Senior Advocate Indira Jaising has moved an application before the Supreme Court for a direction to the Supreme Court in the administrative side to frame rules under Article 145(1) for live-streaming of matters of national importance.
The bench headed by Justice Indira Bannerjee on Friday issued notice on the application, as well notice to the Secretary General of the apex court.
Jaising also urged the Supreme Court to direct the live-streaming of all Constitution Bench cases like Kashmir (abrogation of Art 370) and Sabarimala reference matter pending framing of the rules.
Pointing out that a five-judge bench and a nine-judge bench are scheduled to hear the challenge to the abrogation of Article 370 and the issue of intersection of religious practices and fundamental rights respectively (in particular the Sabarimala Temple entry case, the practice of Female Genital mutilation by the Dawoodi Bohra community and the right of a Parsi woman married to a Hindu to participate in the funeral rites of her father in the Fire Temple), Ms. Jaising has stressed that the court implement its 2018 Swapnil Tripathi judgment which recognised the live streaming of proceedings as an extension of the principle of open courts and access to justice.
Being a petitioner-in-person in the main matter herself, she has submitted that the technological infrastructure for the live streaming and the recording is easily available and should be deployed at the earliest, irrespective of the framing of the rules for the same on the administrative side of the court. In a separate but concurring opinion, the then Chief Justice Dipak Misra and Justice A. M. Khanwilkar in Swapnil Tripathi judgment agreed that by way of a pilot project at-least a specified category of cases or cases of national or constitutional importance being argued for final hearing before a constitution bench be live streamed.
It is further averred that while in Swapnil Tripathi a model set of guidelines was proposed for this live streaming and video recording, the court continues to be empowered under Article 145 to frame rules in this behalf, and it is prayed that the requisite rules be laid down expeditiously on the administrative side.
In the 2018 decision, the basic issues which the court said should be kept in mind are:
(A) 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. For that, permission of the concerned Court will have to be sought in writing, in advance, in conformity with the prescribed procedure.
(B) Prior consent of all the parties to the concerned proceedings must be insisted upon and if there is no unanimity between them, the concerned Court can take the appropriate decision in the matter for live streaming of the court proceedings of that case, after having due regard to the relevancy of the objections raised by the concerned party. The discretion exercised by the Court shall be treated as final. It must be non-justiciable and non-appealable.
(C) The concerned court would retain its power to revoke the permission at any stage of the proceedings suo motu or on an application filed by any party to the proceeding or otherwise, in that regard, if the situation so warrants, keeping in mind that the cause of administration of justice should not suffer in any manner.
(D) The discretion of the Court to grant or refuse to grant such permission will be, inter alia, guided by the following considerations:
Unanimous consent of the parties involved,
Even after the parties give unanimous consent the Court will consider the sensitivity of the subject matter before granting such permission, but not limited to case which may arouse passion or social unrest amongst section of the public,
Any other reason considered necessary or appropriate in the larger interest of administration of justice, including as to whether such broadcast will affect the dignity of the court itself or interfere with/prejudice the rights of the parties to a fair trial,
(E) 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.