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Novel Coronavirus And The Novel Courtroom

During the period of lockdown, Courts in India are still functioning, albeit limitedly. The Hon'ble Apex Court and High Courts in various states are hearing matters involving extreme urgency through video conferencing. There is a new feel to addressing the Court. A lawyer can sit and make his submissions. There are no court-masters to whom papers can be handed over for circulation to the Hon'ble Judges.

But, Virtual Courtrooms are not congested, and your proximity card or pass is replaced by a link on the email. However, you miss the ingenious argument of your fellow colleagues which he makes in his own matter where you are a mere spectator. You also miss any reference to a law point which is cited by your colleague and you are not aware of.

Most of all, you miss the Hon'ble Judges queries which may have a bearing on your own case and you flip through your files to look for an answer to the same, should it be put to you. The ultimate dilemma whether your opposite counsel would take a pass-over or not does not worry you.

S.O.P. Dated 15.4.2020
Since Court proceedings are formal, practice guidelines have to be issued on how video conferencing is to be conducted. On 15.4.2020, the Hon'ble Supreme Court released a revised Standard Operating Procedure for Ld. Advocate/Party-in-person for Mentioning, e-Filing and Video Conferencing Hearing.

The circular dated 15.4.2020 is in supersession of previous circulars dated 23rd March 2020 and 26th March 2020 reiterating and further elaborating Standard Operating Procedure (SOP) for e-filing, mentioning and hearing of urgent matters through video conferencing.

The procedure for mentioning and hearing has been set out in detail in the latest circular of 15.4.2020.

Significantly, the latest circular contains clause 10 under Instructions For Joining Video Conferencing which reads as follows:

During hearing through video-conferencing, the parties may kindly keep in mind that they are participating in COURT PROCEEDINGS, and hence it is expected that they would not resort to any indecorous conduct or dress or comment; further, parties are required to ensure that the proceedings by videoconference are neither recorded/stored nor broadcast, in any manner whatsoever, as recording/copying/storing and/or broadcasting, by any means, of the hearings and proceedings before the Supreme Court of India are expressly prohibited.

The clause has been inserted, obviously, keeping in mind the possibility of misuse and mischief when proceedings are conducted through videoconferencing. It was a necessary requirement as the day such a system was put in place, one (or maybe more) website had run articles on this novel step with images of the Hon'ble Judges and appearing advocates while conducting such proceedings.

The Bombay High Court has a similar clause in it's notice dated 17.4.2020, viz.:

Recording of the VC Court proceeding/hearing in video, audio and/or any other form is strictly prohibited.

Swapnil Tripathi Vs. Supeme Court Of India, (2018) 10 SCC 639:

The Covid-19 pandemic has fast-tracked the concept of open court, a court of law which is not confined within the four walls of a physical court room.

This concept of open court was introduced firmly in the Indian Jurisprudence through the decision of the Hon'ble Supreme Court in the case of Swapnil Tripathi Vs. Supreme Court of India, W.P. (C) No. 1232/2017, alongwith other connected petitions filed by Ms. Indira Jaisingh, Sr. Adv. and Mr. Mathews J. Nedumpara, Advocate. Although the Hon'ble Court was adjudicating the prayer that Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people should be live streamed in a manner that is easily accessible for public viewing, some of its observations are relevant to the present context where hearing is taking place over video-conferencing.

The Hon'ble Supreme Court considered the position in various countries, such as Australia, Brazil, Canada, USA, U.K., New Zealand amongst others.

The position in a few of such countries as discussed in the said judgment is as follows:

Australia:

The High Court of Australia, which is its apex court allows recordings of its proceedings to be published on its website. The content of the coverage is vetted and recordings are posted usually within day or two of the hearing.

The High Court has issued certain terms for use of such recordings on its website, which include restrictions on recording or copying without prior permission of the Court and retention of copyright over the proceedings by the Court. Audio-video recording of Court proceedings by private parties is expressly banned.

Canada:

In 1993, the Canadian Supreme Court conducted a successful pilot project, live televising the hearings of three high profile cases.
The broadcasts were governed by the following guidelines:
  1. The case to be filmed will be selected by the Chief Justice.
  2. The Chief Justice or presiding Justice may limit or terminate media coverage to protect the rights of the parties; the dignity of the court; to assure the orderly conduct of the proceedings; or for any other reason considered necessary or appropriate.
  3. No direct public expense is to be incurred for wiring, or personnel needed to provide media coverage.

England:

Supreme Court: The media is permitted to broadcast court proceedings and hearings are live streamed and recorded. Till 2005, recording of court proceedings was a crime and also amounted to contempt of court.

The Supreme Court allows for hearings to be live streamed on its own website with a delay of around one minute and also has a Youtube channel which shows selected broadcasts from the live stream. Broadcast of proceedings is subject to the discretion of the Law Lords, who reserve the right to withdraw coverage for sensitive appeals.

The footage is only allowed to be used for informational purposes in programs like news, current affairs, education, and legal training. However, any broadcasting which may detract from the seriousness or integrity of the proceedings, like entertainment programmes, satirical programmes, political party broadcasts, and advertising or promotion, is not permitted. Further, any still images are always required to be used in a way that has regard to the dignity of the Court and its functions as a working body.

