Live and let Live: The Supreme Court releases draft rules for live streaming of court proceedings

tl;dr

Draft Model Rules for Live-Streaming and Recording of Court Proceedings have been released by the Supreme Court’s e-Committee. The Rules make provision for a vital public service, i.e. live streaming of court proceedings. IFF welcomes these Rules and expresses its strong support for their implementation. However, at the same time, we caution that the Rules in their final form can strike a better balance between litigant/witness privacy and the public interest in disclosure. Public comments on the draft are invited by the e-Committee until June 30, 2021.

Background

The Supreme Court’s e-Committee released Draft Model Rules for Live-Streaming and Recording of Court Proceedings on May 28, 2021 (the Draft Live-Streaming Rules) and sought public comments on the draft until June 30, 2021. This is a huge step for transparency in the judicial process, and will bring much greater accessibility regarding the higher judiciary for the ordinary public. This has been made possible by the advocacy of Ms. Indira Jaisingh and her team, particularly in the matter of Swapnil Tripathi v. Supreme Court of India and others.

In that petition, it was argued that the right to seek and receive information including live streaming of proceedings from the Supreme Court is a fundamental right guaranteed under Article 19(1)(a) of the Constitution; the move will strengthen public confidence in the Judiciary by furthering transparency and the principle of Open Justice; and that recording and live streaming the proceedings of cases of public importance would completely negate the chances of any misreporting

These arguments were accepted by the Supreme Court, which held that open trials and access to the public during hearing of cases before the Court is an accepted proposition, and that live streaming of Court proceedings can allow the public to witness live court proceedings.

What’s in the Rules

The Draft Live-Streaming Rules contemplate setting up hardware and software capabilities for the live streaming of judicial proceedings, as well as laying down the guidelines for such streaming. In a commendable step, this will be applicable to all courts in India, including all district courts of India, and not just the High Courts and Supreme Court.

The Draft Live-Streaming Rules also state that all proceedings in all courts will be Live-Streamed, unless they fall within one of the following exceptions:

1. Matrimonial matters;
2. Cases concerning sexual offences and/or gender-based violence against women;
3. Matters registered under the Protection of Children from Sexual  Offences Act, 2012 (POCSO) and under the Juvenile Justice (Care and  Protection of Children) Act, 2015;
4. In-camera proceedings;
5. Matters where the Bench is of the view, for reasons to be recorded in writing, that publication would be antithetical to the administration of justice;
6. Cases that may provoke enmity amongst communities, and are thus likely to result in a breach of law and order;
7. Recording of evidence, including cross-examination;
8. Privileged communications between the parties and their advocates and non-public  discussions between advocates; and
9. Any other matter in which a specific direction is issued by the Bench or the  Chief Justice.

This may seem like a large number of exceptions have been carved out, but it still leaves almost all criminal and civil matters available for streaming. All constitutional matters and matters of public interest will now be streamed under the Rules, though it is clarified that streaming may sometimes be restricted to final arguments only.

Where the cases are not live streamed, video recordings of the proceedings will still be made for the exclusive use of the Court and for any Appellate stages that the case may reach. However, no guidelines for the safety and privacy of such recordings have been provided. This is of particular concern, because this includes sensitive cases such as those involving sexual offences and gender-based violence, where maintaining confidentiality is of utmost importance.  It’s also worth notice that India does not yet have a data protection legal regime. The Draft Live-Streaming Rules do clarify that in criminal matters, the testimony of victims and witnesses will be maintained in the Recordings via dummy names, face-masking, pixelation and/or electronic distortion of voice. However, this is subject to the logistical and technical capability of the Court. There is no guidance for when a Court is unable to secure such solutions to protect anonymity for victims and witnesses. Ideally, in these scenarios, the Rules should clarify that if the victim’s or witnesses’ identity cannot be protected by use of such measures, then the Court shall not make and save recordings of Court proceedings.

All parties and their lawyers will be informed before the beginning of the proceedings that the proceedings will be live streamed, and they will have an opportunity to object to the live streaming at any stage of the proceedings, including if they initially agreed to the proceedings being live streamed. The final decision will, however, rest with the judges, and this decision cannot be appealed.

The Live-Streaming Rules also lay down what will NOT be recorded in proceedings which are live streamed

The Live-Streaming Rules have also identified certain aspects of proceedings that are not to be recorded or streamed, such as discussions amongst judges; instructions given by a judge to the administrative staff; any communication/message/document given by the Court Master to the Bench; notes made by judges and advocates; and communication between the advocate and client, inter-se the advocates, and communications which is not a submission exchanged between the advocate and the Court. In such cases, the monitor will  display the message: “Live-streaming paused as per applicable Rules”.

Personal information such as dates of birth, home addresses, identity card numbers, bank account information, etc. will be deleted or muted during streaming. The advocates and litigants-in-person can also request the judges to redact personal and sensitive information from the recording.

Audio-video recording or recording of Proceedings by any other means is expressly prohibited. This means that only the cameras installed pursuant to these Rules can be used. No media or news channels can bring their cameras for recording purposes, nor can individual persons in the Court switch on their phone cameras to take recordings. The Court’s live stream can also not be transmitted, modified or re-published in any form at all. Doing so can invite prosecution under the Information Technology Act, 2000 and/or the Indian Copyright Act, 1957.

Hardware will need to be upgraded at all our Courts

Coming to the logistics of how this will be achieved; the Courtroom will have cameras covering at least five angles: one towards the judges, two towards the advocates, one towards the accused (if any) and one towards any witnesses that may be called to Court. The judge will be provided a remote control and the power to pause/stop the live stream at any point. Technical experts will also be present in each court room, to enable the live streaming.

A dedicated control room is sought to be established in every Court, with a team of technical experts, supervised by the Registrar (IT), who will monitor Court Proceedings and ensure that nothing “uncivil or inappropriate” is streamed in the public domain. The Draft Live-Streaming Rules have not defined or clarified what is meant by “uncivil or inappropriate”, and this appears to be vague and open to interpretation by the technical team at the control room.

The recordings of the live-streamed proceedings will also be saved and stored (for at least six months) on the Court’s website. This is to be done within three days of the conclusion of the proceedings. However, there will be a delay of ten minutes in the transmission of the live-stream. The Live-Streaming Rules do not specify why this delay requirement has been inserted in the Rules, but a good assumption is that this is to enable the dedicated control room and the technical experts to determine which parts of the recordings can be streamed, and which parts are to be redacted.

Impacts/Concerns

All in all, this is a hugely welcome step, and we are in strong support of the move to stream legal proceedings live. This will boost transparency, accountability, foster public trust in the justice delivery institutions, and go a long way in improving the legal literacy of the general public. It is indicative of the e-Committee’s commitment to work towards bringing overall improvements to the judiciary.

However, any such move must properly achieve the balance between privacy and the public interest. In our opinion, small amendments are still required to improve this balance, though we are cognisant that the Live-Streaming Rules have made a clear and mindful attempt to strike such a balance.

1. Tighten the language to avoid arbitrariness: For example, Rule 3.2 that requires the DCR to ensure that nothing “uncivil or inappropriate” is streamed in the public needs to be tightened and language needs to be clarified. It cannot be left to the discretion of technical experts to decide what is uncivil and what is inappropriate. The Rules can be much more clear on laying down the standards for this.
   
2. Tighter protections for victims/witnesses: In cases where anonymity of victims and witnesses cannot be maintained in the recordings via dummy names, face-masking, pixelation and/or electronic distortion of voice for reasons of technical glitches or logistical failures, there is no guidance on how the DCR is to proceed. It should be clarified that the proceedings will be adjourned until such issues are resolved. Otherwise, technical staff may proceed with the recording without adequate protections.
   
3. 10 minute delay in streaming: Similarly, the requirement for there to be a ten-minute delay in streaming under Rule 8.3.i. also does not provide any standards or objectives sought to be achieved by such delay. The delay may well serve the legitimate purpose of ensuring that no inappropriate content is streamed, but without clear guidelines on how the time is to be used, such a provision is open to misuse.
   
4. No provision to secure personal data: Since the recordings concern legal proceedings of individual litigants, including criminal proceedings, they are likely to contain sensitive personal data. In fact, even the participation of an individual in a criminal trial may in itself be sensitive information. While the Rules include detailed provisions for what sort of information has to be screened from streaming publicly, they are less clear on what sort of information can be screened from recording at all. Since all recordings are to be saved for at least six months under Rule 7.4, there also needs to be clarity on how this data will be secured. This is of particular concern since India does not have a data protection regime.
   
5. Extensive efforts required to put rules in practice: Finally, since the Live-Streaming Rules also apply to all district and sessions courts in rural India, special care is required during the implementation of the Rules to upgrade and upkeep the electronic infrastructure there. A whole team of technical experts will be required for every courtroom in every court house in every local jurisdiction in India. This will require an extensive recruitment and training exercise, which will be crucial in the operationalisation of the Live-Streaming Rules.

Please give your comments!

This is the second such document that the e-Committee has released in the past couple of months. In April 2021, the e-Committee released the Draft Vision document for Phase III of eCourts Project. We submitted our comments to that document with the e-Committee. Similarly, we will also submit our comments to the e-Committee regarding these new Draft Live-Streaming Rules. We will update you when we do.

We believe that in a democracy, it is the civic duty of each and every individual to strengthen our democracy by encouraging and participating in consultative processes. We encourage you to share your comments to the Draft Live-Streaming Rules with us on our forum and tell us what you think, and also to independently offer your comments and suggestions to the e-Committee via email at the official MyGov link.

Important Documents

1. Copy of the Draft Model Rules for Live-Streaming and Recording of Court Proceedings (link)
2. Previous blog post dated 13 April 2021 titled “Buffering Justice : A call for greater participation in the Draft Vision Document for Judicial Digitisation” (link)
3. Previous blog post dated 13 May 2021 titled “Ensuring Equity, Accessibility and Transparency in Court: Our Comments on the Supreme Court's Draft Vision Document” (link)
4. Previous blog post dated 12 May 2021 titled “We write to Supreme Court e-Committee to improve the eCourts platform” (link)