging behind in printing the decided cases, the private journals stole a march. Unlike the court publications, over which the judges had tight editorial control and could only report the "reportable" decisions, private publishers made the first breach. More volumes translated into more money. Soon, even innocuous one page orders would be published by these reporters and often cited and relied upon as precedent by lawyers in their cases.

We were still years away from the new age technology. I speak about the times when my senior had presented me a cell phone which looked like a 'walkie talkie' and weighed as heavy. The incoming calls were Rs 16 a minute. Had a feeling this 'gift' was more of a leash, as the new age workers of the millennium subsequently learnt.

Then came Face Book and twitter. If someone were to trace out old news reports about cases argued in the seventies such as Keshavananda (ie the Fundamental Rights Case) or ADM Jabalpur (ie Habeas Corpus Case), they would be DD's Krishi Darshan compared to the live-tweeting court beat of today. Smartphones have made us all journalists and legal commentators. The tweets can get as animated and graphic like "PCbrought in. Confers with lawyer.", "SG not there". "Now Mr Sibal walks in", and so on and so forth.

This caters to our "spirit of inquiry" or "voyeuristic desire to know" or "right to know" or what have you. I do not for a moment mean to undermine the important role played by our tweeting chroniclers. During the landmark adjudication of the modern times such as the Right to Privacy and the Section 377 cases, thousands of law students, lawyers, judges and lay people, keenly followed the tweets and blogs regularly uploaded by bright young lawyers, scholars and journalists. I personally could mentally transport myself in Captain Spock style to the Court room and feel a participant in constitutional history making through such real-time "tweeporting"

However, we cannot be oblivious to the classical "ivory tower" to which our judges sacrifice themselves in the interests that "justice should be seen to be done". This "judicial aloofness" is supposed to promote a sense of impartiality. The justice withdraws from active socializing and communication of views. The judge is expected to then speak only through her judgments. Now apply the chaotic rules of the New Age to this and you get the "War and Peace" situation, where for a whole day a justice of the Bombay High Court is subject to literary assault on social media until the lawyers, by mentioning the case before the same judge, enables him to clarify that he was himself a Tolstoy aficionado and that he was referring to a similar sounding book.

This may sound deeply politically incorrect in times of "sunlight is the best disinfectant", where even the Supreme Court Collegium uploads its decisions on appointments and transfers of judges which then are downloaded and in record time circulated among a record number of laywer-whatsaap groups until the same minutes clog your inbox from twenty sources, but there is a dark side to the sunlight.

Often judges pose questions only to examine an issue from various facets. Such queries might not necessarily betray their mindsets. The most famous question was to Attorney General De (already vulnerable with a foreign wife on visa) by the Habeas Corpus Court in 1975. "Attorney do you mean that if a police man were to just shoot at will, we would be powerless?", the Court had asked. "Yes, when emergency is imposed milords cannot do anything", answered the Law Officer who, it seems, later claimed was hoping that the court would be outraged into action. Well, we all know how that went. The point being that the query had no translation into final decision.

If the judges are under constant gaze and minute dissection for every word uttered during hearings, many would choose to do a Clarence Thomas, the United States Supreme Court (USSC) justice who is fabled for speaking the least on the bench. If a judge were to be termed "aggressive" on account of an uncomfortable query or that query headlined in the next morning's paper as indicative of the mindset of the justice, it would be a fatal blow to the Socratic method often applied in adjudication. Recently, during the court proceedings in Ayodhya Chandrachud J in fact clarified that judges ask questions only to elicit the view points on the various facets of a vexed legal issue.

Make no mistake that such scrutiny also impacts upon lawyers. In the Indian context, where Courts do not seriously punish frivolity in litigation or follow a strict time criteria (for example in the USSC, however important the case may be, a party gets only 30 minutes), if the proceedings are filmed and minutely covered, lawyers, who as a matter of routine raise several contentions and often unofficially concede on weak points, would now be under pressure to argue and press all points.

In Chandler v Florida, 449 U.S. 560 (1981), the USSC held that a state could allow broadcast and still photography coverage of criminal trials.Between 1991 and 1994, several courts started experimenting with cameras in Courts. Many may remember OJ Simpson's trial in Judge Ito's Court where OJ showed the TV cameras that the murderous glove simply did not fit. This case took the court room to the drawing rooms and was compelling television. The public spectacle has since led to a serious rethink on allowing court proceedings to become prime time TV. While US Federal Rules prohibit court photography, 48 states permit media cameras; 36 have approved them in trial and appeals courts, while three states -- Maine, Oregon and Pennsylvania -- only allow cameras at the trial level. USSC proceedings are available in audio formats.

Across the pond, in the United Kingdom, photography and broadcasting of a Crown Court case has been illegal since 1925 (Section 41 of the Criminal Justice Act) and the Contempt of Court Act. The Supreme Court has been permitted filming since 2009, while the Court of Appeal has allowed it on a regular basis since 2013. Down under, the High Court of Australia has allowed publishing of audio/visual recordings of all full court hearings held in Canberra, since 2013. Proceedings are published on the court website after due vetting. Live broadcast however is forbidden.

In Brazil, the Supreme Court itself owns "TV Justica" and "Radio Justica" covering court cases. Proceedings of the Supreme Court have been telecast live since 2002. Proceedings of the Trial Courts are not broadcast.

In Germany a 2017 law now allows live audio broadcasting of court proceedings. Proceedings that can be broadcast have to be of "historical significance". Canada's Supreme Court has been publishing audio/visual recordings on its website since 2009.

The sensational Oscar Pistorius murder trial (2014) of the special Olympian was broadcast in South Africa. In fact, there was great public outrage at what the television watching public thought was a case of privilege getting an easy day in court. It was the Henri Van Breda case (2017) which finally confirmed that cameras in courts is actually mandated by the South African Constitution in order to facilitate open justice and the right of the public to hear and see what goes on in courts.

The Indian Supreme Court in Swapnil Tripathi's Case(2018) has, while committing itself to "open justice", called for devising a "full-fledged module and mechanism for live streaming of the Supreme Court proceedings over the internet". It has said that the Court may appoint a technical committee to examine the technical feasibility of live streaming.

What then is the way out for India? I wish I knew. One thing I do know, while live streaming may be a while away and perhaps too extreme, judges and lawyers must be conscious that we live in very public times and the bench and bar are on both on trial in every case. 

Views Are Personal Only.

(Author is a Lawyer practicing in Supreme Court of India)