United States of America:

The Supreme Court does not permit broadcasting of its proceedings. The Supreme Court has, over the years, consistently rejected pleas to broadcast oral arguments. It does not allow photography of proceedings or video recordings.

In the absence of rules for live streaming of Supreme Court proceedings in the Supreme Court Rules, 2013, in the case of Swapnil Tripathi (Supra), the Hon'ble Supreme Court of India (judgment given by Hon'ble A.M. Khanwilkar, J. for himself and Hon'ble CJI), observed that:
Indeed, consultation with the Hon'ble Judges of the Supreme Court and the High Courts may become essential for framing of rules for live streaming of Court proceedings so as to ensure that the dignity and majesty of the Court is preserved, and, at the same time, address the concerns of privacy and confidentiality of the litigants or witnesses, matters relating to business confidentiality in commercial disputes including prohibition or restriction of access of proceedings or trials stipulated by the Central or State legislations, and, in some cases to preserve the larger public interest owing to the sensitivity of the case having potential to spring law and order situation or social unrest. These are matters which may require closer scrutiny.

After noting the position in various courts in different countries, and noting the suggestions given by the Learned Attorney General, the Hon'ble Supreme Court has held that:
The project of live streaming of the court proceedings of the Supreme Court on the internet and/or on radio and TV through live audio-visual broadcasting/telecasting universally by an official agency, such as Doordarshan, having exclusive telecasting rights and/or official website/mobile application of the Court, must be implemented in a progressive, structured and phased manner, with certain safeguards to ensure that the purpose of live streaming of proceedings is achieved holistically and that it does not interfere with the administration of justice or the dignity and majesty of the Court hearing the matter and/or impinge upon any rights of the litigants or witnesses.

The Hon'ble Court laid down a set of basic issues to be kept in mind while framing basic rules, inter alia:

  1. To begin with, only a specified category of cases or cases of constitutional and national importance being argued for final hearing before the Constitution Bench be live streamed as a pilot project.
     
  2. There must be a reasonable time-delay (say ten minutes) between the live court proceedings and the broadcast, in order to ensure that any information which ought not to be shown, as directed by the Court, can be edited from being broadcast.

The Court also directed that:
Until a full-fledged module and mechanism for live streaming of the court proceedings of the Supreme Court over the internet is evolved, it would be open to explore the possibility of implementation of Phase-I of live streaming in designated areas within the confines of this Court via intranet by use of allocated passwords, as a pilot project.

The Hon'ble Court laid down a set of measures for to be followed by specialist video operators, the focus of cameras and copyright of broadcast to remain with the Court which will have the final say in respect of use of the coverage material.

The relevant guideline for the purpose of the Circular dated 15.4.2020 is the following:
Reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification of any part(s) of the original broadcast of Court proceedings, in any form, physical, digital or otherwise, must be prohibited. Any person engaging in such act(s) can be proceeded under, but not limited to, the Indian Copyright Act, 1957, the Indian Penal Code, 1860, the Information Technology Act, 2000 and the Contempt of Courts Act, 1971.

In the separate judgment penned by Hon'ble Dr Dhananjaya Y. Chandrachud, J., the following principles were set out, amongst others:
  • That not all cases may be live-streamed. Certain sensitive cases like matrimonial or sexual assault cases should be excluded from the process of livestreaming.
  • Live-streaming will be carried out with a minimal delay to allow time for screening sensitive information or any exchange which should not be streamed.
  • The recordings and broadcast may not be used by anyone for commercial purposes.

Model guidelines for broadcasting of the proceedings have been laid down. It is suggested that Live-streaming of the proceedings should be carried out with a delay of two minutes. And more importantly for the present context, Re-use, capture, re-editing or redistribution, or creating derivative works or compiling of the broadcast or video footage, in any form, shall not be permitted except as may be notified in the terms and conditions of use and without the written permission of the Registry.


S.O.P. DATED 15.4.2020 Is In Line With The Guidelines Laid Down In Swapnil Tripathi (Supra):
Now, let us consider the present scenario where Court proceedings are being conducted through video conferencing. In such a situation, clause 10 of the instructions as aforesaid that parties are required to ensure that the proceedings by videoconference are neither recorded/stored nor broadcast, in any manner whatsoever, gains significance.

This is for the reason that there is a possibility that the proceedings as appearing on the screen of appearing parties, lawyers or party-in-person can be recorded either by the party himself or any other person who can view the screen. The misuse of footage, either video or audio or still image over social media is a possibility. The guideline set out by the Hon'ble Court that there should be a delay in transmission of live proceedings cannot be enforced.

Therefore, it became necessary to insert clause 10 in the set of guidelines. The same could be further reinforced by requiring that the parties, lawyers and parties-in-person should make a statement in the form of an undertaking that they will abide by the requirements of Clause 10 in the mentioning letter.

This would mean that in case of any breach, the same can be treated as a wilful breach of an undertaking given to the court within the meaning of civil contempt under the Contempt of Courts Act, 1971. A serious breach could also fall within the meaning of criminal contempt. A notice should also be issued to all news channels/websites to refrain from taking/using still photographs from the live proceedings.

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