Daily Times

In a remarkable development, the Indian Supreme Court in Swapnil Tripathi’s case, entertained and accepted petitions seeking declaration that Supreme Court proceedings of “constitutional importance having an impact on the public at large” should be live streamed in a manner that is easily accessible for public viewing. In addition, directions were given to frame guidelines to enable determination of exceptional cases that qualify for live streaming.

The path breaking opinion of the court, authored by Justice A.M. Khanwilkar, expands upon right of free speech as well as expression, other associated rights and protected values under Article 19 of the Indian Constitution. Such as, in so far as press is concerned, right to occupation [Art. 19(1)(g)], movement [19(10(d)] and “right to publish a faithful report of the proceedings which [journalists] had witnessed and heard in Court.”

The Court, in addition, delved into the wisdom of open courts: “Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice…” The Court deliberately emphasized on access to justice, a substantive right of citizens in all democracies, that flows from Article 21 [Protection of life and personal liberty] in the Indian Constitution and added; “concept of justice … would be meaningful only if the public gets access to the proceedings. as it would unfold before the Courts … This would educate them about the issues which come up for consideration before the Court on real time basis.” If the courts do not accept a plea of ignorance of law, then there is a corresponding duty of the organs of the state to spread awareness of rights and obligations.

First and foremost, consensus needs to be developed in Pakistan that, in principle, live streaming of court proceedings and releasing of court transcripts, is in accord with the principles of access to justice

Taking a leaf out of India, we too need to appropriately amend existing Supreme and High Court rules. Like the Indian Supreme Court notes this is quintessential so that “majesty” and “dignity” of the Court is preserved. Not just that that, there are issues of privacy and confidentiality of the litigants or witnesses that need to be factored in before any proceedings are qualified for live streaming to public at large. In addition, there are certain proceedings for the purposes of national security or any other statutory enactment that must be held in-camera. Therefore, any rules that are framed or amended must also provide for instances of such derogation or exceptions. Courts in the UK, Canada, Brazil, Germany and Australia allow live streaming under the enabling regulatory framework. India has joined that club. It’s about time, Pakistani courts caught up!

The next issue the Court in Swapnil Tripathi’s case expands upon is the preparing and releasing of transcripts, as record of the court, to public. SCOTUS in the US has allowed audio recording of oral arguments since 1955. Presently, SCOTUS releases same-day audio transcripts of oral arguments and audio recordings of all oral arguments at the end of each week. Preparing transcripts and audio podcasts of the entire court proceedings, including oral submissions before the courts, is equally important, if not more. Every litigator would tell you, that the court, depending on the muse, takes a different approach to the same proposition or issue on every fresh hearing (especially if it is after a long break) or that important submissions are not reflected in the written orders or at times observations of the judges don’t manifest in their written orders. Sometimes courts are consistent. But absent any check, what is stopping our courts from inconsistency?

First and foremost, consensus needs to be developed in Pakistan that, in principle, live streaming of court proceedings and releasing of court transcripts, is in accord with the principles of access to justice. The policy part that follows, outlining how that must be achieved isn’t difficult to thrash out. Executive departments and the Bar Councils have a significant role to play in this regard. And we hope that unlike in India, this matter does not end up at the Court’s docket for it to issue directions; rather, other coordinate branches actively play their role in advancing administration of justice in these modern times.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn