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
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
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
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
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.
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
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:
- The case to be filmed will be selected by the Chief Justice.
- 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.
- No direct public expense is to be incurred for wiring, or personnel
needed to provide media coverage.
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
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
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:
The Court also directed that:
- 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.
- 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
Until a full-fledged module and mechanism for
live streaming of the court proceedings of the Supreme Court over the
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
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
The relevant guideline for the purpose of the Circular dated 15.4.2020 is the
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
- The recordings and broadcast may not be used by anyone for commercial
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
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.
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