While reserving order on interim relief on a plea by 4 Legal Journalists who have moved the High Courts seeking permission for Live-reporting, the Madhya Pradesh High Court on Wednesday that it is undisputed that journalists have a right to report and access to Court proceedings going live.
A Division Bench of Justice Prakash Srivastava and Justice Virender Singh orally observed that the Right to Live report the court proceedings cannot be disputed, however, the bench also remarked that the matter could be sent to the E-Committee as a representation of the Journalists so that it could take a concrete decision on this matter.
The journalists, Nupur Thapliyal (Legal Correspondent, Live Law), Sparsh Upadhyay (Special Legal Correspondent, Live Law), Areeb Uddin Ahmed (Legal Correspondent, Bar, and Bench), and Rahul Dubey (Legal Correspondent, Dainik Bhaskar) have challenged the MP Video Conferencing & Audio-Visual Electronic Linkage Rules, 2020 to the extent they preclude 'third parties' from accessing virtual court proceedings and cause difficulty to media persons in real-time reporting on a public forum for citizens.
The petitioners were represented by Senior Advocate Mr. Nidhesh Gupta assisted by Advocate Manu Maheshwari. Mr. Aditya Adhikari, Senior Counsel, appeared for the High Court of Madhya Pradesh which is the respondent.
Justice Prakash Shrivastava: The E-committee of the High Court is actively considering the aspect of Live Reporting and once the live streaming starts then the journalists, litigants and everybody would have easy access to the Court's proceedings. Therefore, let the E-committee take the decision, which is in the process of doing and evolving a mechanism.
Sr. Advocate Nidhesh Gupta: The whole issue is about the arrangement in the interregnum. Live-streaming of all the Courts for the journalists and the litigants to attend may take a while or maybe a much longer time, so, on the meanwhile, the journalists must be permitted to attend the live hearings of the Courtroom proceedings in the matters they want to attend.
Mr. Gupta also argued that since there is no mechanism or arrangement, which may enable the Journalists to join easily the Court proceedings, they have to join with false identities or pseudo-names.
He also submitted that it is a question of rights under Article 19(1)(a) and that Live-streaming is an entirely different issue from the right of journalists to access live proceedings and to report them on a real-time basis and the two be not confused by the Court.
Justice Prakash Shrivastava: Tell us where is this right expressly provided to the journalists under the Constitution, the Judgment of Swapnil Tripathi is about live-streaming and in so far as access to journalists is concerned, the E-committee is in the process of revising the Rules. You will have to make out an immediate case of denial of the fundamental right to report to the journalists for claiming interim.
Sr. Advocate Nidhesh Gupta: The Supreme Court in the Chief Election Commissioner Case, in a Bench led by Justice Chandrachud, has clearly held that the journalists have a right to report even dialogues, discussions, oral observations of the Bench as they constitute part of the 'Court Proceedings' and resultantly, are covered within the ambit of freedom of speech under Article 19(1)(a).
Justice Prakash Shrivastava: This Writ Petition can be treated as a representation to the E-committee and the E-committee will decide appropriately after considering the grounds in the Writ Petition. After all, even the Supreme Court has also said that the E-committee must take an expeditious decision.
Sr. Advocate Nidhesh Gupta: It would be a complete abdication of duty on the Court's part if in judicial proceedings a rule is being challenged (Rule 16 in this case) and the High Court refers it to the administrative side to be decided by some Committee.
Mr. Gupta further argued that if the rule is challenged on the judicial side in judicial proceedings, the challenge has to be dealt with and adjudicated on the grounds of challenge and cannot be referred to the administrative side. Therefore, there is no question of referring the matter to the E-committee and the prayer for interim relief must be decided on the anvil of Article 19(1)(a) and the judgments of the Supreme Court in Swapnil Tripathi and CEC Cases.
Arguments made by the High Court's Counsel
- The Writ Petition is premature as it has been filed, when the E-committee is yet to take decision on these aspects. The E-committee of the High Court is considering and delving into the issues of live-streaming and providing access to litigants and other parties who are interested.
- As of today, rules which are challenged under Video Conferencing Rules stand and through an interim order their operation cannot be stayed. The granting of interim relief would tantamount to granting the final relief, and therefore interim relief cannot be granted as asked for.
- Even otherwise, no person can claim a right to access virtual Court proceedings which are essentially private in nature between the Counsel and the Court. If the joining links and access are provided in an unrestricted manner, then it would create difficulties for the Court as we will have seen what happened in Juhi Chawala Episode before the Delhi High Court. Outside persons unconnected with the matter cannot be allowed to attend the proceedings being strangers to them.
- As of today, preparations for live streaming are being made. It will create extreme difficulties for the whole institution and will in the long run lead to a chaotic situation for the Courts and Judges. Transparency has its own limits and the proceedings cannot be thrown open to each and every journalist or stranger to the proceedings to come and watch anything and everything.
- The view of the Supreme Court as argued by the petitioners cannot be treated as generic and it is fact-specific limited to the facts of the case in a particular matter. It cannot be generalized to include all and every proceedings, randomly.
Reply of Senior Advocate Nidhesh Gupta
Stressing that the process of law cannot defeat the purpose of the law, Mr. Gupta argued that Section 327 CrPC and 153 (B) CPC clearly mandate the Court proceedings to be open and that the Video Conferencing Rules cannot come in the way to defeat the purpose and objectives of these provisions and make virtual Courts opaque.
Further, when Mr. Adhikari (for the High Court) said that he received the copy of the petition yesterday only, and he needed to file a detailed reply to the present petition, which will take time as there is a challenge to the Video Conferencing Rules, Mr. Gupta informed the Court that the High Court was served with the advance copy on May 24, 2021 and it had been almost 17 days since they were served.
Importantly, Mr. Gupta remarked that the matter has been circulating throughout on social media & widely reported and even all the Judges and Advocates know about these proceedings. The High Court should behave like a model litigant having responded timely.